Topic: Law and Civil Liberties

Court Swats Away Immunity for Obviously Reckless Police Behavior

On Friday, a federal appellate court issued an opinion in Stamps v. Town of Framingham, holding that a SWAT team officer who points and accidentally fires a loaded semi-automatic weapon at a subdued 68-year-old grandfather is not immune from facing a lawsuit for using excessive force in violation of the Fourth Amendment.

Eurie Stamps was the stepfather of Joseph Bushfan, whom the police suspected of dealing crack. Effectuating a search warrant on Stamps’s apartment, the SWAT team raided the apartment at midnight on January 5, 2011.  Stamps—whose presence the SWAT team was aware of and who was not suspected of any wrongdoing—lay prostrate and motionless on the ground with his hands out while Officer Duncan guarded him. During the time that Duncan was guarding him, Duncan moved his finger to the trigger and accidentally fired, killing Stamps.

The real story is how this seemingly obvious outcome—that juries should be able to decide whether officers who finger the trigger of loaded guns pointed at non-threatening individuals use excessive force—even became an issue. At the district court, Officer Paul Duncan claimed that his actions aren’t subject to scrutiny because of a doctrine entitled qualified immunity. As I wrote in September:

Under the doctrine of “qualified immunity,” government officials—including police officers—are immune from suit if their actions don’t violate a “clearly established” constitutional right. The crux of Duncan’s argument is that when his weapon discharged, he became immune from suit even if pointing an assault rifle at Stamps was an unconstitutional act by itself—because there’s no clearly established right against accidental death.

The district court rightly rejected that argument, which Cato categorized as both “dangerous and bizarre” in our brief. The U.S. Court of Appeals for the First Circuit was plain in its rejection as well: “The defendants’ proposed rule has the perverse effect of immunizing risky behavior only when the foreseeable harm of that behavior comes to pass.” It seems that the court agreed with Cato’s position that “foreseeable accidents don’t remove liability from the harming actor . . . immunizing an officer from liability for the foreseeable result of his intentional actions [is improper].” Indeed, the court noted the “widespread agreement” of other federal courts in rejecting exactly that sort of argument.

Thus, because Officer Duncan’s actions were not immunized, the case goes back to the jury to determine whether he is liable for his actions, and what the damages should be. (In all likelihood, Duncan will now settle the case because it’s hard to imagine that a jury won’t rule for Stamps’s family here.)

This decision comes at a time when SWAT raids across the country creates pressing issues on the proper use of government force in effectuating criminal arrests. In a militarization case with nearly identical facts, Kane v. Lewis, Cato filed a brief noting that “SWAT team deployments have increased more than 1,400% since the 1980s … .  SWAT teams and tactical units were originally created to address high-risk situations, such as terrorist attacks and hostage crises. Today, however, these extreme situations account for only a small fraction of SWAT deployments; they’re used primarily to serve low-level drug-search warrants.”

Federal courts should continue to rein in the use of militarized SWAT teams – and indeed government officials abusing their powers in all contexts – improving respect for law enforcement officers as well as protecting arrestees and innocent bystanders.

Police Misconduct — The Worst Case in January

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of January.  It was the case from Suffolk County, New York, involving now former police officer, Scott Greene.  He was convicted of repeated instances of theft.

According to the evidence introduced at the trial, Greene would target Hispanic drivers, pull them over, order them to surrender their wallets, or invent a reason to search their vehicles and then steal cash located inside.  By stealing from persons he thought were illegal immigrants, Greene thought his victims would not come forward to file any complaint.  And he would enrich himself by using his police powers.  Prosecutor Tom Spota called Greene a “thief with a badge” and says he will be seeking the maximum possible prison sentence–about four years.

Alas, there are problems in the Suffolk department even beyond Greene.  The recently departed chief, James Burke, has been indicted for abusing a suspect and then coercing his subordinate officers to cover up his crime.  Local community activists say the department is so corrupt that they want a federal takeover.  Stay tuned about that.

Time to Rein in Judicial Deference to Executive Agencies

Bryana Bible defaulted on her student loans. Upon her default, the guarantor of her loans, United Student Aid (USA) Funds, paid the default claim and took over the loan. Bible and USA Funds agreed to a $50-a-month repayment plan. Per the applicable Higher Education Act and Department of Education regulations, however, the agreement included a collection fee of 18.5% of the unpaid loan balance.

Bible balked at this fee and filed a class action against USA Funds, alleging that the company violated both the terms of the promissory note and the federal Racketeer Influenced Corrupt Organizations Act (!). The district court agreed with USA Funds because both the law and applicable regulations allowed for exactly that fee to be imposed. But when the case got to the appellate stage, it went off the rails.

