Archives: 06/2013

Maryland v. King and the Surveillance State

Ilya, Jim, and Roger have already ably covered many of the legal issues in yesterday’s major Fourth Amendment case, Maryland v. King, in which the Court narrowly approved DNA testing of arrestees. I’ve got an article in the Daily Beast this morning using Scalia’s dissent as my jumping-off point. Excerpt:

If there’s ever a time when Antonin Scalia really rises to the occasion, it’s when he serves as the Supreme Court’s liberal conscience….

[A]long with the good [from DNA testing] comes a new potential, warned against by civil libertarians, for the authorities to use DNA access to track citizens through life. Who was at the closed-door meeting of political dissidents? Swab the discarded drinking cups for traces of saliva, match it to a universal database, and there you’ve got your list of attendees. Want to escape a bad start and begin life over in a different community? Good luck with that once your origins are an open book to officialdom.

In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”)  Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?

With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Incidentally, some of Scalia’s most scathing passages blast the majority for dwelling on objectives that Maryland might have accomplished by DNA testing, such as establishing a John Doe arrestee’s true identity, when in fact the state knew perfectly well who Alonzo King was when it collared him. Scalia nailed this rationale as merely pretextual, and just in case you doubted that, in a Washington Post interview just yesterday about the case, Maryland Attorney General Douglas Gansler frankly acknowledged that “the real reason for the law is solving crime.” Nothing there about a need to establish arrestees’ identities. The state’s own website explaining the law tells a similar story in its final sentence when it describes the 2009 change in the law.

Minnesota Supreme Court Punts on Key Privacy/Property Rights Case

The city of Red Wing, Minnesota, has a rental property inspection program—one that’s unfortunately not unusual—whereby landlords and tenants must routinely open their doors to government agents. These searches take place even if both the landlord and tenant believe it not to be necessary. The owner of the property even has to pay a fee for the unwanted search to receive a rental license! The city only sometimes makes initial requests for consent as a mere courtesy, because it proceeds with an administrative warrant in the event of a refusal—without a showing of probable cause to believe there’s a housing code violation or other problem. The inspection ordinance doesn’t even attempt to prevent the disclosure of information revealed during the search; the whole neighborhood may find out the contents of your medicine cabinet or choice of DVDs.

A group of landlords and tenants challenged the inspection program, arguing that several alternatives are available to meet what legitimate interests local governments have. Last September, Cato joined the Reason Foundation, Libertarian Law Council, Minnesota Free Market Institute at the Center of the American Experiment, and Electronic Frontier Foundation and filed an amicus brief urging the Minnesota Supreme Court to confirm that no Minnesotan should be subjected to an intrusive invasion of privacy when there has been no showing of some cognizable public health or safety issue within the home subject to inspection.

Last Friday, the Minnesota Supreme Court handed down its decision in McCaughtry v. Red Wing. Unfortunately, the Court decided to dodge the question of whether the government is required to obtain a warrant to inspect a residence without individualized probable cause under the U.S. or Minnesota Constitution.

The court’s reasoning is maddening: Red Wing’s ordinance allows judges to imagine individualized standards even when the city doesn’t present any individualized evidence when applying for a warrant. Moreover, the Court determined that the challenge was facial and thus the law would need to be unconstitutional in all of its potential applications in order to be struck down. Because some warrants could be constitutional, the Court ruled against the homeowners, and had absolutely nothing to say about the propriety of warrants issued without individualized probable cause. It did this even though the city has never sought such a warrant and has never said it has any interest in asking for one. The court was clear that its holding had absolutely nothing to say about whether a warrant issued without individualized probable cause would be unconstitutional.

So after nearly seven years of litigation, the plaintiffs are left where they started: these warrants may be unconstitutional, but the courts won’t say so. As a result, Minnesota residents remain subject to unconstitutional, over-broad, and intrusive searches of their homes, belongings, and lives.

There was a small silver lining in all this, a concurrence by Justice Paul Anderson, who said that he agreed with the court’s (unanimous) opinion but that the Minnesota Constitution does require individualized probable cause to obtain a warrant to enter someone’s residence.  Although no other justices joined his opinion, this is the first statement by a state supreme court judge ever that narrows administrative warrants in the context of home inspections since the U.S. Supreme Court’s unhelpful and unclear Camara decision in 1967 started the trend toward such programs. (Telllingly, this concurrence was Justice Anderson’s last official act; he retired on Friday.) And that will be something to use on this issue going forward, whether in state courts or in federal courts, to eventually ask the U.S. Supreme Court to reconsider Camara.

