Archives: 09/2014

Police Unions and Excessive Force

[cross-posted from Overlawyered]

The need for police forces isn’t going away, so what practical suggestions do libertarians have in the here and now for discouraging police resort to excessive force? Thanks to Ed Krayewski at Reason for quoting me on the subject of tackling the power of police unions, which not only protect bad actors from removal but tie the hands of well-intentioned administrators in a dozen other ways and exert political pressure against effective reform. (Other suggestions in the piece: increase use of body- and dash-cams, extend the role of civilian oversight boards, and end the Drug War; relatedly, curtail SWAT tactics and the use of other paramilitary force.)

On a perhaps not unrelated note, the Washington Post reports today on the police shooting of an unarmed suburban Washington, D.C. man in his front doorway after he refused to let police into his home following a domestic call. The fact that jumped out at me was that, a year after it happened, the Fairfax County police department is still releasing no information about the incident, not even the name of the officer who pulled the trigger. According to the Post’s account (related lawsuit), police shot kitchen contractor John Geer once but first aid did not arrive until an hour later — he bled to death — and his body remained unmoved for hours, like that of Michael Brown on the street in Ferguson, Mo. The Fairfax chief says his department is just following its own policy by not releasing the officer’s name or other information while an investigation is pending (and pending and pending) — but how that policy came to be adopted, and for whose benefit, are questions worth asking.

Kidney Shortage? Cato Discussed That

A New York Times editorial yesterday brought attention to the severe shortage in the number of kidneys available for transplant. There are over 100,000 Americans on the waiting list for a kidney transplant, and the average wait time is almost five years. Last year there were only 4,715 transplants from living donors. The vast majority of these donations were from relatives, only 463 kidney donations were from unrelated individuals. Relative to the pool of people waiting, this is little more than a drop in the bucket. Clearly, demand for kidneys is far outpacing the supply and our system for supplying viable organs to those who need them is failing, and these failures have serious consequences. The National Kidney Foundation estimates that almost 3,381 patients died while waiting for a kidney transplant last year.  Absent change, this problem will only get worse in the future.

Net Neutrality — or Destroying Internet Innovation and Investment?

The Sunlight Foundation reports that the Federal Communications Commission has received more than 800,000 public comments on the topic of “net neutrality,” more than 60 percent of them form letters written by organized campaigns and more than 200 from law firms on behalf of themselves or their clients. That’s an impressive outpouring of public comments. 

But Berin Szoka, a long-ago Cato intern who now runs TechFreedom, argues, “This debate is no longer about net neutrality. A radical fringe has hijacked the conversation in an attempt to undo two decades of bipartisan consensus against heavy-handed government control of the Internet.” TechFreedom has just launched DontBreakThe.Net, a web-based campaign to expose the danger facing the internet from well-meaning demands for something called “net neutrality.” In an open letter to FCC chairman Tom Wheeler, Szoka says:

Subjecting broadband to Title II of the 1996 Telecom Act would trigger endless litigation, cripple investment, slow broadband deployment and upgrades, and thus harm underserved communities. Al Gore may not have exactly ‘invented the Internet,’ but President Clinton’s FCC chairman Bill Kennard deserves much credit for choosing not to embroil the Internet in what he called the ‘morass’ of Title II. Kennard’s approach of ‘vigilant restraint’ unleashed over $1 trillion in private investment, which built the broadband networks everyone takes for granted today. Abandoning that approach would truly break the Internet.

Net Neutrality supporters such as Google, Facebook, and the NAACP haven’t jumped on the Title II bandwagon because they understand that Title II would threaten the entire Internet. Title II proponents claim the FCC can simply ‘reclassify’ broadband, but in truth, there’s no such thing as reclassification, only re-interpretation of the key definitions of the 1996 Telecom Act. If the FCC re-opens that Pandora’s Box, the bright line Chairman Kennard drew between Title II and the Internet will disappear forever. Startups and edge/content providers will inevitably be caught in the fray. And besides, the FCC has a long history of overstepping its bounds.

Invoking Title II would trigger years of litigation. It’s not clear the FCC could ultimately ‘reclassify’ broadband at all, and even less clear the FCC could, or actually would, follow through on talk of paring back Title II’s most burdensome rules, like retail price controls. Even if ‘reclassification’ stood up in court, the FCC still couldn’t do what net neutrality hardliners want: banning prioritization. The FCC would succeed only in creating a dark cloud of legal uncertainty. That would slow broadband upgrades and discourage new entrants, such as Google Fiber, from entering the market at all.

The best policy would be to maintain the ‘Hands off the Net’ approach that has otherwise prevailed for 20 years. Innovation could thrive, and regulators could still keep a watchful eye, intervening only where there is clear evidence of actual harm, not just abstract fears. As former FCC Chairman Bill Kennard put it, ‘I don’t want to dump the whole morass of Title II regulation on the cable pipe.’ If we want to maintain a free and open Internet, and encourage broadband competition, the FCC would do well to heed his advice.

