Topic: Law and Civil Liberties

Henry Butler: George Mason Law School’s New Dean

Our friends over at the George Mason University Law School have a new dean this morning—and he’s one of their own, Henry Butler, Foundation Professor of Law at George Mason and Executive Director of the law school’s Law & Economics Center. Late last evening, George Mason Provost and Executive Vice President S. David Wu sent out a notice of the appointment to a wide circle of the law school’s friends.

Over the years, Henry has contributed more than once to Cato’s work.  And in 2009 we filed an amicus brief with the Supreme Court on behalf of Henry and the late Professor Larry Ribstein, challenging, among other things, the method through which members of the Public Company Accounting Oversight Board were removed under the 2002 Sarbanes–Oxley Act. In 2010, citing a violation of the separation of powers, the Court would find that method unconstitutional.

Following in the footsteps of Dean Daniel Polsby—and especially, before that, of his mentor, the late Henry Manne—“Henry II” has a great foundation on which to build. The first Henry brought the law school into national prominence. Dean Polsby secured that accomplishment by adding stellar members to an already impressive faculty, many of whom we have worked with and published. With Dean Butler now at the helm, we look forward to more such cooperation in the future. Congratulations Henry.

PATRIOT Act Reauthorization Fight Begins This Week

If the House Judiciary Committee keeps to its current schedule, on Thursday it will meet to consider the third version of the USA Freedom Act in the last two years. I’ve seen a very recent draft of the bill, and from my perspective in its current form the bill effectively acts as if the Snowden revelations and several independent reviews of the PATRIOT Act Sec. 215 metadata program never happened.

The bill ignores the fact that both the Congressional Joint Inquiry into the 9/11 attacks and the 9/11 Commission itself found that the attacks happened because of information sharing and analytical failures, not because of intelligence collection shortfalls. The bill claims to end the controversial telephone metadata program, but a close reading of the bill reveals that it actually leaves key PATRIOT Act definitions of “person” or “U.S. Person” intact—and under 50 U.S.C. sec. 1801(m) of the PATRIOT Act, “person” is defined as “any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.” It’s the “group, entity, association or corporation” language that leaves open the possibility of continued mass telephone metadata surveillance under the PATRIOT Act.

The bill also grants the government sweeping “emergency” collection authority not tied to an imminent threat of death or bodily harm, which has generally been the standard for such programs in the past. The bill allows the government to retain U.S. Person call detail records if the government alone determines such records are “foreign intelligence information”. The bill’s FISA court revisions include the creation of amicus curiae (previously called “special advocates” in earlier version of the USA Freedom Act) that in theory would help the court work its way through particularly thorny cases potentially involving major interpretations of law. But there are two key caveats to this provision: the FISA court has sole discretion to appoint—or not appoint—these amicus curiae and the government still retains the ability to invoke the “state secrets” privilege, which would render the presence of the amicus curiae moot.

What is missing from the bill is at least as significant as what it contains.

Uber Driver with Concealed Handgun Prevents Mass Shooting in Chicago

A driver with the ridesharing company Uber put a stop to a potential mass shooting in Chicago over the weekend.

According to the Chicago Tribune:

A group of people had been walking in front of the driver around 11:50 p.m. in the 2900 block of North Milwaukee Avenue when Everardo Custodio, 22, began firing into the crowd, Quinn said.

The driver pulled out a handgun and fired six shots at Custodio, hitting him several times, according to court records.  Responding officers found Custodio lying on the ground, bleeding, Quinn said.  No other injuries were reported.

The driver will not be charged:

The driver had a concealed-carry permit and acted in the defense of himself and others, Assistant State’s Attorney Barry Quinn said in court Sunday.

Chicago was home to some of the most draconian gun laws in America until a 2010 Supreme Court ruling, McDonald v. Chicago, found Chicago’s gun regulation regime unconstitutional. That ruling applied the Court’s previous landmark 2nd Amendment ruling, District of Columbia v. Heller, to state governments. While those rulings dealt with the right to bear arms for self-defense in the home, some circuit courts (including the 7th Circuit, which governs in Chicago) have extended the Heller/McDonald logic to certain public places as well as the home.

