Topic: Law and Civil Liberties

Police Misconduct — The Worst Case in May

Over at Cato’s Police Misconduct Reporting Project, we have identified the worst case for the month of May.  It was was the death of Matthew Ajibade.

Ajibade’s girlfriend called the police because he was having a bipolar episode.  Georgia deputies arrested Ajibade but then took him to the jail instead of a hospital.  At the jail, he was placed in a restraint chair.  Deputies reportedly fired stun guns at him while he was restrained in the chair and then left him unattended in an isolation cell.  Ajibade, 22, died and the coroner now says it was homicide

Nine deputies were fired over the incident and a criminal investigation is on-going.

Texas Cop Filmed Pulling Gun on Unarmed Teens

Last Friday a group of teenagers attended an end-of-year party at a community swimming pool in McKinney, Texas. According to some of the teens at the pool police were called to the scene after adults made racist remarks and a fight between adults and the teens began. A McKinney Police Department Facebook post states that officers responded to reports of “a disturbance involving multiple juveniles” who did not have permission to be at the pool.

One of the teens, 15-year-old Brandon Brooks, filmed the encounter between the youths and police officers. The video, which can be viewed below, shows officer Eric Casebolt handcuffing two teens before throwing a 14-year-old girl to the ground, using his knees to pin her, and pulling a gun on unarmed bystanders - something he is caught on camera denying. The girl was later released without charge.

Warning: This video contains profanity

Casebolt, who has been placed on administrative leave following the incident, was named Patrolman of the Year in 2008 and is reportedly a vice president of the McKinney police union. He was also once an instructor at Executive Self-Defense and Fitness, and was described on that company’s website as someone with “experience in the use of all levels of force” and “a strong working knowledge of human behavior.”

It is hard to imagine the incident earning as much attention as it has without Brooks’ footage, which serves as another reminder of how important it is that citizens film the police. In the forthcoming investigation into the incident Casebolt will not be able to plausibly claim that he felt threatened by a 14-year-old girl and that his use of force against her was justified. Nor will he be able to claim that he did not unholster his weapon and point it at unarmed teens.

Citizen footage of police officers can be instrumental in investigations into allegations of police misconduct. Today a grand jury indicted former North Charleston, South Carolina police officer Michael Slager for the killing of Walter Scott, whose death was caught on camera by an onlooker. Scott was shot multiple times in the back while running away from Slager. I wrote about Walter Scott’s death in April, noting how footage of the killing contradicted what was included in police reports.

The Cato Institute released a video on citizens filming police officers in 2010. It can be viewed below.

Truancy Laws: What Libertarians Knew

My new piece at Reason begins:

We’ve seen it happen again and again: libertarians are derided over some supposedly crazy or esoteric position, years pass, and eventually others start to see why our position made sense. It’s happened with asset forfeiture, with occupational licensure, with the Drug War, and soon, perhaps, with libertarians’ once-lonely critique of school truancy laws.

In his 1980 book Free To Choose, economist Milton Friedman argued that compulsory school attendance laws do more harm than good, a prescient view considering what’s come since: both Democratic and Republican lawmakers around the country, prodded by the education lobby, have toughened truancy laws with serious civil and even criminal penalties for both students and parents. Now the horror stories pile up: the mom arrested and shackled because her honor-roll son had a few unexcused sick days too many, the teenagers managing chaotic home lives who are threatened with juvenile detention for their pains, the mother who died in jail after being imprisoned for truancy fines. It’s been called carceral liberalism: we’re jailing you, your child, or both, but don’t worry because it’s for your own good. Not getting enough classroom time could really ruin a kid’s life.

My article also mentions that a bill to reform Texas’s super-punitive truancy laws has reached Gov. Greg Abbott’s desk, following the reported success of an experiment in San Antonio and pressure from a Marshall Project report. Finally, truancy-law reform is looking to become an issue across the political spectrum — but libertarians were there first.

Snowdenversary Gifts for Privacy Advocates

Today marks the second anniversary of The Guardian’s first blockbuster story derived from files provided by former NSA contractor Edward Snowden—launching what would become an unprecedented deluge of disclosures about the scope and scale of communications surveillance by American intelligence agencies. So it seems appropriate that this week saw not only the passage of the USA Freedom Act, but also the approval in the House of several privacy-protective appropriations amendments, about which more momentarily.  Snowden himself takes a quick victory lap in a New York Times editorial reflecting on the consequences of his disclosures, (very much in line with his remarks during our interview at the inaugural Cato Surveillance Conference):

Privately, there were moments when I worried that we might have put our privileged lives at risk for nothing — that the public would react with indifference, or practiced cynicism, to the revelations.

Never have I been so grateful to have been so wrong.

Two years on, the difference is profound. In a single month, the N.S.A.’s invasive call-tracking program was declared unlawful by the courts and disowned by Congress. After a White House-appointed oversight board investigation found that this program had not stopped a single terrorist attack, even the president who once defended its propriety and criticized its disclosure has now ordered it terminated.

