Fullerton California to Pay $4.9m for Wrongful Death of Kelly Thomas

In 2011, the Fullerton, California police violently beat Kelly Thomas, a 37-year-old mentally ill homeless man, who later died from his injuries. The arrest was recorded, and Thomas could be heard calling for his father as the officers relentlessly beat him into a coma.

Two officers were fired for the incident but ultimately acquitted of criminal charges in the case. As opening arguments were set to begin in the wrongful death suit, the City of Fullerton agreed to pay the Thomas family $4.9 million as a settlement.

Ron Thomas said at a news conference that while the city acknowledged no wrongdoing in the settlement, it was a clear indication to him of its liability and guilt in the death of his 37-year-old son Kelly Thomas. Thomas said he feels vindicated by the settlement.

It is not uncommon for municipalities to disavow any culpability in settlements like this. But lawsuits are important nonetheless because they bring some measure of closure to the families who do not find justice in the criminal courts and incentivize governments to prevent such incidents from happening in the future.

Over at PoliceMisconduct.net, we track and catalog news stories like this one that take years to make their way through the administrative, criminal, and civil systems. It is vitally important that police officers and municipalities are held accountable for their actions.

On Tuesday, December 1, Cato will host “Policing in America,” an all-day conference dedicated to discussing the policies and impacts of law enforcement around the country. The event will be live-streamed on the Cato website. 

A version of this is cross-posted at PoliceMisconduct.net

No Longer a Hypothetical: Russian Plane Shot Down

Earlier today, Turkey, a NATO ally, shot down a Russian jet, killing at least one pilot, and leaving the other in the hands of insurgents on the ground (and possibly also dead). The Turks claim that the Russian jet was operating in Turkish airspace, and was warned away on numerous occasions. Thus, when its F-16 fighter jet attacked the Russian SU-24 bomber, it was a legitimate act of self defense. The Turks have called for a NATO meeting later today to explain their side of the story, and, presumably, game out next steps.

Russia claims that its plane was operating over Syrian airspace. It initially reported that it was downed by ground fire, but has since changed its story. Putin is calling it “a stab in the back,” but may stop short of using it as a pretext for substantially widening a conflict he may already regret having been dragged into. There are conflicting reports about whether Russian Foreign Minister Sergey Lavrov has canceled a planned meeting in Turkey tomorrow.

This story bears watching, and I’m reluctant to spin out the historical analogies too far. Very few brush fire wars become world wars, and not all allies behave as the allied and entente powers did in July 1914. Plus, technological changes go a long way to explain why the world today is very different from 100 years ago. I have reason to doubt, for example, that a nuclear-armed Germany would have risked war with a nuclear-armed Russia over Austria-Hungary’s ultimatum to Serbia.

But I nervously tweeted this morning that we might soon appreciate the difference between fighting wars against terrorists and wars against nation-states. We’ve avoided having to think seriously about such things for many years, which may explain the apparent enthusiasm for a no-fly zone over Syria (favored by at least 8 of 11 major presidential candidates). The possibility of Russian jets being shot down, and Russian pilots killed, was dismissed as a hypothetical (Though not by everyone).

It isn’t hypothetical any longer.

Courts Should Review Executive-Agency Interpretations of the First Amendment

Among the types of speech that the First Amendment protects is commercial speech, such as advertising. But commercial speech that’s false or misleading isn’t constitutionally protected: you may be liable for defrauding someone through various communications. But what is “false” or “misleading,” and who decides?

The Federal Trade Commission brought claims against POM Wonderful—you may know them as the producer of various pomegranate beverages in distinctive curved bottles—for consumer deceptive advertising. The agency determined that some of POM’s health-supplement ads were misleading. But this decision was appealable only to the FTC itself, which becomes judge, prosecutor, and jury in an arrangement blessed by the U.S. Court of Appeals for the D.C. Circuit. That court declined to second-guess the FTC’s rulings on the ground that the agency should be given broad deference in its adjudicative factual and legal findings.

But when the standard of review for First Amendment claims varies between courts and administrative agencies, constitutional protections become vulnerable to inconsistencies. And even more concerning than inconsistencies are the conflicts of interest inherent in the FTC’s internal hearings, which lack substantial judicial review.

This situation leaves businesses subject to FTC actions with no viable means to check their accuser’s determination that its speech is misleading or fraudulent. It’s no coincidence that over the past two decades, the FTC hasn’t lost a single deceptive-advertising case it has administratively initiated.

To correct this state of affairs, Cato has joined the Alliance for Natural Health-USA on an amicus brief urging the Supreme Court to take POM’s case. The Supreme Court has repeatedly held that determining whether the Constitution protects particular speech is the quintessential function of Article III courts, not federal agencies. Yet this directive has become increasingly observed in the breach with respect to commercial speech, ever since the Supreme Court’s unsatisfying ruling in Bose Corp. v. Consumers Union (1984).

