Topic: Law and Civil Liberties

New Mexico Gov. Susana Martinez Signs Civil Forfeiture Abolition Bill

A quick and happy update from New Mexico: Gov. Susana Martinez (R) has signed HB 560, which I detailed here, into law. New Mexico has thus effectively abolished civil asset forfeiture by requiring a criminal conviction before the government can seize property.

Gov. Martinez’s statement can be read here.

House Bill 560 (HB 560) makes numerous changes to the asset forfeiture process used by law enforcement agencies in New Mexico. As an attorney and career prosecutor, I understand how important it is that we ensure safeguards are in place to protect our constitutional rights. On balance, the changes made by this legislation improve the transparency and accountability of the forfeiture process and provide further protections to innocent property owners.

As expected, civil liberties advocates across the political spectrum cheered the move.

ACLU-NM Executive Director Peter Simonson:

This is a good day for the Bill of Rights. For years police could seize people’s cash, cars, and houses without even accusing anyone of a crime. Today, we have ended this unfair practice in New Mexico and replaced it with a model that is just and constitutional.

Institute for Justice Legislative Counsel Lee McGrath:

New Mexico has shown that ending policing for profit is a true bipartisan issue with broad public support. America is ready to end civil asset forfeiture, a practice which is not in line with our values or constitution. This law shows that we can be tough on crime without stripping property away from innocent Americans.

Emily Kaltenbach of the New Mexico chapter of the Drug Policy Alliance:

New Mexico has succeeded today in reining in one of the worst excesses of the drug war. Like other drug war programs, civil asset forfeiture is disproportionately used against poor people of color who cannot afford to hire lawyers to get their property back. This law is an important step towards repairing some of the damage the drug war has inflicted upon our society and system of justice.

Civil asset forfeiture is an inherently abusive practice that provides perverse incentives to law enforcement, encourages “policing for profit,” and allows the government to take the property of individuals and businesses that are never charged with any wrongdoing. Hopefully the bipartisan spirit of the New Mexico abolition (HB 560 passed the legislature unanimously) will serve as a model for other legislatures around the country who wish to restore our cherished concepts of due process and private property to their proper status.

What if Slager Had Been Wearing a Body Camera?

At the press conference this week about officer Michael Slager’s killing of Walter Scott, North Charleston Mayor Keith Summey said that he had ordered an additional 150 police body cameras. According to Summey, every officer in the North Charleston Police Department will be outfitted with a body camera once they have been trained to use it and a body camera policy has been written. In February, the city announced that it would spend $85,000 of a $275,000 federal grant on 115 body cameras.

It is, of course, impossible to know how Slager would have behaved if he had been wearing a body camera during his encounter with Scott. But it is worth conducting the thought experiment nonetheless. 

Let’s consider footage of the incident captured by Feidin Santana, a bystander. In the video, Scott flees a scuffle with Slager following a routine taillight traffic stop. There appear to be Taser barbs attached to Scott as he runs away from Slager, who fires eight rounds as him while standing flat-footed. Scott falls about 15–20 feet from Slager after the eighth round is fired. (The coroner reportedly told one of Scott’s family lawyers that five of those rounds hit Scott.) Slager then handcuffs Scott, returns to where the scuffle took place, picks up an object, and drops that object near Scott.

Police reports state that officers performed CPR on Scott, yet the footage shows no officers performing CPR. The video does show Scott receiving some medical attention, but this is several minutes after the shooting and does not include CPR. 

It is hard to imagine that if Slager had been wearing an operating body camera that he would have behaved the way he did. Knowing that first-person footage of the incident would be seen by investigators, would Slager have planted an object–widely believed to be his Taser–near Scott after the shooting? Would Slager, a CPR-certified officer, have left Scott without medical attention? Would he have claimed that he felt threatened when he fired eight rounds at a fleeing 50-year-old man? Would he have even fired his weapon at all?

Even if the answer to each of those questions is “yes,” a body camera would have provided officials with more information than written police reports.

Thankfully, Santana was at the scene of Scott and Slager’s scuffle and provided video showing that police reports of the killing presented an inaccurate account of what happened. But the public should not have to rely on conscientious citizens with cellphone cameras who happen to be in the right place at the right time to ensure that incidences of police misconduct are accurately reported.

Police Misconduct: The Worst Case in March

Over at Cato’s Police Misconduct website, we have identified the worst case of the month for March: the conspiracy to frame an innocent man, Douglas Dendinger, in Bogalusa, LA.

Here’s the story: Dendinger agreed to take on the task of a “process server.” That is, he would hand-deliver legal papers to a person who has been sued, putting that person on notice about the legal action. In this instance, Dendinger was to serve papers on a former police officer, Chad Cassard, who was being sued for police brutality.

