Topic: Law and Civil Liberties

Scalia’s Alternate Universe

The following, from Justice Scalia’s opinion in Hudson, is an absolute joke:

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 police discipline. Even as long ago as 1989, we felt it proper to “assume” that unlawful police behavior “would be dealt with appropriately” by the authorities, but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide ranging reforms in the education, training, and supervision” of police officers (cite omitted).

[…]

Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

Scalia couldn’t be more off-base. In the book After Prohibition, edited by my Cato colleague Tim Lynch, Yale University’s Steven Duke offers an entire chapter on the way the drug war has eviscerated constitutional protections. David Kopel adds another chapter on the way it has inspired a frightening culture of militarism among our domestic police departments. Jim Bovard, in his book Lost Rights, also documents the way the “drug war exception” to the Bill of Rights has inspired police excesses. And Eastern Kentucky University’s Peter Kraska has extensively documented the way military culture has created a battlefield mindset among today’s police forces that puts winning the “war” well ahead of protecting constitutional rights. Joel Miller also documents numerous examples of the drug war’s corrupting influence on police officers in his book Bad Trip.

If Scalia wants to consult an ex-cop, he might try recently retired Seattle Police Chief Norm Stamper, who talks about the same issues in his recent book Breaking Rank. Or he might speak with the ex-law enforcement officials who’ve turned on the drug war and formed LEAP — Law Enforcement Against Prohibition.

Police are certainly more highly trained than they once were, but they aren’t better trained at observing civil liberties. They’re better trained at paramilitary tactics. They’re now trained by former Navy SEALs and Army Rangers. They’re better trained at treating civilians like enemy combatants, at taking over and “clearing” rooms in private homes, not at treating the people inside as citizens with rights.

Scalia’s synopsis is shockingly naive. He ought to look up Hearne. Or Tulia. He might look into the Dallas informant scandal, or the Miami SWAT-Internal affairs scandal, or LAPD’s multiple police scandals, including a civilian review board scandal, or the fact that New York City’s civilian review board, for example, has no jurisdiction whatsoever over — guess what? — no-knock raids. Here’s another example. Here is yet another. He might listen to this horrifying audio. These are just a few examples. They are by no means isolated incidents.

Internal affairs investigations are notoriously inept. Even in cases in which police officers were found to have committed egregious offenses, those cases were uncovered during federal investigations or during civil trials, or by journalists, or by mere happenstance — not by “internal police discipline.”

Is Scalia oblivious to “the blue wall of silence?” “Internal discipline,” as he calls it, certainly does “limit successful careers,” but not in the way Scalia portrays it. You are “disciplined” to keep quiet when it comes to abuse, excessive force, and corruption. It’s the officers who talk who eventually find their careers “severely limited.” How many examples do we need before they stop being considered anomalies?

In my research on this issue, I’ve never — not once — seen a police officer convicted of even a misdemeanor for shooting an innocent civilian in a botched raid. Very few are even subject to internal discipline. (Consider the recent case of Sal Culosi.) And it’s happened (“it” being the death of innocent as the resut of a botched raid) about three dozen times. As Justice Breyer notes in his dissent, even the state of Michigan in its brief couldn’t cite a single time a police officer has successfully been sued for conducting an illegal no-knock raid. On my personal website, I’ve kept a running list of SWAT-like raids gone bad. It’s a depressingly long list.

In sum, police aren’t better trained at respecting civil liberties, they’re better trained at finding ways to get around them. The ratcheting up of the drug war in the early 1980s has made police abuse of civil liberties routine. And let’s be clear: It is bad policy that has created this mess. Bad policy from politicians, regulators, and judges who continue to cling to the belief that if we give police just a few more drug-fighting tools, we’ll lick this “drug war” thing for good — despite an overwhelming amount of evidence to the contrary.

Scalia’s pronouncement that we’ve entered a new era of police respect for civil rights is so far off-base it’s laughable.

I can stomach a decision that doesn’t go my way. But it ought to be grounded in reality.

The Fourth Amendment as Legal Fiction

Conservative lawyering has aspired to create rules that restrain the ad hoc policymaking power of judges. The idea is that judges, ensconced among leatherbound books in oak-paneled chambers, don’t make good legislators. They can’t assess changing facts on the ground or balance difficult policy tradeoffs. What’s needed, conservative legal theorists tell us, is a set of clear rules, grounded in legal tradition, that lets us know where courts stand.