One More Note on the DNA-Swab Case: Judicial Alignment

Roger Pilon and Jim Harper have already commented on the substance of Maryland v. King, but I wanted to highlight an aspect of the ruling that has raised some eyebrows, the lineup of justices.  Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, and Breyer.  Meanwhile, Justices Ginsburg, Sotomayor, and Kagan joined Justice Scalia’s hard-hitting dissent.  Breyer with the “conservatives,” Scalia leading the “liberals”; what’s going on here?

Not that much, actually, in terms of jurisprudential surprises.  As Orin Kerr points out, Justice Scalia has been on the defendants’ side in every non-unanimous Fourth Amendment case – King (DNA-swabbing of arrestees), Bailey (detention incident to search), Jardines (dog-sniffing a home), and McNeely (warrantless blood draw of DUI suspect) – while Justice Breyer has been on the prosecutors’ side in each of those cases.  

And the current term isn’t an anomaly.  In 2009, for example, Scalia joined the majority in overturning the Court’s precedent that had allowed police to search a car upon arresting its driver in the case of Arizona v. Gant (which Scalia mentions in a law-nerd-witty footnote 6 of his King dissent). The same thing happened in another case that year, Melendez-Diaz v. Massachusetts, this time involving the Sixth Amendment’s Confrontation Clause. Indeed, in both of those 2009 cases, Justices Scalia and Thomas joined Justices Stevens, Souter, and Ginsburg (then also the most “liberal” justices).

What happens in such cases is that the most originalist justices, those who like clear bright-line rules rather than mushy standards or balancing tests, join with justices who bend over backward to grant relief to criminal defendants, against those with law-and-order (Alito) or technocratic (Breyer) or establishmentarian (Roberts, Kennedy) tendencies.  Granted, Justice Thomas has been less consistent in that sense this term, but that’s the dynamic to consider when looking at seemingly weird splits in criminal procedure cases.

The Federal Reserve vs. Small Business

Given all the attention that the Federal Reserve has garnered for its monetary “stimulus” programs, it’s perplexing to many that the U.S. has been mired in a credit crunch. After all, conventional wisdom tells us that the Fed’s policies, which have lowered interest rates to almost zero, should have stimulated the creation of credit. This has not been the case, and I’m not surprised.

As it turns out, the Fed’s “stimulus” policies are actually exacerbating the credit crunch. Since credit is a source of working capital for businesses, a credit crunch acts like a supply constraint on the economy. This has been the case particularly for smaller firms in the U.S. economy, known as small and medium enterprises (“SMEs”).

To understand the problem, we must delve into the plumbing of the financial system, specifically the loan markets. Retail bank lending involves making risky forward commitments, such as extending a line of credit to a corporate client, for example. The willingness of a bank to make such forward commitments depends, to a large extent, on a well-functioning interbank market – a market operating with positive interest rates and without counterparty risks.

With the availability of such a market, banks can lend to their clients with confidence because they can cover their commitments by bidding for funds in the wholesale interbank market.

At present, however, the interbank lending market is not functioning as it should. Indeed, one of the major problems facing the interbank market is the so-called zero-interest-rate trap. In a world in which the risk-free Fed funds rate is close to zero, there is virtually no yield be found on the interbank market.

In consequence, banks with excess reserves are reluctant to part with them for virtually no yield in the interbank market. As a result, thanks to the Fed’s zero-interest-rate policies, the interbank market has dried up (see the accompanying chart).

 

Without the security provided by a reliable interbank lending market, banks have been unwilling to scale up or even retain their forward loan commitments. This was verified in a recent article in Central Banking Journal by Stanford Economist Prof. Ronald McKinnon – appropriately titled “Fed ‘stimulus’ chokes indirect finance to SMEs.” The result, as Prof. McKinnon puts it, has been “constipation in domestic financial intermediation” – in other words, a credit crunch.

