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As the 2024 election draws near, critical issues that directly affect law enforcement are taking center stage in national discussions. Crime reporting, immigration, drug cartels and public safety reforms are just some of the key topics that could see dramatic changes depending on the outcome.
In this special election episode of the Policing Matters podcast, host Jim Dudley and retired New York State Police Investigator and Professor Terrence Dwyer delve into how the 2024 election might impact policing in America. The conversation covers a wide range of critical issues, including the handling of ghost guns and red flag laws, the consequences of a porous border and drug cartels, and the role of executive orders in shaping law enforcement policies. Dwyer shares his extensive experience as a former investigator and current professor to offer insights into how officers are coping with staffing shortages, crime trends and public safety reforms. The discussion highlights the pressing need for changes in crime reporting systems and the importance of protecting the mental and physical health of officers on the frontline.
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Key discussion points
- Election impact on policing: The outcome of the 2024 election could significantly affect crime laws, immigration policies and public safety reforms, all of which have direct implications for law enforcement.
- Ghost guns and red flag laws: Both issues are at the forefront of legal battles, with the Supreme Court set to decide on the future of ghost gun regulations and ongoing debates about the constitutionality of red flag laws.
- Crime reporting challenges: Inconsistent crime reporting, particularly under systems like NIBRS, complicates public understanding of crime rates and affects how law enforcement strategies are developed.
- Officer retention and stress: Amid rising crime and reduced staffing, law enforcement agencies are struggling to retain officers, many of whom feel overworked and unsupported in the face of mounting challenges.
- Community engagement: Successful law enforcement requires stronger ties between officers and communities, emphasizing the need for better public health partnerships and grassroots efforts to combat drug crises and violent crime.
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Episode transcript
Jim Dudley: We have a special election show today discussing the upcoming election. So many issues are surrounding your city, county, state, and of course nationally, with our leader in the White House being elected. And depending on who — not even mentioning names — but depending on who gets in the big chair at the White House, what could the implications be on law enforcement? We’re talking about key issues today ranging from drug cartels, ghost guns, crime issues, immigration, court rulings, and others as they impact law enforcement. And who better to talk to than today’s guest? With the election soon upon us, several law enforcement issues may be affected by whoever wins across America. And today, I’m speaking with Terrence Dwyer, retired from the New York State Police Department after a 22-year career as a trooper and investigator. He’s now a tenured professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in disciplinary cases, critical incidents, and employment matters. He is the author of “Homeland Security Law: Issues and Analysis” from Cognella Publishing, and we have a link and a picture of the book cover in the back — one of several that he’s written. Hey, welcome back to Policing Matters, Terrence Dwyer.
Terrence Dwyer: Thank you. Thank you. Glad to be here.
Jim Dudley: Thanks for coming on the show again. This time we’re going to talk about some real issues — substantive issues — that may be in the balance of change depending on the outcome of the 2024 election here in the US. Well, crime issues should be our number one topic overall. What could or what would one party or the other do to address crime issues in America? And, you know, I think part of the problem is we don’t have really accurate reporting. And of course, the pundits make a hay over saying crime is up or crime is down. Shouldn’t we start by fixing the FBI Uniform Crime Reports and the NIBRS reporting system, neither of which is compulsory? I get that. But our crime statistics vary depending on the source. Could financial incentives or mandates be tied to mandatory reporting by departments? Why aren’t we reporting mandatorily?
Terrence Dwyer: Yeah, good question. First, to start off, I mean, every election cycle there are two issues that seem to always be at the top of the public’s concern, and that is the economy, which is number one, and always following close behind is crime. And this election cycle is no different. Polls show that, of course, it’s the economy. First it was inflation, that seems to be going down, but overall the economy, and then the crime issues. Interestingly enough, there was a study that was done regarding public perception of crime. And actually, the study found that the public kind of got it right. So just intuitively, they were pretty close to most of the issues that are out there. Regarding the UCR and NIBRS, I believe — I’m a firm believer in the old Samuel Johnson quote, “There are three types of lies: lies, damn lies, and statistics.” You know, any one of these reporting systems are only as good as the data that’s fed into them. NIBRS is supposed to be a better system, a more accurate view of crime, not a summary crime report like the UCR. But as you mentioned, the reporting is an issue. It’s not mandatory that we switched to NIBRS in January 2021. The FBI’s UCR unit is pushing the NIBRS system, but there are problems as far as reporting. Most of the big cities are reporting, they have the resources, they have the funding. Interestingly enough, NYPD is still not totally on the NIBRS system, but they’re working on it, or they may actually be by now. But the big departments are doing it. It’s the smaller departments, and that becomes a funding issue. That becomes a personnel issue. That becomes a training issue. That becomes a technology issue. Financial incentives? Sure, but in that regard, it’s not so much “reward you for doing it.” I believe, “sanction you for not doing it.” That would seem to be — if you’re talking about anything in terms of financial — but the government, if you want an accurate reporting system, has to help those smaller agencies that don’t have the funding. And let’s face it — I know we’re going to be talking about it later, but we’re short-staffed out there right now. Departments are straining to fill shifts. There are officers, from what I’ve heard and talked to students I teach that are now out in the field, they’re tired. They’re tired. They’re putting in 80-hour weeks, some of them just with overtime, and that’s not sustainable. So, then to add on to that, “Hey, by the way, you have to report and here’s our reporting system and here’s the different categories, and here’s how it has to be separated,” everything else — that becomes a pretty heavy burden. NIBRS is more accurate and will give us a better view of crime statistics. But again, you know, you’ve heard the term “juking the stats,” you know, the stats can always be — and we’ve had in the past, under the UCR, we’ve had issues with major departments and well-known police executives that were caught in juking the stats, you know, lowering the crime. Big cities don’t want high crime rates because they’re not going to get conventions, they’re not going to get tourists. But again, the American public knows, just intuitively, every cop out there knows from experience what the crime rate is. Just ask any cop in their patrol area, they know. They can tell you. They don’t need the statistics. They’re the ones going to the calls. I had a former student in my office today — not today — last week, I’m sorry. Shift supervisor in a municipal department, he says he goes into work on the evening shift, the 4-to-12. He’s already 70 calls backed up for his people. So, and this is not a major city. This is maybe a mid-sized, smaller city on the East Coast. So, departments are stretched thin as it is. So, we have to find a way for them to get the funding, to get the training, to get the technological infrastructure — if they don’t have it — to accurately report. And then what those statistics tell us drives policing strategies and so many other things that law enforcement deals with out there.
