Topic: Law and Civil Liberties

Airport Pirates Find Bounty in a College Student’s Life Savings

Today, our friends at the Institute for Justice launched a new challenge to yet another instance of egregious civil asset forfeiture abuse.

Charles Clarke is a 24-year-old college student who found out the hard way that government officials can confiscate property on the mere suspicion that it has a “substantial connection” to a crime or is the proceeds of a crime. No underlying conviction is required. Functionally, this means that officers can claim that “something was a little off” about your behavior, or that “something smells a little like drugs” and then have carte blanche to take whatever cash you have on you. After that, your cash is presumptively guilty, and it is up to you to prove its innocence.

In the winter of 2013, Charles was stopped at the Cincinnati/Northern Kentucky airport based on the officers’ assertion that his bag smelled like marijuana. Actually, it was based off of a drug dog’s “signal” that his bag smelled like marijuana. By claiming that a dog “alerted” an officer can obtain probable cause, but in reality the dogs are about as reliable as Clever Hans.

After searching his bag, the officers found no drugs or other illegal substances. They then asked him if he was carrying any cash. Charles volunteered that he was carrying $11,000–clearly thinking, not unreasonably, that in a just world there is no way the officers could just take his money. Charles’s mistake, however, was thinking that he lives in a just world, and the officers walked away with his life savings.

Charles had saved the $11,000 over the previous five years, from work, financial aid, educational benefits, and gifts from family. Now he must overcome the officers’ hunches by proving that his money came from legal sources.

House Leadership Blocks Key Intelligence Reforms

The House GOP leadership’s hostility to reforming the U.S. Intelligence Community is on full display this week. The House Rules Committee (which is controlled by House Speaker John Boehner) blocked several key reform amendments to the annual Intelligence Authorization bill from even reaching the House floor for consideration.

Furious over an op-ed by Privacy and Civil Liberties Board chairman David Medine that called for an independent review of the executive branch’s “assassination-by-drone” policy, House Intelligence Committee chairman Devin Nunes (R-CA) included language in the annual Intelligence Authorization bill banning the PCLOB from examining the “covert” drone program. A bipartisan amendment (led by Rep. Jim Himes of Connecticut) that would have struck that language was barred from consideration.

Last week, the House passed a bipartisan amendment to the annual Defense Department spending bill baring the federal government from using taxpayer dollars to search the stored communications of Americans collected by NSA. That same amendment would also prevent the federal government from mandating that American tech companies build encryption-defeating “back doors” into their products. The authors of that amendment, Democrat Zoe Lofgren of California and Republican Thomas Massie of Kentucky, wanted to make those provisions permanent, but their amendment was also blocked.

Court Finds Government Actions in AIG Bailout Were Illegal

Ask any first year law student “what did you learn in school today” and you’ll probably get some version of the answer: “duty-breach-causation-harm.”  While this applies specifically to tort claims, it seems axiomatic, even for non-lawyers, that you can’t sue someone who hasn’t hurt you.  Or can you?

Former AIG CEO Hank Greenberg caused a ripple of shock in late 2011 when he filed suit against the U.S. government, alleging that the government’s 2008 bailout and subsequent take-over of AIG was unlawful, and claiming $40 billion in damages.  Despite skepticism throughout the legal community, the case not only survived dismissal, but went on to a full trial, during which such heavyweights as Tim Geithner, Hank Paulson, and Ben Bernanke took the stand. 

Throughout the trial, Judge Thomas Wheeler seemed sympathetic to the claims that Greenberg brought on behalf of Starr International Company, an AIG shareholder.  Few believed that AIG had any alternative to the government’s money, except bankruptcy.  In bankruptcy, shareholders (like Starr) are paid last out of whatever remains after all the company’s debts are paid.  Which typically (and most likely in AIG’s case) means not paid at all.  Would the judge really grant Starr a $40 billion judgment – against the U.S. government – when the alternative was bankruptcy?

No.  But that doesn’t mean the government got off scot free either.  Judge Wheeler found that the federal government committed an illegal exaction.  That is, it took something it had no right to take.  (This, the judge carefully notes, is not the same as a “takings” under the Fifth Amendment.  When there is a takings, the government lawfully uses its authority to take private property for public use and then must pay the owner “just compensation” for that property.  An illegal exaction means the government took properly unlawfully.) 

ALJs in Limbo

A number of cases have been filed recently against the Securities and Exchange Commission (SEC), challenging its use of in-house administrative law judges (ALJs).  As I discussed in my earlier post on this topic, the SEC’s use of ALJs has come under close scrutiny lately because of concerns that, in the wake of a provision in Dodd-Frank expanding ALJs’ power, the SEC has elected to use its in-house procedures more frequently and that this use may have increased the SEC’s ability to prevail in enforcement actions.  Of particular concern is the fact that administrative proceedings lack many of the protections for defendants that litigation in federal courts provide, including: the option of having the case decided by a jury; access to the government’s evidence; and the ability to exclude certain evidence traditionally believed to be unreliable (such as hearsay).    

