Topic: Law and Civil Liberties

One Year after Kelo, Good News and Bad News

June 23rd was the anniversary of the Supreme Court’s infamous Kelo decision, allowing local governments to transfer property from one private owner to another so long as there is some perceived public benefit. And, of course, there always is some benefit; as Justice Sandra Day O’Connor wrote in dissent, “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory” — because in each such case the city would get more tax revenue, and the city council would regard that as a public benefit.

On the anniversary of the decision, homeowners Susette Kelo and Pasquale Cristofaro finally settled with the city of New London on the terms of their eviction.

Also on the anniversary, President Bush signed an executive order that, in the words of a Washington Post headline, “Limits Eminent-Domain Seizures.” The Post and the AP should have learned by now to be more skeptical of Bush administration claims. The executive order really does very little. It says the federal government will only take property from its owners “for the purpose of benefiting the general public.” But the Supreme Court has just said that virtually anything goes under that standard.

Cato author Timothy Sandefur says that the executive order likely means nothing, but it’s good that the president issued it anyway, considering that the administration didn’t file a brief in the Kelo case.

Cato author Ilya Somin disagrees, saying, “Bogus reform efforts such as this one create a danger that the public will be falsely persuaded that the problem has been solved.” And he agrees that “this language validates virtually any economic development condemnation that the feds might want to pursue. Officials can (and do) always claim that the goal of a taking is to benefit ‘the general public’ and not ‘merely’ the new owners.”

If you don’t believe these churlish libertarians, you can listen to dedicated land-grabber Douglas Kendall of the Community Rights Counsel (a private nonprofit organization formed to assist governments in their efforts to take their citizens’ property), who told the AP, “This order appears to apply to a null, or virtually null, set of government actions.” He noted with relief that the order did not include a ban on funding for state and local development projects that employ eminent domain.

So where’s the promised good news? Well, it may pale next to the news that Kelo and her neighbors are finally being forced out and the news that the Kelo decision opened the floodgates for more property seizures than ever. But it’s still good news that Cato has just published Cornerstone of Liberty: Property Rights in the 21st Century by Timothy Sandefur, the first post-Kelo book on why property rights matter, how they’re protected in the Constitution, how local governments and the Supreme Court are ignoring the Constitution, and how to protect property rights after Kelo. Buy it now. Read it. Send it to your legislator and your member of Congress. And keep an extra around to give to the next neighbor whose property is threatened with seizure.

Protecting Your Privacy

As I purchased $10 worth of trinkets at the Container Store, the clerk began the transaction by saying, “May I have your phone number?” I replied, “Uh, no.” And that was that; without any objection he rang up the transaction. 

One way people can protect their privacy is by saying “no” more often. Companies ask for information, but they often don’t require it.

A couple of years ago, a guard at the White House looked at my driver’s license and told me, “You shouldn’t use your Social Security number as your driver’s license number.” So there’s another tip: ask the DMV to assign you a random number for your license.

None of this, of course, will stop your bank or phone company from giving up your information when the feds ask. But there are steps everyone can take to keep our lives just a little more private.

Conservatives on Executive Abuses

Here’s an interesting anecdote bearing on the dangers of unchecked surveillance powers. And it comes from a somewhat unlikely source: the Heritage Foundation’s Lee Edwards, a historian of the conservative movement and biographer of Barry Goldwater. 

Edwards tells the story of the FBI, at Lyndon Johnson’s request, placing bugs on Barry Goldwater’s campaign plane:

The bureau’s illegal surveillance was confirmed by Robert Mardian, when he was an assistant attorney general in Nixon’s first term. During a two-hour conversation with J. Edgar Hoover in early 1971, Mardian asked about the procedures of electronic surveillance. To Mardian’s amazement, Hoover revealed that in 1964 the FBI, on orders from the Oval Office, had bugged the Goldwater plane. Asked to explain the blatantly illegal action, Hoover said, “You do what the president of the United States orders you to do.”

Here’s another such anecdote from another conservative, federal judge Laurence Silberman, by way of Robert Novak. As a deputy attorney general in 1974, when the House Judicary Committee asked him to review secret files kept by J. Edgar Hoover. Silberman discovered a cache of “nasty bits of information on various political figures — some still active.”  According to Silberman, “Lyndon Johnson was the most demanding” when it came to requisitioning FBI political intelligence. In 1964, after D.C. police arrested LBJ aide Walter Jenkins for homosexual conduct, special assistant to the president Bill Moyers ordered Hoover to find something similar on Barry Goldwater’s campaign staff. 

Conservatives may get a kick out of Moyers’ discomfort at having his gutter tactics exposed (“I was very young. How will I explain this to my children?”), but there’s a larger point here beyond schadenfreude. When presidents get to exercise unchecked power in the national interest, they tend to have a hard time telling the difference between the national interest and their own political fortunes. The post-Watergate reformers made some mistakes, but many of their reforms — FISA among them — were aimed at changing the dynamic described by Mardian: “You do what the President orders you to do.”

