Topic: Law and Civil Liberties

Police Misconduct — The Worst Case in November

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of November.  It involved several officers with the San Antonio Police Department (SAPD).

Here’s what reportedly happened.  SAPD police were hunting for a suspect on drugs and weapons charges.  In a case of mistaken identity, officers swarmed on poor Roger Carlos.  Mr. Carlos had done nothing wrong.  He was apparently just standing in the wrong place at the wrong time.  And even though Mr. Carlos complied with the police commands, to get on the ground and to not resist arrest, they just kept hitting him over and over again.

Mr. Carlos’s wife, Ronnie, still can’t believe what has happened to her husband.  The couple has three boys under the age of ten–but their father is now paralyzed from the chest down.  Doctors are also concerned that Mr. Carlos may have difficulty breathing down the road.  The medical bills for multiple surgeries are enormous.

After reviewing the case, a police discipline board recommended 15-day suspensions for three officers involved.  The Police Chief, William McManus, thought that recommendation was wrong.  He shortened each of the suspensions to five days.

Image result for roger carlos san antonio

Canada Moving to Legalize Marijuana

From today’s Washington Post:

Has this war on marijuana worked?

“No, it hasn’t,” said Clive Weighill, chief of the Saskatoon police force, president of the Canadian Association of Chiefs of Police and a veteran of the August raids.

Times, however, are beginning to change in Canada.

The new Liberal government has promised to act quickly to legalize marijuana for general use, which would make Canada the first Group of 20 country to end cannabis prohibition on a national level….

“Our system is badly, badly flawed,” said Eugene Oscapella, a law professor at the University of Ottawa and a longtime advocate for legalization. “I keep asking myself a question that I have been asking for 30 years: ‘Could we have done a worse job if we tried? Could we have found a way to create more dysfunction than we managed to create?’ ”

Politicians in this country don’t like this subject. I think Hillary Clinton’s latest position is that medicial marijuana ought to be studied or something. The success of the marijuana legalization movement here has come by referendum thus far. Looks like California voters will approve it in 2016. In the meantime, dysfunction continues all over.

Related Cato work here and here.

Reflecting on the 150th Anniversary of the Thirteenth Amendment

On this day 150 years ago, the Thirteenth Amendment to the Constitution was ratified, thus officially ending chattel slavery in the United States. America’s original sin—its birth in freedom based on human slavery—was no longer sanctioned by American law.

To get to this historical moment, the United States wrestled with its heinous contradiction in its homes, cotton fields, courtrooms, public streets, legislatures, Bleeding Kansas and, ultimately, the many battlefields of the Civil War. The racism that supported slavery was so ingrained in our national character and economy that it cost the United States hundreds of thousands of lives.

Of course, America’s racial wounds were not healed with Abolition. The Fourteenth and Fifteenth Amendments went further to ensure racial equality (for men) before the law—on paper, anyway. Years of Jim Crow and state-tolerated white terrorism after the end of Reconstruction showed America’s laws and purported ideals could still be subverted by the enduring legacy of racism throughout the country.

Today, black Americans are far freer than ever, but still face unequal treatment by law enforcement. Certain police practices are almost exclusively deployed in black neighborhoods—the neighborhoods themselves remnants of de jure segregation—reifying not-yet-equal status for too many black Americans. And the aggressive application of our criminal laws has led to mass incarceration, which disproportionally imprisons African Americans across the country.

Nevertheless, the ratification of the Thirteenth Amendment should be celebrated as a hard-fought victory for human freedom. It was the first of the three Civil War Amendments that recognized that individuals have unalienable rights against the federal and state governments.  

In today’s political arena, there is a lot of talk a lot about “liberty” and “freedom” regarding taxes, regulations, and other infringements on personal rights. Many of those are important public policy debates that have a genuine impact on human flourishing.  But it is important to remember what liberty and slavery have meant throughout American history. The Thirteenth Amendment stands as a testament to the arduous struggle this country fought with itself about what it truly means to be free.

A Response to the New York Times Front Page Op-Ed “End The Gun Epidemic in America”

Yesterday, for the first time in 95 years, the New York Times published an op-ed on the front page, position A1, above the fold. The subject of that op-ed: “End the Gun Epidemic in America.” The piece is filled with tired arguments and moralistic fervor, and it even includes the most vacuous of all public policy arguments: We gotta do something.

The title itself is odd. By focusing on guns themselves as an “epidemic” rather than on the ever-decreasing rate of gun violence, the Times seems to confirm that its editorial staff has a problem with gun ownership per se, regardless of its effects on public safety. The placement of the piece on the front page also suggests that the Times prefers moralizing to simple fact-checking. 

But it is even worse than that. At a time when the Times could have placed a meaningful and trailblazing op-ed on the front page, perhaps calling for an end to the drug war and the thousands of gun deaths associated with it, they instead chose to advocate for an impossible public policy goal that will have little to no effect on the problem at hand.