When banks put the brakes on lending, it is small and medium enterprises that are the hardest hit. Whereas large corporate firms can raise funds directly from the market, SMEs are often primarily reliant on bank lending for working capital. The current drought in the interbank market, and associated credit crunch, has thus left many SMEs without a consistent source of funding.

As it turns out, these “small” businesses make up a big chunk of the U.S. economy – 49.2% of private sector employment and 46% of private-sector GDP. Indeed, the untold story is that the zero-interest-rate trap has left SMEs in a financial straightjacket.

In short, the Fed’s zero interest-rate policy has exacerbated a credit crunch that has been holding back the economy. The only way out of this trap is for the Fed to abandon the conventional wisdom that zero-interest-rates stimulate the creation of credit. Suppose the Fed were to raise the Fed funds rate to, say, two percent. This would loosen the screws on interbank lending, and credit would begin to flow more readily to small and medium enterprises.

And the Award for Most Hypocritical Performance by a Member of Congress Goes To…

During the House Agriculture Committee’s debate over a new farm bill, Tennessee Republican Stephen Fincher cited 2 Thessalonians 3:10 in defending relatively small cuts in food stamps after Rep. Juan Vargas’s (D-CA) cited Jesus’s call to feed the hungry: 

“For also, when we were with you, this we declared to you: that, if any man will not work, neither let him eat.”     

The federal government uses force and the threat of violence to obtain the money that is used to pay for food stamps, so I would argue that Rep. Vargas badly misunderstands what the Prince of Peace was getting at. But whereas Vargas was wrong, Rep. Fincher’s biblical counterpunch was breathtakingly hypocritical. As it turns out, Fincher has likely received millions of dollars in federal farm subsidy payments over the years. 

From the New York Times: 

Using Agriculture Department data, researchers at the Environmental Working Group found that Representative Stephen Fincher, a Republican and a farmer from Frog Jump, Tenn., collected nearly $3.5 million in subsidies from 1999 to 2012. The data is part of the research group’s online farm subsidy database, from which the group issues a report each year. 

In 2012 alone, the data shows, Mr. Fincher received about $70,000 in direct payments, money that is given to farmers and farmland owners, even if they do not grow crops. It is unclear how much Mr. Fincher received in crop insurance subsidies because the names of people receiving the subsidies are not public. The group said most of the agriculture subsidies go to the largest, most profitable farm operations in the country. These farmers have received $265 billion in direct payments and farm insurance subsidies since 1995, federal records show. 

During debate on the farm bill in the House Agriculture Committee last week, Mr. Fincher was one of the biggest proponents of $20 billion in cuts to food stamps in the legislation. At times he quoted passages from the Bible in defending the cuts. 

“We have to remember there is not a big printing press in Washington that continually prints money over and over,” Mr. Fincher said during the debate. “This is other people’s money that Washington is appropriating and spending.”

Yes, Rep. Fincher – and it’s other people’s money that’s been going into your back pocket. As another recent quote from Fincher indicates, the congressman either doesn’t recognize his hypocrisy or he doesn’t care. (I can’t decide which is worse.) 

From the International Business Times: 

“But more than that, the role of citizens, of Christians, of humanity, is to take care of each other,” Fincher said at a Memphis event last week. “But not for Washington to steal money from those in the country and give it to others in the country. Our role is out of control.”

Stunning. 

Rep. Fincher’s inability or unwillingness to remove the plank in his own eye is yet another example of how Republicans are generally lousy at making the case for spending cuts. They mock President Obama’s stimulus job creation claims, but turn around and argue that military spending cuts will kill jobs and hurt the economy. They complain about Solyndra and the White House’s crony capitalist schemes, but they work to secure the same handouts for companies back in the district. They rant against big government but continue to vote for it. Etc, etc. 

Both food stamps and farm subsidies should be cut, and preferably, eliminated. Unfortunately, there are too few members of Congress who are willing and able to make the case.    

How Identification Is Overused and Misunderstood

Justice Anthony Kennedy seems to be carving out his place as the Supreme Court justice who doesn’t “get” identity. Maryland v. King was the case issued today that shows that.

His opener was the 2004 decision in Hiibel v. Sixth Judicial District Court of Nevada, which ratified laws requiring people to disclose their names to police officers on request.

