Topic: Law and Civil Liberties

Police Misconduct — The Worst Case in December

Over at Cato’s Police Misconduct web site, we have identified the worst case for December. It was the case of Eric Crinnian, a Kansas City man who was threatened by police for refusing them warrantless entry into his home. When Crinnian, a lawyer, refused to let officers search his home in the middle of the night without a warrant, he says an officer told him, “If we have to get a warrant, we’re going to come back when you’re not expecting it, we’re going to park in front of your house, where all your neighbors can see, we’re gonna bust in your door with a battering ram, we’re gonna shoot and kill your dogs…and then we’re going to ransack your house looking for these people.”

That kind of conduct shows a clear contempt for the Constitution, which is supposed to be the law of the land.

We welcome assistance from readers. If you see a police misconduct story while you are reading the news, send it our way using this form. Thank you.

Holder’s DOJ Wants a Veto over Parents’ Choice of School

Though the U.S. Department of Justice partially backed down on its lawsuit against Louisiana’s school choice program in November, yesterday the DOJ filed its proposal to oversee the program. The program provides school vouchers to low-income families with children otherwise assigned to failing government schools. Among many proposed regulations, the DOJ wants the state of Louisiana to give the federal government the following information about each school choice applicant: 

1. Name

2. Student ID number

3. Address

4. Grade

5. Race

6. School applicant attends in current school year, if any

7. Louisiana School Performance Score (letter grade) for school in (6), above, if applicable

8. Public school district of the school in (6), if applicable

9. District public school applicant would be assigned to attend for the upcoming school year if applicant does not receive a voucher

10. Louisiana School Performance Score (letter grade) for school in (9), above

11. Student enrollment in the school in (9), above, for the current school year, by race

NYT Reports on Indigent Defense Vouchers in Texas

Yesterday, the New York Times reported on a pilot program involving indigent defense vouchers that will soon begin in Comal County, Texas.

Some background: Fifty years ago, the Supreme Court held that anyone accused of a crime who could not afford an attorney would have one appointed to him by the court. The Court did not say how these attorneys would be financed, but jurisdictions around the country have drifted toward the public defender model. To the extent that indigent defense is debated among policymakers, it has pretty much centered on how much money should be spent on the public defender offices.

That’s about to change. In Comal County, policymakers are going to try using a system of vouchers. Like the school voucher concept, the idea is to put money directly into the hands of the customers, who will then decide which attorney they would like to retain. If a certain law firm earns an excellent reputation for handling criminal cases, more customers will turn to them for help, and they will hire and train more lawyers. The attorneys who do a lousy job will get less and less business. The market process in action.

According to the NYT article, the Texas Indigent Defense Commission became aware of the voucher proposal when the Cato Institute advanced the idea in a 2010 paper:

The intellectual parents of the movement toward letting poor people choose a lawyer are the law professors Stephen J. Schulhofer of New York University and David D. Friedman of Santa Clara University, who first published their idea in American Criminal Law Review in 1993. A revised and compressed 2010 version, in Policy Analysis, a Cato Institute publication, caught Mr. Bethke’s attention.

Here is how the Cato paper summarizes the benefits to be realized from a voucher system:

We maintain that defense vouchers will improve the quality of legal representation for the poor. Better legal representation will, in turn, produce at least three benefits to the community:

  • Improving defense services will reduce the liklihood of mistakes. That is, it will be less likely that innocent persons will be wrongfully convicted of crimes.
  • Improving defense services will also minimize adverse consequences to the innocent persons who would have been acquitted under current systems of indigent defense. That is, a better defense means it is more likely that those innocents will be released from custody even sooner (pre-trial) and with less disruption to their lives and the lives of their family members.
  • Improving defense services will bring more complete information to the sentencing phase of the criminal justice system—making it more likely that just punishment will be imposed on those who are guilty of committing criminal offenses.

This is a good example of how think tank work can have an impact on policy. And one of the benefits of our decentralized criminal justice system is that jurisdictions can try different policies and we can then see what works well. 

Stay tuned on the defense voucher experiment.