Unfortunately, the Bush administration’s legal theories threaten to shift it back.   

It’s Not Just About No-Knocks

Jacob Sullum writes:

Hudson v. Michigan, the recent decision in which the Supreme Court said evidence from a search in which police failed to follow the “knock and announce” rule is admissible in court, ostensibly hinged on how close the connection between a Fourth Amendment violation and the discovery of evidence must be to trigger the exclusionary rule. The dissenters argued that the failure of police to wait more than a few seconds for the suspect, Booker Hudson, to answer the door rendered the whole search invalid, making the evidence police obtained “fruit of the poisonous tree.” Writing for the five-justice majority, Antonin Scalia said the exclusionary rule did not apply in this case because the Fourth Amendment violation was not essential to the discovery of the evidence. Had police waited, say, 15 seconds and given Hudson the opportunity to answer the door, Scalia reasoned, they still would have found Hudson’s drugs and gun.

Yet as Scalia also noted, if the police believed that wasn’t the case, that waiting 15 seconds would have allowed Hudson to get rid of the evidence, the “knock and announce” rule would not have applied. So the nexus between barging in and finding the evidence does not really matter. Whether or not a knock-and-announce violation is necessary to preserve evidence, the evidence can be admitted an easy rule for police to remember but not one that is likely to encourage respect for the knock-and-announce requirement.

This is one of the inherent contradictions in the policy of no-knocks and the use of SWAT teams.

After Wilson v. Arkansas, in which the Court ruled that the Fourth Amendment generally but not always requires police to knock and announce themselves before entering a private home, several states passed laws requiring announcement, banning no-knock warrants issued from the bench. Since Hudson, there’s some talk that yet more states will pass similar laws (Indiana is considering it, for example). But these laws are meaningless, for a couple of reasons:

First, the “exigent circumstances” exceptions still allow police to decide at the scene to enter without announcement if they think the suspect will dispose of the drugs, or that he poses a threat to police. Before Hudson, whether or not the police made the right call was determined after the fact, at trial. (If they found nothing incriminating, the entire raid was chalked up to “oops,” except in the rare case where the person on the receiving end of the raid brought suit.) After Hudson, there’s little reason to make such an after-the-fact evaluation, given that the evidence will be admitted either way.

Second, defenders of SWAT teams and dynamic entry tactics say they’re necessary to take suspects by surprise. This, they say, prevents violence. I’d argue it encourages violence and confrontation, but for the sake of argument, let’s say they’re right.

But the same people say that Hudson won’t really change anything. Police will still observe the rule, and knock and announce before entry. But the purpose of the knock-and-announce rule is to give the suspect the opportunity to answer the door, and avoid the destruction of property and violence of a forced entry. You can’t have it both ways. You can’t say we need SWAT teams to take suspects by surprise, but that most SWAT teams are also observing the letter and spirit of the knock-and-announce requirement.

That requirement is to give notice and opportunity to answer. And that, of course, is incompatible with “surprise.”

This is illustrated by the fact that these raids are commonly conducted late at night, or very early in the morning. If you’re asleep — perhaps in an upstairs bedroom — and police knock and announce just seconds before breaking in, for all practical purposes the difference between “no-knock” and “knock-and-announce” is nil.

But don’t take my word for it. California has had a law against no-knock warrants for some time. After a 1999 dynamic entry raid in which El Monte police shot and killed Mario Paz — an innocent man — the assistant chief of police told the Los Angeles Times: “We do bang on the door and make an announcement — ‘It’s the police’ — but it kind of runs together. If you’re sitting on the couch, it would be difficult to get to the door before they knock it down.”

I’ve been outspoken on the Hudson case. But the truth is, it’s a peripheral issue. The main problem here is not no-knock raids, legal or otherwise. The main problem is the paramilitary tactics, and this relatively recent fervor to break down the doors and storm the homes of suspects who, even if guilty of what’s suggested in the warrant (generally drug crimes), aren’t an immediate threat to the public, the community, or anyone else.

I Voted for What?

Rep. John McHugh (R-NY) is an important man in Congress. He serves on the House Armed Services Committee and chairs its Military Personnel Subcommittee which spends $85 billion annually.

Whether he knows how that money is spent is an open question. The Hill reported today that McHugh voted for a defense authorization bill that included a provision “he said he philosophically opposed.” (The provision overrode a federal court’s decision in a dispute between National Guard members and the government about who should pay for correspondence courses).

McHugh apparently had not read the defense authorization bill. Never mind, everyone does it, as The Hill reports, “It is no secret that some — if not most — lawmakers vote on bills that they do not read in their entirety.” McHugh notes that “hundreds and hundreds” of provisions come through, and he relies on his staff “for judgment on more routine matters.”

Members of Congress are elected to work on behalf of their constituents. How can they do that if they don’t read the bills they pass? It is true that the government is so large that supervising how well past laws are being implemented, much less reading bills, takes a lot of time and effort. Maybe more time and effort than even a hard-working member has.