While a number of these cases have been dismissed, Monday finally garnered a win: Charles Hill succeeded in getting a federal court to issue an injunction that prohibits the SEC from continuing its case against him using its in-house ALJ.  Having been charged with insider trading and brought before an SEC ALJ, Hill filed suit against the SEC in federal court claiming the administrative proceeding was unconstitutional on three different grounds.  Although the court disagreed with two of his arguments, it found in his favor on the third – that the ALJs’ appointment violates the appointments clause because ALJs are “inferior officers.”

Marriage and the Court, Yesterday and Today

As we await a Supreme Court decision on gay marriage, we take note that 48 years ago today the Court struck down Virginia’s ban on interracial marriage.

Mildred Jeter, a black woman (though she also had Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti-miscegenation statute, which dated to colonial times and had been reaffirmed in the Racial Integrity Act of 1924. The Lovings were indicted and pled guilty. They were sentenced to a year in jail; the state’s law didn’t just ban interracial marriage, it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:

Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Five years later they filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously. Chief Justice Earl Warren wrote for the court,

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

Here’s how ABC News reported the case on June 12, 1967:

SC Body Camera Bill Limits Access to Footage

Today South Carolina Governor Nikki Haley will sign S.47, a body camera bill. The bill requires state and local law enforcement agencies in South Carolina to use body cameras and to develop body camera policies and procedures. It also establishes a “Body-Worn Cameras Fund” and prohibits police body camera footage from being accessed via Freedom of Information (FOIA) requests. The increased use of police body cameras is worthwhile, but limiting access to the footage hinders attempts to increase law enforcement accountability.  

Lawmakers fast-tracked S.47 following the death of Walter Scott, a 50-year-old man who in April this year was shot in the back while fleeing Michael Slager, a North Charleston, South Carolina police officer.

A passerby, Feidin Santana, filmed Scott’s shooting, and his footage will undoubtedly play a key role in Slager’s upcoming murder trial. Shortly after the shooting I wrote that it is impossible to know for sure how Slager would have reacted if he had been wearing a body camera, but nonetheless that “It is hard to imagine that if Slager had been wearing an operating body camera that he would have behaved the way he did.”

Although prioritized after Slager killed Scott, S.47 will limit public access to body camera footage of worrying police interactions with members of the public. Among those permitted to access police body camera footage are: the subjects of a body camera footage, criminal defendants, civil litigants, and attorneys representing any of these people.  

It is good that S.47 allows for some access to body camera footage, but the access is too limited. With police body camera footage exempt from FOIA requests it will be difficult for citizens who don’t meet the legislation’s access requirements, such as journalists, to request footage that might be of interest to the public.

The FOIA exemption was added to the bill in large part because of the costs associated with body cameras. It is true that storing, replacing, and maintaining body cameras can be expensive. For instance, Cleveland is expecting to spend $3.3 million over five years on 1,500 body cameras. But some lawmakers have tried to tackle the fiscal impact of body cameras. An Illinois body camera bill on Gov. Rauner’s desk includes a $5 fee for traffic tickets aimed at mitigating the cost of body cameras.

Body cameras can only be used as tools for increased law enforcement accountability while governed by sensible policy. S.47 does include some good proposals, such as requiring law enforcement agencies to use body cameras, but when it comes to access to body camera footage it is too restrictive.

#TakenInByDHS

Are journalists across the nation working to establish a national ID in the United States? Most would object, “Certainly not!”

But in reporting uncritically on the Department of Homeland Security’s claimed deadlines for implementing the U.S. national ID law, many journalists are unwittingly helping impose a system that the federal government may one day use to identify, track, and control every American. Today I’ve started Tweeting about news articles in which this occurs with the hashtag #TakenInByDHS.

Under the terms of the REAL ID Act, which became law more than ten years ago, states were supposed to begin issuing licenses according to federal standards by May of 2008. States that didn’t follow federal mandates would see their residents turned away at airports when the Transportation Security Administration declined their drivers’ licenses and ID cards.

The DHS failed to issue implementing regulations timely, and backed off of the statutory deadline by regulatory fiat. No state was in compliance with REAL ID on deadline, and no state is compliant with REAL ID today. Over the years, the Department of Homeland Security has declared a variety of milestones and deadlines in a fairly impotent effort to bring state driver licensing policy under federal control. Many states have resisted.

The reason for DHS’s impotence is that making good on the threat to prevent Americans from traveling would almost surely backfire. If already unpopular TSA agents began refusing Americans their right to travel, it would be federal bureaucrats and members of Congress getting the blame—not state legislators.

But most state legislators haven’t done this calculation. They are reluctant to create a national ID, and they don’t want to expend taxpayer funds on a program that undercuts their constituents’ privacy. But told of their potential responsibility for bedlam at local airports, they will accede to such things.