Topic: Law and Civil Liberties

Do Businesses Have Rights?

The Washington Post reports:

As far as sales manager Brian Ward knows, Rep. Andy Harris has never shopped at Capitol Hill Bikes. But if the Maryland Republican congressman wanted to, he’d find a black and white picture of himself taped on the door with a message in bold type: NOT WELCOME.

To many in the District, Harris is a public enemy — the force behind language added to the massive federal government spending bill intended to block D.C. from legalizing marijuana despite local voters overwhelmingly approving it on the November ballot.

The move so infuriated District residents that someone has started a “Blacklist Andy Harris” tumblr asking local businesses not to serve Harris:

“My fellow Washingtonians, Rep. Andy Harris doesn’t give a d— about District residents or our rights, so let’s blacklist him! We can generate and distribute signs/stickers/posters with his face, words like “Persona non Grata” (or something similar), and ask local businesses to display them.”

I support these District of Columbia businesses’ right to refuse service to Representative Harris. Now I know there are people who would say to these small businesses, “Open a business to serve the public? You have an obligation to serve everyone.” But I say that Capitol Hill Bikes should be free to refuse service to Andy Harris, and Republicans and anti-drug activists should be free to refuse to patronize Capitol Hill Bikes. Every contract is an agreement voluntarily entered into on both sides, and no one should be forced to enter into contracts. Thus I support the right of D.C. businesses to refuse to serve those would-be customers who offend their conscience, just as I support the right (though not the rightness) of bakers, photographers, and innkeepers not to participate in gay weddings.

Suing Gun Businesses Over Sandy Hook

There’s a new legal attack under way against firearms, as the press reports

Ten families touched by the Newtown massacre filed a wrongful death lawsuit Monday against companies that made, distributed and sold the Bushmaster AR-15 rifle that Adam Lanza used to kill 20 children and six staffers at Sandy Hook Elementary two years ago. The suit argues that the gun is a military assault weapon that never should have been on the general market.

Jacob Sullum at Reason has more details, especially on the arbitrary nature of the epithet “assault weapons,” often uncritically repeated in the press. 

In 2005 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) specifically to put an end to product liability suits over guns that had been made and sold in accordance with law. The courts have generally enforced it as written – even the Ninth Circuit’s famously liberal Judge Stephen Reinhardt agreed that it was constitutional – which has mostly, if not entirely, led to the dismissal of such lawsuits. The new Connecticut suit seeks to reopen the question by stretching beyond recognition a narrow exception in the law allowing businesses to be sued over “negligent entrustment.” (The firearm used by the Newtown killer had been lawfully sold long previously to his mother.)

Last year I wrote a piece entitled “Six Myths About the Law That Bans Gun Lawsuits” for the Power Line blog, pointing out that the PLCAA for the most part codified the common law treatment of gun liability as it had stood for centuries, thus advancing both a constitutional liberty and the legitimate freedom of interstate commerce against efforts to obtain a radical change in doctrine. I also noted that PLCAA probably make little ultimate difference in the Sandy Hook case because claims against gun makers and distributors over that massacre would probably not have succeeded anyway. And I rebutted a notion that came to be promoted years later, that the law was somehow not meant to reach privately filed liability suits:

A Washington Post report in January [2013] claimed the law poses “unexpected hurdles” to victims of recent mass shootings, whose lawyers are supposedly “surprised” at its pre-emptive effect. At the time Congress passed the law, the Post concedes, big-city mayors had filed a wave of lawsuits on novel theories demanding (for example) that courts begin treating gun sales as a “public nuisance” . “But over the past eight years, the legal shield has increasingly been used to block a different stripe of legal action.” The Post’s implication that Congress intended to restrict only municipal suits, and not tort suits on behalf of individuals, is false. Lawmakers debated the question and chose to include both. One reason is that anti-gun strategists were actively employing individual as well as municipal suits in their nearly successful effort to bury gun makers under the costs of legal defense. An editorial complaining that the law banned both kinds of suits appeared on June 2, 2005 in (yes) the Washington Post.

