Topic: Law and Civil Liberties

Police Misconduct — The Worst Case in April

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of April.  It was the story of the five Chicago police officers who each took the witness stand to testify about how evidence was obtained in connection with a drug case. Each officer got up on the witness stand and told the same story, but not one of them was telling the truth.  Video evidence offered by the defense contradicted the coordinated falsehood that the police agents offered up.  This practice (called “testilying” by some) is a serious flaw in the U.S. justice system.  Every now and then, like here, the veil is pulled back—this time thanks to video evidence.  

A few questions to consider:

  • Was this the very first time that these officers committed perjury? 
  • How many cases like this are out there?

Readers help us to track police misconduct stories from around the country–so if you see an item in the news from your community, please take a moment and send it our way using this form.

Courts Must Put Administrative Agencies in Their Place

In order to govern the sprawling reach of the U.S. administrative state—its countless agencies, bureaucracies, departments, and other regulatory bodies—our courts have come to rely greatly on what is called Chevron analysis. Taking its name from the 1984 Supreme Court case in which it was pronounced, Chevron v. National Resources Defense Council, this doctrine advises when and to what extent courts are to defer to agency actions.

Since agencies can only exercise the legislative powers granted to them by Congress, Chevron counsels that where Congress has spoken clearly on an issue, the statutory text controls, but where Congress is ambiguous or silent, the agency is permitted to fill the gap with its own rules and decisions.

Naturally then, agencies that want more rulemaking power than has been “clearly” granted to them by Congress—so, all of them—find ways to invent ambiguity. In a recent ruling, a panel of the U.S. Court of Appeals for the Fifth Circuit appears to be trying to help them.

Here’s the case: Seeing that the IRS’s definition of “taxable compensation” differed from Congress’s, BNSF Railway sought a refund of overpaid taxes on certain elements of its employee compensation plans—and won on all counts before the district court. On appeal, however, a Fifth Circuit panel reversed, employing the “dictionary rule”—a truncated version of the full, traditional statutory analysis typically required, and an approach that has already been rejected by an en banc (full) Fifth Circuit. This short analysis skips the important, rigorous examination into whether Congress has spoken on the issue (an examination required by Chevron) and looks merely to see if the word can have more than one dictionary meaning. As tends to be much more likely with this type of scant analysis, the Fifth Circuit panel found that Congress was ambiguous, which in turn allowed the IRS’s discretionary definition to prevail.

BNSF has now filed for a rehearing of the case before the en banc Fifth Circuit. Cato has filed a brief supporting this request, joined by tax law expert Patrick J. Smith and administrative law professors Michael Moreland, Jeffrey Pojanowski, and Nathan Sales. As the administrative state continues its unending spew of rules and regulations, the role of the courts as a gatekeeper of administrative authority becomes increasingly vital to maintaining any kind of sanity. That role requires courts to apply Chevron diligently and not to skimp on the considerable duty of determining where Congress’s authority ends and the domain of unelected bureaucrats begins.

By failing to make a rigorous examination, the Fifth Circuit panel adopted an approach that, if allowed to gain a foothold, could threaten a (further) massive shift of governing power away from our elected Congress to a faceless, hardly accountable bureaucracy. In our brief, we urge the Fifth Circuit to send the message that it takes Chevron and its job of checking agency authority seriously by rehearing the case and reversing the panel decision.

The Fifth Circuit will be deciding later this spring whether to take up BNSF Railway Co. v. United States. If it doesn’t, the next step is a petition to the Supreme Court.

This blogpost was coauthored by Cato legal associate Julio Colomba.

Why We Need Guns

There are plenty of reasons to support the Second Amendment’s guarantee of our right to bear arms, but an expectation of being the victim of society-collapsing chemical warfare shouldn’t be one of them. Wayne LaPierre, CEO and executive vice president of the National Rifle Association, recently said at the organization’s annual meeting:

“We know, in the world that surrounds us, there are terrorists, home invaders, drug cartels, carjackers, “knock-out game”-ers, rapers [sic], haters, campus killers, airport killers, shopping mall killers, and killers who scheme to destroy our country with massive storms of violence against our power grids or vicious waves of chemicals or disease that could collapse the society that sustains us all.”

People tend to overestimate their vulnerability because politicians, reporters, and interested individuals like LaPierre stand to gain from such misperceptions. My colleague John Mueller reported that as recently as late 2011, 75 percent of Americans polled believe that another terrorist attack causing large numbers of American lives to be lost in the near future is somewhat or very likely. The reality is much tamer: outside of war zones, Islamist terrorism claims about 200 to 400 lives each year worldwide. And the United States is less violent now than it has been in years. In the short 35 years between 1973 and 2008, murder dropped by over 40 percent. Rape dropped by 80 percent over the same period.