Criminalizing “Emotional Blackmail”

From Britain: “Domestic abuse involving ‘emotional blackmail’ – but no violence – could become a criminal offense carrying a heavy jail term under tough new measures published for the first time.” While the cross-party group of Members of Parliament who are introducing the bill do not speak for the Cameron administration, notes David Barrett in the Telegraph, they have a track record of some success at getting their ideas on domestic abuse enacted into legislation:

“Critically, its [the draft’s] definition of abuse includes “controlling or coercive behavior” which would “encompass but is not limited to physical, financial, sexual, psychological or emotional abuse”.

“Controlling behavior” would also lead to criminal charges, including when a partner makes another person “subordinate”, “exploits their resources” or “deprives them of the means needed for independence”.

The offense would apply to abuse committed against any spouse, partner or former partner, regardless of gender.

Offenses will carry a sentence of up to 14 years in prison. As Pamela Stubbart notes at the Daily Caller, when based on purely psychological and emotional interactions and states of dependence, concepts like “control” and “coercion” are at best a highly subjective affair, inviting unpredictable legal application as well as he-said-she-said legal battles in the wake of breakups or other relationship failures. The measure would also threaten criminal liability for some speech (e.g., emotionally hurtful insults not involving threats of violence) that would often be included in definitions of free speech. Meanwhile, a ban on exploiting partners’ resources or denying partners financial independence threatens to throw a shadow of criminal liability over many marital and romantic arrangements long deemed unproblematic, whether or not egalitarian. What’s most obviously “controlling or coercive” here is the proposed law itself.

Related: periodic proposals in state legislatures and elsewhere to ban “workplace bullying” (more) raise some of the same issues, as do enactments (like “Grace’s Law” in Maryland) endeavoring to ban “cyber-bullying.” [cross-posted and slightly adapted from Overlawyered]

Obama versus the Constitution

Those engaged in my line of work – explaining and defending the Constitution, the most liberty-friendly system of governance yet devised – have been kept busy by the current occupant of the White House and the executive agencies he controls. President Obama’s signature health care legislation alone provides endless “teachable moments” regarding our founding document. To paraphrase Nancy Pelosi, the more we find out about Obamacare and its implementation, the more constitutional violations we find.

But if Obamacare is the biggest constitutional – let alone policy – disaster that Barack Obama has inflicted on the nation, it alas is far from the only one. As I put it in a new Forbes.com op-ed:

One of Barack Obama’s chief accomplishments has been to return the Constitution to a central place in our public discourse.

Unfortunately, the president fomented this upswing in civic interest not by talking up the constitutional aspects of his policy agenda, but by blatantly violating the strictures of our founding document. And he’s been most frustrated with the separation of powers, which doesn’t allow him to “fundamentally transform” the country without congressional acquiescence.

But that hasn’t stopped him. In its first term, the administration launched a “We Can’t Wait” initiative, with senior aide Dan Pfeiffer explaining that “when Congress won’t act, this president will.” And earlier this year, President Obama said in announcing his new economic plans that “I will not allow gridlock, or inaction, or willful indifference to get in our way.”

And so, as we reach the end of another year of political strife that’s fundamentally based on clashing views on the role of government in society, I thought I’d update a list I made two years ago and hereby present President Obama’s top 10 constitutional violations of 2013.

Here’s the list (only half of which is Obamacare-related):

  1. Delay of Obamacare’s out-of-pocket caps. 
  2. Delay of Obamacare’s employer mandate.
  3. Delay of Obamacare’s insurance requirements.
  4. Exemption of Congress from Obamacare. 
  5. Expansion of the employer mandate penalty through IRS regulation.
  6. Political profiling by the IRS.
  7. Outlandish Supreme Court arguments. 
  8. Recess appointments. 
  9. Assault on free speech and due process on college campuses.
  10. Mini-DREAM Act.

For more details, read the whole thing. Of course, there are still two days left in the year, so who knows what else may be in store.

 

Ratifying NSA Spying, a Court Calls FISA ‘Courts’ Into Question

Two weeks ago, when D.C. District judge Richard Leon ruled that mass government surveillance of Americans’ telephone calling was likely unconstitutional, there was some well-poisoning about his opinion being “passionate.” The implication, of course, was that he was not being suitably judicial. The same could be said of this week’s ruling by Judge Pauley of the U.S. District Court in New York. When the first sentence intones: “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is,” and when the first citation is a “See generally” to the 9/11 Commission report, these are not signs that you’re about to get dispassionate application of law to facts.

