Topic: Law and Civil Liberties

Grand Juror Got Too Uppity

Peter Atherton was thrown off a grand jury for asking too many questions of the prosecutors.  Here’s an excerpt from Legal Times:

Back in 2001, fellow grand jurors quickly became irritated with Atherton, saying he was disruptive and was holding up the process with all of his questions about probable cause and burden of proof, according to court records.

It was Atherton’s first time on a grand jury when he showed up for service that April. He says he became concerned the jury was rushing through cases, indicting individuals without having a full understanding of the crimes.

Filing an indictment against someone is serious stuff.  The process should be slow and deliberative.  Alas, the old saw is that prosecutors can get grand juries to indict anything–even a ham sandwich.  Atherton’s experience lends support to that–skeptics who question authority apparently can’t be tolerated.   For a related case, go here.  For my primer about the grand jury process, go here.

Holder’s “Assault Weapons” Folly

Attorney General Eric Holder recently announced that the Obama administration will seek a new federal “assault weapons” ban.  This is an ill-advised policy that defies common sense.

The ban would be a revival of a law passed in the early years of the Clinton administration that expired in 2004.  The law prohibited the sale of newly-manufactured magazines holding more than ten rounds of ammunition and having two of five cosmetic features on semi-automatic rifles.  If you had a pistol grip and a detachable magazine, you couldn’t have a bayonet lug.  More recent proposals have attempted to ban “barrel shrouds,” which the rest of the world calls “handguards” - the place you put your hand (instead of on a hot barrel) to prevent burning it while firing.

The emphasis here is on the cosmetic - any rational discussion of the issue ought to note that an “assault weapon” is any object you use to assault someone with - and banning the presence of a bayonet lug on the barrel of a rifle is senseless.  Knives, tire irons, and bricks can all serve as “assault weapons.”  This is an instance where quotation marks are not just appropriate, they are required.

Much of the public support for the law was based on a warping of the issue by gun control proponents to make the public believe that these firearms are machine guns.  The fully automatic weapons that gun controllers use to push this agenda have been heavily regulated by the federal government since 1934 and not produced for civilian sale since 1986.  Don’t take my word for it - here’s Josh Sugarmann of the Violence Policy Center: “The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons-anything that looks like a machine gun is assumed to be a machine gun-can only increase the chance of public support for restrictions on these weapons.”

This intentional distortion has moved from advocacy groups to the attorney general’s office.  Attorney General Eric Holder claims that the law is needed to counter Mexican Drug War violence, that American gun laws support “cartels employing automatic weapons and grenades.” Again, these devices are already illegal.  It is far more likely that these weapons of war are from Mexican Army troops who deserted their posts for the higher pay that drug kingpins offer.  The drug cartels have even taken the brazen step of setting up billboards meant to draw soldiers and police officers from their government jobs and into the drug trade.  My colleague Ted Galen Carpenter wrote the book on how to deal with this issue.  Holder’s War on Everything is not it.

It defies reason to think that multi-billion dollar criminal syndicates will not be able to get their hands on guns because of an American law banning cosmetic features and dictating lower magazine capacity.  If the Mexican government gets better control of its own armaments, the cartels will simply go to the black market and buy the guns.  Or make them.  Guns are hand-crafted in the frontier provinces of Pakistan, and there is no reason that the cartels could not do the same in a country with far more industrial know-how.  Three minutes of internet research will reveal plans to make fully automatic sub-machine guns, so enough capital to set up a machine shop and buy some sheet metal is all it would take.

The expired ban did not demonstrably impact crime anyway.  The Centers for Disease Control conducted a study in 2003 that found no reduction of crime attributable to the law.  This should come as no surprise, since most criminals’ weapons of choice are cheap, small caliber pistols.  They traditionally dominate the ATF’s top crime gun list.  There are some bad apples out there selling guns to people they know to be “straw buyers,” people who have clean records and re-sell the guns to those who don’t.  Prosecute them.  Enforce the existing laws before deciding to restrict the freedom of law-abiding citizens.

