Topic: Law and Civil Liberties

Police Ignorance of the Law Is No Excuse

To execute any search or seizure, a police officer must reasonably suspect that a crime has been or is being committed based on the facts available to him at the time he executes the search or seizure. Under this standard, searches can be lawful even if the officer is mistaken in his understanding of the facts before him, as long as his understanding led him to reasonably suspect criminal activity. But what if the officer is mistaken about whether a particular activity is actually criminal?

Nicholas Heien was driving with a broken taillight in North Carolina when he was pulled over by police who mistakenly believed that state law required two working taillights. Upon receiving consent to search the car—note: you don’t have to agree to such requests!—police found cocaine and charged Heien with drug trafficking. At his trial, Heien sought to suppress the evidence arising out of the search by arguing that the officer never had the reasonable suspicion necessary to pull his vehicle over because having one broken taillight is not illegal. The trial court ruled against him, but the appellate court found a Fourth Amendment violation and reversed. The North Carolina Supreme Court reversed in turn, by a 4-3 vote, holding that an officer’s understanding of the state’s taillight requirements could form the basis for reasonable suspicion because that understanding, while incorrect, was reasonable.

There is considerable disagreement among state and federal courts, so the U.S. Supreme Court took the case to resolve the issue. In a brief filed jointly with the National Association of Criminal Defense Lawyers, the ACLU, and the ACLU of North Carolina, Cato argues that the approach taken by the North Carolina Supreme is inconsistent with the logic that applies to factual mistakes committed by law enforcement and erodes civil liberties, all while undermining police authority and safety. The allowance for mistakes of fact in police evaluation of suspicious conduct is justified because facts can be ambiguous and unique to each circumstance, and officers must make quick evaluations based on their own observation and expertise. In contrast, the law is the same regardless of the particular circumstance to which it is applied, and can be ascertained long before the officer needs to enforce it. Officers have no specialized expertise in evaluating law, while ambiguities in the criminal code are typically resolved (by courts) in favor of criminal defendants, or struck down for vagueness. The burden placed on citizens by our accommodation of officers’ mistakes of fact is justified as a means of avoiding the social cost of unlawful conduct. Lawful conduct imposes no such cost, however, so excusing mistakes of law serves no social purpose.

Chilling Speech Is No Laughing Matter

If a state’s truth ministry has threatened to prosecute you for something you said during an election campaign, can you sue? Of course, said the unanimous Supreme Court, with what would undoubtedly have been a guffaw if one could be conveyed in a legal opinion. While the Court left it to its lesser brethren to deal further with a law that criminalizes making “false statements” – whatever that means: too many Pinocchios? – about political candidates, the satirical graffiti is clearly on the wall for that Buckeye bunkum.

As Cato’s brief alongside P.J. O’Rourke made clear, allegations, insinuations, “truthiness,” smears, and all that other rigmarole have been part and parcel of American political discourse since time immemorial. Indeed political speech – including lies, so long as they’re not defamatory (for which there are clear legal standards) – resides firmly in the throbbing heart of the First Amendment. It’s farcical to think that a legislature could charge a panel of bureaucrats (like the state election commission here) with enforcing some sort of Marquess of Queensberry debate rules.

While standing is often hard to come by, even the most curmudgeonly jurisprudential sticklers can see that political advocates have to be able to challenge a law that restricts political advocacy – one that’s already been used against them, no less! At the end of the day and in the fullness of time, today was a banner morning for free speech and judicial engagement.

Put Off By Constant Drug Tests, Eighth Grader Skips Honor Society

At Susquenita Middle School in Duncannon, Pa., a community 20 minutes north of Harrisburg, an eighth-grader chose to skip the National Junior Honor Society this year, reports Eric Veronikis at PennLive

Leila May was drug-tested once during her fifth grade year, once in sixth grade and three times as a seventh grader because Susquenita School District randomly tests students in grades five through 12 who participate in extracurricular activities and apply for parking permits.

She always tested negative but her parents have tired of the intrusion and embarrassment and her mother Melinda says they’re weren’t willing to sign another consent form. “It’s sad that this is what we had to resort to. It’s ridiculous.”