Let’s not forget that the relatively shallow pockets of gun-related businesses was part and parcel of the abusive strategy of the politicians and lawyers promoting the suits back then: 

because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). …the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.

We may hope that the courts are alive to the ongoing importance of PLCAA, and willing, as appropriate, to apply the tool of sanctions against legal strategists and campaigners who would seek to circumvent its provisions in the name of ideological grandstanding, profit, or revenge.

Today Is Bill of Rights Day

Today is Bill of Rights Day. So it’s an appropriate time to consider the state of our constitutional safeguards.

Let’s consider each amendment in turn.

The First Amendment says that “Congress shall make no law… abridging the freedom of speech.” Government officials, however, have insisted that they can gag recipients of “national security letters” and censor broadcast ads in the name of campaign finance reform.

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, make it difficult to keep a gun in the home and make it a crime for a citizen to carry a gun for self-protection.

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners. This safeguard is one of the few that is in fine shape – so we can pause here for a laugh.

The Fourth Amendment says the people have the right to be secure against unreasonable searches and seizures. Government officials, however, insist that they can conduct commando-style raids on our homes and treat airline travelers like prison inmates by conducting virtual strip searches.

The Fifth Amendment says that private property shall not be taken “for public use without just compensation.” Government officials, however, insist that they can use eminent domain to take away our property and give it to other private parties who covet it.

The Sixth Amendment says that in criminal prosecutions, the person accused is guaranteed a right to trial by jury. Government officials, however, insist that they can punish people who want to have a trial—“throwing the book” at those who refuse to plead guilty—which explains why 95 percent of the criminal cases never go to trial.

The Seventh Amendment guarantees the right to a jury trial in civil cases where the controversy “shall exceed twenty dollars.” Government officials, however, insist that they can impose draconian fines on people without jury trials.

The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that a life sentence for a nonviolent drug offense is not cruel.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.” Government officials, however, insist that they will decide for themselves what rights, if any, will be retained by the people.

The Tenth Amendment says that the powers not delegated to the federal government are reserved to the states, or to the people. Government officials, however, insist that they will decide for themselves what powers they possess, and have extended federal control over health care, crime, education, and other matters the Constitution reserves to the states and the people.

It’s a disturbing snapshot, to be sure, but not one the Framers of the Constitution would have found altogether surprising. They would sometimes refer to written constitutions as mere “parchment barriers,” or what we call “paper tigers.” They nevertheless concluded that having a written constitution was better than having nothing at all.

The key point is this: A free society does not just “happen.” It has to be deliberately created and deliberately maintained. Eternal vigilance is the price of liberty. To remind our fellow citizens of their responsibility in that regard, the Cato Institute has distributed more than five million copies of our pocket Constitution. At this time of year, it’ll make a great stocking stuffer.

Let’s enjoy the holidays but let’s also resolve to be more vigilant about defending our Constitution. To learn more about Cato’s work in defense of the Constitution, go here. To support the work of Cato, go here.

The Hobbylobbification of America

If you ask reasonably informed consumers of news media what the year’s big Supreme Court case was, most would probably say Burwell v. Hobby Lobby, that case where “five white men” (in Harry Reid’s description) decided that corporations can deny women access to birth control. But, as I’ve said elsewhere, what was at stake in Hobby Lobby has nothing to do with the power of big business, the freedom to use any kind of legal contraceptive, or how to balance religious liberty against other constitutional considerations. Much like Citizens United (which struck down restrictions on corporate political speech without touching campaign contribution limits) and Shelby County (which struck down Section 4(b) of the Voting Rights Act because it was based on obsolete voting data that didn’t reflect current realities as constitutionally required), Hobby Lobby is doomed to be misunderstood.

The case was actually a rather straightforward question of statutory interpretation regarding whether the government was justified in this particular case in overriding religious liberties. The Supreme Court evaluated that question and ruled 5-4 that closely held corporations can’t be forced to pay for all of their employees’ contraceptives if doing so would violate their religious beliefs. There was no constitutional decision, no expansion of corporate rights, and no weighing of religion versus the right to use birth control.