Here’s a thought for members of Congress: maybe the fact that you don’t read the bills you vote for means the government has grown well beyond anyone’s control. Maybe — and this will be shocking to you — the government is too big.

Policing the Police

Last week the Supreme Court said that it would be proper to just assume that unlawful police behavior would be dealt with appropriately by the authorities.

Item: One Frank Jude is bringing a civil suit against the City of Milwaukee because of the actions of its police officers.

Jude accompanied some people to the house-warming party of a police officer. After a while, Jude decided to leave. He was then accused of stealing a police officer’s badge and then all hell broke loose. Jude was swarmed by off-duty cops who beat him to a pulp. When Jude’s friends called 911, the on-duty cops arrived and they proceeded to take Jude into custody for resisting arrest.

The charges against Jude were quickly dropped as it became apparent that he was the victim, not the criminal. Now the investigation had to start over and no one in the government was anxious to handle it.

Prosecutors need the cooperation of the police department to do their job–so they look the other way much more often they should when it comes to allegations of police misconduct (it certainly must vary from one jurisdiction to the next). But the Jude beating would be the exception to that rule. The Jude case is known as a “heater,” which means the handling of the incident is going to be scrutinized by the news media.

The incident wasn’t caught on videotape, but the beating was outdoors and there were civilian eyewitnesses who have accounts that contradict those of the off-duty police officers. And this wasn’t just an unprovoked baton blow to the stomach. The beating was severe. This one can’t be ignored. Thus, the district attorney’s office indicted three officers and the police department fired them. A jury later acquitted the officers of criminal conduct. And Jude is now bringing a civil suit against the city.

Let’s anticipate the fact that Jude will be able to negotiate a substantial settlement from the city for his injuries. Some will say “the system worked.” That is, it was tragic event, but the bad apples were fired from the force and prosecuted. The victim brought a civil lawsuit, as is his right, and received a fair settlement. Case closed.

On closer inspection, I think this case shows some severe problems and that the Supreme Court is just wrong to “assume” these problems away.

Here are a few points to note about this incident:

1. Police Actions at the Crime Scene. The police supervisor who arrived on the scene that evening sent the off-duty officers involved in the incident into the same house instead of separating them, as is the standard procedure.

2. The Actions of the Prosecutor. The district attorney had difficulty explaining his policy of waiting a few days before interviewing persons injured by the police while being arrested. Detectives normally want to interview crime victims as soon as possible while their recollection is fresh.

3. The Actions of the Defendants. Though off-duty, the men who beat Jude say they were “acting as police officers” when they used force against him. On this view, they were investigating a theft and Jude was the suspected culprit. Though Jude was unarmed and outnumbered, these cops went into court and thought they could credibly claim that what they did was legal and proper.

4. The Actions of the Police Witnesses.

A. The off-duty cops who were on the scene, but who were not charged, were key witnesses. Although a half-dozen non-police witnesses saw kicking and beating, none of the police witnesses saw that. They were defense witnesses.

B. A few on-duty cops who arrived on the scene testified for the prosecution about what they saw. Because of their cooperation, they told the court of retaliation within the police department. One officer took an early stress-related retirement.

5. Media Exposes Dysfunctional Police Bureaucracy.

A. After the scandal broke, the news media found that one of the cops that was charged had a questionable background. The police department promised to put tougher procedures in place for prospective police recruits.

B. Because one of the officers charged was involved in another controversy, the media asked what procedures were in place to track potentially abusive cops. The police chief responded by saying that she really wanted to have such a system in place.

Some will argue that the exclusionary rule, which was the subject of this week’s Supreme Court ruling, is still a bad idea. After all, the exclusionary rule would not have done a thing for Jude or other victims of police misconduct. One answer is that there is nothing ill-advised about having multiple “checks” upon the police powers of the government. After all, it might be years until another “heater” case comes along in Milwaukee. And what about other jurisdictions around the country? Is it wise to assume that there are only a handful of dysfunctional bureaucracies out there?

Scholar Scalia Cites in Hudson Not So Thrilled to Have Been Cited by Scalia

Actually, “not so thrilled” is putting it mildly.

I just spoke with Prof. Sam Walker, one of the most respected criminologists in the country, and an expert on police tactics and procedures. Justice Scalia cites Walker in his opinion in Hudson, quoting him directly on page 12:

There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taiming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).

Scalia preceded the Walker cite with this thesis sentence:

Another development over the past half-century that deters civil rights violations is the increasing professionalism of police forces, including a new emphasis on internal discipline.

Walker tells me he learned that Scalia had cited his work, “to my horror.”

Walker adds, “Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away.”

Walker says political leadership, internal procedures, media oversight, and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important as well, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.

Walker also says his research focused on conventional policing, not drug policing. The latter, he says, “is a special kind of policing,” and says he would agree that the direction of drug policing of late (which of course was what the Hudson case is all about) does raise significant civil liberties concerns. One might also note that Walker’s research for that particular book ended in 1990, sixteen years ago.