Dendinger found Cassard as he was leaving the local courthouse and made the delivery. At that moment, Cassard was in the company of several police officers and prosecutors. Those people became hostile and furious with Dendinger over what this lawsuit would mean for their friend/colleague.

The story then takes a bizarre and disturbing turn: Later that day, the police arrive at Dendinger’s home and arrest him on several charges, including two felonies (1) obstruction of justice and (2) witness intimidation. Cassard and a few of his cohorts claimed that Dendinger had served the papers in a violent fashion.

Because of those charges, Dendinger was in very serious legal trouble. He was looking at many years in prison.

Rule by ‘Dear Colleague’ Letter: The Department of Education’s Stealth Regulation

We’ve noted repeatedly how the U.S. Department of Education, using authority it claims under Title IX and other federal laws, has arm-twisted the nation’s colleges and universities into stripping away procedural protections for faculty and students facing charges of sexual misconduct, sought to regulate speech as “verbal conduct,” and urged colleges to record microaggressive behaviors that do not rise to the level of harassment or assault but might add up in time to some future pattern. The resulting federal pressure has done much to generate a campus atmosphere in which administrators like those at the University of Virginia react even to unsubstantiated and soon-refuted assault claims with harsh crackdowns directed at whole groups of students against whom no misconduct whatsoever has been charged.

The substance of what the feds have been doing in this area has rightly stirred outrage, but another side of it also deserves scrutiny: it’s based on sheer fiat, on a series of “because we say so” edicts. A few recent items:

  • Early this year, the Senate Health, Education and Labor Committee released “Recalibrating Regulation of Colleges and Universities,” the lengthy report of a group called the Task Force on Federal Regulation of Higher Education with assistance from the American Council on Education. The federal government, according to the report, has entangled colleges in a continually expanding “jungle of red tape” (the Department of Education now “issues official guidance to amend or clarify its rules at a rate of more than one document per work day”). Not only does the department’s regulatory process (see pp. 32 et seq.) generate new rulemakings that are not well grounded in statutory authority, but it regularly takes the form of “Dear Colleague” letters, informal field advisories, and other “subregulatory guidance” that dodges the important legal safeguards of actual rulemaking, such as notice and comment to the public and the generating of a decisionmaking record well suited to judicial review (pp. 35–37). The crackdown on college discipline famously has taken the form of a “Dear Colleague” letter and associated guidance, not a formal regulation.
  • Both the task force report and our friend Hans Bader of the Competitive Enterprise Institute show how the Department now routinely uses these free-floating processes to extend regulatory burdens across a whole range of issues, not just Title IX: rules on for-profit college performance, Clery-law crime reporting, disability-based harassment (on which more, and note the push for school authority over students’ off-campus social media use), race-conscious K–12 discipline, information collection, and on and on.
  • Boston College Prof. R. Shep Melnick, an expert on regulatory procedure, casts a critical eye on the enforcement practices of the Department’s Office for Civil Rights (OCR) in this Liberty Law Forum podcast (and don’t miss Michael Greve’s eloquent reactions here and here, focusing on OCR’s interpretation of “disparate impact” theory to devise new guidance on what it calls “resource comparability” between schools). Relatedly, a symposium in the Federalist Society’s Harvard Journal of Law and Public Policy last year examined possible remedies to stealth or back-door regulation [see John Graham and James Broughel’s summary]

All that brings us to the big question: were someone to challenge OCR’s kangaroo-court regulations on college discipline, would they stand up in court? David Bernstein at Volokh Conspiracy in November offered three reasons why they might not. It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption. But given the spectacular collapse of the University of Virginia allegations, might this not be a good time to try?

Event Monday: Is the FBI Creating Terrorist Plots to Stop Them?

This Monday at noon, Cato hosts “The Newburgh Sting and the FBI’s Production of the Domestic Terrorism Threat.” The event will consider how the FBI and others elements of our domestic security apparatus now generate a sense of the terrorist danger that they combat. David Heilbroner will show clips from his 2014 documentary on the Newburgh four terrorist case, which aired on HBO. Naureen Shah of Amnesty International and John Mueller of Cato and Ohio State will comment. RSVP here.

You can get a sense of the issue from this 2007 headline, from The Onion: “U.S. Counter-Counterterrorism Unit Successfully Destroys Washington Monument.” The counter-counterterrorism unit, the satirical article says, was “created in 2004 in response to the lack of terror activity since the Sept. 11 attacks,” and tasked with “raising awareness among the American public of the ‘myriad unknown threats’ that still face the country,” by demonstrating vulnerability to terrorism.

