Topic: Law and Civil Liberties

Institute for Justice Publishes New Edition of Policing for Profit

Yesterday, the Institute for Justice, which has long been a leader in the fight against the abusive practice of civil asset forfeiture, released a new edition of its important 2010 study Policing for Profit.

Civil asset forfeiture has been with us for centuries, but the Drug War has kicked the government’s incentives to seize property without charge or trial into high gear.  Federal seizures alone have gone from tens of millions to billions of dollars a year over the last generation, while the vast majority of states still use a deficient and abusive process to take private property from citizens who haven’t been charged with any wrongdoing.

Thanks to the work of organizations like IJ, journalist exposés of numerous egregious abuses, and legislators committed to the rule of law, several states have reformed their forfeiture laws.  But as the new report shows, the work is far from finished, and, despite a pledge to reform, the federal government continues to undermine state reforms while seizing billions of dollars on its own.

The key findings of the report include:

  • a massive increase in civil forfeiture actions in the 21st century
  • a continued burden on property owners who have to prove themselves innocent rather than being proven guilty by the state
  • an abject lack of transparency about how much the government seizes and how the agencies are spending the proceeds of those seizures
  • the perverse incentives provided by laws that allow executive agencies to add to their own budgets by taking property and cash from individuals

 The report also includes updates to IJ’s state-by-state assessments of forfeiture laws, with 35 states and the federal government earning grades of D+ or worse.

 IJ also released an excellent video to summarize their findings:

 The full report can be found here.  How does your state stack up?

 For Cato’s explainer on the issues and abuses inherent in civil asset forfeiture, click here.

Body Camera Policies Leave a Lot to Be Desired

Police body cameras can only be as good as the policies which govern them allow. Regrettably, despite widespread calls for more police officers to wear body cameras in order to improve accountability and transparency, many police departments across the United States are governed by poor policies and practices.

The Leadership Conference on Civil and Human Rights and Upturn recently released a body camera scorecard, which grades body camera policies in 25 cities, including the 15 largest departments which currently or will soon outfit officers with body cameras.

Each department was judged on a range of issues including public access to body camera policies, restrictions on biometric technology, allowing officers to view body camera footage before making a statement, and officer discretion. The results (shown below) are not encouraging.

Of the 25 departments, only one–Baltimore–limits facial recognition technology being used in body cameras. None of the 25 departments explicitly prohibit officers from reviewing body camera footage before making an initial statement or report for any incident. The majority of the departments do not have body camera policies publicly available on their websites. Only two of the departments (Parker, Colorado and Washington, D.C.) allows people filing a police misconduct complaint to view at least some of the relevant body camera footage.

Some of the departments with disappointing policies have received funding from the Department of Justice (DOJ). The Los Angeles Police Department, for example,  was awarded $1 million for body cameras despite requiring officers involved in a fatal use-of-force incident to view body camera footage before making a statement.

Body cameras are a relatively new technology with great potential, but this potential could go unrealized if lawmakers are not careful. Amid ongoing discussions on criminal justice and police misconduct, it is not surprising that body cameras are often cited as tools which can play a role in reforms. However, as the Leadership Conference on Civil and Human Rights and Upturn scorecard demonstrates, many body camera policies do not help provide the much-needed increase in law enforcement transparency and accountability.

In my latest Cato Institute policy analysis, I propose a number of policies which would, if implemented, provide increased transparency and accountability in law enforcement. It is understandable that law enforcement agencies and lawmakers across the country are keen to deploy body cameras. But body camera policy shouldn’t be rushed. Without the right policies in place, body cameras could come to be seen not as a valuable part of criminal justice reform, but rather a secretive and confusing law enforcement tool with worrying privacy implications.

Police Misconduct — The Worst Case in October

Over at Cato’s Police Misconduct web site, we have selected the worst case for the month of October.

It was the case from Owasso, Oklahoma.  Officer Michael Denton was charged with excessive force for beating a motorist with the butt of a shotgun.  The reason why this matter is arguably the worst case from last month is because this is the very same officer who was fired for excessive force for elbowing an inmate in the face.  An arbitrator later reversed that dismissal and in February Denton was awarded $280,000 in back-pay.

So it is not just a problem officer here.  The system for getting rid of problem officers seems broken.  If Denton does not go to prison, will he be reinstated again?  We will be watching with interest.

Cato will be hosting a conference on Policing in America on December 1. 


Good Policy, Bad Law: Obama Correctly Rejected Again on Immigration Reform

The U.S. Court of Appeals for the Fifth Circuit has now affirmed the injunction against President Obama’s executive actions on immigration. The opinion seems daunting at 135 pages, but only just half of that is the majority opinion, and much of that consists of technical discussion. The nub of the ruling is that the 26 plaintiff states have established a “likelihood of success” on their claim that (1) the administration both violated the Administrative Procedure Act by not going through proper rulemaking channels and (2) exceeded the authority that the relevant statutes give the executive branch in enforcing immigration law. This was not a surprise given the way oral argument went – and that the two judges in the majority were also on the panel that denied the administration an emergency stay of the injunction earlier in the year – but it’s still significant.