Twelve years ago, the U.S. Supreme Court ruled 5-4 in Board of Education v. Earls (2002) that schools generally have discretion to impose drug testing on participants in extracurricular activities even without particularized suspicion, on the grounds that such activities are voluntary. It declined to follow an amicus brief in which the Cato Institute and other groups had argued that random suspicionless searches in this instance amount a Fourth Amendment violation, and pointed out that kids who join academic honors groups appear less prone to engage in drug abuse than their peers, not more. Instead the Court extended the reach of a 1995 precedent, Vernonia School Dist. v. Acton, which had approved a similar regime for high school athletes

Even if the courts will not restrain the Susquenita district, common sense should. Stop the madness and let kids be kids. 

Pareto on Piketty

“The man in whose power it might be to find out the means of alleviating the sufferings of the poor would have done a far greater deed than the one who contents himself solely with knowing the exact numbers of poor and wealthy people in society.”

—Vilfredo Pareto, “The New Theories of Economics,” Journal of Political Economy 5: 485–502 (1896–97).

June’s Cato Unbound: The Snowden Files, One Year Later

This month at Cato Unbound, we’re discussing Edward Snowden’s NSA revelations.

We mostly know the story, but it bears repeating: One year ago this week, Glenn Greenwald wrote a news story that would change the world forever. In it, we learned that the National Security Agency had been secretly collecting enormous amounts of telephone metadata on what were presumably ordinary American citizens. The agency had done so without a warrant and without suspicion of any indiviudal person. The revelation changed forever how Americans think about national security, privacy, and civil liberties in the digital age.

More revelations soon followed. Among many others, these included NSA surveillance of web activitymobile phone location data, and the content of email and text messages. The NSA also conducted many highly embarrassing acts of surveillance against allied or benign world leaders, including German Chancellor Angela Merkel and the conclave that recently elected Pope FrancisIt had subverted commonly used encryption systems. It had co-opted numerous tech companies in its plans. Its leaders had repeatedly lied to, or at the very least misled, the U.S. Congress

How far should surveillance go? What has been the value of the information gained? What have we given up in the process? What are the risks, should malign actors ever get their hands on the controls of the system?

We are able to ask these questions today because of one individual: Edward Snowden, a systems administrator for the NSA who chose to make public the information to which he had access. We have no choice now but to debate it. That’s simply what democracies do whenever such momentous information becomes public.

Joining us at Cato Unbound this month are four individuals with extensive knowledge in the fields of national security and civil liberties: Cato Senior Fellow Julian Sanchez, Brookings Institution Senior Fellow Benjamin Wittes, Georgetown University Professor Carrie F. Cordero, and independent journalist Marcy Wheeler. Each brings a somewhat different perspective on the matters at hand, and we welcome them all to what is sure to be a vigorous debate.

Police Misconduct — The Worst Case in May

Over at Cato’s Police Misconduct web site, we have selected the worst case for May.  It was the Georgia police officers who threw a flashbang grenade into an infant’s crib after ramming the door open to look for a drug dealer.  The officers were executing a no-knock warrant when they threw the flashbang grenade through the cracked door without looking or knowing who was inside the room.  The grenade (sometimes the government uses the euphemism “distraction device”) landed on the 19-month-old’s pillow and exploded, causing severe burns to his face and chest.  The child and his relatives, who were also sleeping in the converted garage room, were temporary visitors in the home because theirs had recently burned down.  The person the police were looking for was not there.

The officers involved expressed regret, and said that they had no idea there was a child present and that if they had, they would have done things differently.  The police chief said the incident is going to make them “double question” next time.  Hmm.  First, why would anyone not already “double question” before blindly tossing a grenade into a room?  Second, is the indication that a child is present really the only reason not to go full-Rambo on a house where human beings live?  Think about it.  Even if the police had solid proof that an adult was selling marijuana, meth, or cocaine from his home, is a flash bang grenade on his pillow a legit police tactic?  A legit risk?

Cases like this one not only underscore the brutal collateral damage of the drug war, but also the lack of adequate oversight over police raids like this one.   Yes, there will be a lawsuit, but that’s an insufficient response.

Check out the Cato raid map for more police raids that went awry.