That’s make-believe, of course. No U.S. government agency has been bombing monuments, or anything else on U.S. soil. But still, like other good satire, the article gets at truth more effectively than conventional rendering of facts.

The standard view remains that the trauma of the September 11 attacks awakened Americans to their vulnerability to terrorism from without and within—terrorists groups overseas like al Qaeda and the “lone-wolf” self-starters they inspire. While our leaders, over the last decade, have become less prone to warn of imminent apocalyptic attacks, they still mostly contend that skilled terrorists lurk among us, evaluating our vulnerabilities, exploiting technologies and always growing more diabolical. That view, of course, is what justifies several of our ongoing military campaigns, various curtailments of civil liberties, and vast expenditures of our wealth for domestic security. Its proponents cite as evidence the terrorist plots found in the country since 2001.

Baltimore Police Admit Thousands of Stingray Uses

It’s been a bad week for Stingray secrecy.  Following a court-ordered document dump in New York earlier this week, a Baltimore detective yesterday testified in court that he had personally used a Stingray between 600 and 800 times during two years as a member of the Baltimore Police Department’s Advanced Technical Team.  He also testified that the unit has used such devices 4,300 times since 2007.

Stingrays are handheld or vehicle-mounted surveillance devices that operate by mimicking cell towers.  They have the capability to force cell phones within their range to connect with the Stingray and transmit ID information from the phone.  Some models - the technology is constantly being upgraded to keep pace with advancing telecommunications infrastructure - are suspected of being able to intercept content, but the true extent of the capability is a closely-guarded secret. What is increasingly not a secret is that dozens of law enforcement agencies around the country have been using these devices for years to sweep up swaths of cell phone data, much of it from innocent people, with little to no transparency or oversight.

The Baltimore detective refused to produce the device in court, citing an FBI non-disclosure agreement. The FCC, which regulates radio-emitting devices like Stingrays, has delegated to the FBI the authority to set conditions on local use of cell site simulators.  The FBI, in turn, produced an agreement so restrictive that police and prosecutors can be obligated to withdraw evidence or even drop charges rather than disclose the use of the devices to the court.

As more and more information about these devices and their uses by law enforcement trickles out, it’s worth questioning what value exists in these secrecy agreements.  Despite repeated references to “terrorists” and “national security” as a means for maintaining secrecy about Stingray use, the data that has been released detailing the purposes of actual Stingray investigations - such as this breakdown from the Tallahassee Police Department that contains not a single terrorism reference - suggests that Stingrays are used virtually entirely for routine law enforcement investigations.  Meanwhile, the sacrifices being made in the name of defeating terror impose a real cost.

Walter Scott’s Death Is a Tragic Reminder of How Important It Is to Film Police

South Carolina police officer Michael T. Slager is facing a murder charge after footage emerged of him fatally shooting an apparently unarmed man following a traffic stop last Saturday. The disturbing footage not only shows that Slager shot eight rounds at Walter L. Scott while he was fleeing, it also appears to show him planting his Taser next to Scott after he is brought down. The incident is the latest reminder of how important it is to protect the right to film police officers doing their jobs.

The footage, which can be seen below and contains graphic content, clearly contradicts police reports.

According to police reports, Slager fired his Taser at Scott after pursuing him onto a grassy lot after a traffic stop prompted by a broken taillight. The Taser reportedly failed to subdue Scott. Slager reported via radio: “Shots fired and the subject is down. He took my Taser.” Police reports also stated that officers performed CPR and first aid on Scott.

The video, which was captured by an onlooker, begins with Scott fleeing from Slager after what police reports claim was a scuffle over Slager’s Taser. Slager, standing flat-footed, then fires eight rounds at Scott, who falls to the ground roughly 15-20 feet from Slager after the eighth round is fired. The coroner reportedly told one of Scott’s family lawyers that Scott was hit by five times: once in the ear, once in the upper buttocks, and three times in the back.

The video appears to show Taser wires attached to Scott as he flees the encounter. If they are Taser wires, the beginning of the video confirms police reports which claim that Slager’s Taser did not stop Scott.  

However, it is hard to see any of the footage backing up Slager’s claim that “He took my Taser.” Indeed, the video shows that after he handcuffed Scott Slager went back to where the scuffle occurred, picked up an object, and then dropped that object next to Scott. Despite claims made in police reports, the video does not show officers performing CPR on Scott.

One of Slager’s attorneys, who is reportedly “no longer involved” in the case, said earlier this week that Slager felt threatened and believes that he acted appropriately, two claims that will be hard to justify given what the video shows.

The video will undoubtedly play a key role in Slager’s case. According to Justin Bamberg, a South Carolina House representative and one of Scott’s family lawyers, “If there was no video, I do not believe that officer would be in jail.”