He’s referring here to last month’s appellate court ruling against the notorious telephone records dragnet, followed this week by passage of the USA Freedom Act.  That law should bar bulk collection not only under §215 of the Patriot Act, the basis of the phone program, but also under §214—the “pen register” provision previously used to vacuum up international Internet metadata—and National Security Letters, which can be issued by senior FBI officials without judicial approval.  Since the latter two authorities are permanent, they would not have been affected by what quite a few lazy reporters described as “the expiration of the Patriot Act,” though in fact only about 2 percent of the law’s provisions were actually due to sunset.  While the law is far from ideal, incidentally, I think it does constitute more robust reform than many libertarians fear, for reasons I lay out in this piece at Motherboard and this blog post at Just Security.  It will, of course, be necessary to vigilantly watch for efforts to water down the law’s protection—something the public is finally at least somewhat empowered to do by a transparency provision requiring significant legal interpretations by the secret Foreign Intelligence Surveillance Court to be published in unclassfied form.

Governor Hogan, Civil Asset Forfeiture Is Inherently Abusive

Despite recent gains around the country, civil asset forfeiture reform suffered a setback in Maryland when Gov. Larry Hogan (R) vetoed a bill that would have placed restraints on the state’s civil forfeiture regime.

Civil asset forfeiture is a process by which the government is able to seize property (cash, vehicles, homes, hotels, and virtually any other item you can imagine) and keep the proceeds without ever charging the victim with a crime.  The bill, SB 528, would have established a $300 minimum seizure amount, shifted the burden of proof to the state when someone with an interest in the seized property asserts innocent ownership (e.g. a grandmother whose home is taken when her grandson is suspected of selling drugs out of the basement), and barred state law enforcement agencies from using lax federal seizure laws to circumvent state law.

In vetoing the measure, Gov. Hogan claimed that restraining civil asset forfeiture “would greatly inhibit” the war on drugs in the midst of a heroin epidemic and interfere with joint federal/state drug task forces. Gov. Hogan admitted that asset forfeiture laws “can be abused,” but that their utility outweighed the risk of abuse. 

Each of these assertions is misguided.

House Approves Using DEA Money for Body Cameras

On Tuesday the House of Representatives unanimously passed an amendment to the  Commerce, Justice, Science, and Related Agencies appropriations bill, introduced by Rep. Joaquin Castro (D-TX), which takes $10 million from Drug Enforcement Administration (DEA) funds for salaries and expenses and puts it towards the Department of Justice’s Body Worn Camera Partnership Program. The program provides 50 percent matching grants for law enforcement agencies that wish to use body cameras.  

Prior to the passage of Castro’s amendment, the appropriations bill provided $15 million for the body-worn camera partnership initiative, $35 million less than requested by the Obama administration.

Castro’s amendment is one of the latest examples of legislation aimed at funding police body cameras which, despite their potential to be great tools for increasing law enforcement accountability, are expensive.

The cameras themselves can cost from around $100 to over $1,000 and are accompanied by costs associated with redaction and storage. The fiscal impact of body cameras is a major reason why some police departments have not used the technology. In 2014 the Police Executive Research Forum received surveys from about 250 police departments and found that “39 percent of the respondents that do not use body-worn cameras cited cost as a primary reason.”

An Illinois body camera bill on Gov. Rauner’s desk not only outlines body camera policies for Illinois police agencies that want to use body camera but also introduces a $5 fee on traffic tickets aimed at mitigating the cost of body cameras.

Illinois Uses Racial Preferences for No Good Reason

Since before the Declaration of Independence, equality under the law has been a central feature of American identity. The Fourteenth Amendment expanded that constitutional precept to actions by states, not just the federal government. For example, if a state government wants to use race as a factor in pursuing a certain policy, it must do so in the furtherance of a compelling reason—like preventing prison riots—and it must do so in as narrowly tailored a way as possible.

This means, among other things, that race-neutral solutions must be considered and used as much as possible. So if a state were to, say, set race-based quotas for who receives its construction contracts and then claim that no race-neutral alternatives will suffice—without showing why—that would fall far short of the high bar our laws set for race-conscious government action.

Yet that is precisely what Illinois has done.

Illinois’s Department of Transportation and the Illinois State Toll Highway Authority have implemented the U.S. Department of Transportation’s Disadvantaged Business Entity (“DBE”) program, which aims to remedy past discrimination against minority and women contractors by granting competitive benefits to those groups. While there may be a valid government interest in remedying past discrimination, Illinois’s implementation of the program blows through strict constitutional requirements and bases its broad use of racial preferences on studies that either employ highly dubious methodology or are so patently outdated that they provide no legal basis on which to conclude, as constitutionally required, that there remains ongoing, systemic, widespread racial (or gender) discrimination in the public-construction-contracting industry that only the DBE program can rectify.