Predictably, both Harry Reid and Nancy Pelosi have temporarily quashed the issue.  Let’s hope they keep it out of the halls of Congress, and focus instead on a sensible drug policy that impacts the demand created by an illicit drug market.

Pelosi and Reid realize that this proposal will do is come back to haunt Democrats in the 2010 mid-term elections, which historically trend against the president’s party anyway.  Many Democrats attributed the flip of the House of Representatives to Republican hands in 1994 to the first “assault weapons” ban.  Numerous experts believe that the reason Al Gore could not carry his home state of Tennessee in the 2000 election was his push for broader gun control.  Blue Dog Democrats that ran on pro-gun platforms in conservative districts must be rolling their eyes.  The rest of the country should do so as well, and send this proposal to the dustbin.

UPDATE: Since I started writing this, the “ban guns for Mexico’s sake” narrative has taken on a drumbeat’s tempo.  60 Minutes did this piece echoing the gun ban crusade, and the Wall Street Journal published this.  Expect more of this nonsense.

When the Goverment Robs Peter to Pay Paul, It Violates the Constitution

The Supreme Court’s 2005 decision that the government could use its eminent domain power to transfer private property to a different private actor – which promised to use it to generate more tax revenue – touched off a firestorm of criticism and created a movement to strengthen property rights.  (For the story behind that case, Kelo v. New London, I recommend Little Pink House: A True Story of Defiance and Courage, for which Cato hosted a book forum in January.)   On Friday, Cato filed a brief urging the Supreme Court to review a decision ratifying a similar, even more blatant, government taking of private property for a non-public use.

In Empress Casino v. Giannoulias, the Illinois Supreme Court upheld a statute transferring money from private riverboat casinos – and at that only the certain politically disfavored ones located in and around Chicago – to private horseracing tracks.  The state high court found that the Fifth Amendment’s Takings Clause does not apply to exactions of money from private entities, which ruling the casinos are asking the U.S. Supreme Court to review.

Cato’s brief argues that the Court should grant certiorari for yet another reason: The Illinois statute (which coincidentally appeared in the transcript of the Blagojevich sting) is in clear violation of the Takings Clause’s “public use” requirement, impermissibly eroding protections for private property even under Kelo’s (flawed) standard. The statute does nothing more than rob Peter to pay Paul, a result that cannot be squared with the Fifth Amendment, which permits government takings only for public use, and then only if just compensation is paid. This case instead involves a naked transfer of the casinos’ revenues to the racetracks, with no meaningful restriction on how the racetracks use those funds — and does not remotely resemble any public use approved by the Supreme Court.

Permitting such a statute to stand will only encourage federal, state, and local governments to exact funds from one private actor for the exclusive benefit of another, transgressing the very property rights and economic liberties that inspired the Declaration of Independence and Constitution.

Philip Pullman on the Loss of Civil Liberties in Britain

Philip Pullman had an opinion piece in the Times of London today to mark the Convention on Modern Liberty, a one-day gathering of activists interested in civil liberties. Weirdly, the piece isn’t available at the Times anymore, and it has not been for several hours. Even the Google cache has been unreliable, though it’s up as of this writing. The vast community at BoingBoing has been watching closely.

Thankfully, the Libertarian Alliance seems to have the full text:

The new laws whisper:

You don’t know who you are

You’re mistaken about yourself

We know better than you do what you consist of, what labels apply to you, which facts about you are important and which are worthless

We do not believe you can be trusted to know these things, so we shall know them for you

And if we take against you, we shall remove from your possession the only proof we shall allow to be recognised

The sleeping nation dreams it has the freedom to speak its mind. It fantasises about making tyrants cringe with the bluff bold vigour of its ancient right to express its opinions in the street. This is what the new laws say about that:

Expressing an opinion is a dangerous activity

Whatever your opinions are, we don’t want to hear them

So if you threaten us or our friends with your opinions we shall treat you like the rabble you are

And we do not want to hear you arguing about it

So hold your tongue and forget about protesting

What we want from you is acquiescence

The nation dreams it is a democratic state where the laws were made by freely elected representatives who were answerable to the people. It used to be such a nation once, it dreams, so it must be that nation still. It is a sweet dream.

