Topic: Law and Civil Liberties

Economics Will Be Our Ruination II

Economics appears to be a neutral tool, but it often subtly embeds values that we are better off surfacing and discussing. In a recent post henceforth to be known as “Economics Will Be Our Runiation I,” I pointed out how, by preferring to measure the movement of dollars, orthodox economics treats leisure as a bad thing and laments advances in technology-based entertainments.

This installment of EWBOR focuses on an interesting and insightful article recently published in the University of Pennsylvania Law Review, “An Economic Understanding of Search and Seizure Law.” In it, George Washington University Law School professor Orin Kerr shows that the Fourth Amendment helps increase the efficiency of law enforcement by accounting for external costs of investigations. Here is his model:

The net benefit of any particular investigative step can be described as P*V – Ci – Ce, where P represents the increase in probability that the crime will be solved and successfully prosecuted, V represents the net value of a successful prosecution resulting from deterrence and incapacitation, Ci represents the internal costs of the investigative step, and Ce represents its external costs.

Ci means things like the cost of training and equipping police officers and paying their salaries, as well as their own use of their time. Ce, external costs, “include privacy harms and property losses that result from an investigation that is imposed on a suspect. They also include the loss of autonomy and freedom imposed directly on the subject of the investigation (who may be guilty or innocent) as well as his family or associates.” Kerr rightly includes in Ce more diffuse burdens such as community hostility to law enforcement.

Is There a War on Police?

Heather MacDonald, who is based at the Manhattan Institute, has a new book out titled, The War on Cops.  Is there a war?  John Stossel notes that the “war on cops” narrative is overblown: “ ‘War’ means killing.  The attack on officers in Dallas was despicable, but, even including those five deaths, it is still safer to be a cop today than in years past.  According to FBI records, 2015 was one of the safest years ever recorded.”

MacDonald seems to recognize that.  Her primary aim is to push back against the critics of the criminal justice system.  She says we need more proactive policing and stricter incarceration practices to protect our cities from what she calls “mass destruction.”  I have a review of the book over at Reason and outline several problems with MacDonald’s thesis.

Here’s an excerpt:

In 2013, a federal district court ruled that the NYPD’s [stop & frisk] tactics were unconstitutional. The court noted that cops were evaluated by their “productivity”—that is, finding contraband and making arrests. Officers were not disciplined for stops that turned up nothing, and innocent persons had no practical legal recourse for brief detentions and patdowns of their clothing. Thus, the police had job pressures to stop a lot of people, suspicious or not, to see what might turn up. That helps to explain why, of the 4.4 million police stops between January 2004 and June 2012, there was no further action taken, such as an arrest or summons, in a whopping 88 percent. Mac Donald does not address these points.

That 88 percent might actually be an underestimate, because the police do not necessarily file the proper paperwork where a questionable stop turns up nothing. Recall that when NYPD officers roughed up former tennis pro James Blake last year in a case of mistaken identity, they did not report the encounter. As far as police records showed, it never happened. Fortuitously, the incident was captured by a hotel security camera and Blake’s wife urged him not to drop the matter, arguing that it would highlight a type of abuse that black men had been complaining about.

Read the whole thing.  Related items here, here, and here.

Cross-posted at Cato’s Police Misconduct web site.

A Victory for Free Speech in the Criminal Justice System

Earlier this month, the California-based U.S. Court of Appeals for the Ninth Circuit upheld the First Amendment rights of Darren Chaker, siding with a position Cato took in the case. A lower-court judge revoked Chaker’s supervised release for violating a condition that he not “disparage or defame others on the internet.” Judge Alex Kozinski wrote for the court in a terse two-page opinion that reversed that nonsense.

Chaker’s wrote a blogpost that neither “qualif[ied] as harassment” nor as defamation. In that writing that caused all of the hullabaloo, he merely stated that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department.” Chaker lacked the actual malice required to defame a public official, and a further restriction on his speech would be unconstitutional.

Cato—joined by the ACLU, the Marion B. Brechner First Amendment Project, the Electronic Frontier Foundation, and First Amendment Coalition—filed an amicus brief in the case. Whether or not what Chaker said was true, the First Amendment requires that restrictions on political speech, particularly that disparaging public officials, be subjected to the “highest levels of scrutiny.” An attack on a public official is, on its face, political speech. That it comes from a person being supervised by the Justice system should make no difference to the First Amendment—and for good reasons too.

As we noted in our previous write-up of the case, if the lower court’s decision were allowed to stand, it would have led to diabolical speech restrictions:

If the anti-disparagement provision of Chaker’s supervised release becomes widespread, it could easily stifle valuable speech by activists and others. For instance, in his Letter from the Birmingham Jail, Dr. Martin Luther King Jr. remarked that “[w]e are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo.” Had King been subject to the same conditions as Chaker, he might have been resentenced for some of his most powerful writings. Worse still, he might never have published at all. Imposing vague and broad restraints on speech leaves people like Darren Chaker guessing as to the limit of their rights and as to which leaders are “touchable” by the spoken and written word.

Chaker notes on his personal blog that he is “only one of 4,708,100 people are on probation or parole.” Millions of individuals’ political speech could have been swept up under the precedent set by the lower court’s outrageous decision.

The decision in Chaker v. United States is thus a victory for First Amendment advocates and political activists everywhere. It protects the rights of even the most downtrodden and implicitly applies the correct defamation standard to political speech aimed at public officials.