In that case, Deputy Lee Dove of the Humboldt County (NV) Sheriff’s Department had received a report that a man had slugged a woman. He didn’t know the names of the alleged perpetrator or the victim, but Dove found Larry Hiibel standing next to his truck at the side of the road talking to his seventeen-year-old daughter seated inside. Dove didn’t check to see if they were having a dispute, or if anyone had hit anyone. He just started demanding Hiibel’s ID.

“Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder,” Justice Kennedy wrote, approving Hiibel’s arrest for refusing to show his papers:

On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

Even if he had gotten Larry Hiibel’s ID, that wouldn’t have told Dove any of these things. Dove would have had to stop his battery investigation to investigate Hiibel’s background, which he didn’t do until after he had arrested Hiibel–and after his partner had thrown Hiibel’s distraught daughter to the ground. (There’s your battery.)

In Maryland v. King, Justice Kennedy did it again. He wrote the decision approving DNA identification of arrestees. Like demanding Hiibel’s ID, which had no relation to investigating battery, Maryland’s practice of collecting DNA has no relation to investigating or proving the crime for which King was arrested, and it does nothing to administer his confinement. This Justice Scalia made clear in a scathing dissent.

The Court alludes at several points to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here. (citations omitted)

Justice Kennedy appears to think there are certain behaviors around detention and arrest that law enforcement is allowed without regard to the detention or arrest. Here, he has sanctioned the gathering of DNA from arrested people, supposedly presumed innocent until proven guilty, to investigate the possibility of their connection to other, unknown crimes. His logic would allow searching the cell phone of a person arrested for public drunkenness to see if they have participated in an extortion plot.

There is plenty of time to run DNA identification data past cold case files after conviction, and all parties agree that’s what would have happened in King’s case. Given that, the Supreme Court has upheld DNA-based investigation of innocent people for their connections to cold cases because they happen to have been arrested. That’s the strange result of Maryland v. King.

Another Close Fourth Amendment Decision

The Supreme Court’s 5-4 decision today in Maryland v. King produced an unusual split. Justice Scalia’s colorful dissent was joined by Justices Ginsburg, Sotomayor, and Kagan; Justice Kennedy wrote for the Court, including for Justice Breyer. But it also brought to the fore some of the difficulties of interpreting and applying the Fourth Amendment’s protections against unreasonable searches and seizures, where the facts of a given case play so large a role. It’s no accident that such cases are so often before the Court.

Here the main facts were fairly straightforward. Alonzo King was arrested in 2009 on an assault charge. At booking he was photographed and fingerprinted. And the police took a cheek swab for DNA testing, pursuant to a Maryland statute aimed at, among other things, law enforcement. Subsequent testing of the DNA sample enabled the police to link King to an unrelated, unsolved 2003 rape, for which he was subsequently tried and convicted. King argued that the police had no probable cause to believe that he had committed that 2003 crime and therefore had no basis for conducting the DNA search that ultimately linked him to it. The Maryland Court of Appeals agreed and threw out the evidence. The Supreme Court reversed that decision, holding that the DNA search was “reasonable” under the Fourth Amendment.

Without going deeply into the competing arguments, Scalia makes a powerful case that the Court’s decisions, as they have evolved under myriad factual circumstances, are on King’s side: In particular, the Court has never allowed suspicionless searches for law enforcement purposes. And his arguments against the majority’s claim that the DNA sample was taken for purposes of identification are devastating. In fact, as he says in a footnote, “Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes?” The Court would indeed have been more honest if it had said that.

But Scalia’s argument is weaker when he goes after a point on which the Court relies most heavily, the similarity between the police use of fingerprints and, as here, a DNA swab. The Court has never offered a “ready answer” to the question whether taking a person’s fingerprints is a search, he says. That is done “primarily to identify” the person – “though that process sometimes solves crimes,” he adds. Well, if that’s so, then perhaps, if pressed, he might also find that fingerprints could not be used for “law enforcement purposes.”

These Fourth Amendment cases are often close calls, not least because the jurisprudence surrounding the amendment’s warrant requirement has often been the tail that wags the “unreasonable” dog, which makes for a counterintuitive result in some cases. At the least, however, if the Court is going to revise its ever-evolving precedents, it should say so clearly. Today’s decision does not do that, and Scalia rightly calls the majority on it.