That’s it. Nobody has been denied access to contraceptives and there’s now more freedom for all Americans to live their lives how they want, without checking their conscience at the office door. The contraceptive mandate fell because it was a rights-busting government compulsion that lacked sufficient justification.

That the Hobby Lobby dissenters and their media chorus made so much noise over this case is evidence of a larger process whereby the government foments needless social clashes by expanding its control over areas of life we used to think of as being “public” yet not governmental. The government thus uses private voluntary institutions as agents in its social-engineering project. These are places that are beyond the intimacies of the home but still far removed from the state: churches, charities, social clubs, small businesses, and even “public” corporations (which are nevertheless part of the “private” sector).

Where Alexis de Tocqueville celebrated the civil society that proliferated in the young American republic, the Age of Obama has heralded an ever-growing administrative state that aims to standardize “the Life of Julia” from cradle to grave. Through an ever-growing list of mandates, regulations, and assorted other devices, the government is pushing aside the “little platoons” that made this country what it was. We can call this tide of national collectivism overtaking the presumptive primacy of individual liberty and voluntarism the “Hobbylobbification of America.”

For more on all this, read my recently published book – Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution – where my co-author David Gans and I debate all sorts of interesting issues. Perhaps most curious is that I minimize the significance of the ruling or its precedential value, while David says it’s really, really big (and really, really bad). That’s an unusual inversion in Supreme Court commentary; typically the winning side trumpets its victory while the losers try to explain why the decision really doesn’t mean that much. (If you’re curious about any of this, come to our book forum/debate this Tuesday, or watch online.)

Brennan, Torture and the Accountability Vacuum

Yesterday, CIA Director John Brennan delivered his public response to the Senate Select Committee on Intelligence report on the CIA’s detention and interrogation program. Rather than use the opportunity to fully acknowledge and accept the report’s findings and implications, Brennan offered a vigorous defense of the CIA, invoking the emotional trauma suffered by the country to help justify subsequent his agency actions.

Indeed, there were numerous, credible, and very worrisome reports about a second and third wave of major attacks against the United States,” Brennan said. “And while we grieved, honored our dead, tended to our injured, and embarked on the long process of recovery, we feared more blows from an enemy we couldn’t see … and an evil we couldn’t fathom.

“This is the backdrop against which the Agency was directed by President Bush to carry out a program to detain terrorist suspects around the world.

“In many respects, the program was uncharted territory for the CIA, and we were not prepared. We had little experience housing detainees, and precious few of our officers were trained interrogators. But the President authorized the effort six days after 9/11, and it was our job to carry it out.” (emphasis added)

But as the Senate report makes clear (p. 11), President Bush’s covert action Memorandum of Notification (MON, the formal authorization for the rendition and detention program) “made no mention of interrogations or interrogation techniques.” Thus, the initiative for the interrogations—including techniques involving torture under international and U.S. law—originated within the CIA. And as the Senate report lays out repeatedly—using the CIA’s own internal documents—agency personnel, and particularly its attorneys, knew very well that what they were proposing almost certainly violated U.S. and international law.

Second Circuit Slams Feds on Insider Trading Prosecutions

For years the U.S. Department of Justice and Securities and Exchange Commission have been on a crusade to prosecute “insider trading,” even though it’s far from clear that activity should be criminal to begin with. Lately, those efforts have been led by Preet Bharara, U.S. Attorney for the Southern District of New York, who has obtained more than 80 convictions and plea deals, ruining countless careers and fortunes along the way.

On Wednesday, things changed. A three-judge panel of the New York-based Second Circuit U.S. Court of Appeals—the most influential lower court on questions of financial regulation—unanimously threw out Bharara’s high-profile conviction of hedge funders Todd Newman and Anthony Chiasson, directing that charges against them be dropped. It’s a “huge blow” to Bharara’s campaign, notes the New York Post, while Bloomberg Media calls it a “harsh rebuke” that “is likely to have far-reaching effects.” Alison Frankel of Reuters describes the ruling as “emphatic” and its conclusion “momentous.” The opinion is here.

Yale law professor Jonathan Macey, writing in the WSJ:

[The SEC and Bharara] prefer that the law exalt vague conceptions of “fairness” above the more concrete goals of having robust, liquid and efficient securities markets.

