Topic: Law and Civil Liberties

Last Hope for Fourth Amendment Hangs by a Thread; Weekly Standard Rejoices

Over at the Weekly Standard, William Tucker notes gleefully that the exclusionary rule is but one Bush Supreme Court appointment away from extinction.

Tim Lynch’s 1998 Policy Analysis is about all you’ll need to thoroughly refute Tucker’s general thesis. But two specific passages in Tucker’s broadside on the Fourth Amendment are worth addressing:

What makes the exclusionary rule so absurd is that it only protects people who are guilty of crimes. If the police come to your house, knock down your door, ransack your home, throw all your belongings in the street, and find no incriminating evidence, then the exclusionary rule offers you no compensation whatsoever. Only if evidence turns up that shows you to be guilty of something are you rewarded.

This argument – that the exclusionary rule “only protects the guilty” – is a common refrain on the right. Strictly speaking, Tucker’s right. Once the scenario he outlines has taken place, the exclusionary rule offers no remedy. But Tucker and critics like him ignore the rule’s deterrent value. The exclusionary rule helps ensure that fewer of those incidents happen in the first place.

If police know in advance that evidence gathered from ill-conisidered searches performed without adequate investigation won’t hold up in court, they’re more likely to take the necessary precautions to ensure that bad searches don’t happen. That means fewer scenarios like the one Tucker lays out, and fewer of the all-too-real incidents that clutter this map.

Tucker also bites on Justice Scalia’s canard about the new police professionalism, and the new mechanisms we supposedly have in place to deal with police excess:

In pointing out how dated the exclusionary rule has become, Justice Scalia noted both the “increasing professionalism of police forces” and the ease with which aggrieved citizens can now pursue other remedies against the police for the violation of their rights. “Citizens whose Fourth Amendment rights were violated by federal officers could not bring suit until 10 years after Mapp,” Scalia noted. Since then, “Congress has authorized attorney’s fees for civil-rights plaintiffs… . The number of public-interest law firms and lawyers who specialize in civil-rights grievances has greatly expanded… . [E]xtant deterrences against [Fourth amendment violations] are … incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.”

As any civil rights attorney will attest, the barriers to bringing a federal lawsuit agianst a police officer, police department, or city are enormous. The qualified immunity we give individual officers and the sovereign immunity granted to government entities they work for – immunities Scalia has helped broaden – make such suits nearly impossible in all but the most egregious cases. Even then, it’s tough to find a lawyer willing to risk the time and energy to bring a suit that’s likely to be thrown out of court before ever reaching trial.

Throughout the 1990s, New Yorkers on the receiving end of “wrong door” raids like the one Tucker describes weren’t even compensated for the damage done to their homes, much less for the needless terror and fright they suffered. After the “wrong door” raid that ended in the death of innocent city worker Alberta Spruill in 2003, the city instituted some reforms, but has already begun to renege on its promises.

In many cities, the entire warrant process – from the shady informant’s tip to breaking down the suspect’s door – takes only a matter of hours. The judges we entrust with oversight have largely turned the warrant process into a rubber-stamp exercise. And when these lax procedures do result in tragedy, public officials clam up. Transparency and accountability give way to CYA and damage control.

There are some 40,000 paramilitary police raids conducted each year in America, and that number is rising. Given the high stakes and low margin for error associated with such tactics, we need more assurance that police are doing everything possible to ensure they have the right suspect, not less. The coming death of the exclusionary rule should be mourned, not celebrated.

Against Forcing Voters to be Free

Around election time pundits begin to fret about low voter turnout in the United States. Norman Ornstein has even called for mandatory voting, complete with sanctions. The voters should be, as it were, forced to be free.

Ilya Somin at the Volokh Conspiracy shows why such concerns are misplaced. We should be worrying, Ilya says, about the rational ignorance of voters who do go to the polls. His longer argument about voter ignorance may be found here.

When Dogs Are Criminalized, Only Criminals Will Own Them

Kansas City has followed the lead of Denver and Ontario, Canada in instituting a ban on pit bulls. Any pit bulls found in the city will either be turned over to shelters outside the city or, more likely, euthanized.

Breed-specific prohibitions are a bad idea for a variety of reasons, but the most glaring is that the most common target of these laws – the “pit bull” – isn’t really a breed, but a generic name given to dogs with those features we’ve come to associated with aggression. The “pit bull” very generally refers to the American Staffordshire Terrier, but can include a number of breeds with similar features, including the most recent Best in Show at the Westminster Kennel Club and, more importantly, one of my dogs. (We were repeatedly warned when she was a puppy that she might be mistaken for a pit bull, but she’s the sweetest, most harmless dog I’ve ever known, unless you happen to be a rug or a pair of shoes).

What’s more, as the New Yorker’s Malcolm Gladwell has pointed out, it’s not even clear that pit bulls deserve their reputation:

A Georgia-based group called the American Temperament Test Society has put twenty-five thousand dogs through a ten-part standardized drill designed to assess a dog’s stability, shyness, aggressiveness, and friendliness in the company of people. A handler takes a dog on a six-foot lead and judges its reaction to stimuli such as gunshots, an umbrella opening, and a weirdly dressed stranger approaching in a threatening way. Eighty-four per cent of the pit bulls that have been given the test have passed, which ranks pit bulls ahead of beagles, Airedales, bearded collies, and all but one variety of dachshund. “We have tested somewhere around a thousand pit-bull-type dogs,” Carl Herkstroeter, the president of the A.T.T.S., says. “I’ve tested half of them. And of the number I’ve tested I have disqualified one pit bull because of aggressive tendencies. They have done extremely well. They have a good temperament. They are very good with children.”

