Topic: Law and Civil Liberties

Case Dismissed in Lawsuit Against Florida School Choice… Again

In yesterday’s update regarding school choice lawsuits, I noted that a judge recently denied a request to fast-track one of the two anti-school-choice lawsuits (Citizens for Strong Schools v. Florida Board of Education). Today, a three-judge panel unanimously dismissed the other lawsuit (McCall v. Scott), in which the state teachers’ union alleged that Florida’s tax-credit scholarship program unconstitutionally supported a “parallel” system of public education and violated the state constitution’s historically anti-Catholic Blaine Amendment, which prohibits publicly funding religious schools. Last year, a trial court judge dismissed the case, holding that the plaintiffs lacked standing to bring the case because the scholarships were privately (not publicly) funded and that they were unable to prove that the scholarship program adversely impacted the district school system. The appellate judges unanimously agreed with the trial court, as Travis Pillow of RedefinED explains:

“[D]espite arguing that public funds have been diverted from the public school system, [the plaintiffs] make no argument whatsoever that public school funding has actually declined,” they wrote. Further, the court called the diversion theory “incorrect as a matter of law.”

The appellate judges held the case centered on political questions about school choice and education funding, and wrote that the ultimate “remedy is at the polls.”

“This is precisely the type of dispute into which the courts must decline to intervene under the separation of powers doctrine,” they wrote.

Earlier this year, thousands of parents and students held a rally calling on the teachers’ union to drop the suit.

School Choice Lawsuits Update: Summer 2016 Edition

As school choice wins in the court of public opinion, opponents have resorted to fighting it in the courts of law. Here are a few brief updates regarding pending lawsuits against school choice programs around the country.

Colorado: Douglas County’s School Choice Grant Program

Last summer, the Colorado Supreme Court struck down Douglas County’s school voucher program with a plurality ruling that the law violates the state’s historically anti-Catholic Blaine Amendment, which forbids public money from being used at religious schools. District officials responded to the ruling by creating a new voucher program that excludes religious schools, which drew lawsuits from both opponents and supporters of school choice.

The Institute for Justice, which had previously defended the school voucher program, sued the county for unconstitutionally discriminating against religious groups. According to IJ, the “exclusion of religious options from the program violates the Free Exercise, Establishment, Equal Protection, and Free Speech Clauses of the United States Constitution, as well as the Due Process Clause, which guarantees the fundamental right of parents to control and direct the education and upbringing of their children.” IJ contends–correctly, in my view–that the First Amendment requires the government to be neutral both among religions and between religion and non-religion, but it may not actively favor nor discriminate against either religious or non-religious groups or institutions. This case is still pending.

In a separate lawsuit, opponents of school choice contended that the new voucher program was not materially different than the old one. Earlier this month, a district court agreed, striking down the program yet again. Although by excluding religious schools, the new program appears to be in compliance with the Colorado Supreme Court’s ruling, the district court explained that the state supreme court did not rule on the merits of several other alleged violations of state constitutional provisions under which the district court had previously invalidated the program. This case is likely going to return to the state supreme court for resolution.

Florida: Tax-Credit Scholarships

There are currently two lawsuits pending against Florida’s tax-credit scholarship program. As RedefinED reports, a judge recently denied an attempt to fast-track one of the two suits, which primarily concerns the adequacy of the state’s funding of district schools. A judge dismissed the portion of the suit related to the tax-credit program but plaintiffs filed an appeal and asked for the case to skip the appellate court and go straight to the state supreme court. That request has been denied, so the case will go before the appellate court first. That means the program is likely to serve more than 100,000 students by the time it comes before the state supreme court.

Don’t Jail People for Not Paying Traffic Tickets Before You Even Convict Them

The City of Calhoun, Georgia, adopted a scheme by which bail was set to a pre-determined amount, resulting in Maurice Walker being held in jail for nearly 2 weeks on misdemeanor public drunkenness charges. Walker challenged detention on behalf of himself and those similarly situated, including person held on traffic offenses.

The federal district court got it right and enjoined the city from enforcing its scheme: when setting bail for criminal defendants, basic due-process principles require a judge to take into account the defendant’s income and set an individually payable amount. That rule exists to ensure against a manifest injustice, converting pre-trial liberty from a right into a privilege of the wealthy. But Calhoun is pursuing an appeal. As Cato points out in ouramicus brief supporting Walker, the due-process rule that the city violated is quite literally as old as the common law.