Justice Scalia’s opinion in Thursday’s announced decision of Hudson v. Michigan guts that aspiration in the realm of the Fourth Amendment. The case is about remedies for violations of the knock-and-announce rule. The rule is pretty easy to describe: When the police serve a warrant, they must knock, announce, wait… then enter. The rule is an ancient one, with a high originalist pedigree.

In Hudson, the cops broke the rule. They announced. They didn’t knock and they didn’t wait. So what’s the remedy? The Court’s answer (lawyerly “ifs,” “buts,” and “maybes” aside) boils down to: There is no remedy. Or, perhaps, more accurately: We don’t care if there is a remedy.

The traditional remedy for Fourth Amendment violations is suppression of evidence obtained as a result of the violation (the exclusionary rule). The best reading of Hudson is that exclusion is never, or very rarely, appropriate if police don’t knock and announce.

Suppression isn’t needed as a deterrent, says Scalia, because, unlike the bad ol’ days when Justice Scalia was a young’un, we can assume that in our enlightenend modern legal system, civil liability will be an adequate deterrent. (I oversimplify only slightly.) No empirical evidence is provided for this claim. The evidence that does exist — such as my Cato colleague Radley Balko’s study of abusive warrant service by militarized police — goes the other way.

The result: An originalist constraint on police entry is recognized on paper, but left unenforced as a matter of breezy, factually unsupported judicial policy that would make even Justice William O. Douglas blush. As Justice Breyer says, the majority’s argument is, in essence, “the [knock-and-announce requirement] is fine, indeed, a serious matter” — wink, wink — “just don’t enforce it.”

Rigths grounded in originalism backed with real remedies: That’s an interpretive method with the courage of conviction in the outcomes it produces. It’s an interpretive method that forces clear, serious judicial thinking because it doesn’t shrink from the consequences of interpretation. Scalia’s opinion, by contrast, is “let’s pretend originalism” — a Potemkin fidelity to the old ways, robbed of any force by a deceptive, lawyerly slight of hand. 

If there’s a legal method more prone to abuse by outcome-oriented judges, I can’t imagine it.

Spending Limits Are Not the Answer

David Primo and Jeff Milyo have just published an op-ed in Roll Call. Advocates have long argued that restrictions on campaign spending, which can be direct spending or contributions, enhance electoral competition. In Vermont they convinced the state legislature to pass spending limits, the constitutionality of which are now before the U.S. Supreme Court. Primo and Milyo correctly note “the most current and best scientific evidence flies in the face of the promises” made by these advocates. Indeed, “the court jurisprudence upholding campaign finance laws is built on a shaky empirical foundation.” They continue: “In fact, we are aware of no scholarly studies that yield consistent evidence of large and statistically significant effects of campaign finance regulations on electoral competitiveness.”

I go into the shaky philosophical and empirical foundations of campaign finance law in my upcoming book, The Fallacy of Campaign Finance Reform.

Supreme Court Gets it Wrong in Hudson

The Supreme Court just ruled 5-4 that police who conduct an illegal “no-knock” raid on a citizen’s home can use evidence seized from that raid against the suspect at trial.

Taken with the high degree of immunity from lawsuits courts and lawmakers have given to police officers in these cases, there is now no real penalty for police who ignore the legal requirement to knock and announce themselves before forcibly entering a private home.

We can expect the already disturbing trend of military-style police raids on American citizens to get substantially worse.

Last April, I wrote a synopsis of what’s at stake in the Hudson case for Slate.

Helmetless Non-Fatal Motorcycle Accident Causing No Permanent Injuries Proves the Need for Helmet Laws

Ben Roethlisberger’s unfortunate motorcycle accident this week has editorial boards and pundits calling once again for mandatory motorcycle helmet laws. The Cincinnati Post went so far as to put the word freedom in sarcasm quotes.

