Why you should care
Because this could be a new kind of misguided war on drugs.
Imagine a police officer snatching a “suspicious” Black man off the street to spend the weekend in jail. The probable cause? Dealing Newport cigarettes.
A growing under-the-radar movement to criminalize menthol cigarettes is starting us on a slippery slope toward just such a scenario on a street corner near you. San Francisco was the first city to ban the sale of flavored tobacco products, including menthol cigarettes, followed by Contra Costa County, California, and the city of Oakland.
In Minnesota, St. Louis Park banned the sale of flavored tobacco, while Minneapolis, St. Paul and Shoreview passed new limits on its sale. Both chambers of the New Jersey legislature now are considering prohibition against the sale and distribution of menthol and clove cigarettes, which would be the nation’s first statewide ban.
Remember, it was tobacco that caused [Eric] Garner’s fateful police encounter: He was illegally selling individual cigarettes.
Why is this so important? The World Health Organization points out that menthol is used more frequently by younger smokers, women and minorities, and it is more enticing for people both to start and continue smoking. While fighting tobacco addiction is a worthy public health goal — and menthol products can be especially dangerous — criminalization is an imperfect solution.
At this point, a business in these areas would face only a fine or the loss of a license for selling the banned items — and it’s no offense for someone to possess menthols. But these policies set minority communities on a dangerous path. As a retired veteran sergeant in the Los Angeles Police Department, I am most concerned about the unintended consequences of targeting menthol. Why not ban all tobacco products?
You have to start with the legacy of the War on Drugs in the 1970s and the War on Crime in the 1990s, both of which caused soaring incarceration rates of Black men and women. Considering that more than 80 percent of Blacks who smoke prefer menthol tobacco, I see an additional pathway to the penal system.
Let’s not pretend that some police officers don’t already have a plethora of ways at their disposal to engage members of minority communities under the guise of probable cause, reasonable suspicion and investigative stops. There are plenty of examples of how these “investigative stops” can quickly escalate into lethal uses of force.
An unsuspecting Black male no longer needs to just “fit the description” as a reason for detention. Officers in places where menthol tobacco is banned could begin to stop and question someone who may smell suspicious. As a patrol officer and patrol supervisor for over two decades, I know first-hand how creatively an officer can articulate probable cause. So much for enforcing rules based on the spirit of the law — the letter of the law rules the day. Errant, drunk with power officers have a new tool in their petty probable-cause arsenal. And since great deference is given to an officer’s version of events, I see potential for wide-ranging abuses.
This kind of heavy-handed authority allows for an arrest on a Friday evening with a court date on Monday, followed by a district attorney rejecting the case for prosecution due to insufficient evidence. In such a case, the low probable-cause threshold had been met and the arrestee was ultimately released. The system considers it no harm, no foul. But the officers just took 72 hours from someone’s life, knowing there was insufficient cause to prosecute. Police officers have a symbiotic relationship with prosecutors and understand which arrests are deemed viable by the district attorney before a jury. And there is never a consequence for officers who abuse the system in this manner.
These confrontations easily could turn ugly. One can almost see the confusion, disbelief and resistance in a suspect, leading to an alleged “failure to comply” that will surely follow the initial contact. Next comes a resisting arrest charge, or worse — death.
We’ve seen this before. Eric Garner, Sandra Bland, Ezell Ford — all were victims of what’s known in law-enforcement circles as “contempt of cop,” when they allegedly failed to comply with an officer’s order. Remember, it was tobacco that caused Garner’s fateful police encounter: He was illegally selling individual cigarettes. So, rather than criminalize those who smoke and create unnecessary police interaction with selectively enforced tobacco laws, why not educate people better on tobacco’s dangers?
To start, let’s educate people on the perils of a menthol ban. There’s still time left to stop this discriminatory movement in its tracks before the smoke spreads any further.
The author is a retired sergeant in the Los Angeles Police Department.