Judge Pauley’s use of the 9/11 Commission report to argue that NSA data collection could have foiled the 9/11 plot is belied by the report’s clear statement with respect to Khalid Al-Mihdhar: “No one was looking for him.” (page 269) In our paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” Jeff Jonas and I detailed ways many of the 9/11 terrorists could have been found had anyone been looking. The argument that NSA spying would have prevented 9/11 is not a strong one.

But passions pitted against one another is just one of the symmetries between the two rulings. Judge Leon distinguished Smith v. Maryland. He believes that the Supreme Court case allowing the use of phone call information to convict a suspected burglar and obscene phone caller does not ratify the collection of phone calling information about every innocent American. Judge Pauley treated Smith v. Maryland as controlling. If one burglar in Baltimore doesn’t have a Fourth Amendment interest in his phone calling data, 200 million Americans don’t either. We have appeals to sort these things out, and Judge Pauley’s ruling makes it more likely that such an appeal will reach the Supreme Court, which is good.

The interesting thing in Judge Pauley’s ruling is ammunition he offers to critics of the panels of judges created by the Foreign Intelligence Surveillance Act. People often refer to them as the “Foreign Intelligence Surveillance Court” or “FISC.”

While the FISC is composed of Article III judges, it operates unlike any other Article III court. Proceedings in Article III courts are public. And the public enjoys a “general right to inspect and copy public records and documents, including judicial records and documents.” (citation omitted) “The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.” (citation omitted)

Later, he writes:

The two declassified FISC decisions authorizing bulk metadata collection do not discuss several of the ACLU’s arugments. They were issued on the basis of ex parte applications by the government without the benefit of the excellent briefing submitted to this Court by the Governent, the ACLU, and amici curiae. There is no question that judges operate best in an adversarial system. “The value of a judicial proceeding … is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.” (citation omitted) … As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decision [sic] without the benefit of adversarial process. Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes.

This echoes an argument Randy Barnett and I offered in our brief to the Supreme Court about NSA spying. These so-called ‘courts’ that administer NSA spy programs lack many of the hallmarks of a true court, and their use to dispose of rights that protect our privacy is a violation of due process.

There will be much more to come in the judicial path of the NSA spying debate. The legitimacy of FISA panels should be a part of that discussion.

Connecticut, Drunk on Power, Uses Bottle Bill to Steal Money

For nearly 30 years, Connecticut beverage distributors received the unclaimed refund value of recycled bottles as part of the state’s Bottle Bill, which set up a refund system for used bottles as an attempt to encourage recycling. As in other states, the law requires beverage dealers to pay refunds for every bottle turned in.

Fiscal troubles in 2008 prompted Connecticut to amend the law, however, to require a “deposit account” from which distributors were to pay the refunds. This requirement was intended to aid the state environmental agency to study the rates of deposit payments and returns. The following year, the fiscal situation worsened, and the Bottle Bill was again amended, this time to require the remaining funds in the deposit accounts (after returns were paid out) to be paid to the state—retroactively including any unpaid remainder funds since the accounts went into effect in 2008.

A. Gallo & Co. and other beverage distributors in Connecticut saw this as an uncompensated taking of their property and sued the state. They took their case through the state court system, but even the Connecticut Supreme Court turned a blind eye, holding that beverage distributors never had a property right in the remainder funds in the first place. The distributors have now asked the U.S. Supreme Court to hear their case, and Cato joined the New England Legal Foundation, the Southeastern Legal Foundation, and the National Federation of Independent Business on a brief supporting their petition.

We argue that Connecticut’s budgetary troubles are no excuse for violating a longstanding property right without compensation. Moreover, by twisting its statutory interpretation to satisfy political pressures, the Connecticut Supreme Court has made itself complicit in the uncompensated taking. It’s bad enough when strapped-for-cash legislatures unfairly force public burdens onto the shoulders of private parties to feed their spending addictions, but when all three government branches – including the one entrusted with soberly interpreting the law, especially in times of fiscal emergency – get drunk on power and deny even the existence of a property right, it’s time for a Supreme Court intervention.

The Supreme Court will decide by winter’s end whether to take the case of A. Gallo & Co. v. Esty.