TechFreedom created this catchy graphic for its campaign to encourage more people to understand what’s at stake in the so-called “net neutrality” fight.

Don't Break the Net 

More Foreign Competition in Software and Internet Services?

We’ve gotten used to American dominance in the internet/software industries.  That may not last forever:

Over the weekend, China announced that it was planning to launch a homegrown operating system to replace Windows and Android for running the nation’s desktop and mobile devices. The first iteration of this “Made in China” OS could roll out as early as October

There is some good and bad with this.  The good is that more competition in these industries would be great.  While there is already a fair amount of disruption and innovation here, there are also some key products/services where a couple firms are pretty dominant.  Consumers would benefit tremendously from more competition.

Washington Should Stop Praising Military Tyranny in Egypt

CAIRO—Egypt’s capital is crowded, busy, confused, and messy.  Security isn’t obvious, until you get close to a sensitive site, such as the Interior Ministry. 

The military has taken firm control, elevating its leader, Abdel Fata al-Sisi, to the presidency.  The army permitted dictator Hosni al-Mubarak’s ouster by street protests in 2011 because he planned to turn military rule into a family dynasty.

If ousted president Mohamed al-Morsi and the Muslim Brotherhood been defeated in a future election, they would have been discredited peacefully.  However, the coup turned the movement’s members into angry victims.  In Cairo they took over Rab’a al-Adawiya and al-Nahda Squares, just as the anti-Mubarak and anti-Morsi crowds had done in Tahir Square. 

The military government responded with a campaign of premeditated murder.

In a new report Human Rights Watch detailed the junta’s crimes.  From the beginning the military used deadly force with no concern for casualties.  In fact, the army began using live ammunition against protestors just two days after the coup. 

The most horrific episode occurred when the regime deployed soldiers, APCs, bulldozers, police, and snipers to destroy a vast tent village in Rab’a Square.  Explained HRW:  “security forces used lethal force indiscriminately, with snipers and gunmen inside and alongside APCs firing their weaponry on large crowds of protestors.  Dozens of witnesses also said they saw snipers fire from helicopters over Rab’a Square.” 

In roughly 12 hours HRW figured that at least 817 and likely more than 1000 people were slaughtered.  Since then, said HRW:  “Security forces have continued to use excessive lethal force against demonstrators.” 

Moreover, the regime moved against liberals and other critics, including youthful leaders of the revolution against Mubarak.  Bahey al-Din Hassan, head of the Cairo Institute for Human Rights Studies, argued that military control “is more horrible than the old regime.” 

In fact, by its own count the government has arrested 22,000 people, many of whom have been tortured.  When meeting a visiting delegation organized by the International Coalition for Freedoms and Rights of which I was part, Ayaalaa Hosni, spokeswoman for a women’s anti-coup group, complained that you can’t demonstrate without a warrant but if you “go to ask for a warrant you get arrested.”

Outside assessments are uniformly negative.  David Kramer, president of the group Freedom House, declared in June:  “the human rights situation has worsened compared to what it was at any point under Hosni Mubarak.”   His organization reported that Egypt had gone from “Partly Free” to “Not Free” after the coup, with significant deterioration across the board. 

In a separate study Freedom House rated Egypt’s media “not free.”  An organizer for press freedom told our delegation that ten journalists had been killed.  Scores had been shot and injured, more than 100 had been assaulted, and scores more had been arrested.  Another reporter said simply:  “Journalism has become a crime.”

Yet repression is unlikely to deliver stability.  Terrorism may be seen by more than jihadists as the only way to challenge a regime which bars peaceful dissent.  Mubarak’s jails helped turn Brotherhood member Ayman al-Zawahiri into al-Qaeda’s leader. 

There isn’t much the U.S. can do to change Cairo.  But the Obama administration could stop intervening constantly and maladroitly.  In fact, Washington’s influence is extremely limited.

As I wrote in Forbes online:  “The U.S. should work with Cairo on issues of shared interest but otherwise maintain substantial distance.  In particular, the administration should stop using foreign aid to bribe Egypt’s generals.  They don’t have to be paid to keep the peace and shouldn’t be paid for anything else.”

Egypt appears likely to end up without liberty or stability.  Instead of pretending to be in control, Washington should step back from a crisis which it cannot resolve.

Anti-School Choice Activists Demand Judge’s Recusal Because She’s Catholic

It’s bad enough that a Florida teachers union, the Florida School Boards Association, and the PTA filed a lawsuit to deprive low-income students of scholarships citing the state constitution’s historically anti-Catholic, Know-Nothing inspired “Blaine amendment.” But now anti-school choice activists are demanding that a judge recuse herself from another lawsuit against the state’s choice laws because she’s Catholic.

Kathleen Oropeza, president of the ironically-named Fund Education Now (given that they want to deny tax-credit scholarship funds to low-income students), filed a motion demanding that the circuit court judge recuse herself for the following reasons:

2. On August 26 and 27, 2014, I discovered facts concerning Judge Angela C. Dempsey that cause me to believe that she is biased against the Plaintiff’s position that the Florida Tax Credit Program and the McKay Scholarship Programs are violations of Article IX of the Florida Constitution.

