Topic: Law and Civil Liberties

Happy Birthday Nat Hentoff!

Today Cato senior fellow Nat Hentoff turns 91.  Happy Birthday Nat!

Nat has opposed communism since he was 15 years old, but because he had a column with the Village Voice, people would sometimes assume he had communist sympathies.  In this video, Nat explains that that mistaken assumption is how he was able to get into a meeting with Fidel Castro’s deputy, Che Guevara, and challenge him about the dictatorial nature of the Castro regime.  He finds it puzzling why so many people fawn over Castro and Che.


Alito, Thomas: Court Should Apply Due-Process Scrutiny To Unclaimed Property Laws

Not all government takings of private property proceed by condemnation or regulation (or taxation).  In February the U.S. Supreme Court denied certiorari in Taylor et al. v. Yee, a case challenging California’s practice of seizing unclaimed property after only three years of idleness with relatively minimal efforts to contact owners. Unclaimed property can consist of such things as “forgotten security deposits, uncashed money orders, unused insurance benefits, idle shares of stock, and even the undisturbed contents of safedeposit boxes,” for starters, to quote the Court. In a concurrence, Justice Samuel Alito joined by Justice Clarence Thomas agreed with the majority in denying review, saying the “convoluted history” of the California dispute made it a poor candidate for a clean review under constitutional principles. But the trend among self-interested states in unclaimed-property, or escheat, law – such as truncating dormancy periods to a mere three years, from as long as 15, while “doing less and less to meet their constitutional obligation to provide adequate notice” to owners – inevitably raises constitutional questions, because the Due Process Clause “undoubtedly requires that, before seizing private property, the government must give ‘notice and opportunity for hearing appropriate to the nature of the case.’” In revamping escheat practices in ways that grab more money for their budgets, states might well be overstepping this bound.

Government Exceeds Its Powers in Enforcing the Endangered Species Act

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” the Supreme Court held last year in Michigan v. EPA.It seems that the U.S. Fish and Wildlife Service (USFWS) did not get the message, with its willy-nilly imposition of significant economic costs when designating “critical habitat” for endangered species.

A California builders’ association is now asking the Court to establish that judicial review is available for individuals and businesses affected by these agency actions that purport to enforce the Endangered Species Act (ESA). The ESA specifically requires federal agencies to take economic impacts into consideration, but the USFWS routinely ignores the costs of designating land as a critical habitat. The San Francisco-based U.S Court of Appeals for the Ninth Circuit held that the designation of critical habitat is an action fully committed to agency discretion, and that it may ignore any cost implications at its leisure, but this would seem to contradict Michigan v. EPA and other precedent.

The USFWS employs a cost-benefit accounting method called “baseline analysis,” which separates the impacts that would occur absent designation (baseline impacts) from the impacts attributable to designation (incremental impacts). It then only considers the incremental impacts, despite enormous disparities between baseline and incremental costs—one order of magnitude or two—and fanciful estimates that the economic impact of critical habitat designation is often $0.

Cato, joined by the Reason Foundation and National Federation of Independent Business, filed an amicus brief urging the Supreme Court to take up this important question of whether courts can even review the government’s Enron-style of cost-benefit analysis. Independent research by Reason’s Brian Seasholes found that in examining 159 of the 793 species that have critical habitat designation, there are at least $10.7 billion in economic impacts, hundreds of jobs lost per species designated, and regulatory burdens affecting 60,169,546 acres of land (11,261,054 privately owned) spanning 37 states and two territories.

Police Misconduct — The Worst Case in May

Over at Cato’s Police Misconduct web site, we have selected the worst case for the month of May.  It was the case of one Shane Mauger.  Over a period of about 10 years, this former police officer told lies to obtain search warrants and would then falsify police reports by under-reporting any cash that he seized during those raids.

Now, because of his corruption, officials cannot tell how many of his previous cases were based on valid police work and how many were based upon dishonest work.  Many cases are being reviewed and thrown out.

Federal investigators discovered other corrupt officers in the same Reynoldsburg, Ohio police department.  Former officer Tye Downard was arrested in February for dealing in narcotics.  Shortly after his arrest, Downard committed suicide in his jail cell.

Supreme Court Should Protect Workers Against Government-Union Collusion

Imagine that you run a daycare business out of your home. Some of your clients are poor families whom your state has decided to help with daycare. The state program allows such families to choose any daycare they want and then reimburses the provider up to a certain amount. Now the state has declared that because of this program, you—and even people who provide at-home daycare for family members’ children—will be considered a state employee for the sole purpose of giving a union exclusive representation rights.

You don’t get state medical or dental insurance. You don’t get state retirement benefits. You don’t get paid vacation on national holidays. The only thing you get is a union you didn’t choose and you refuse to join that is now representing your “interests” before the state, which isn’t even your employer. Does this sound far-fetched? Yet it’s what’s happened to Kathleen D’Agostino and seven other women in Massachusetts who are asking the Supreme Court to take their case after the lower courts dismissed their lawsuit.