Pit bulls do boast strong jaws that can lock into place. But many breeds can deliver a nasty bite when provoked. The attention directed at pit bulls seems more due to their trendiness, not to any unique aggressiveness in their genetics. The tough guy dog du jour was once the equally powerful Rottweiler.

Which means the problem is with the owners, not the dogs. Ban pit bulls, and the riffraff that uses them for nefarious purposes will move on to another breed.

The law in Kansas City, however, is particularly dumb. Apparently, the city has instituted an “amnesty period,” during which well-intentioned owners can turn their pups over for euthanizing without facing a fine.

To see the folly in this proposal, let’s consider two hypothetical put bull owners.

Owner A is a family who had the misfortune of picking a pit bull from the pet store, breeder, or pound. They’ve raised the dog as a pet, and it lives in a happy, loving home. It’s harmless.

Owner B is a drug dealer who bought a pit bull to protect his contraband. He has trained the dog to attack. The dog, obviously, is vicious and dangerous.

Which dog owner is more likely to follow the law, and take advantage of the amnesty period? Which dog is more likely to be turned over and euthanized?

Seems to me that Kansas City has created a scenario where all of the harmless pit bulls around town will be destroyed, leaving only the dangerous ones.

Which of course will (1) reinforce stereotypes about the breed, and (2) likely give police license to shoot on sight any dog remotely resembling a pit bull without much in the way of repercussions.

Censorship Is Worse Than Fake News

A big story on the front page of the Washington Post Style section is illustrated with a beautiful, stylized photo of new CBS anchor Katie Couric. In tiny letters almost invisible to the naked eye, the photo source is identified as CBS. In other words, it’s a publicity photo, not a news photo. There’s another glamorous CBS photo dominating page 8, where the story jumps.

Would the Post print a corporate news release? Not likely, though smaller papers do. Is that different from using a corporate photo? Perhaps. Should the Federal Newspaper Commission look into the use of corporate photos and corporate news releases? Oh, right, we don’t have a Federal Newspaper Commission, because we have a First Amendment.

Why, then, is something called the Federal Communications Commission investigating the use of “video news releases” by television broadcasters (as reported on the front page of the Business section the same day)? Oh, right, because somehow the First Amendment doesn’t give broadcasters the same free speech rights that newspapers enjoy. Prodded by the anti-free-speech lobby Center for Media and Democracy, the FCC wants to know if broadcasters clearly label “video news releases” produced by corporations when they are used on local news programs. CMD is well within its rights to criticize the use of VNRs. But when it calls for government regulation of what can and must be shown on news broadcasts, it’s calling for censorship. And censorship is far worse than “fake news” about new products on local television broadcasts.

“Abolish Religious Schools” — Guardian Columnist

In response to the latest Islamist terrorist plot, Guardian columnist Polly Toynbee makes the following recommendation:

A new Commission on Integration and Cohesion, launching this month, will be worthless unless its first recommendation is to end religious and ethnic segregation in schools. That means no Church of England or Catholic schools, no Muslim or Jewish schools.

Ah yes, social cohesion through religious tyranny, a winning strategy down through the centuries. Nyet.

A nation that fought a number of civil wars over (among other things) the repression of religious freedom should have learned that compulsion in matters of faith does not breed social harmony. I would have thought Ms. Toynbee particularly well equipped to pass along that historical pearl, given that she is the descendant of not one but two well known British historians. Apparently the nut does sometimes fall far from the tree.

The Evolutionary War, Part Deux

In response to an earlier post, a reader e-mails with the following comment: “Intelligent Design is fundamentally a religious theory and thus cannot be taught in public schools according to the First Amendment.” 

Regrettably, it’s not that simple. For the first century of their existence, state schools engaged in official prayer and Bible reading in bald defiance of the First Amendment. That official religiosity was only discontinued after a 1963 Supreme Court ruling. There’s no reason it couldn’t come back. The sad truth is that our Constitution and Bill of Rights are regularly trampled over by legislators who find their content inconvenient (viz., the 10th Amendment). 

Furthermore, there is no guarantee that all courts, in perpetuity, will see Intelligent Design as a religious theory, as happened to be the case in last year’s Pennsylvania District Court verdict [.pdf]. 

Even at present, public schools in many parts of the country have watered down their coverage of the theory of evolution to avoid rousing the ire of adherents of ID or creationism. This is perhaps part of the reason that only 13 percent of Americans think humans evolved through entirely natural processes, while the rest think they were created in their present form (46%), or guided in their evolution (31%), by the god of their choice.

Natural human evolution has been public schools’ sole explanation for human origins for three generations, and that is the result. The official knowledge thing has thus already been tried, at length, and it has failed on its own terms.

Parental choice is a better approach. Those who want their children to receive a high-quality secular scientific education will be able to get it – which many cannot do in our current public schools. And those who want to pass along their religious beliefs about human origins to their children will be free to do so, without being forced to wheedle those beliefs into the official government schools for which they are compelled to pay. 

Most important of all, in a country founded on freedom of conscience and individual liberty, it is not the government’s proper role to indoctrinate children with the majority’s views (or, in this case, a tiny but influential minority’s views) – whether or not you or I happen to think those views are correct. 

Still more here.