Jim Dudley: Yeah, and I mean, I tell my own students that probably the best indicators of crime stats are homicides and robberies, probably most reported. Of course, homicides, there’s usually a body attached to it. Even those numbers across reporting systems — I mean, after 2020, we thought that maybe homicide was down, but then we looked at some of the biggest reporters, I think Chicago, LA, and New Orleans, some of the cities with the highest or higher numbers of homicides still hadn’t reported to the system. So we’ve got to take those even with a grain of salt. You know, every statistic, like you said, should have an asterisk with a little explanation — maybe a paragraph underneath — of which major cities didn’t report. You know, there’s that old example that says if we took seven of our highest reporting homicide cities, that we would drop from number two or three in the world down to, you know, in the close to a hundred on down the list. So those are significant numbers.
Terrence Dwyer: Sure, absolutely. And how homicides get reported has changed from the UCR to a NIBRS system because, under the UCR, justifiable homicide still gets recorded as a homicide, where in the NIBRS system, it doesn’t. So, if you have a homeowner shoots an intruder in their home and it’s justifiable, it’s still going to get counted as a homicide. So, that’s going to skew the numbers. I mean, not significantly, but still it’s going to impact. So, the NIBRS system is going to be more accurate. But you’re correct — look, you ask the American public what are the major crime concerns, and we know it’s violent crime and it’s gun crime. Anything you read, gun violence and violent crime, in general, is up there. And fentanyl — the fentanyl crisis is out of control. And then the organized crime situation. You know, transnational organized crime has changed from my days working in New York City chasing four to five crime families in the traditional Mafia structure and then going a little bit into some of the, back then, the up-and-coming, the Russian organized crime’s influence and some of the drug groups — major drug groups. But I mean, transnational crime has changed. And I think the whole overview of it — what we’re dealing with in the country — is markedly different from many, many years ago back in the ‘90s when I was working in New York City doing, you know, mob cases.
Jim Dudley: Yeah, for sure. And we will get to gangs, and we’ll get to the drug issues, especially when we talk about, again, with the upcoming election, some of the social experiments being voted on. And we’ve seen Oregon pull the trigger backward from 2020 when they essentially legalized drugs in the state of Oregon. They saw what a disaster that was. In just January of 2024, they voted to repeal it. We’ve here, on the West Coast, in California, we’ve got some similar ballot measures that might peel back or at least modify some of those decriminalization legislations. But immigration — now we know that the border is porous. The recent declines of numbers coming into America have reportedly been lessened. But do we just change the terminology by adding, you know, the quote, “TPS” or the temporary protected status or otherwise other asylum sanctions to reduce the numbers? I just read this last week that assault cases against border agents — Border Patrol agents — are just coming to fruition now, that they’re prosecuting people who have assaulted Border Patrol agents at our southern border. Can we expect anything different with the upcoming elections?
Terrence Dwyer: Well, I mean, let’s first start with immigration. Every country has a right to protect its borders. I write about that in my book, “Homeland Security Law.” With that being said though, there are certain other issues involved. It’s not — we know it’s not a simple issue, right? And you bring up temporary protected status, so let me address that. That’s a designation given to individuals who are fleeing countries because they are war-torn or because there’s a natural disaster. And then also I want to bring up refugees because, in the past, there have been restrictions on refugees. We’re a signatory to the 1967 protocol that supplemented a 1951 convention on refugees in international law. We’re a signatory to that. Not only that, we have Public Law 96-212 from March 17, 1980. So, our own domestic law says that we have to take in, you know, refugees. And we are — I think last I checked, this was a while ago — but we were one of the leaders in the world as far as opening our doors to refugees. And we can point to many individuals that are here because their families are escaping persecution somewhere in some country. Most of us are. I mean, I’m second generation, my wife is first generation. You know, Ireland — my grandfather came here escaping issues in Ireland in the early part of the 20th century. I have students whose families are, you know, have escaped things in Eastern Europe and in Central America. But you don’t get temporary protected status unless you meet specific legal requirements. If you’re convicted of a felony, you’re not going to get TPS. If you’re not a national of the nation you’re claiming TPS from, you’re not going to get it. And also, if you’re not from one of those nations that are listed — I have a list in front of me of the nations. They go from Afghanistan to Burma, Myanmar, Cameroon, all the way down to Ukraine, Venezuela, and Yemen, right? So, there’s a list of countries, and you have to meet those specific protocols.
The problems that we’re encountering and the crime problems I believe that we’re encountering is the ones that always — you know, the “getaways,” the ones that got away. You talk to Border Patrol agents and they’re going to tell you, yeah, for every one we get, how many get across? For every fentanyl seizure or drug seizure, how many get across? I mean, that’s been the drug game for years. The War on Drugs — I came up on a job during the War on Drugs. I remember when crack came out. I remember when it hit the street. I remember being a young uniform trooper. We patrolled a municipal area — pretty suburban, heavy, densely populated area, not right outside New York City, and crack was everywhere. It’s changed. The whole drug importation has changed. The cartels — we’re dealing with two major cartels out of Mexico: the Sinaloa cartel and the — I can’t think of it — oh, Jalisco cartel. They’re sophisticated. They’ve got more money than the government is throwing at the problem, and they also have access to personnel. They can replenish personnel. They’re one of the major employers, and they’re training their people. They’re training them in counter-surveillance. They’re training them in a lot of techniques. So, our Border Patrol agents are facing quite a daunting task. Our police agencies at the borders are facing quite a daunting task with the flow of drugs over the border. And there are going to be people that say no — you can go back and forth on this issue — most drugs are caught at the entry points, whatever. Most of the drugs are smuggled through entry points. I mean, sophisticated trafficking networks. We have to arm our people with the resources, with the technology to counter that. And we also have to do it through laws that restrict — the immigration scheme has been broken in this country for years.