I’m not exactly sure how Roethlisberger’s accident demonstrates the need for such laws. Roethlisberger is more than capable of paying for his treatment, so the “cost to taxpayers” argument doesn’t fly. It may cost the Pittsburgh Steelers some money, but they could have headed off those losses by stipulating a helmet requirement in Roethlisberger’s contract (he has been outspoken about riding without a helmet). And despite being thrown from his bike and leaving an imprint in the windshield of an oncoming car in the shape of his skull—all while not wearing a helmet—Roethlisberger is expected to make a complete recovery.

That’s not to say it’s wise to ride without a helmet. But Roethlisberger is a grown-up. He knows the risks. He decided to assume them. He was seriously injured, and now he’s recovering. I wish him the best, of course. I’m just having a hard time understanding how his accident provides conclusive evidence that we need a federal helmet law, or why it merits sneering commentary about an excess of “freedom.” The answer is “yes,” you should have the freedom to make your own decisions about what risks you take. Even foolish ones. But you should also assume responsibility for those decisions, and not expect taxpayers or anyone else to bail you out when poor decisions catch up with you. Seems to me that’s exactly what’s happening here.

If we’re really concerned about the safety of motorcycle riders, we should probably just ban motorcycles altogether. USA Today, for example, notes that wearing a helmet would prevent 37 percent of motorcycle fatalities. But the paper also points out that motorcycle riders are 32 times more likely to die on the roadways than drivers or passengers in automobiles. So the paper is advocating a law preventing people from assuming the low-level risk associated with riding without a helmet versus riding with one, but still advocating allowing people to assume the exponentially higher risk of riding a motorcycle in the first place (as opposed riding in a car or truck). Just think of all the lives and health care costs we could save if we banned motorcycles!

My favorite diatribe comes from Sports Illustrated’s Peter King. It’s always fun to watch sportswriters comment on issues that spill out beyond the playing field. They seem to savor the chance to dress up as real journalists. And so they tend to come out swinging. King writes:

And while we’re at it, how dumb does Pennsylvania look for not making helmets mandatory? I heard a state legislator on the radio this morning say that this accident wouldn’t cause him to change his mind. It’s about human rights, he said. Riders should not be forced to wear a helmet.

I’ve got one for you, Mr. Politician. Let’s repeal seat-belt laws, and gun laws, and minimum drinking ages, and let’s just let America be the Wild, Wild West. Do what you want, when you want.

Actually, all of that sounds pretty good to me (in truth, the minarchist “wild, wild west” wasn’t all that wild). Here’s the punchline:

Laws are made to protect people, even when they think they don’t need protecting. Wearing a helmet while riding a motorcycle is about as basic as one can get in terms of human safety. It’s irresponsible to argue the other side.

Empahsis mine. “Irresponsible” would be one word for it.

“Principled” would be another.

Official Secrets

Sunday’s Washington Post has a fine piece by former Post managing editor Robert G. Kaiser explaining why papers like the Post publish official secrets despite government assertions that publication may be harmful to national security. Kaiser writes: 

We avoid the gratuitous revelation of secrets. … [but] no single authority should be able to decide what information should reach the public. Some readers ask us why the president’s decisions on how best to protect the nation shouldn’t govern us, and specifically our choices of what to publish. The answer is that in the American system of checks and balances, the president cannot be allowed to decide what the voters need to know to hold him accountable. 

Moreover, Kaiser notes that “labeling something ‘classified’ or important to ‘national security’ does not make it so. The government overclassifies with abandon.” ”Exhibit A” for Kaiser is the historic Pentagon Papers case, in which the Nixon administration, citing (you guessed it) the president’s authority as Commander in Chief, attempted to enjoin publication of the Pentagon Papers, a classified Defense Department history of the Vietnam war leaked to the New York Times and the Washington Post.

In a June 14, 1971 oval office meeting with the president, White House chief of staff H.R. Haldeman discussed whether to file suit (and whether to steal the papers from the Brookings Institution). Haldeman described what he feared the effect of publication would be:

But out of the gobbledygook, comes a very clear thing: [unclear] you can’t trust the government; you can’t believe what they say; and you can’t rely on their judgment; and the –- the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants to do even though it’s wrong, and the president can be wrong.  [Emphasis added]. 

That the “implicit infallibility of presidents” is no longer “an accepted thing in America” – that the very phrase now causes any thoughtful American to smirk – is one reason to give thanks that reporters no longer automatically wilt before government claims of secrecy.