San Francisco Body Camera Plan Botches Officer Viewing Compromise

The Police Commission in San Francisco recently voted 5-2 to approve a body worn camera (BWC) plan. The plan, which one commissioner described as a “travesty,” prohibits supervisors from viewing BWC videos in order to find policy violations. It also requires officers involved in a shooting or in-custody death to submit an “initial statement” before they review BWC footage. Whether officers should be allowed to view BWC footage before making a statement is one of the most pressing issues in body camera debates. Unfortunately, the San Francisco BWC plan does not adequately address this issue.

Your memory isn’t always reliable. While many of us are confident that we’re pretty good at remembering specific incidents, it turns out that even our memories of notable and historic events, such as 9/11, are hardly as well-formed and clear as we might hope.

The legality of an officer’s use of deadly force depends in large part on the reasonableness of what the officer believed at the time of the incident. For instance, whether an officer who shot someone reasonably feared for his life, or the lives of innocent bystanders, will be an important factor in determining whether the shooting was legal.

BWCs, like other cameras, don’t have fuzzy memories. What’s filmed by BWCs is stored and, absent tampering, won’t change. The same can’t be said of police officers’ memories. This is one of the factors that has prompted debate about whether police officers should be allowed to view BWC footage of a deadly use-of-force incidents before they file a report.

I and others have argued that police should not view BWC footage related to a deadly use-of-force incidents before filing a report. A policy that allows officers to view BWC footage before filing a report would allow officers an unfair chance to exculpate themselves of wrongdoing. Officers could search for justifications for use-of-force that didn’t occur to them while the incident in question was happening.

Others could argue that police officers, like all human beings, don’t have perfect memories and might not accurately remember important facts concerning a stressful incident under investigation. Rather than being seen as an honest lapse of memory, the omission of crucial facts in a report could be portrayed as an officer trying to avoid the consequences of poor behavior.

San Francisco’s body camera plan requires officers involved in a shooting or in-custody death to submit an “initial statement” before he reviews body camera footage.

At first glance, this policy seems like a decent compromise between the two positions I outlined above. Such a policy ensures that officers can view BWC footage, but only after providing a statement outlining what they remember about the incident under investigation.

However, the “initial statement” required by the recently approved San Francisco plan is explicitly required to be brief and resembles a collection of basic facts rather than an explanatory report:

The initial statement by the subject officer shall briefly summarize the actions that the officer was engaged in, the actions that required the use of force, and the officer’s response.

These initial statement requirements are too narrow. As Alan Schlosser, legal director for the American Civil Liberties Union of Northern California, said, officers should fill out a full report before viewing body camera footage:

When we said there should be an initial report, we didn’t mean there should be a brief report,” he said. “When we support an initial report, we meant there would be a full report and then the officer would see the video and then there would be a supplemental report, with the understanding that recollections change.

Police in San Francisco will be wearing BWCs in the not too distant future. With the current plan in place there is still room for improvement when it comes to using BWCs as tools for increased law enforcement accountability. If San Francisco’s police commissioners ever want to revisit their body camera plan they could do worse than taking inspiration from their neighbors across San Francisco Bay. In Oakland, officers involved in shootings cannot view body camera footage without first being interviewed and submitting a report.


The Supreme Court Misread Constitutional History Regarding “One Person, One Vote”

Two months ago, the Supreme Court ruled that states have leeway in determining how to draw their legislative districts, more specifically that they don’t have to equalize the number of voters per district to satisfy the constitutional principle of “one person, one vote.” The decision was really a “punt,” not resolving the tensions between “representational equality” and “voter equality”; it’ll take some future case after the next census to force the justices to face the issues left unresolved. 

Former Cato intern (and future legal associate) Tommy Berry and I have now published an essay in the Federalist Society Review explaining how the Court “shanked” that punt by misreading constitutional structure and application. Here’s a sample (footnotes omitted):

In Evenwel, the Court decided that it is acceptable for a state to ignore the distinction between voters and nonvoters when drawing legislative district lines. According to the Court, a state may declare that equality is simply providing representatives to equal groups of people, without distinction as to how many of those people will actually choose the representative. A state may use this constituent-focused view of equality because “[b]y ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”

But ignoring the distinction between voters and nonvoters achieves a false picture of equality at the expense of producing far more serious inequalities. Rather than placing nonvoters and voters on anything approaching an equal political footing, it instead gives greater power to those voters who happen to live near more nonvoters, and less power to those who do not.

As we argued before the decision came down, the framers of the Fourteenth Amendment recognized that granting such extra voting power runs the risk of harming the very nonvoters to whom it ostensibly grants representation. This recognition manifested itself in the enactment of the Fourteenth Amendment’s Penalty Clause. In both ignoring that clause and oversimplifying the debates over the Fourteenth Amendment, the Court’s opinion paints an incomplete picture of constitutional history.

Read the whole thing. For more, see Tommy’s blogpost on our article, as well as our earlier criticism of Justice Ginsburg’s majority opinion for misreading the Federalist Papers.