And I can just give a quick anecdote. Back in January 2001, I had an informant. I had a Middle Eastern informant, and I was doing recorded calls for an 8-month period with all sorts of crimes in our patrol area as an investigator. During that time, he was a Coptic Christian, subject to a ban in his country back in Egypt. 9/11 happens, right? I get one of my targets locked up and in the federal facility, only to be on the verge of being released by a district judge who he bamboozled. And I had to go to the Assistant U.S. Attorney and keep him in. Meanwhile, I had to run down to Manhattan from a shift and testify at an immigration hearing. They were trying to throw my informant out of the country — a registered New York State Police informant who was working with us — and some technical issues with his whole green card and everything else. But he was on the verge of being deported, meanwhile, an individual I had arrested for felony offenses in the United States was getting ready to be released. And if it wasn’t for me getting a very good Assistant U.S. Attorney and telling him what was going on, we were able to stop it. And my informant got it. And I realized back then, the system is screwy. You’re keeping the wrong people; you’re throwing out the right people. And my informant now is a hardworking individual, a naturalized citizen, living the American dream, adding to the economy, doing quite well, married with children and everything else. So, the system has been broken for years.
But I don’t think the issue has been in changing, you know, the designation TPS or whatever. These are people that are allowed to be here under our laws for stated reasons, and they have to meet these requirements. It’s the ones that get away. It’s the networks that are operating in our country. I mean, look, the Mexican cartels are operating in every major city, and they have individuals in every major city, and they easily go back and forth across the border. So, I think we need to take Border Patrol agents away from maybe processing individuals to out there, and I think that’s what the Border Patrol agents want — let us do our jobs, let us enforce the law, enforce the border protection, and maybe add more to the Border Patrol as far as personnel. But a nation has a right to protect its borders. Every nation has a right to protect its borders. And I think that’s what gets lost in the conversation. Now, whether a wall is the answer or not — I mean, there is construction there, it’s still not done. But I guarantee you, even if there’s a wall, we’re still going to have these problems.
I did read an interesting article, and it dealt with the issue in Mexico, and it did extensive studies and a statistical analysis by a former Mexico police officer. It was one article, and there was another article, but it said really the best way to weaken the cartels is to provide more jobs for individuals in the Mexican economy because they’re like the fifth-largest employer or something like that. They’re up there. Which is great, and it sounds good. The cynical part of me still says, you know what, the cartel is going to offer more money. So, I don’t know, but it’s just an interesting analysis because you are dealing with individuals in incredibly impoverished countries with high crime rates, high homicide rates all across Central America, that are looking for work, they’re looking for basic work needs to support their families. The cartels, at quite a risk, are offering that. You know, there’s a high reward but high risk in that line of business. But it’s an issue that’s been trying to be addressed for the last decade or more. I really don’t know what the answer is, but certainly, we cannot handcuff our own people that are charged with that enforcement responsibility. The Border Patrol needs to be out doing their job, patrolling the border, not processing individuals. But we’re just overwhelmed at the borders in some areas. So, it’s above my pay grade as far as a solution, but the thing with temporary protected status and refugees — there’s domestic law, there’s international law, where we’re signatory to certain treaties. So there’s no end around with that. And I don’t think it’s any kind of evil, you know, well, labeling them here because most of the people here with TPS status are in communities where there is some support network, and there is a framework to help them. And I’ll be honest, I’ve had some of those — I’ve had some of the children of those individuals in my classrooms, and one thing I can uniformly say is that by and large, they’ve been wonderful students. You know, they’ve been good, because we have a big population from Central America in our area, and different areas, very diverse area. But you know, people just wanting to get ahead, sort of deal. So, it’s interesting that, you know, we can point at refugees and temporary protected status, this and that, but it’s really the criminals we have to focus on. And that’s the thing — where the criminals are getting away, they’re somehow getting through.
Jim Dudley: Yeah, and I mean, going back to, you know, you talk about Jalisco and Sinaloa and the drug cartels that are also getting their people up, probably not through the TPS but the getaways, as you talk about. And you know, we’re trying to use these strategies of sending money back to their country of origin to say, “Stay here, don’t come up.” And it’s kind of that similar strategy that we use with our own inner-city drug dealers, saying, “Here’s a job at McDonald’s for you, you know, six bucks an hour when you’re making a thousand or more, you know, sitting on a street corner for a couple of hours.”
Terrence Dwyer: Absolutely. And the one thing I learned when I was on the job and doing — I spent 17 and a half years as an investigator in the Bureau of Criminal Investigation, and I worked a large chunk of that doing organized crime cases and then homicide cases in Major Crimes towards the end of my career. But one thing I noticed is that there’s a large underground economy. A large underground economy. I mean, you just go into neighborhoods and you talk about local numbers games, the illegal gambling, and you just keep going up from that. So, the legitimate economy has to compete with the underground economy, and there are many people that have existed in this country just based upon an underground economy. And it’s not going to be taxed, and it’s going to be more lucrative for them. So, and there’s a lot of money out there. A lot of money out there.
Jim Dudley: Yeah, and we have our own built-in protections, ironically. You know, I was looking at the cover of your book, and it is a portion of the wall on our southern border, but we have our own sanctuary cities in America. We have California as a sanctuary state. And some of the frustration by law enforcement officers has been, we have three, four, five strikers that remain in California, despite being convicted of dealing drugs. And here we have a phenomenon of people being absolved of the crime if they can say that they were coerced into selling because their families are being threatened back home, which I don’t believe the premise because we offer no protection. We just let them walk, and there’s no follow-up. So, if that’s a legitimate cause, then where’s the mechanism to follow up and free their families back home or escort them back, whatever. But I don’t — you know, I’m as frustrated as you are, as the street cop is, in seeing some of these play out on the streets where they’re caught in the middle. The communities are saying, “Hey, stop these guys brazenly dealing dope on the corners.” Fentanyl, as you mentioned, is such a contributing factor to the malaise in cities and our climbing death rates, our overdose death rates. And the only tool on the police officer’s belt these days in combating that crime is naloxone or Narcan, to revive them back for another day. And could we expect anything to happen — I don’t know — tariffs or controls from the chemicals that are suspected to be brought in from China to South America to make the Fentanyl that comes back up through our southern border?