If the Times doesn’t want these words, I’d like to borrow them.

Trying Al-Marri

The Washington Post is reporting that the Obama administration is planning to charge Ali Saleh Kahlah al-Marri with providing material support to Al Qaeda.  Al-Marri is an alleged sleeper agent for Al Qaeda, and the FBI intercepted him while he was an exchange student in Illinois.  Prior to his trial, the Bush administration moved him into military custody and dropped the charges with prejudice, meaning that they could not be re-filed.  Apparently, there is enough evidence to file a fresh indictment.  The ACLU statement is available here.  My prior posts on the topic are available here and here.

This is probably an attempt to remove the case from the Supreme Court’s docket and avoid the constitutional controversy of keeping someone out of the criminal justice system.

The Supreme Court should not be deterred from hearing the case.  Cato filed an amicus brief with the Constitution Project and the Rutherford Institute in al-Marri’s case.  We were not alone, as virtually every civil liberties organization weighed in.  A group of retired military officers filed an amicus brief arguing that the Posse Comitatus Act and associated statutes specifically prohibit the “direct participation by a member of the [Armed Forces] in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”

It is time to drive a stake through the heart of domestic military detention.  The Bush administration moved detainees into military custody and to different jurisdictions to avoid judicial review.  In 2006 the Supreme Court denied certiorari to convicted Al Qaeda operative Jose Padilla’s habeas petition.  He had just been moved to civilian custody and indicted in Florida, so he was no longer detained by the military.  The prospect of returning to military custody was taken seriously enough by three justices that they voted to grant certiorari - one shy of the requirement for the Court to hear the case.

Kennedy was sufficiently unnerved by domestic military detention that, although he voted not to grant certiorari, he wrote separately.  “In light of the previous changes in his custody status and the fact that nearly four years have passed since he was first detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again.”  Chief Justice Roberts and Justice Stevens joined him.

As I have said before, the line between the civilian criminal justice system and the military is in many ways the line of liberty.  The Court should take up this case and put that line back in place.

Calling All Harvard Alumni

As my colleague Dan Mitchell has noted, Harvard is about to hold a conference about how the “free market ideology has dominated  legal discourse and lawmaking the last few decades.”  That’s a dubious narrative (to say the least (pdf)).

In any event, Harvard alums who read this blog should know that Cato adjunct scholar Harvey Silverglate  is running for a position on Harvard’s Board of Overseers.  Pass the word to all the Harvard alumni you may know.  Additional background here.

“It Is a Sordid Business, This Divvying Us by Race”

Yesterday Cato filed a brief in what will be one of the most talked-about cases in the current Supeme Court term, Ricci v. DeStefano.

In Ricci, the City of New Haven, Connecticut developed an exam for firefighters seeking promotion to command positions. The city went out of its way to ensure that the exam was race-neutral and tested only relevant skills and abilities. When the exam results came down, however, white candidates had done better than their African-American and Hispanic peers. Given the few command positions available and the city’s rule that the highest scorers on an exam be promoted first, few minority firefighters would thus have been eligible for promotion. After a series of meetings and political machinations, the city refused to certify the results of the exam and promote anyone. Several of the firefighters who would have been eligible for promotion filed a lawsuit, claiming racial discrimination under Title VII.

The district court, affirmed by the court of appeals, granted summary judgment for the defendants, holding that the City’s alleged fear of an adverse impact claim (a different type of racial discrimination claim under Title VII) – based merely on the fact that the exam results yielded a racial disparity – was a legitimate reason for its decision not to certify the exams.

Cato’s brief, joined by the Reason Foundation and the Individual Rights Foundation, points out the absurd incentives at play: if the lower court’s ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

The Case will be argued April 22.