Understanding U.S. v. Ackerman

The Supreme Court has eschewed the “reasonable expectation of privacy” test in its most important recent Fourth Amendment cases. It’s not certain that the trend away from the so-called “Katz test,” largely driven by Justice Scalia, will continue, and nobody knows what will replace it. But doctrinal shift is in the air. Courts are searching for new and better ways to administer the Fourth Amendment.

A good example is the Tenth Circuit’s decision last week in U.S. v. Ackerman. That court found that opening an email file was a Fourth Amendment “search,” both as a matter of reasonable expectations doctrine and the “distinct line of authority” that is emerging from the Supreme Court’s 2012 decision in U.S. v. Jones.

Here are the facts: AOL scans outgoing emails for child porn by comparing hashes of files sent through its network to hashes of known child porn. When it becomes aware of child porn, it is required by law to report them to the National Center for Missing and Exploited Children. NCMEC is a governmental entity and agent. (That point takes up the bulk of the decision; Congress has made huge grants of governmental power to the organization.) NCMEC opened the file without a warrant.

Fourth Circuit Out of Step on Asset Forfeiture

As Americans we grow up learning that our criminal justice system is based on the principle that everyone accused of a crime is innocent until proven guilty — and that no one can be punished before getting a fair trial. Unfortunately, the government doesn’t always follow this principle.

In the U.S. Court of Appeals for the Fourth Circuit, a court has the power to restrain a defendant’s property, preventing him or her from selling or otherwise disposing of it, even though the government has yet to secure a conviction or even establish that the property has been criminally tainted in any way. Such is the case with Sergeant First Class William Todd Chamberlain, whose home is now subject to forfeiture even though the government admits that it has no connection to any wrongdoing whatsoever.

A federal district court approved of this restraint, and now Chamberlain has appealed that decision to the Fourth Circuit. Chamberlain, a former Special Forces soldier, is one of five defendants alleged to have embezzled federal funds totaling $200,000 ($40,000 each) while on tour in Afghanistan. The government has decided to recoup all $200,000 from Chamberlain alone — going after his home while leaving the property of the other defendants (who unlike Chamberlain don’t dispute their guilt).

The government relies on a federal law that allows courts to file a pre-trial restraining order on tainted assets so as to preserve their availability for forfeiture upon conviction, as well as another section of that law that allows for the substitution of untainted property during post-conviction forfeiture proceedings in situations where the defendant has caused the property to become unavailable. That problem is that now we have a case of pre-conviction, pre-trial restraint of untainted property.

This is an outrageous attempt to circumvent the clear meaning of a statute in order to unlawfully encumber the private property of an individual, in clear violation of Sergeant Chamberlain’s constitutional rights. The argument in favor of pre-trial restraint of tainted assets — that the defendant never legitimately owned them anyway, and thus really has no rights to be violated — is wholly lacking. This is why the fact that the district court sided with the government, and that current Fourth Circuit precedent is in line with that decision, is absurd — particularly so after the Supreme Court’s ruling in United States v. Luis earlier this year (which rejected the freezing of untainted assets that would allow a defendant to pay for counsel of choice).

The district court’s ruling is based on a 25-year-old interpretation of the law that has since been repudiated by every other circuit that has addressed the issue. Cato has filed an amicus brief in support of Sergeant Chamberlain, joined by the National Association of Criminal Defense Lawyers, urging the Fourth Circuit to end its incorrect and outmoded practice.

Innocent until proven guilty is the bedrock foundation of American criminal law, and it is high time that the Fourth Circuit remembers that fact in the context of asset forfeiture.

Thanks to Cato legal associate David McDonald for his help with this post.

Some Early Lowlights from the DOJ’s Baltimore Report

Today, the U.S. Department of Justice released its report on the Baltimore Police Department. As expected, they found “patterns and practices” that lead to unconstitutional policing in the City and that these adversely and disproportionately affect black Baltimoreans.