Terrence Dwyer: I mean, that’s one means, certainly. Honestly, I wouldn’t be... you know, that’s a whole policy issue. You get into politics and everything else, and then there’s separate issues with tariffs. You can go into the whole economic — is it good, is it bad for us. But I always find that the criminal mind and criminal networks — they’re adaptable. They’ll find a way. I started my career working in the jails at Rikers Island, the Bronx House of Detention. I was going to college at the time, finishing college, and I’m thinking, “Man, some of these guys are smarter than the people I’m sitting in class with,” because the things that they would come up with, the things that they would do. They just — very inventive minds. They watch, they learn, they know how to get around the system. And no system is perfect. But I think when you deal with just crime in general and you deal with the drug crisis, whether it be fentanyl, whether it be heroin, whether it be cocaine, crack — what we’ve dealt with in the past — is that we’re learning that you just can’t have a solid police response. You need police-community involvement. And you see major cities like Chicago, like Boston, that are doing that. And if you look at any of the police reforms that have come down, any of the suggestions, even if you look at the police leadership, they’re embracing the community. Look, you can’t just sit back and complain and point the finger at us. You need to be involved. And you’ve had some very good grassroots efforts. You’ve had very good cop and civilian networking and community engagement to go out there and try and alleviate some of these issues and some of these concerns. But sometimes, I feel it’s like, you know, shoveling sand against the tide. You know, it’s just going to keep coming in, coming in, coming in. So, can we limit it? Can we minimize it? Maybe it’s through education. Certainly, there was, you know, the whole “Just say no to drugs.” Maybe that didn’t work, but we do have some studies that show that there’s a generation now that seems to be less using certain types of drugs. Now, there are other vices that they’re using, but... So, you know, I don’t know what the answer is overall to it. It’s easy — certainly easy — to point to the problems. It’s hard to point to the solutions. But as always, it’s the police officer on the beat who’s left to mop up so many messes, yet the fingers always get pointed. One day the police officer is the hero, the next day the police officer is, you know, the goat, the bad person. But they deal with these issues day in and day out in their communities. And whether you’re talking major city communities or suburban or more rural communities, they’re all impacted in one form or another. But it’s the police officer that’s left to deal with it: the mental health crisis, the ubiquity of guns throughout the United States, the influx of drugs, a lot of different social issues. Who’s at the front line there? It’s the police officer. And they’re getting taxed because, as I said before, mentally and physically, there’s less of them out there. Nobody’s running to the job the way they used to.
Jim Dudley: Right. Yeah. And everybody loves to point the fingers at the cop because they are in uniform. They are the most visible form of government on the street. But I’d love to see others jump into the fray, like departments of public health. And I mean, look, we —
Terrence Dwyer: And you have that. You have that in some places.
Jim Dudley: In some places. But back West here in California, the harm reduction strategy is not working. And we’ve turned the car keys of the drug issue over to public health, and their strategy is, well, let’s let them do it, but let’s let them do it safely. And I don’t get that at all. So we have this rush of, you know, legal, if you will, prescription drugs and illegal drugs coming up through the borders or manufactured here at home, and public health’s response has been, “Okay, but let’s make it safe. Let’s give them clean needles. Let’s give them a safe place to do their drugs under medical supervision.” And then out the other door. And we saw, like I said in Oregon, that strategy does not work. Nobody’s getting fined, nobody’s being coerced into treatment, nobody’s even given drug education while they’re being rehabbed or brought back to life. I’d love to see, you know, the Attorney General, rather than condemning police violence as a, you know, horrible thing, turn your attention to the drug crisis and sanction or stop giving money to some of these cities and states that are opening the doors, providing vehicles to do the drugs.
Terrence Dwyer: Well, the problem I have with the harm reduction, as you mentioned, is the irony involved in that. Give them the needles, let them do it safely, what have you. But meanwhile, we’re going to point the finger and shame people for drinking that 64-ounce, you know, Slurpee. And we’re going to put in legislation, which I think New York City did under Bloomberg years ago, that you can’t serve over a certain amount. And oh, you can’t smoke in these areas. And I’m not a smoker, and I’m not a fan of 64-ounce Slurpees, but it’s kind of funny the things that we choose to regulate.
Jim Dudley: Don’t get me started! We can’t even have plastic straws in California, yet we’re giving glass straws and foil for meth and fentanyl people to smoke with.
Terrence Dwyer: Well, that’s the irony. And I hate where there’s inconsistency in thought patterns. But, you know, I can, again, experientially, just go back to my patrol days. We had a methadone clinic outside one of our hospitals, and our patrol area was a big suburban area outside a municipal area, very busy municipal area, back in the time. Crack was coming out, and all the methadone maintenance program — all they were doing was exchanging one drug for another. They were selling their methadone out on the street for crack. So, again, yeah, we can go around and around chasing our tail with this one. But yeah, the irony always sticks out with me. We’re bombarded nowadays with different drug commercials on TV, and all the side effects seem to be death if you’re not careful. You cannot drink the big, you know, sugary drinks, and don’t smoke because it’s bad for your health. Just a lot of mixed messaging coming out, and they’re coming from the same — they’re coming from healthcare providers.
And again, yeah, these are issues — policy issues — that go beyond my pay grade. But yeah, as a lawyer and as a practitioner, and somebody who’s dealt with these issues in uniform as an investigator in the past, yeah, the common sense sometimes seems to leave the room.
Jim Dudley: Yeah. And I really enjoy reading your articles because of that legal scrutiny that you give some of our policies. And when we talk about the judicial system, we’ve seen some, you know, head-turners from the Supreme Court over the last two years. We’ve heard both candidates discuss what they’ll do with executive orders, and I mean, every president that I can think of has issued their share. And it seems to be increasing — the number of executive orders — whether it’s related to prosecutors, the Second Amendment, or other issues. How can that affect line officers? Do we actually see any of those high-level executive orders filter down to making the job easier or safer for cops?