The mismatch between perceived vulnerability to violence and reality is one of several public misconceptions that the website HumanProgress.org hopes to amend. This is not to say that the right to self defense is superfluous—quite to the contrary, it is fundamental and firearm ownership is an important component of securing that right. That alone is justification for the right to defensive weapons. But there is no need to exaggerate dangers such as probable and imminent threats from terrorists and psychopaths.

Supreme Court Wasn’t Serious about the Second Amendment

While the media attention will focus on the Supreme Court’s ruling in Town of Greece v. Galloway – the legislative-prayer case – the more interesting (and consequential) decision issued today was the Court’s denial of review in Drake v. Jerejian, the Second Amendment case I previously discussed here. In Drake, the lower federal courts upheld an outrageous New Jersey law that denies the right to bear arms outside the home for self-defense – just like the D.C. law at issue in District of Columbia v. Heller denied the right to keep arms inside the home – and today the Supreme Court let them get away with it.

Drake is but the latest in a series of cases that challenge the most restrictive state laws regarding the right to armed self-defense. Although the Supreme Court in Heller declared that the Second Amendment protects an individual constitutional right, lower federal courts with jurisdiction over states like Maryland and New York have been “willfully confused” about the scope of that right, declining to protect it outside Heller’s particular facts (a complete ban on functional firearms in the home). It’s as if the Supreme Court announced that the First Amendment protects an individual right to blog about politics from your home computer, but then some lower courts allowed states to ban political blogging from your local Starbucks.

Yet each time, the Supreme Court has denied review.

Colorado Isn’t Having a Cultural Revolution

In news that will surprise exactly no one, music and cannabis can be pretty nice together:

The cultural revolution that is making marijuana part of everyday Colorado life conquers another established front Tuesday as the Colorado Symphony Orchestra announces a series of performances sponsored by the cannabis industry.

The concerts, organized by pro-pot promoter Edible Events, will start May 23 with three bring-your-own marijuana events at the Space Gallery in Denver’s Santa Fe arts district and culminate with a large, outdoor performance at Red Rocks Amphitheatre on Sept. 13. The events are being billed as fundraisers for the CSO, which will curate a themed program of classical music for each show.

But that’s hardly a cultural revolution: The earliest written mention of marijuana was by the ancient Greek historian Herodotus, who described its users dancing and singing. The rest, as they say, is history.

What’s revolutionary here is the law, which has finally begun treating Coloradans like responsible adults rather than criminals. At least about cannabis: Our laws ought to do the same for all illegal drugs. Doing so will encourage responsible drug use, better scientific research, and better treatment for addicts.

Yes, legal cannabis means we will have to make a few adjustments. But many of them aren’t so bad: “Are drivers sober?” is not a new question, after all. Only now, it’s a question to be answered a little more honestly, and with better treatment from the law. On the whole, that’s clearly for the best.

The Legalization Juggernaut

Former Drug Czar Bill Bennett has co-authored an article in the Weekly Standard, “The Legalization Juggernaut.”  Bennett is upset about voter approval for the marijuana legalization initiatives in Colorado and Washington and recent polls showing “for the first time that a clear majority of Americans (58 percent) support marijuana legalization.”  Bennett can hardly believe that we have reached this “dangerous and absurd moment.”   It is absurd because, to Bennett, the policy question boils down to this: “Do we need a dumber country?”   If the debate can be framed that way, Bennett and his co-author, Christopher Beach, are convinced that “this headlong rush into disaster can be stopped.”  If.

Some readers of Cato@Liberty might need reminding that when Bennett was a high-ranking government official, he once said executing drug dealers was morally justifiable. Given that stance, it must bewilder him to see marijuana stores opening in Denver, Seattle, and other cities.  For the moment, all Bennett wants are a few political leaders to “speak out on marijuana.”   Hmm.  That’s another telling indication of the changing political climate with respect to drug policy.

More here, here, and here.

Two Questions, Two Answers

As the fall-out continues from the Supreme Court’s affirmative action decision earlier this week—see, in order, Ilya’s, my, and Wally’s Cato@Liberty comments—I was invited late yesterday to expand, very briefly, on my earlier reflections at a site called “2paragraphs”—in particular, to discuss, in two paragraphs, how public higher education transfers wealth from the lower to the upper classes of society, and how affirmative action actually harms those it’s meant to help. You’ll find that brief discussion here.