NYT on the Child Support-Jail Cycle

For 25 years the campaign against “deadbeat dads” has nestled at that political sweet spot where conservatives, women’s advocates and budget hawks could all join in one accord. But what happens when the dads don’t have the money? Following the shooting death of Walter Scott in South Carolina, whose reasons for fleeing police at a traffic stop may have included an outstanding warrant for $18,000 in child support, interest and penalties, the New York Times investigates:

“Every job he has had, he has gotten fired from because he went to jail because he was locked up for child support,” said Mr. [Rodney] Scott, whose brother was working as a forklift operator when he died. “He got to the point where he felt like it defeated the purpose.”

One problem is that many of the techniques used to pressure fathers to pay support – including seizing bank accounts, “suspending driver’s licenses and professional licenses,” and jail terms even when brief – is that they tend to make it harder for the targets to resume earning wages in the aboveground economy. Lockups are themselves common: “in 2009, a survey in South Carolina found that one in eight inmates had been jailed for failure to pay child support. In Georgia, 3,500 parents were jailed in 2010.”

Whatever the pluses and minuses of such methods when aimed at the sorts of dads who have lawyers on retainer and access to offshore accounts, much of the laws’ punitive edge falls on those whose ability to pay is often notional at best:  

A 2007 Urban Institute study of child support debt in nine large states found that 70 percent of the arrears were owed by people who reported less than $10,000 a year in income. They were expected to pay, on average, 83 percent of their income in child support — a percentage that declined precipitously in higher income brackets.

In welcome if belated coverage, the Times and other press outlets have lately been documenting some of the ways in which low-level law-enforcement can snowball into life-changing consequences for those caught up in the system; last week, the paper documented how drivers’ license suspensions push many people who owe court debts further under water. Inevitably, some reformers on the legal Left wish to address these problems by adding new layers of government endeavor, such as new squadrons of tax-paid civil defense lawyers to fight child support and court-fine cases on behalf of debtors. Libertarians tend to ask more radical questions about whether government already tries to do too much – whether, for example, it makes sense to cross-criminalize between debt offenses and licensing, and whether an 83 percent marginal “tax” rate is likely to work out any better for low earners than it does for high ones. Isn’t it time the political class began catching up with these debates? 

The “Language of Privacy” Is Doing Well in Police Body Camera Discussions

In David Brooks’ latest New York Times column he explains that he is now a proponent of police body cameras, but adds that he did not come to his position “happily.” According to Brooks, the debate over police body cameras has revealed that an increasing number of people have lost “the language of privacy” and “an understanding of why privacy is important.”

It’s refreshing to read that Brooks does have concerns related to privacy. After all, Brooks said last June that the NSA’s snooping isn’t “particularly intrusive.”  But the rise of police body cameras is prompting a sensible conversation about privacy and why it is important.

Given the nature of their work, police officers regularly witness members of the public experience tragic and embarrassing moments, many times on private property. Police officers are often among the first at the scene of auto accidents or other life-threatening emergencies. They also talk to informants as well as victims of sexual and domestic abuse. In addition to sometimes entering private homes, police officers also occasionally visit hospitals and schools.

Brooks discusses some of the legitimate privacy concerns these kind of situations raise towards the end of his column:

When a police officer comes into your home wearing a camera, he’s trampling on the privacy that makes a home a home. He’s recording people on what could be the worst day of their lives, and inhibiting their ability to lean on the officer for care and support.

Cop-cams insult individual dignity because the embarrassing things recorded by them will inevitably get swapped around. The videos of the naked crime victim, the berserk drunk, the screaming maniac will inevitably get posted online — as they are already. With each leak, culture gets a little coarser. The rules designed to keep the videos out of public view will inevitably be eroded and bent.

Even the most committed advocate of police transparency and accountability must concede that the unedited release of all police body camera footage could lead to devastating infringements on a citizens’ privacy and potentially compromise ongoing investigations. A sensible police body camera policy will exempt some footage from public release. If a police officer arrives at the scene of a fatal auto accident, interviews a young victim of sexual assault, or gives a presentation in an elementary school there are serious privacy concerns that police body camera policies ought to address.