Terrence Dwyer: I mean, in a word, I’m going to say no. So let’s just talk about the executive orders. Yeah, they’ve been around for a long time. Their use has increased over the years. You can go online and look on the federal website and see who’s issued the most. Roosevelt seems to be the modern president, FDR, who really seemed to write executive orders — and you consider the time and what was going on in the country. But all they are is an official document done by the executive branch, which allows the president to manage different portions of the federal government, specifically agencies within the federal branch. And they have to be published in the Federal Register, and they do have the force and effect of law once they are published. The problem is that presidents have, in the past, issued executive orders and stepped beyond their Article II powers as president of the United States, as the chief executive. Back in the ‘70s, there was a historian, Arthur Schlesinger, and he wrote a book and coined the term “The Imperial Presidency,” and he was really writing about the Nixon White House and what was going on then with Watergate and everything. But he looked at a few presidential administrations, and what we’ve seen is really this idea of the imperial presidency. Every president has tried to assert more power than they have had in the past, and when they’ve done that, they’ve gotten slapped on the hand, either by Congress, who has the power to legislate, or by the Supreme Court. And the most glaring issue was in 1952, in a case called Youngstown Sheet & Tube v. Sawyer, where President Harry Truman sought to take over the steel mills. It’s known as the steel mill seizure case. And there was labor unrest, there was going to be a strike, and there were negotiations between the United Steel Workers and the mill owners. Long story short, because we were at war in Korea and we needed munitions, he decided he was going to seize the steel mills. Well, if you’re a steel mill owner, you’re going to have an issue with that, right? You’re taking over private property. So it resulted in a decision written by Justice Hugo Black, with a concurrence by Justice Robert Jackson, which is really the most quoted. And Jackson developed a tripartite system of presidential power. So, the president acts within the realm of his authority, and he’s on firmer ground when he acts with the express or implied authorization of Congress and what his office allows him under the Constitution. When he acts at his lowest is when there’s neither — there’s nothing from Congress saying or the Constitution that says the president has these powers to act. And then there’s what Jackson calls a “zone of twilight” in the middle, where Congress has kind of remained silent, and there’s nothing expressed to be said. So, clearly, Truman, at that point, acted outside of his boundaries. And there have been other cases. But if you look at the last few presidents — Bush, Obama, Trump, Biden — they’ve all had executive orders that were challenged somewhere in the courts or in the Supreme Court. Biden has had executive orders upheld and overturned. Trump has had executive orders upheld and overturned. It comes down to a question of, is it within their power as president? Biden, the last one he had upheld, dealt with some rule-making issues or something with an executive agency, and he was within his boundaries. But that same term, the Court said no, in this instance, you overstepped. Same thing with Trump when he was president. So, they’re really to regulate the federal government. I don’t — I can’t conceive of anything where a president would issue an executive order that’s really going to impact the line officer. But it is an interesting discussion because we do get into a gray area where a president can push the envelope and almost, in a way, legislate. And again, we saw it with Obama, and we saw it with Bush, the same thing. And lots of times, in election cycles, you hear a lot of rhetoric. I remember one of the past presidential cycles — there was a lot about stop-and-frisk. And if I found a candidate that could have appropriately discussed Terry v. Ohio and stop-and-frisk, I would have been happy. You’re talking about — and you’re talking mostly about lawyers, educated at very fine law schools, that were talking about an issue they did not have a grasp on. And they were referring to a case out in New York City that they didn’t even know what the end result of that case was or the history of that case. So again, with executive orders, I think it’s one of those things that gets thrown out there. The American public is largely unaware of the extent of executive orders and just says, “Oh, that seems like a good thing. Okay, great.” But let’s go back to basic grammar school or high school governance: three branches of government, separation of powers. The Federalist Papers talked about it. Checks and balances. If the president oversteps the boundary line, Congress can come in, the courts can come in, and they have in the past. So, I can’t think of any scenario right now regarding that that’s going to really affect police officers. I know you mentioned the Second Amendment, but even there, we have a case that’s in front of the Court now dealing with ghost guns. I’m sure you’ll get to that later.
Jim Dudley: Yeah, no, definitely, we’ll get to ghost guns, because I’m thinking about... I love the fact you brought up, you know, the three pillars of government — executive, judicial and legislative — that do sort of look to each other to make sure we’re all on the same page. I can only see executive orders as maybe expediting something that we just don’t have time to address otherwise, and then, of course, over time, maybe the courts or Congress will take a look at it and say, “Yeah, maybe not.” And I think in one of those cases recently, you know, we’ve seen horrific mass shootings. One in particular, in Las Vegas, where the murderer had bump stocks on some of his weapons. And oh, I think within a couple of weeks, the bump stocks were taken off shelves. Commerce can regulate the sales of things, and so ATF, as an arm, came in and said, “No more bump stocks; they are hereby illegal.” And recently, the Court looked at that and said, “Yeah, we didn’t really have the authority to do that.” So now bump stocks are back in sort of that unregulated state, and I think Congress will be looking at that down the road. But yeah, I wouldn’t say a hasty move, but the fact that we moved so quickly without thinking through all the levels probably hurt the policy.
Terrence Dwyer: Yeah. And I think, look, if anything, the executive orders that are going to have any impact are going to be on federal law enforcement agencies, if anybody. But the Commerce Clause power that Congress has — it’s a power of Congress, it’s an enumerated power. And under the Constitution, it’s an extensive power. You know, it was one of the foundations of the civil rights movement — using the Commerce Clause power. But it is also limited. It’s not, you know, a wide net that can be thrown out. There was some pullback with some cases in the ‘90s and early 2000s, but then in another case, the Court came back and, you know, kind of showed the muscle that the Commerce Clause does have. But yeah, can they regulate? What’s the extent to which the agencies can regulate? And the executive orders really can only impact the executive agencies, you know, the president’s management of. And as I said earlier, every president, since Washington, in some shape or form — and it really kind of accelerated in the 20th century with Roosevelt, FDR, on forward — has kind of said, “I have more power. It’s under my power to say that the law shall be faithfully executed.” So, it’s a matter of interpretation. And now there’s this theory of the unitary executive, and that’s another theory. Some people say it’s new, but it’s not. It’s been around for a while. But that theory wants to vest even more authority in the president. And you can get into legal discussions and arguments over this. That could be a whole other show, but it’s not really on topic. But, and it’s just one of these things that, again, how are they going to impact the line officer? How are they going to impact the person on the street? If I’m a police officer on patrol, I’m not worried about executive orders. I’m worried about my shift, my calls, and the support I’m going to get from administration, and then from the courts and from the prosecutors that are prosecuting those cases.
Jim Dudley: You mentioned ghost guns. I’d like to talk about the impact of ghost guns, any kind of legislation. Recruitment, of course, huge issue — you mentioned it. And let’s get back to that. But first, let me take a moment and thank our sponsor. And we’re back. And I’m speaking with Terrence Dwyer, retired from the New York State Police, professor, attorney, author. What else you got going on, Terrence? What are you writing about these days?
Terrence Dwyer: Well, I have my articles with Police1.com on police liability and litigation issues. Always try and get stuff that’s out there for the officers and supervisors out there. And I’m working on revisions to a general market book I’ve been writing about my own career, but it’s really more about the impact on the ones around us in a way. So hopefully I’ll have that out by later next year.