The new opinion is a game-changer. It signals to prosecutors that they cannot bring flawed cases and then hide behind the excuse that the law is vague. The Court of Appeals admonished that “the Supreme Court was quite clear” in previous cases about what is required to establish illegal insider trading.

Specifically, the Supreme Court and the lower federal courts have been explicit in saying that trading on an informational advantage is not necessarily illegal. To be illegal, the courts have said, trading by insiders must involve breaching a duty of trust and confidence. Courts have been clear, as the Supreme Court noted in Chiarella v. U.S. (1980) and again in U.S. v. O’Hagan (1997), that there is no “general duty between all participants in market transactions to forgo actions based on material, nonpublic information” because it is possible to acquire such information legitimately.

Tellingly, the Court of Appeals pointed out “the doctrinal novelty” of the government’s “recent insider trading prosecutions, which are increasingly targeted at remote tippees many levels removed from corporate insiders.”

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 turns out to be the Cleveland Police Department.

To begin with, in late November, a Cleveland police officer shot and killed a 12-year old boy, Tamir Rice.

The press reports based on the police accounts at the time of the incident read:

A rookie Cleveland police officer shot a 12-year-old boy outside a city recreation center late Saturday afternoon after the boy pulled a BB gun from his waistband, police said.

Police were responding to reports of a male with a gun outside Cudell Recreation Center at Detroit Avenue and West Boulevard about 3:30 p.m., Deputy Chief of Field Operations Ed Tomba said.

A rookie officer and a 10-15 year veteran pulled into the parking lot and saw a few people sitting underneath a pavilion next to the center. The rookie officer saw a black gun sitting on the table, and he saw the boy pick up the gun and put it in his waistband, Cleveland Police Patrolmen’s Association President Jeffrey Follmer said.

The officer got out of the car and told the boy to put his hands up. The boy reached into his waistband, pulled out the gun and the rookie officer fired two shots, Tomba said.

As detailed in this video report by MSNBC’s Chris Hayes, the initial reports by the police do not jibe with video evidence in several major respects.

The video shows Rice, alone, playing with his toy gun and also with the snow, as 12 year olds are wont to do. He was not, as the police said, with “a few people” in the pavilion. Other police reports to the press said the shooting officer got out of his car and told Rice three times to put his hands up. The video, unfortunately without audio and recording at the speed of two frames per second, shows the officer shooting Rice within 1.5-2 seconds after exiting the police vehicle.

The officers also waited several minutes before administering CPR to the fallen child.

The original call that drew the police to the park in the first place said the person with the gun in the park was likely a minor and likely was a toy gun. Apparently, this information was not relayed to the responding officers, who called-in the shooting victim as “possibly 20” years old.

The officer who shot Rice “was specifically faulted for breaking down emotionally while handling a live gun” according to subsequent reporting. The internal memo that informed the report concluded that the officer be “released from the employment of the City of Independence [,Ohio].”

Here’s the thing: The Cleveland Police Department hired the officer without checking his personnel file from his previous law enforcement job!

This tragic event is just the latest that involves police using deadly force, and likely too quickly. The facts released by the police department that favor the police officers involved were either misleading or inaccurate.

At best, this event highlights poor communication and procedure leading up to and immediately following a tragedy. At worst, this is a police department caught covering up a series of preventable mistakes that cost the life of a young boy.

The Department of Justice recently issued a report after looking into the policies and practices of the Cleveland Police Department.  According to the New York Times,

The Justice Department report on Cleveland cataloged many instances of unjustified force, including officers who assaulted, pepper-sprayed and even Tasered people already being restrained. In one case last year, the police fired two shots at a man wearing only boxer shorts who was fleeing from two armed assailants. In a 2011 case, a man who had been restrained on the ground with his arms and legs spread was then kicked by officers. He was later treated for a broken bone in his face.

The city’s policing problems, [Attorney General] Holder said, stemmed from “systemic deficiencies, including insufficient accountability, inadequate training and equipment, ineffective policies and inadequate engagement with the community.”