The piece was clearly animated by the recent spate of disturbing mass shootings. First of all, because it apparently needs to be said again and again, focusing on mass shootings when discussing firearms policy is deeply problematic. Not only do victims of mass shootings constitute one percent or fewer of gun deaths (depending on how “mass shooting” is defined), but the perpetrators of mass shootings are the hardest to affect with public policy changes.

Royal Prerogative in the War against ISIS

Events on both sides of the Atlantic yesterday made for an interesting contrast in the way Western democracies go to war. In the United Kingdom, they decided to actually have a vote before letting the bombs fly—with PM David Cameron winning approval in the House of Commons by a wider-than-expected 174-vote margin.

Meanwhile, the Washington Post reports that the Obama administration is sending a new Special Operations task force of some 200 soldiers to Iraq, to “enable the U.S. military to launch additional commando-style operations and increase intelligence collection, both in Iraq and in neighboring Syria.” Thus, while our cousins across the pond have secured legislative approval for war against ISIS, the “world’s oldest constitutional democracy” slips further toward a ground combat role in a war that the president ordered up some 16 months ago without a shred of legal authority. 

American’s fundamental law vests the decision to go to war in Congress. Under British law, however, the decision to use military force is a “prerogative power”—a decision taken by the Prime Minister “on behalf of the Crown.” “In constitutional terms Parliament has no legally established role and the Government is under no legal obligation with respect to its conduct.” And yet, in practice, as F.H. Buckley points out in The Once and Future King: The Rise of Crown Government in America, the British system has lately done a better job than the American one at forcing public deliberation over war: “the government’s day-to-day accountability before the House of Commons make[s] it far more difficult for a prime minister to disregard Parliament’s wishes.” Indeed, the last time Cameron contemplated airstrikes on Syria—over the use of chemical weapons in 2013—he had to abandon the idea after losing the vote in the House of Commons: “Parliament has spoken,” as Foreign Secretary William Hague summed up.

The U.S. Congress hasn’t spoken, in any formal sense, on our latest war in the Middle East, and it’s in no particular hurry to do so. The Obama administration continues to insist that, under the use-of-force resolution Congress passed over 14 years ago, it has all the legal authority it needs to wage war against ISIS, a group that’s also at war with Al Qaeda, the target of the original resolution. That pretext, offered mainly in unsigned “talking points” by anonymous administration officials, is too thin to hide the sweeping claim of executive war power on which the president’s war rests. Oddly enough, today royal prerogative thrives in the country that fought a revolution to overthrow it. 

Policing in America Conference

This week, Cato hosted an all-day conference, “Policing in America.” We brought together experts with different perspectives to discuss the opportunities and pitfalls facing police organizations today. The video of the event is below and will be available in the Cato event archives.

It was a great event all around. The speakers were able to distill complex problems and incentives into easy-to-understand presentations. Experts and laypersons alike came away with some new information that can be used to frame the policing debate in the months and years ahead. I encourage you to check out each panel and guest speaker in the videos below. 

Welcoming Remarks and Panel 1: The Costs and Benefits of Emerging Police Technologies

Remarks by Jonathan Blanks, Cato Institute

Nathan Freed Wessler, Staff Attorney, Speech, Privacy, and Technology Project, American Civil Liberties Union
Alex Rosenblat, Researcher and Technical Writer, Data & Society Research Institute
Lynn Overmann, Senior Policy Advisor to the US Chief Technology Officer at the White House’s Office of Science and Technology Policy
Moderated by Matthew Feeney, Cato Institute

Supreme Court Blocks Race-Based Election

Readers have surely been disappointed at this blog’s recent dearth of Hawaiian constitutional news, but not to fear: the Aloha State doesn’t go too long without generating legal controversies worthy of national attention. The latest development comes from the Supreme Court, which blocked an election with racial qualifications that could eventually establish a new government for so-called “native Hawaiians.” (See this background on the ongoing legislative and regulatory saga surrounding this movement for ethnic separatism.) 

The voters in the disputed election, once they establish certain ancestral lineage and affirm their belief in the “unrelinquished sovereignty of the Native Hawaiian people,” are picking delegates to a convention that would write a new constitution for a new nation. The Obama administration supports this process as a prelude to the creation of a new government within but separate from the state of Hawaii, akin to an Indian tribe (which is an inappropriate analog).

A group of Hawaiians, led by Grassroot Institute president Keli’i Akina, sued to try to stop this election, which is being run by a private organization contracted by the state Office of Hawaiian Affairs. (Full dislosure: I’m on Grassroot’s very informal board of scholars.) While several of the plaintiffs have the qualifying ancestry, they complain that the race-based exclusion violates the Fifteenth Amendment. The election’s sponsors insist that it’s a private affair and therefore not subject to constitutional limitations. (See here and here for more background.)

The district court had inexplicably allowed the balloting to proceed and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling. Justice Kennedy, as the circuit justice for the Ninth Circuit, temporarily enjoined the counting and certification of ballots on Friday, and now the Court has issued a short order preserving the injunction pending the full appeal in the lower court.