Topic: Law and Civil Liberties

Immigration and Equality

Now that a federal judge has enjoined President Obama’s unilateral amnesty, immigration reform will have to be achieved the old-fashioned – and constitutional – way: by compromise with Congress. A grand bargain is not impossible, but it will require a broad re-framing of the issues and a clear sense of what is at stake. For one thing, any such bargain should end, once and for all, governmental discrimination on the basis of race.

Affirmative action and immigration might, at first glance, appear unrelated; in fact, they are profoundly and perversely intertwined. It is often said that anti-immigration sentiment is driven by a fear of competition; Americans are said to fear competing against new immigrants for jobs, for contracts, for educational opportunities. This account leaves out a crucial part of the story: Americans have never lacked competitive spirit or feared a fair fight. What many Americans fear is that these competitions will, in fact, be rigged from the outset. The sad fact is that they are right.

Religious Liberty’s Denouement in Indiana

With the Final Four set to begin in Indianapolis this evening, maybe we can shift our attention from the anti-discrimination protests there that have consumed our attention all week to the games. But maybe not, since protests are expected even at the games. The left just doesn’t know when to stop. That’s the subject of the lead editorial in today’s Wall Street Journal, “Liberal Intolerance, Round II: To stamp out cultural dissent, the left is willing to stomp on religious liberty.” Here’s a sense of what the week’s been like for ordinary Hoosiers:

Take the family-owned pizza parlor in Walkerton, Indiana—population 2,144. A local TV reporter went door-to-door asking restaurants how they would respond if they were asked to cater a gay wedding. The innocents at Memories Pizza, who had never faced the question in daily business, said that they would prefer not to participate in a hypothetical same-sex pizza party ceremony. Cue the national deluge.

They were suddenly converted into the public face of antigay bigotry across cable news and the Internet, and became the target of a social-media mob, as if they somehow screened for sexual orientation at the register. The small business closed amid the torrent, although a crowd-funding counter-reaction supplied tens of thousands of dollars in recompense.

Tens of thousands? The South Bend Tribune reports that the fund stood at $842,000 as of this morning.

Faithful readers of Cato@Liberty know our views on the underlying issue. Indeed, Cato’s amicus brief supporting those now pressing the Supreme Court to prohibit states from discriminating against same-sex marriages has just generated a brief from conservative scholars who direct their arguments entirely against ours: A most unusual move, they must be concerned.

But while we support same-sex marriage, we support religious liberty every bit as much. This week I addressed that issue here and here. And The National Interest has just put up a longer piece of mine that puts the whole freedom of association issue in perspective.

 

Arizona Governor Vetoes Bill Hiding the Names of Police Involved in Shootings

Arizona Gov. Doug Ducey (R) has vetoed a bill that would have prohibited disclosure of the names of police officers involved in shootings for 60 days, citing the potential unintended consequences of such a law:

“I know the goal of this legislation is to protect officers and their families, and it’s a goal I share… Unfortunately, I don’t believe this bill in its current form best achieves the objectives we share, and I worry it could result in unforeseen problems.”

While proponents argued that the bill was necessary to prevent officers from being unfairly targeted by mass protests or threatened with violence, opponents–including some in law enforcement–argued that transparency considerations and community relations outweighed that concern.

Roberto Villaseñor, chief of the Tucson Police Department and president of the Arizona Association of Chiefs of Police, told the New York Times:

“To add another law that’s going to add distrust or adversarial relationships is not the way to go. Why do I cloak it in secrecy for 60 days, and now I’m going to have this story run twice? Sixty days later, we’re going to rehash it again.”

The opaqueness of government behavior, especially surrounding the government’s use of violence, has eroded the rule of law and the relationship between civilians and police around the country.  Transparency about police shootings is a necessity for effective reform and accountability. We need more transparency, not less. 

Good for Governor Ducey and the Arizona law enforcement officials who stood against more police secrecy. 

When It Comes to Police Body Cameras, Federalism Is Key

Last week, Sens. Rand Paul (R-KY) and Brian Schatz (D-HI) introduced legislation that would create a pilot grant program to assist state and local police agencies in leasing or purchasing body-worn cameras. The bill requires states, “units of local government,” and Indian tribes wishing to receive a full grant to commit to a range of reforms related to privacy, police practice, and data storage.

The bill presents something of a dilemma for libertarians like me, who want increased accountability and transparency within law enforcement but are also hesitant to support federal policy prescriptions for issues such as policing, which are often best handled at the local level. Given the worrying body camera legislation that has been proposed by some state lawmakers, it is tempting to think that a conditional federal police body camera grant program might be the best way to ensure that local government agencies implement worthwhile body camera policies. Yet Paul and Schatz’s legislation shows that police body camera policy ought to be addressed at the state and local level.