Jim Dudley: Yeah. In addition to your laws on Homeland Security.
Terrence Dwyer: Yeah, my book that’s out there, “Homeland Security Law: Issues and Analysis.” It’s a textbook, but it’s also can be a general read book. It’s not really your traditional textbook. That’s through Cognella Publishing. And I’m happy we use it in our homeland security curriculum. A few universities have adopted it, and a few people told me they read it themselves, and I said, “It didn’t put you to sleep?” So, okay, I’m happy.
Jim Dudley: Nice. Well, ghost guns — or those made on 3D printers with no serial numbers, easy-to-assemble firearms — have been addressed by both then-President Trump and current President Biden in attempts to regulate or ban them. Can we expect anything to happen? Is there anything significant before the courts to decide?
Terrence Dwyer: Oh, yeah. Tell me about it. Yeah, yeah. I got the case right here. It was argued recently. It’s Garland v. Vanderstock. It deals with the Gun Control Act of 1968. Ghost guns, again, those untraceable parts or those kit guns that are not serialized — really, no accountability. The issue becomes whether or not there was an individual gun owner complainant, or plaintiff, and, or maybe one or two, and then there were a couple of companies, gun companies or suppliers, and they challenged an ATF rule that was introduced in 2022 that dealt with these parts, saying that basically they have to be serialized now, just like they come under the definition of the term of a firearm. So, the case was heard at a hearing before the U.S. Supreme Court, an oral argument, the Solicitor General of the United States, Elizabeth Prelogar, and the attorney, Mr. Patterson, for the other side. And interestingly enough, I was reading up on it, and it seems from everything I’ve read from the major coverage, the different outlets that have covered it across the board — looking at bipartisan approaches — is that it appears the Court is leaning towards supporting the administration’s order, the interpretation of the Gun Control Act.
But we know things are always subject to change when you get into the chambers of the courts. But there seem to be, right now through oral argument, some strong allies — Amy Coney Barrett and Chief Justice John Roberts — that will go the way of upholding the ATF ruling. And if that’s the case, you know, you’re going to have Sotomayor, Jackson, and Kagan with that, so you would probably get a 5-4. That’s prognostication — who knows? Things can change. But it’s the issue of whether or not these individual parts set out alone can be deemed to be a firearm requiring manufacturers to serialize them. That’s breaking it down in its simplest terms. There was a case out of the Fifth Circuit. The Fifth Circuit didn’t get to rule on it because the Supreme Court decided to take it. There was an order out of the district court down there that basically said, “No, they can’t do that. The government can’t do that.” During the interim of the case though, the administration went to the Supreme Court and asked if, “Well, can we just keep the enforcement of it in place during the dependency of the case?” And the Court said yes. So, they thought it was an important enough issue to just keep the administration’s restrictions in place. So, there’s been oral argument. It’s been submitted. The justices have to go back and forth in chambers. And, you know, things can change. Right now, it looks like it could be 5-4, could be 6-3, could flip the other way and go 5-4 the other way. So, who knows? But that’s the issue. And it really, again, comes down to separation of powers. Is the federal government, is the executive branch within its power? Is this federal agency within its power to make this interpretation? Does it come within the express provisions of the congressional legislation and the powers that were left to the agency? So, it’ll be interesting to see. Certainly, guns are a problem. And you can say guns are a problem when we talk about crime and still be pro-Second Amendment. You know, I’m pro-Second Amendment, but guns are a problem. And just anecdotally, I look at all the officer-involved shootings throughout the country. I get the reports. I lecture on use of force. I’m on top of these issues. I’m talking to my students about these issues in class. The gun violence, to me, again, just anecdotally, from what I’m seeing, from what I’m reading, seems to be at a level that I don’t recall. In my day, it was there, it was out there. Don’t get me wrong — made gun arrests, plenty of gun arrests, there were things out there. But it just seems that it’s more prevalent. And individuals — and this may go towards our mental health crisis — are more willing to take shots at police now. Again, we can look at the statistics. Is it as bad as the ‘70s? No, absolutely not. We can look at those statistics. But there does seem to be more random assaults that we find against police officers that I don’t recall reading about or hearing about. Media now is different, and we get this instantaneously. But I cannot wake up any morning without having a feed through my phone and reading about a police officer that was shot, shot at, or killed in the line of duty. We had a really bad spell up here in New York back in April. I know other parts of the country had some incidents, but we had a really bad spell. We had three officer fatalities throughout the state, but then in a short span of time. But then we also had three other incidents where officers were hurt, and a couple of other encounters. So, it was a busy April, and that’s just one part of the country. Guns are a problem. We want lawful gun owners to have them and to enjoy their constitutional protections and their constitutional rights. But no right is absolute, as I tell my students, except really your First Amendment — freedom to believe whatever you want religiously, right? But it only gets limited when we look to act upon that. But there’s always some regulation of rights. So, speech — there are regulations on speech. And just like the Court has said — Scalia, of all people — Scalia has said, when he wrote the decision in DC v. Heller, this is not to say that there aren’t legitimate restrictions that the government can put — common sense restrictions — on gun ownership or Second Amendment rights. And we saw the Court in cases after Heller and after McDonald v. City of Chicago refuse to take cases because they said, no, let the circuit court decision stand because, yes, that municipality has a right to limit the sales of silencers or what have you. So, I think with ghost guns, we have to be concerned with the police officer out there.
Jim Dudley: Sure, sure, for sure. I mean, ghost guns have been responsible for several assaults already this year on police officers because they’re easy to dispose of. And you’re right — no serial number. And for the record, gun tracing is important.
Terrence Dwyer: Gun tracing is important when we’re solving crimes. We’re solving homicides. And I, you know, know that, any cop out there who’s investigated a homicide that’s involved a firearm knows that.
Jim Dudley: For the record, I am a believer in the Second Amendment as well. And I just believe that, you know, gun laws being what they are — we have some of the strictest gun laws in New York, Illinois, and California, and yet have we clamped down or controlled the use of firearms in illegal activities? No, really not to any degree more than some of the states with looser laws. And so, I want to talk a little bit about the red flag laws. And man, I’ve written articles on red flag laws and why we need them. I think the follow-up answer is we need to prosecute gangs with guns, robbers with guns, murderers with guns. But it seems like every politician is against the gun but maybe not the person holding the gun. Right? It’s like a “Seinfeld” episode, right? We want to take the gun but not the person holding the gun. Red flag laws — tell us a little bit about Barnes v. United States again, out of the Fifth Circuit Court, talking about red flag laws and being able to...