The report describes a litany of offenses and violations of basic decency perpetrated by the Baltimore Police. Each of those stories is important, but for now, I want to focus on the primary source of the violations described: unconstitutional and other investigatory stops.

The DOJ found that between January 2010 and May 2015, the Baltimore Police made at least 300,000 pedestrian stops—a number the DOJ says is almost certainly too low because of police underreporting. Forty-four percent of these stops were made in two majority black districts of Baltimore that comprise only 11 percent of the City’s population. They found hundreds of people who were stopped more than ten times during that period, 95 percent of whom were black.

One man in his 50s was stopped over 30 times in four years and was never ticketed or arrested. That probably shouldn’t be surprising, as less than four percent of these stops ended in citations or arrest. And, recalling the recent dissents in the Supreme Court decision in Utah v. Strieff, it’s likely that many of those arrests were for outstanding warrants for unpaid parking tickets and other minor violations that had no connection to a potentially illegal activity that allegedly justified the stops in the first place. 

Moreover, the DOJ found at least 11,000 arrests by BPD were not prosecuted for lack of probable cause or other merit. Thousands more were detained for investigations and searches that went nowhere, with many people publicly strip-searched. One, even, was strip searched after being stopped for a broken taillight. Such unjustifiable actions serve no purpose other than public humiliation.

Black Baltimoreans were more likely to be charged with the most discretionary offenses—“failure to obey,” “trespassing,” “disorderly conduct,” and “loitering,”—and often without required notice that they were in violation of the law. Indeed, the DOJ wrote that “[r]acially disparate impact is present at every stage of BPD’s enforcement actions[.]” This is something black Baltimoreans know and rightfully resent. As I’ve written before, this denial of basic rights makes Baltimoreans less secure and less safe:

If civil rights protections are widely denied, particularly to one group of people, because they are routinely ignored and capriciously violated by police officers, those rights lose all tangible meaning to that population. Mistreatment by authorities—whether official policies like Stop and Frisk, or tolerance of police brutality, corruption, or homicide—corrodes the integrity of a community. The government loses credibility by effectively nullifying its own authority by arbitrary enforcement of laws (government powers) and the protections for citizens (civil rights).

Cooperation with law enforcement must suffer as the trust required between a police department and its citizens is eroded by the rightly perceived unbalanced enforcement. Criminals become emboldened through weakened law enforcement capabilities, and the citizens become less safe. The community divests itself from the relationship with the police and societal norms become threatened.

D.C. Circuit: IRS Must Face Lawsuit Over Non-Profit Targeting

“So, yes, the president was saying – two months after the news broke – that the whole IRS thing was just a ‘phony scandal.’” That’s a tidbit passed along by Kim Strassel in her much-talked-about new book, The Intimidation Game. It references the scandal over Internal Revenue Service targeting of Tea Party and “patriot” groups for delay and for bizarrely burdensome documentation demands concerning their personnel and activities. Although President Obama offered what seemed to be heartfelt apologies at the time, and a couple of top officials departed the agency (including director of nonprofit organizations Lois Lerner, who had taken Fifth Amendment protection), there was soon an effort to recast the affair as a matter of merely incompetent mix-ups, rather than a lapse of public integrity and the rule of law. In June a Washington Post editorial took this line, to which I responded by pointing out that the discriminatory handling of groups with adversary political viewpoints was so systematic and intense as to be hard to explain by mere inadvertence.

On Friday morning, a panel of the D.C. Circuit Court of Appeals issued a unanimous opinion (PDF) ordering the reinstatement of a suit against the IRS by two conservative groups, True the Vote and Linchpins of Liberty, seeking a court order against future IRS abuse. The IRS had sought the dismissal of the action as moot, arguing, in best let’s-move-on manner, that it had ceased the unlawful targeting and remedied its effects. Not so, the court said: not only had the IRS not given adequate guarantees that it would not resume improper targeting, but there is evidence that it hasn’t even stopped the practice. 

The D.C. Circuit opinion abounds in scathing language about the Service’s misconduct (it is “plain … that the IRS cannot defend its discriminatory conduct on the merits,” there being “little factual dispute” about it). You can read my write-up of the case at Ricochet, which might help you stay ahead of the news: as of this morning, four days after the court’s ruling, some large news organizations have still not seen fit to report on it.