Should Police Robots Prompt a Use-of-Force Rethink?

Last week police in Dallas used an explosive attached to a robot to kill a man suspected of killing five Dallas-area police officers and wounding eleven other people, including two non-officers. The detonation-by robot is widely believed to be the first killing of its kind in the history of American policing, and has prompted much discussion and debate. In the days since the Dallas shooting, questions have been raised concerning when police should be permitted to kill citizens and if lethal use-of-force policy should change depending on the tool police officers use the kill citizens. While it is tempting to view new technologies as devices worthy of a special set of rules, policymakers should consider regulations that make police-citizen interactions safer and less frequent rather than craft new use-of-force rules for robots.

For the purposes of this post, assume that what Dallas Police Chief David Brown said about the killing of the suspect is true. According to Brown, following hours of failed negotiation “[Dallas police] saw no other option but to use our bomb robot and place a device on its extension for it to detonate where the suspect was.” He also said, “Other options would have exposed our officers to grave danger.”

Given America’s federalist system, it is appropriate that there is no universal use-of-force policy guiding this country’s roughly 18,000 law enforcement agencies. Yet police officers are generally permitted to use force in order to make a suspect comply with a lawful order or arrest. Such force is deemed excessive when it goes beyond what is necessary, although there isn’t a nationwide consensus on what is deemed excessive. For instance, in some jurisdictions chokeholds are permitted while in others they’re banned.  

Despite the diversity of American police departments, most use-of-force policies allow for a police officer to use deadly force if he reasonably believes that a suspect poses a threat of serious injury or death to the officer himself or others. The Dallas shooting suspect clearly fits into this category.

While the use of robots to kill suspects may prompt a sense of unease among some–evoking scenes from dystopian science fiction movies–there are few reasons to think that a robot should be treated differently from a handgun or sniper rifle under deadly use-of-force policy.

Could an Independent Candidate Still Make It onto the Ballot in November?

As we enter the summer of Crump (or Trinton, take your pick), many Americans are unsatisfied with the two-party oligopoly that has produced the two most unpopular presidential candidates in modern memory. While some of these will nevertheless hold their noses and pick whomever they see as the “lesser evil,” others can’t fathom pulling that proverbial lever. Of these, some are gravitating toward Gov. Gary Johnson and look forward to becoming part of what will likely be the best showing for a Libertarian Party candidate. Still, others are less enamored with Johnson so, like Bill Kristol at his rolodex, are hoping for an as-yet unnanounced candidate of whatever ideological stripe.

Not to rain on anybody’s parade, but as a lawyer – or at least someone who plays a lawyer on TV – I have to ask the question of whether this is even legally possible (forget the political and financial practicalities). During the primary season, when Donald Trump was lumbering towards the GOP nomination, we heard nervous #NeverTrumpers discussing ballot-access deadlines in Texas and elsewhere.

And indeed, the Lone Star State’s deadline for an independent candidate to collect and file the requisite signatures – 79,939 for those counting at home – came and went on May 9. We’re now past seven other states’ deadlines, with a further six being hit this week. These 13 states account for 178 of the 538 electoral votes, and include red, blue, and purple states. (There are separate, generally earlier deadlines for so-called “minor” parties, but I’ll stick to analyzing the rules for independent candidates because the logistics of having a theoretical white knight “take over” an existing third party with already-qualified ballot access are even more complicated.)

More Unconstitutional Executive Branch Actions

Imagine that your company’s board chairman, against the wishes of the board of directors and in contravention of the corporate charter, hires an interim CEO. Despite that illegal action, the interim CEO disciplines you in some manner. Would that discipline be any more legitimate if, two years later, the board finally agrees to hire the CEO, who then retroactively approved his own previous actions?

This is what’s happened at the highest levels of government. When Congress created the Consumer Financial Protection Bureau (CFPB) as part of the larger Dodd-Frank financial reform, it specified that the director was to be appointed by the president “by and with the advice and consent of the Senate.” This placed what’s called an Appointments Clause limitation on the director’s position. Four years ago, President Obama named Richard Cordray the CFPB director—after Elizabeth Warren’s expected appointment met significant political resistance—during what the president erroneously believed was a Senate recess. (You’ll recall that the Supreme Court unanimously invalidated the National Labor Relations Board appointments Obama made at the same time.)

Police Use Robot to Kill Dallas Suspect

Last night Dallas police officers used a bomb robot to kill the suspected perpetrator of a shooting that left five Dallas-area police officers dead and seven others wounded. Two citizens were also wounded in the shooting. While police have used robots to deliver chemical agents and pizza, it looks as if the deployment of the robot bomb last night was the first time American police officers have used a robot to kill someone.

Police reportedly used the robot after hours of negotiation with the suspect broke down. According to Dallas Police Chief David Brown, “We saw no other option but to use our bomb robot and place a device on its extension for it to detonate where the suspect was.” He went on to say, “Other options would have exposed our officers to grave danger.”

The death of the alleged shooter in Dallas should prompt us to think carefully about how new technologies will be used by police to deliver lethal force. Robots like the one use by Dallas police last night are used by police departments across the country as part of bomb squads. But it’s worth keeping in mind that these robots will continue to improve, making it easier for police to use them in situations like the standoff in Dallas.

Pages