Conrad Black on American Criminal Justice

Conrad Black, writing at National Review Online, blasts the “plague of unjust prosecutions” in the American legal system.

Here is an excerpt: 

Another disturbing recent development in the saga of gonzo American prosecutors is New York State attorney general Eric Schneiderman’s prosecution of the Evans Bank for violating consumer-protection regulations by not adequately making loans available in lower-income, largely minority, areas of Buffalo. These laws are sloppily written and are just pandering to specific income-level and ethnic voters, and enable opportunistic prosecutors to intensify their campaigns for higher office by pandering to targeted voting blocs and trying to superimpose affirmative action over commercial criteria on how banks treat their depositors’ and shareholders’ money. A competing bank chairman, not involved in any such case, Frank Hamlin of Canandaigua National Bank, wrote last month in a letter to his shareholders that he was “extremely suspicious of the arbitrary and capricious manner in which [prosecutors] are abusing the legal system in order to further their own political and economic interests.” Of the prosecution of Evans and another bank, he wrote that “the regulations are vague on explaining what conduct is actually prohibited. The media, of course, does the people no service by merely assuming these prosecutions are based in sound legal theory and fact … [unaware that the] legal system has mutated its focus from time-honored legal principle and justice to efficiency and political expediency… . The reason that 98 percent of prosecutions are settled and not taken to trial … has to do with a fundamental and reasonable lack of faith that our legal system is working properly.” It is a brave stand for a community banker to take opposite an attorney general who seeks votes by abusive grandstanding in the Spitzer-Cuomo tradition (that propelled both of them to the governor’s chair)….  The United States is afflicted by a plague of unjust prosecutions, almost automatic convictions, and often one-way tickets to a bloated, corrupt, and frequently barbarous correctional system. This is not what the founders and guardians of the sweet land of liberty intended.
 
Read the whole thing.
 
For related Cato work, go here and here.
 

Former NYPD Commissioner Changes Position on Body Cameras after Walter Scott Shooting

Yesterday, former NYPD commissioner Ray Kelly appeared on ABC News’ This Week and said that the recent Walter Scott shooting had reversed his opinion on police body cameras. Kelly, a former body-camera skeptic, said, “We have to assume that this officer would not act the way he did if in fact he had a body camera that was recording.”

Last week, I discussed what might have happened if Michael Slager, the now-former North Charleston police officer who shot and killed Walter Scott, had been wearing a body camera. I mentioned that it is hard to imagine Slager behaving the way he did if he had been wearing an operable body camera. Video footage of Slager’s encounter with Scott, which was captured by onlooker Feidin Santana, shows that Slager shot eight rounds at Scott while he was fleeing, planted an object widely suspected of being his Taser next to Scott after the shooting, and did not attempt CPR.

Washington Post article published the day before Kelly made his comments on This Week draws attention to how important camera footage can be in prosecuting officers facing charges in fatal shooting cases. My colleague Jonathan Blanks wrote about the findings here.

The article is full of disturbing reporting on how rare it is for a police officer involved in a fatal shooting case to face charges (only 54 have been charged out of the thousands of fatal shooting which have taken place since 2005).

A snippet: 

In a third of the cases­ where officers faced charges, prosecutors introduced videos into evidence, saying they showed the slain suspects had posed no threat at the moment they were killed. The videos were often shot from cameras mounted on the dashboards of patrol cars, standard equipment for most police departments.

Had Santana not recorded Slager and Scott’s scuffle and the subsequent shooting, it is less likely that Slager would be facing a murder charge

Video footage can provide crucial insight into fatal police shootings. While it is fortunate that Santana was in a position to film Slager shoot Scott, law enforcement agencies ought to implement police body camera policies which will ensure that fatal police shootings are recorded regardless of whether a member of the public is watching.

Kelly rightly pointed out that there are issues related to body cameras, some of which I have discussed before. But these can be adequately addressed and ought not to hamper attempts to make police officers more accountable.