Terrence Dwyer: No, no, no. Barnes is not red flag. Pre-seizure conduct... yeah, just real quickly on red flag laws. Presumptively, they’re there to, let’s get the school shooter ahead of time. Let’s get the domestic abuser ahead of time. Let’s take away the guns in those domestic violence situations and everything else. The balance to that — the civil liberties part of it — is that we also have to be careful to not deprive individuals of a property right, of a protection. I think red flag laws can be good, can be used, but like any law, can also be abused. I want to get the guns out of the individual who’s potentially dangerous, but that person has to have due process. That person has to have the ability to come forward and defend themselves against those allegations. And I think most red flag laws that are worth their salt give individuals that opportunity for a hearing, that opportunity for due process.
But Barnes v. United States — this is an interesting case now because this deals with a case out of the Fifth Circuit. And it deals with pre-police seizure conduct and assessing use of force. It’s... I’m going to be presenting that with another retired police officer who now is a police practices expert, goes around the country testifying on cases. But so, there’s a split in the federal circuits. The Second Circuit is in a minority with the Fifth Circuit and some other circuits that we look at the moment of the use of force. We look at that window, the moment of the use of force, and the reasonableness of the officer’s actions. There are other circuits like the Third Circuit in Pennsylvania that looks at the totality of the circumstances. So, the term “pre-seizure conduct” — what is the officer’s pre-seizure conduct leading up to that use of force? And that will come into the question of reasonableness. So, the courts have an opportunity here to kind of solidify their circuit court decisions and make a uniform rule. This is an issue that came up in City of San Francisco v. Sheehan — use of force case. I’m sure you’re familiar with that. And there was another case out of California. The Court really didn’t address the issue, but this issue is right on point, and the Court has agreed, the Court has accepted... they’ve granted cert. So, they’re going to review it. So, it’s going to get briefed, it’s going to get presented, it’s going to get argued before the Court. That is going to be interesting to see where the Court lands on that issue because there’s been a lot of — especially after Ferguson but also George Floyd in Minneapolis. Police reform during COVID, and a lot of articles about, you know, police use of force and the whole, you know, what’s our legal standard? How do we judge the reasonable police officer? So, Barnes v. United States is going to answer that question for us and see where it comes down. And I believe it’s a majority of courts that follow the Second Circuit, Fifth Circuit, where we kind of look at that moment before the use of force, where others will step back and say, “Let’s look at what preceded it.” And essentially, was it officer-created jeopardy? Did the officer put himself or herself in the line to then have to use force? And if so, then it’s going to be unreasonable. So, that’s really going to be something to keep an eye on.
Jim Dudley: Yeah. Well, going back to the red flag laws just for a second, because I’ve heard so many officers comment that it is unconstitutional. And now we’re going, you know, up against these guys who have guns. Well, of course, that’s part of the job. But as far as the red flag laws, the ones that I’ve seen that pass muster are the ones that say that, back to the Fourth Amendment, by oath or affirmation, the police officer swears out that there’s good reason to take the guns. And you and I come from similar eras where we would tell people, “Hey, you know, until they commit this crime, there’s really not much more we can do about it.” So the red flag law steps into the point saying, “Yeah, all reasonable assumptions say this person is going to use that gun for something that’s not going to be good.” And I wrote an article about this young gal who idolized the shooters at Columbine, dressed like them, wrote like them, asked if she could buy a shotgun in Colorado, if she could fly — and she was over 18 — took all these steps, actually flew to Colorado, actually bought a shotgun. And actually, once everybody mustered up to go after her, she was found a mile or two from the school just on the eve of one of the anniversaries with the gun. She killed herself. And so, why wait until that tragedy before we could do anything? I think if used correctly, and like you say, anything could be abused, but if used correctly, I think, you know, we need the red flag laws.
Terrence Dwyer: Sure, if they’re used correctly. You know, if it devolves into something where, like some domestics, like, “Well, you know, he said, she said,” back and forth, and very flimsy... we don’t want that. It has to be, sure, objectively credible evidence, affidavit, sure. And there have to be those red flags. There have to be certain indicators. And I believe there are instances where we’re going to find that, where we’re going to have that. Sometimes though, just practically, if we look at that school shooting where the parents were charged — there were, right on the eve of it, there were all these red flags. And sometimes it just happens so quickly when you get to the point where, okay, now we have that actionable conduct that we can use. But we don’t punish thought crime in this country. And again, as I tell my students in my criminal law class, we don’t punish thought crime. The closest we get is when we talk about conspiracies or attempts. But even with an attempt, you know, there are different criteria under the Model Penal Code or the state codes to charge somebody with an attempt. So, yeah, useful? Sure. Has to be done constitutionally, like anything. But to broadly say, “Well, they’re unconstitutional,” I wouldn’t go that far.
Jim Dudley: Yeah. Hey, we are — gosh, I’m imposing on so much of your time. Thanks for coming on. I want to ask the last thing about police hiring. I know we’ve got other issues that we had on the agenda, but police hiring affects us all. Increasing the number of cops, they’re overworked, overstressed — you talked about that. I do see an uptick in some agencies having better success. We’re going to be talking about it at IACP. Dr. Janay Gasparini, a fellow New Yorker, cop and professor, she and I got together and wrote “Recruitment & Retention of Gen Z Law Enforcement Officers” for Blue360 Media. Thank you. Sorry, I had to plug the book. You know, some of the strategies, I know some of the agencies are throwing money at it. I see that Seattle just upped their ante from a $30,000 hiring bonus to a staggering $50,000 hiring bonus with, you know, some particular benchmarks that you’d have to reach. We’re headed in the right direction, I think. What can the government do to get more cops into the career?
