Topic: Law and Civil Liberties

A No-Guns List Still Isn’t an Answer

Back in December, Senate Democrats, with President Obama’s backing, attempted to prohibit anyone on the federal government’s terrorism watchlist from purchasing a firearm.

At the time, I criticized the proposal for its lack of process and its inevitable inefficacy at reducing gun crime or terrorism.

Yesterday, Senate Democrats launched a filibuster in order to push for the resurrection of the failed “No-Guns List.”

The substance of their plan has not changed, and my earlier criticism still stands:

How does a person prove they are not a terrorist? It’s virtually impossible. A no-flyer doesn’t receive the evidence against them or a hearing before being placed on the list. They are not allowed to confront their accuser. Even getting the government to acknowledge that a person is on the list may require lengthy and expensive litigation. A person on the no-fly list may not even know they are on the list until they’re refused service at the airport. A person on the broader terror watch list has no means of finding out. The system is devoid of anything resembling due process, a flaw The New York Times condemned as being intolerable in a free and democratic society and over which the American Civil Liberties Union is currently suing the Obama administration. The no-fly listing procedure has already been declared unconstitutional by at least one federal judge.

Including too many people on the list is inevitable. Nobody wants to explain, after a terrorist attack, why the attacker wasn’t in the database. And that overly inclusive quality has manifested itself in absurd ways already. Just a few examples of no-fly denials: the late Democratic Massachusetts Sen. Ted Kennedy, congressman and civil rights hero John Lewis, dozens of people named Robert Johnson, members of the U.S. military and federal air marshals.

The potential for false positives and mistaken identities is not just accepted as collateral damage by these no-gun list proposals; it is the entire point. Anyone who has actually been convicted or is currently charged with terrorism-related crimes is already prohibited from purchasing a firearm under federal law. The people adversely affected by this proposal will inevitably be people against whom the government lacks sufficient evidence to charge.

The fact that a person hasn’t been adjudicated as dangerous doesn’t preclude them from committing violence, of course. But just how much discretion should the president have in abolishing constitutional rights without charge or trial?

What has changed is the political climate in the interim.

The No-Guns List appears to have picked up some powerful allies on the right.   Presumptive Republican presidential nominee Donald Trump has expressed support for the idea, and is apparently lobbying the National Rifle Association to come along with him. 

The GOP and the NRA are generally regarded as the two primary bulwarks against misguided gun control proposals.  Adding their weight to this particular gun control proposal would bolster its legislative prospects immensely.

Even if, as some supporters have urged, the law requires hearings before a watchlisted person can be denied the right to bear arms, important questions remain.  What exactly does the state need to prove in order to take someone’s 2nd Amendment rights away?  What is the burden of proof?  Will judges allow the use of secret evidence, citing state secrecy concerns for refusing to disclose it?  Will the individual be entitled to legal representation?  Can he call and cross-examine witnesses? Can he appeal the ruling? Can he publicly discuss his case?

And those are just the legal concerns.  There are also pragmatic issues. What information does the FBI convey to the gun seller when someone on the list is denied?  Is the gun seller told that he’s got a terror suspect standing in his store?  What if the person actually is an aspiring terrorist under government surveillance?  Doesn’t this process inevitably tip him off? Would finding out that he’s on the government’s radar only encourage an aspiring terrorist to act quicker? Would it compromise legitimate surveillance operations?

The Boston bombers didn’t need guns. Nor did Timothy McVeigh or the 9/11 hijackers.  Giving terror suspects a sure-fire way to figure out whether they’re being surveilled seems like a large price to pay for what may be a non-existent benefit.

Omar Mateen passed background checks.  He passed training requirements. He had access to weapons as a security guard.  He wasn’t even on the terrorism watchlist. Nothing in this proposal, and nothing in any of the other gun control proposals this tragedy has spawned, would have kept firearms out of Omar Mateen’s hands.  The only way his rampage could have been prevented was for someone to kill him first. Unfortunately, laws that deny even sober people the right to carry weapons in establishments that serve alcohol meant that the law-abiding victims were sitting ducks.

Knee jerk reactions to horrible tragedies have proven to be a poor basis for good public policy.  We have institutions like due process precisely for times when emotions threaten to overrun safeguards that are just as important for protecting the innocent as the guilty.