The court cuts through the government’s obfuscation about “prosecutorial discretion” and the like, the argument that granting temporary status to millions if people is no different than a decision to prioritze deportation of murderers over those whose only violation is being in the country without authorization: Deferred action, however, is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” (35) “Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence… . Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” (36)

The court goes on to explain how the novel Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) goes against what Congress has legislated. “The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.” (62) Moreover,

because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that “does not, by itself, create power,” and in any event, previous deferred-action programs are not analogous to DAPA. “[M]ost … discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters,” but DAPA is not such a program. Likewise, many of the previous programs were bridges from one legal status to another, whereas DAPA awards lawful presence to persons who have never had a legal status and may never receive one. (63)

This analysis mirrors the argument we make in Cato’s brief regarding the proper application of deferred action historically, as a bridge between lawful statuses rather than a tunnel around under and around the immigration laws.

In short, while we wish Congress had acted to make some sense of our immigration regime, it hasn’t – and the president can’t rewrite the law even it makes good policy sense to do so.

Now, where do we go from here? If the government files a cert petition with the Supreme Court this or next week, the case could conceivably make it onto the docket as one of the last ones to be argued this term, meaning a decision the last week of June 2016. But the government may not do that – it waited an awfully long time to file its “emergency” motion to stay the district court’s injunction – in order to keep this immigration battle alive into the presidential election. Indeed, regardless whether the Supreme Court ultimately upholds or dissolves the injunction against President Obama’s executive action, presumptive Democratic nominee Hillary Clinton would probably rather maintain the issue as a live one – especially if, as the conventional wisdom now holds, she’ll be running against one of the Cuban-Americans running for the GOP nomination, Ted Cruz or Marco Rubio.

But that’s all political speculation. For the moment we have another defeat for the imperial executive and a victory for the separation of powers and the rule of law.

Florida’s Eminent Domain Shenanigans

It’s a belated round two for Florida’s legislation on eminent domain. In the 1980 case Webb’s Fabulous Pharmacies v. Beckwith, the Supreme Court struck down a Florida statute giving the state ownership over the interest earned on disputed funds—what lawyers call “interpleader” funds—held on deposit in the Florida court registry. The Court held that the statute effected unconstitutional takings under the Fifth and Fourteenth Amendments.

Now there’s a challenge to a similar statute, concerning “quick-take” deposit funds. Florida’s eminent domain law empowers condemning authorities to fast-track their appropriation of a desired property by allowing the authority to simply deposit the constitutionally required just compensation into the court registry and then taking title to the condemned property. The scheme further authorizes the court clerk to invest the deposited funds before a court renders a final valuation judgment. The interest on that investment is split 90/10 between the condemning authority and court clerk, respectively, with none of it going to the (now former) property owner.

Several property owners challenged this mechanism, wanting to recover the interest that accrued on compensatory funds that were indisputably theirs as a matter of state law. Florida’s intermediate appellate courts have evaded the Webb’s precedent and denied these challenges—and the state supreme court has thus far declined to review the rulings. Cato has filed a brief supporting the challengers’ request that the U.S. Supreme Court take the case.

The lower state courts have ruled that quick-take deposits are “public property” until final judgment and thus owners of condemned properties had no interest in the accrued interest, as it were. Yet Webb’s stands for the proposition that funds deposited with a court registry are “private property,” belonging to the ultimate beneficiary of the legal action. In announcing this holding, the Supreme Court applied the “interest follows principal” rule.

Twenty-five years later, eminent-domain condemnees stand in the shoes of the Webb’s plaintiffs and should be entitled to the interest earned on funds that were, after all, deposited in the court registry for their benefit. The Florida judiciary has again unduly deferred to a state legislative schemed that violates the Fifth and Fourteenth Amendments, so the U.S. Supreme Court should again take up this issue.

Silenced Spring: New York Attorney General Goes After Climate Wrongthink

Months of agitation promoting a government investigation of supposedly wrongful advocacy on the issue of climate change have begun to pay off. As Holman Jenkins notes, purportedly levelheaded Democrats and environmentalists are now jumping on the bandwagon for a probe of possible unlawful speech or non-speech by energy companies and advocacy groups they’ve backed. Perhaps the most remarkable name on that list is Hillary Clinton, who said the other day in New Hampshire, referring to Exxon, “There’s a lot of evidence that they misled people.” That’s right: Hillary Clinton, of all people, now wants to make it unlawful for those who engage in public controversy to mislead people.

The first high-profile law enforcer to bite, it seems, will be Eric Schneiderman, whose doings I’ve examined at length lately. “The New York attorney general has launched an investigation into Exxon Mobil to determine whether the country’s largest oil and gas company lied to investors about how global warming could hurt its balance sheets and also hid the risks posed by climate change from the public,” reports U.S. News. Show me the denier, as someone almost said, and I will find you the crime: “The Martin Act is a nearly empty vessel into which the AG can pour virtually any content that he wants,” as Reuters points out. More on the Martin Act here and here.

At Forbes, Daniel Fisher notes the possible origins of the legal action in an environmentalist-litigator confab in 2012 (“Climate Accountability Initiative”) in which participants speculated that getting access to the internal files of energy companies and advocacy groups could be a way to blow up the climate controversy politically. Fisher also notes that Justice Stephen Breyer, in the Nike v. Kasky case dismissed 12 years ago on other grounds, warned that it will tend to chill advocacy both truthful and otherwise by businesses if opponents can seize on disagreements on contentious public issues and run to court with complaints of consumer (or presumably securities) fraud.

Perhaps in this case chilling advocacy is the whole point. And very much related: my colleague Roger Pilon’s post last week, “Whatever Happened to the Left’s Love of Free Speech?“; Robert Samuelson (“The advocates of a probe into Exxon Mobil are essentially proposing that the company be punished for expressing its opinions.”)

[cross-posted from Overlawyered]