Terrence Dwyer: Well, there was a time when there were lines around the block going to take the tests. When I was taking all the tests, where my brother and his friends — my brother’s a few years younger than me — they couldn’t get on because there were just so many people looking to get on. And then they finally did, and they had long, good careers. But now, they’re going out trying to find people to take the tests. And we’ve seen our numbers go down in our program as well. I think there are a few things. One, there’s been the 30x30 initiative to get more women into policing. Historically, it’s always been low — it’s been about 11 to 12 percent. When I came on, it was about 8 percent, and in that time, it’s only gone up slightly. We have bigger representation in our big cities for women, but it’s still only about 20 percent. Now, this is not to say, because there are some people out there like, “Well, we need to get the best qualified, not just get women.” No, no, no. That’s not what I’m talking about. It’s about getting more women interested, good qualified women onto the job. Like anybody else that meets all the standards. And there weren’t a lot when I came on. Sure, there weren’t a lot when you came on. But they bring value. They bring other skill sets to the job. And I’ve worked with many. My supervisor in major crimes is somebody I worked with for nearly 10 years — female supervisor, one of the best I had. They bring a lot. So, to get — and there are about 400 departments that have signed on to the 30x30 initiative, but look at the women recruits. I see a lot of women in my classrooms, female students that are looking to go on the job. But we have to make the job attractive. COVID took a big hit, and the George Floyd... what happened in Minneapolis and his death and then the police reform movement and all the negativity took a big, big hit, as did the defunding conversation. And a lot of people say, “Well, law enforcement isn’t financially lucrative.” Well, it can be. I mean, I have students that are out there making six figures, three years out of college. They’re working for it, they’re making overtime. But you know what, their counterparts in some of the business programs where they go, they’re not making as much, and they’re working as many hours as well. Different issues regarding the two jobs.
But I’ve talked to some of my students who’ve come back to me, and they’ve only got three years on the job, and already they’ve had it. We have to support our officers when they’re on the job, and that’s the thing. They’re getting beaten down real quickly, and they’re getting beaten down in two ways: operationally and organizationally. And you look at anything that deals with police officer stress, it looks at those two factors. And most cops can deal with the operational, but the organizational, on top of that... we have to get better at supporting our police officers. We have to get better, and that goes to mental health and everything else, which we’re getting there. And the more innovative police leaders are flying that flag, and you know, physical well-being, but mental well-being as well.
But you know, policing is a calling. It’s a calling, like anything, and you really have to want the job. There doesn’t seem to be as many people because of the negativity that’s been around it, but also there have been studies that said, “Look, it’s not just policing, it’s in other areas, it’s in other public sector jobs.” They’re just not — they’re not getting the numbers. Firefighters, sanitation — good jobs with good pay. And then you also have a generation that’s more in tune with their “me time,” if you will, or their downtime. They’re more cognizant of their mental wellness and their overall wellness in terms of work. They don’t want to live for their work; they want that downtime. And policing, unfortunately, doesn’t give you that. Sometimes you are going to be working 50-hour weeks, 60-hour weeks, 80-hour weeks, and you’re going to have a changing schedule. And oh, you’re going to be out in bad weather. And there are people that are not going to like you. So, I think it’s part of the COVID-19, part of what happened in Minneapolis, and the police reforms and the negativity — the defunding. But also just the general public sector employment is down across the board. We are rebounding. It seems we are rebounding. People are realizing that, wait a minute, these are good-paying jobs with good benefits.
I tell my students, “Look, you can step out to most jobs on the East Coast, and you’re going to be making high 60s, maybe mid-70s. But after two years on, with overtime, you could be making $100,000. And then where can you go from there?” I know some people on my old job that are making $200,000 and on other jobs, if not more. I know out in California they’re making — of course, you have to look at your local cost of living as well. But the jobs are out there, and you can have a good life. And as I always tell my students, just because you’re a police officer doesn’t mean you don’t start feathering your nest for down the line. I see so many people from our generation, generations before us, that have gone on to do other things. They’ve used the skill set that they’ve learned from policing, and policing gives you some incredible skill sets.
I think that’s what we need to be telling our students that are out there. Job security, benefits, management training — all these different skills. It’s not just about driving a car real fast and shooting a gun and putting handcuffs on people. There are so many things we ask police officers today to do — a lot. They have to do a lot. They’re social workers, they’re community organizers, they’re law enforcers, they’re big brothers, big sisters. You know, we ask a lot from our officers, and there’s a skill set that you will learn in a 20-25 year career that you can take into the private sector and make a lucrative job. And meanwhile, the longer you go in law enforcement, it gets pretty good. It can get pretty well-paying.
But we have to get them in the door, and it seems we are starting to do that, but I think we have to maintain standards, too. We cannot let the hiring standards go down across the board. And that’s what worries me with the incentives, and that’s what worries me with the rush to kind of pull people in because we are so short-staffed. Let’s keep up the requirements. We want a certain caliber.
Jim Dudley: Yeah, and we’ve seen a couple of examples of really awful situations come from those, you know, shortcuts to hiring, and maybe we don’t touch all the bases when we’re clearing a background or doing a psych evaluation, things like that. I’m really glad you talked about the retention aspect and how important that is to keep the officers that we have. And we saw the impact of 2020, and I think you’re right — we’re just recovering now. People are starting to realize that the defund movement equates with that spike in crime, and how the social experiments of doing less with police officers wasn’t the best solution. And I think people are realizing that, and hopefully, they’re going to, you know, use that to vote with in November.
Hey, Terrence Dwyer, retired from New York State Police, professor, author, attorney, these great articles on Police1, your books — what do you got coming out?
Terrence Dwyer: I’m really interested in officer mental health, and I’m looking at the liability aspects of departments that don’t address it. I’ve been talking to some people in the field. Yeah, I’m interested in this Barnes case out of the U.S. Supreme Court and looking at use of force issues, and, you know, any of the topics that come up. And I’m working on my revision for my general market book, so hopefully I’ll get that done and get that out there.
Jim Dudley: Well, we look forward to hearing from you. Thanks for spending time giving us the, you know, the view from the bench, if you will, on some of these important issues that are going to be decided — or maybe not — come November. And hopefully, we get some relief filtered down to the line officers. Thanks, Terrence, appreciate you.
Terrence Dwyer: Pleasure. Always good being here, Jim. Take care.
Jim Dudley: All right. Hey, to our listeners and viewers, let me know what you think about today’s discussion. What did we miss? I know we had some other topics on the chalkboard that we didn’t get to, and I’d love to hear your comments. Drop me a line at policingmatters@police1.com. I’d love to hear what you have to say. All right, well, I hope you’re doing well mentally, physically, and I hope the job’s treating you okay. Take good care, and thanks for listening.