It’s hard to imagine a graver violation of the spirit of the 2nd Amendment than a law allowing the President to declare anyone an enemy of the state without so much as a charge and subsequently bar them from exercising their 2nd Amendment rights.  But Republicans, lured from their stalwart support of gun rights by fears of terrorism, and Democrats, lured from their stalwart support of civil rights by their zeal for gun control, combined with an election cycle that has been defined by appeals to fear may be creating a perfect storm and a severe threat to liberty.

P.S. Two tweets this morning from sitting Congressmen highlight the divide.

Democratic Senator and gun control advocate Joe Manchin doesn’t inspire confidence when he says things like “due process is killing us.”

Luckily, not everyone in Congress agrees.

Does Joe Manchin Want to Make America a Police State?

This morning, Senator Joe Manchin (D-WV) was on MSNBC’s Morning Joe discussing police responses to the Orlando shooting. Here’s his key thought:

With all due respect, due process is the essential basis of America. The Constitution was established to “secure the blessings of liberty”—that’s the whole purpose of our government—and that government can’t deny us our life, liberty, or property without due process of law. If the government wants to deny someone’s liberty, it better have an awfully good reason and it better be ready to defend itself in court immediately—akin to what happens when someone is arrested or involuntarily committed. Otherwise, we’d live in a world where perhaps there’s less crime, but also life isn’t worth living.

Senator Manchin may want to live in a police state, but few of us would want to join him there. Count me out of the time machine to East Germany.

Preventing Collusion between Plaintiff and Defense Lawyers

When a class action is settled, class members accept the benefits of the settlement while giving up any legal claims they may otherwise have against the defendant. When the class members’ claims are for money-damages, the rule of civil procedure require that prospective class members must be given the opportunity to opt out of the class to pursue their individual claims independently. This opt-out requirement is a barrier to collusion between defendants and class counsel, who could negotiate a low per-member monetary (or coupon) award in exchange for extinguishing the claims of a large number of people.

An exception to this general rule exists, however, when the claim is not for money but rather for declaratory or injunctive relief—in other words, that the defendant do or stop doing something. In that case, individual class members would have no need to pursue a separate claim for personalized relief. Put simply, in a case seeking an injunction, there’s no possibility that a different attorney would be able to get any one class member more stuff—because there’s no money or other goodies to be gotten anyway.

This commonsense reasoning for the exception to the opt-out requirement breaks down, however, when a case involves both injunctive and monetary relief. Denying an opt-out mechanism in these cases is not only illogical, but depriving class members of their money-damages claims without an opportunity to opt out of the class violates the constitutional rights of absent class members. Specifically, the Fifth Amendment’s Due Process Clause protects class members’ rights to remove themselves from the class, pursue separate claims against the defendant, and be represented by their counsel of choice. The Supreme Court has said that “due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the court.” Phillips Petroleum Co. v. Shutts (1985).

While the right to opt out of the class alone is insufficient to prevent self-dealing by—and collusion between—class counsel and defendants, it gives class members the final word on whether a settlement sufficiently compensates them for surrendering their legal claims. Despite all this, the Richmond-based U.S. Court of Appeals for the Fourth Circuit recently upheld a settlement certification without opt-out in a case that originally made claims only for monetary relief, Schulman v. LexisNexis.

The statute under which the class sought relief, the Fair Credit Reporting Act, provides for money-damages remedies only, not for injunctive relief. Nevertheless, the settlement reached by class counsel and defendants would extinguish class members’ money-damages claims while awarding them merely the defendants’ agreement forever to cease harmful actions. Moreover, the court certified the settlement without requiring that class members receive notice and opportunity to opt out precisely because the settlement provides for no monetary relief. If allowed to stand, this precedent will be a wink and a nod to class counsel and defendants everywhere that, if sufficient care is taken in crafting a settlement, they need not worry about the rights and interests of those pesky class members.

Cato has filed an amicus brief urging the Supreme Court to review Schulman and ensure that the due process rights of class members are protected nationwide.

Crazy Law Allows “Discounts” for Cash but Not “Surcharges” for Credit

In Federalist 10, James Madison warned of “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community.” These groups—“factions” in Madison’s terms—come together to seek concentrated benefits from favorable legislation and regulation rather than competing in the marketplace, while spreading the costs throughout society.