This is not to say that the legislation does not contain some good policy requirements. If the bill were to be enacted as written, an entity (state, unit of local government, or Indian tribe) interested in receiving a full grant would have to demonstrate a commitment to implementing some sensible policies before officers use the body cameras.

Among those policies is the development of public regulations and protocols relating to the use of body cameras, the storage of body camera footage, and the protection of the privacy rights of individuals recorded by body cameras. This is an important requirement. As the ACLU discovered last year, some law enforcement agencies do not have body camera policies, and some of those that do choose not to release them.

Yet while the legislation does make committing to publishing policies related to the release of body camera footage a condition for receipt of a full grant, it does not require that these policies advance transparency and accountability. The legislation only requires that a requesting entity develop and publish policies for “the release of any data collected by a body-worn camera in accordance with the open records laws, if any, of the State” (my bolding).

This is worrisome considering that, according to the AP, “Lawmakers in nearly a third of the states have introduced bills to restrict public access to recordings from police officer-worn body cameras.” Some of these bills, such as Michigan’s HB 4234 and Florida’s SB 248, aim to protect citizens from privacy violations by exempting police body camera footage of the interior of private homes from disclosure. SB 248 extends this protection to footage captured at the site of medical emergencies and on the property of social service, mental health, and health care facilities. However, other legislation such as North Dakota’s HB 1264, which has been passed by the North Dakota House and Senate, and New Hampshire’s HB 617 would make police body camera footage exempt from public record requests, though HB 617 would allow for citizens who pay for the recording to access body camera footage in which they can be seen or heard. (HB 617 would also require state police to use body cameras and to record all interactions with the public).

Supreme Court Reinforces Jones Conception of 4th Amendment

In a per curiam opinion this week, Grady v. North Carolina, the U.S. Supreme Court reinforced recent 4th Amendment decisions in holding that when the government physically occupies private property for the purpose of obtaining information, it engages in a search under the 4th Amendment.

The State of North Carolina subjects certain repeat offenders to a lifetime of satellite-based monitoring (SBM) after they complete their sentences.  The plaintiff, Torrey Dale Grady, argued that such a program represents a violation of his 4th Amendment rights under recent U.S. Supreme Court opinions, including a 2012 case called United States v. Jones (installing a GPS tracker on a suspect’s car represents a search) and a 2013 case called Florida v. Jardines (using a drug-sniffing dog on a suspect’s porch represents a search).

The Supreme Court agreed with Grady that such monitoring constitutes a search. In light of these decisions, it follows that a state also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.

In concluding otherwise, the North Carolina Court of Appeals apparently placed decisive weight on the fact that the State’s monitoring program is civil in nature. See Jones, ___ N. C. App., at ___, 750 S. E. 2d, at 886 (“the instant case … involves a civil SBM proceeding”). “It is well settled,” however, “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations,” Ontario v. Quon, 560 U. S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment. 

The court also rejected North Carolina’s somewhat strange argument that its monitoring program is not meant to collect information:

President Obama Commutes 22 Sentences of Federal Prisoners

Yesterday, the Department of Justice announced that President Obama commuted the sentences of 22 federal prisoners, eight of whom were sentenced to spend the rest of their lives in prison. These commutations are in line with the administration’s criteria for reviewing certain clemency petitions.

Courtesy of the Clemency Project, the administration’s criteria to apply for the new clemency policy require the applicant to:

  • be serving a federal sentence;
  • be serving a sentence that, if imposed today, would be substantially shorter;
  • have a non-violent history with no significant ties to organized crime, gangs or cartels;
  • have served at least 10 years;
  • have no significant prior convictions; and
  • have demonstrated good conduct in prison.

Of course, these commutations are a welcomed development. But there are potentially thousands of inmates eligible under these criteria, as well as many others who have paid more than enough for their past misdeeds. Yesterday’s action doubled the number of granted petitions during Obama’s presidency, but these grants are not nearly enough.

Governors in the 50 states should institute their own clemency initiatives. Most of America’s incarcerated population is under state jurisdiction. The states house many more prisoners that should be brought back into society instead of  serving draconian prison sentences.

Kudos to the Clemency Project’s member organizations and 1,500 attorneys working pro bono to bring these and the many other inmates home. And congratulations to those 22 individuals who can be reunited with their friends and families as they look to rebuild their lives and rejoin society.

In a new Why Liberty? video released today, Families Against Mandatory Minimums’ founder (and Cato alumna) Julie Stewart talks about why she started her organization and the work that still needs to be done in sentencing reform.