3. The facts are as follows:

a. Judge Dempsey is a member of the Board of Directors of Catholic Charities, and a contributor to same.

b. Judge Dempsey has been a speaker at Trinity Catholic School in Leon County, which is a recipient of funds from the Florida Tax Credit Scholarship Program and the McKay Scholarship Program as well as Step Up for Students which provides vouchers to Trinity Catholic School. (See Ex. A.)

c. The Florida Catholic Conference was an amicus curiae in Bush v. Holmes, 919 So. 2d 392, 404 (Fla. 2006), and supported Opportunity Scholarship vouchers which were struck down by the Florida Supreme Court.

d. Plaintiff’s research has led her to discover a Catholic strategy for saving Catholic education through Florida-style Opportunity Scholarships. A 2011 report, From Aspirations to Action, provides the strategy for this Catholic position complete with “Opportunity Scholarship” model legislation and with getting rid of the Blaine/No Child language through-out the nation, which Plaintiff believes has made Judge Dempsey unable to be impartial in this case. Also, Rev. Larry Snyder, president of Catholic Charities USA, is listed as a Council Member of the National Leadership Roundtable on Church Management, the organization which produced the position statement. (Ex. B, at 77.)

e. On April 20, 2014, Face the Nation reported that Cardinals and Bishops of the Catholic Church are pushing vouchers as a solution to a public school report. […]

4. These facts make me believe there is a continuing association between Judge Dempsey and the interests in my case through her relationship with the Catholic doctrine and position on vouchers for Catholic schools; Catholic Charities; Trinity Catholic School; and as a contributor to Catholic causes. Had I been aware of this relationship, I would have moved to disqualify her before she ruled in my case.

The judge belongs to a Catholic charity and has spoken at a Catholic school, the local Catholic Conference took a position in the original lawsuit, and a cardinal in another state said nice things about school choice on TV, therefore the anti-school choice activists want her to recuse herself. In other words, they want her to recuse herself because she’s Catholic.

The defendants’ response to the motion of recusal firmly rejects Oropeza’s arguments as “legally insufficient” and not “objectively reasonable”: 

10. Plaintiffs’ claim, as articulated in Ms. Oropeza’s affidavit, is legally insufficient. Of the five reasons articulated by Ms. Oropeza, only two—Judge Dempsey’s membership in and board service for Catholic Charities of Northwest Florida, and her role as a speaker at a Leon County parochial school—actually relate to the judge’s own activities. But neither of these affiliations indicate that Judge Dempsey is biased on the question of so-called voucher programs. According to its website, Catholic Charities of Northwest Florida focuses its charitable efforts on immigration, crisis pregnancy and adoption, and emergency assistance—not vouchers or other education issues. And a speaking engagement by Judge Dempsey at a parochial school that receives voucher funds—at an unspecified time, on an unspecified topic and in an unspecified capacity—provides no basis to impute any bias to Judge Dempsey on the question of vouchers or any other topic at issue in this lawsuit.

11. The remaining three “facts” alleged in Ms. Oropeza’s affidavit show nothing more than some individuals and organizations, with some degree of affiliation to the Catholic Church, support the enrollment of students at parochial schools through voucher programs. Unless Plaintiffs were to assert that all Catholics, by reason of their faith, support voucher programs to such a degree that they are unable to render an unbiased opinion on the issue—a position that Ms. Oropeza expressly disclaims—there is nothing about these third party positions that could shed any light on Judge Dempsey’s own ability to fairly and impartially preside over this case.

The defendants also note that there “are no judges in this state who have no involvement with the schools of this state,” since they “either have or had children in school, studied in Florida schools themselves, or have close relatives involved in Florida’s schools,” yet it would be ludicrous to demand that a judge recuse herself for such reasons. It would be equally absurd to demand that female judges not preside over cases involving abortion or sexual harassment or that black judges recuse themselves from cases involving racial discrimination.

Hilariously, Oropeza claimed in her motion, “I do not base this motion on Judge Dempsey’s religious beliefs, but rather on the positions of the organizations with which she is affiliated.” Yes of course, organizations like… the Catholic church and affiliated Catholic charities. But this has nothing to do with the judge’s religious beliefs, she claims, it’s just an attempt to protect citizens from the nefarious “Catholic strategy” that she “discovered” in her “research.” That sounds awfully familiar…

Thomas Nast's anti-Catholic "American River Ganges" cartoon, 1875 

Image: Thomas Nast’s infamous 1875 “American River Ganges” cartoon depicts a noble white Protestant male protecting his family from the bishops’ “Catholic strategy.”

Last year, plaintiffs demanded that a federal judge recuse himself from a case involving the Catholic church because he is Catholic. Sadly, the demand that Catholic judges recuse themselves from certain cases is increasingly common, even from seemingly respectable sources. The imposition of a religious test for judges should be vigorously resisted.

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