While Madison conceded that such interests could not be stopped completely, he acknowledged that certain steps could be taken to mitigate the “effects” of these groups, and the damage that they can do to the public interest. The First Amendment is one such protection. The New York legislature, however, ignored the First Amendment rights of both merchants and consumers when—at the behest of the credit-card lobby—it passed a law restricting how retailers can convey pricing schemes, as well as the public’s right to know about them. 

New York’s no-surcharge law—like those in 10 other states—insulate credit-card companies from consumer knowledge about who is actually causing the higher prices on goods when they use their credit card (“swipe fees”). The law does this not by restricting the merchants’ ability to charge different prices as between cash and credit payments—that’s legal everywhere—but by regulating the communications regarding the different prices.

To put it simply: the law allows merchants to offer “discounts” to cash-paying customers, but makes it a crime to impose economically equivalent “surcharges” on those who use plastic. By mandating how these merchants convey their pricing structure, New York is restricting speech on the basis of its content, which would seem to be an obvious First Amendment violation.

A federal district court agreed—as have two other federal courts, including the U.S. Court of Appeals for the Eleventh Circuit when it struck down a similar Florida law. The district court held that the law “plainly regulates speech”—not conduct—by drawing a line between prohibited “surcharges” and permissible “discounts” based solely on words and labels. The Second Circuit disagreed, however, holding that the law regulates “merely prices,” not speech.

Cato has now filed an amicus brief urging the Supreme Court to take up this important case and rule that collusion between business interests and state government can’t be used to circumvent constitutional rights. Indeed, the Framers sought to protect speech from the type of crony capitalism New York’s no-surcharge law manifests. We also argue that the Court should clarify that the First Amendment covers speech even if it involves commercial matters. When legislatures abridge these protections, judges should apply the highest form of scrutiny to these laws rather than limply deferring to majoritarian will. 

The Supreme Court will decide later this month, or possibly this fall, whether to take up Expressions Hair Design v. Scheniderman.

Thanks to former Cato legal intern Frank Garrison, who’ll be starting as a legal associate later this summer, for help with this brief.

Happy Magna Carta Day

On the fields of Runnymede, 801 years ago today, English nobles and clergy met to wrest from King John many of the rights we Americans now enjoy. There followed, however unevenly, the rule of law.

Thus was the nascent common law reduced to a document, Magna Carta, the world’s oldest, still honored “constitution.” Its lesson, that political power needs to be restrained by the rule of law, is as important to remember today as it was eight centuries ago. 

Click on the links above to see why.

NH Governor Vetoes School Choice Bill

For a few years now, the town of Croydon, NH (population 651) has been fighting with the governor and state board of education over their school choice policy. The town isn’t large enough to sustain its own K-12 district school, so it contracts with a neighboring town to educate most of its residents’ children starting in 5th grade. But when its contract was approaching expiration a few years ago, the town decided to give local parents the option of sending their children to private schools as well, and the town would cover tuition up to the amount that it was spending per pupil at the neighboring district school (about $12,000).

That’s when the governor and state education bureaucrats got involved. They objected to the town’s use of tax revenue at non-government schools, though they had difficulty pointing to exactly which law or statute the town was violating. They’re currently embroiled in a lawsuit to sort out whether Croydon has the authority to decide how to spend its local tax dollars, but meanwhile the state legislature passed a bill clarifying that Croydon and similar towns have the authority to enact their own school choice policies. 

Last week, NH Gov. Maggie Hassan vetoed that bill citing two arguments I had already refuted in a Union Leader op-ed earlier in the week. In her veto message, Gov. Hassan wrote:

House Bill 1637 diverts taxpayer money to private and religious schools with no accountability or oversight, a clear violation of the New Hampshire Constitution, which states, ‘… no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.’ Not only is the bill unconstitutional, it also has no mechanism to ensure a student’s constitutional right to the opportunity to receive an adequate education and would undermine the state’s efforts to ensure a strong and robust public education system for all New Hampshire students.

“Under current New Hampshire law, public schools are required to provide the opportunity for an adequate education, as defined by the Legislature, and are held accountable through laws and rules that require monitoring and review by the Department of Education. Additionally, as required by statute and as a result of Supreme Court decisions requiring a statewide education accountability system, New Hampshire schools are required to participate in the Statewide Educational Improvement and Assessment Program. If House Bill 1637 is enacted, public funds would be used to send students to private schools – which are only approved by the Department of Education for attendance and not curriculum, without the same accountability standards as the public schools – violating the requirements of state law and the state Constitution.