The Seventh Circuit panel fractured, with one judge considering the regulatory text unambiguously permitting the fee, one judge considering the regulatory text unambiguously prohibiting the fee, and one just finding the regulations altogether ambiguous. The judges decided to resolve the case by deferring to the Department of Education’s opinion on the matter.

The Secretary of Education filed an amicus curiae brief, siding with Bible—which contradicted both the agency’s previous regulations and the statute’s express terms. Still, because the Secretary’s brief offered novel interpretative guidance, the court was forced to defer to the agency’s interpretation of its own guidance under a rule called Auer (or Seminole Rock)deference—a doctrine requiring courts to defer to agencies’ interpretation of their own guidance unless plainly erroneous or inconsistent with the regulation—instead of hazarding its own interpretation.

USA Funds has asked the Supreme Court to clean up this mess. Cato has joined the American Action Forum and Judicial Education Project on a brief urging the Court to take up the case and overrule both Auer v. Robbins (1997)and Bowles v. Seminole Rock & Sand Co. (1945).

Auer deference is simply outdated—and was superseded by statute from its inception. In 1946, one year after the Court decided Seminole Rock, Congress passed the Administrative Procedures Act (APA). The APA distinguished between legislative and interpretative rules. Legislative rules are subject to notice-and-comment practice but interpretative rules are not. Accordingly, judicial deference to a rule that results from an open notice-and-comment procedure may be justifiable, while deference to an interpretative rule—like the one at issue here—which is not subject to such a process, is inappropriate.

Let a Thousand Flowers Bloom

While Cato believes that same-sex couples ought to be able to get marriage licenses (if the state is involved in marriage in the first place), a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.

Arlene’s Flowers, a flower shop in Richland, Washington, declined to provide the floral arrangements for the same-sex wedding of Robert Ingersoll and Curt Freed. Mr. Ingersoll was a long-time customer of Arlene’s Flowers and the shop’s owner Barronelle Stutzman considered him a friend. But when he asked her to use her artistic abilities to beautify his ceremony, Mrs. Stutzman felt that her Christian convictions compelled her to decline. She gently explained why she could not do what he asked, and Mr. Ingersoll seemed to understand.

Later, however, he and his now-husband, and ultimately the state of Washington, sued Mrs. Stutzman for violating the state’s laws prohibiting discrimination in public accommodations. The trial court ruled against Arlene’s Flowers and the case is now on appeal.

Cato has filed an amicus brief supporting Arlene’s Flowers and Mrs. Stutzman, urging Washington’s highest court to reverse the trial court’s decision. Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. There are numerous floristry schools throughout the world that teach students how to express themselves through their work, and even the Arts Council of Great Britain has recognized the significance of the Royal Horticultural Society’s library, which documents the history, art, and writing of gardening.

The U.S. Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to floristry—even if it’s not ideological and even if it’s done for commercial purposes. The Supreme Court declared more than 70 years ago that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” West Virginia Board of Education v. Barnette (1943). And the Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license-plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech.

Who Will Stand Up for the Constitution?

The Constitution has gotten short shrift in the ongoing presidential debates, save for an occasional mention by Rand Paul. Now that he’s out of the race, Politico reports this morning, in a piece entitled “Ted Cruz, born-again libertarian,” that Cruz is scrambling for Paul’s supporters, claiming that he’s the one remaining “constitutional conservative.” That’s rich, and here’s why.

If there is any test of libertarian constitutionalism, it concerns the proper role of the courts in limiting legislative and executive excesses, federal, state, and local. Even many conservatives today are rethinking their earlier views and arguing now that courts need to be more engaged in the business of limiting government and preserving liberty. And no Supreme Court decision in our history more symbolizes the divide between the earlier conservatives and the libertarians who’ve gradually brought this re-thinking about than Lochner v. New York, where the Court in 1905 struck down an economic regulation because it violated the right to liberty of contract protected by the 14th Amendment.

And where does Ted Cruz stand on that? Here’s Damon Root writing yesterday about the Paul exit in Reason’s “Hit & Run” blog:

Ted Cruz, meanwhile, stands in direct opposition to the libertarian legal movement on the central issue of economic liberties and the Constitution. For example, in July 2015 Cruz attacked the Supreme Court’s Lochner decision as a regrettable example of the Court’s “imperial tendencies” and “long descent into lawlessness.”

Unfortunately for Cruz, he undercut his own position in that speech by mangling the facts of Lochner, which he incorrectly described (while reading from a prepared text) as a case where “an activist Court struck down minimum wage laws” on behalf of an individual right “that has no basis in the language of the Constitution.” (Cruz’s opposition to Lochner also happens to be indistinguishable from Barack Obama’s negative view of the case.)

In reality, Lochner was not a minimum wage case at all; it was a maximum working hours case, plain and simple. What’s more, there is significant historical evidence showing that the individual right at issue in Lochner—liberty of contract—is deeply rooted in the text and history of the 14th Amendment.

Ted Cruz may be a “constitutional conservative” in the old and, increasingly, passing sense, but he’s hardly heir to those Rand Paul supporters who take the Constitution seriously. If his views on Lochner are any indication, he’d be more comfortable with the deferential Court that has left Obamacare largely intact. At the least, he needs to bone up on his constitutional theory and history.

Lyndon McLellan Finally Beats the IRS

Last year I referred readers to the abuse of civil asset forfeiture laws by the IRS in its attempt to take more than $107,000 from North Carolina small business owner Lyndon McLellan without charging him with any crime.

The IRS cleaned out Mr. McLellan’s business account because it suspected him of “structuring,” an offense whereby a person avoids legally-mandated financial reporting requirements by keeping their deposits and withdrawals under $10,000.  Because there are many perfectly legitimate reasons a business owner may deposit less than $10,000 at a time (for instance, if their insurance policy only covers $10,000 cash on hand), and because civil asset forfeiture allows the government to seize cash and property without proving any wrongdoing, IRS structuring seizures are prone to abuse.

Tacitly recognizing the abuse allowed by the law, former Attorney General Eric Holder announced changes to the use of civil forfeiture in structuring offenses last year.  The policy changes should have spared innocent business owners like Lyndon McLellan, but it seems some federal prosecutors never got the memo.  In fact, the Assistant U.S. Attorney in charge of the case responded to criticism by sending veiled threats to Lyndon McLellan and his lawyers at the Institute for Justice, warning them against publicizing the case lest it “ratchet up feelings” in the IRS offices.

The publicity worked. After significant public and political pressure, the IRS relented and returned the amount they had taken from Mr. McLellan’s bank account. As I noted last year, however, the IRS refused to reimburse Mr. McLellan for the costs of fighting the seizure or to pay interest on the money it had wrongfully seized.

But this week a federal judge ruled that the IRS must do more to make Mr. McLellan whole, and awarded him legal costs totalling more than $20,000.

The court held:

Certainly, the damage inflicted upon an innocent person or business is immense when, although it has done nothing wrong, its money and property are seized. Congress, acknowledging the harsh realities of civil forfeiture practice, sought to lessen the blow to innocent citizens who have had their property stripped from them by the Government… . This court will not discard lightly the right of a citizen to seek the relief Congress has afforded.

Fortunately, thanks to the efforts of Mr. McLellan and the Institute for Justice, the good guys won this time. Ultimately, however, the only way to ensure that civil forfeiture abuses stop happening is to abolish civil forfeiture. If the government cannot prove beyond a reasonable doubt that a person engaged in criminal activity, it should not be able to punish them as if they’re guilty.  As long as Congress and state legislatures allow this practice to continue, more innocent Americans will end up fighting for their livelihoods like Lyndon McLellan had to.  

For the Institute for Justice page detailing Mr. McLellan’s case, click here.

For Cato’s explainer on the troubling history of civil asset forfeiture, click here.

A Lawful Executive Action: Declassifying Marijuana

I’ve been quite hard on President Obama for his abuse of executive power – and will soon file another brief in the 26-state challenge to his immigration action – but there are certainly things that he or any president can do to protect and secure our liberty without violating the Constitution. One such executive action would be to “declassify” marijuna: remove it from the list of controlled substances (or at least move it further down the list, which would have significant positive legal effects). I explain in this video:

In case you don’t have time to watch, here’s a transcript:

While legalizing marijuana as a matter of federal law would take an act of Congress, President Obama can decriminalize it. He can do this by moving it out of Schedule I of the Controlled Substances Act, which is reserved for substances of no medical purpose and a high potential for abuse, and therefore have high criminal penalties attached to their mere possession.

Virtually all marijuana-­related arrests are handled by state and local law enforcement. The federal Drug Enforcement Agency (DEA) simply lacks the resources to enforce the federal ban across all 50 states. That’s why the Justice Department decided not to fight the legalization of marijuana in the handful of states that have taken that step.

President Obama — without rewriting any laws or going outside of his constitutional authority — can direct the attorney general to start the process of reclassifying marijuana as a Schedule IV or V substance, or declassifying it altogether.

Reclassifying marijuana as a Schedule III substance or lower would have significant benefits for the budding marijuana industry and individual users. For example:

Declassifying marijuana would solve all of these problems.

But even merely reclassifying it would make it easier for legal businesses to access the full economy and reduce violent crime.

Marijuana deregulation sits squarely within the control of the executive. The president should use his executive powers to allow for intelligent enforcement of drug policy without eroding the rule of law.

I guarantee that if President Obama does this, he won’t be impeached for high times crimes and misdemeanors.