The POM predicament presents an optimal opportunity for the Court to address the question left open in Bose and wrest decisions regarding First Amendment doctrine away from the executive branch. 

The Supreme Court will decide whether to take POM Wonderful v. Federal Trade Commission early in the new year.

The People Still Want Smaller Government

Most of the headlines about the large new Pew Research Center survey (6,000 interviews) have focused on the continuing decline in Americans’ trust in government, as depicted in the chart below.

Trust in government Pew

But the survey also asks one of my favorite questions:

If you had to choose, would you rather have a smaller government providing fewer services, or a bigger government providing more services?

As shown in the chart below, the number preferring smaller government rose to its highest point during the 1990s, then reached a low point as President Obama was elected in 2008, and has been rising since then. In the latest survey 53 percent of Americans say they prefer a smaller government, while only 38 percent would rather have a bigger government with more services.

But as I’ve written before, I’ve always thought the “smaller government” question is incomplete. It offers respondents a benefit of bigger government–”more services”–but it doesn’t mention that the cost of “bigger government providing more services” is higher taxes. The question ought to give both the cost and the benefit for each option. The Rasmussen poll does often ask the question that way. In one poll about a decade ago, Rasmussen found that 64 percent of voters said that they prefer smaller government with fewer services and lower taxes, while only 22 percent would rather see a more active government with more services and higher taxes. A similar poll around the same time, without the information on taxes, found a margin of 59 to 26 percent. So it’s reasonable to conclude that if you remind respondents that “more services” means higher taxes, the margin by which people prefer smaller government rises by about 9 points. So maybe the margin in this poll would have been something like 58 to 34 if both sides of the question had been presented.

For now, when voters are given only the benefits and not the costs of bigger government, Pew and other pollsters find these results:

Views of smaller government

What to Expect of Argentina’s New President

The election of Mauricio Macri as the new president of Argentina brings to a close 12 years of populist, interventionist and increasingly authoritarian Peronist rule by Cristina Fernández and her late husband Néstor Kirchner. Here are some observations of what’s ahead for Macri’s Argentina:

The meaning of “change”: Argentines were adamant ahead of the election that they wanted change. However, polls reflected that voters were tired of the confrontational governing style of President Fernández de Kirchner and her cadre, but not necessarily of her economic policies. The government successfully sold its so-called “narrative” regarding the wisdom of many of its interventionist policies, such as the nationalization of industries, the implementation of subsidies, prices freezes on public services, etc. This forced Mauricio Macri to either downplay the need for reforms in some areas or to outright discard them (such as reversing nationalizations). The new president will have to implement some painful measures (like scaling back subsidies that amount to 6% of GDP) that he didn’t explicitly explain to voters during the campaign.

The one area of economic policy that Argentines most rejected was the high inflation rate (around 26% now but it reached nearly 40% a year ago) and the related exchange controls. This is where Macri’s proposals were bolder: he promised to stop the doctoring of the inflation statistics and to lift exchange controls on his first day in office. He also said that the official exchange rate will reflect the reality of the market, although he didn’t specify how long it will take for the official rate and the black market rate to converge.

Not Everything That’s Unseemly Should Be Illegal

The explosion in criminal statutes is only a part of the problem of overcriminalization. The other side of the coin is prosecutorial discretion: a prosecutor’s official authority to charge certain offenses and not to charge others. The growth of criminal codes, state and federal, gives prosecutors more tools, which allows them to both “stack” charges and expand the reach of criminal code provisions to new, non-criminal facts.

Take for example several recent prosecutions under New Jersey’s official misconduct statute, a felony provision with a mandatory five-year, no-parole sentence.

On its face, the law simply prevents government officials from abusing their offices for personal gain. “Official misconduct” under the statute means an official’s act or omission “relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.” Prosecutors have used this broadly worded language in highly creative ways.

In one recent case, New Jersey Superior Court Judge Carlia M. Brady was charged with official misconduct and harboring a fugitive. Judge Brady went to the police on June 10, 2013 to report that her car was stolen and that her then-boyfriend, Jason Prontnicki, was likely involved. As it turned out, Prontnicki was wanted on an outstanding warrant for robbery. The police informed Judge Brady that she was obliged as an “officer of the court” to inform the police as to Prontnicki’s whereabouts. When Prontnicki showed up at her house for brief periods of time on June 10 and 11, Judge Brady informed Prontnicki that he could not stay with her and Prontnicki made clear his intentions to turn himself in with the help of counsel. After both incidents, Judge Brady called the police and left unreturned voicemails. On June 11, police arrested Prontnicki and Brady at her home.

Clearly Judge Brady had violated her duty to report the whereabouts of a wanted criminal suspect, right? The only problem is that such a duty doesn’t exist, either for citizens generally or for judges specifically.

Terrorism in Paris: Blowback for Yet Another Unnecessary War

The latest Paris attacks rightly horrify us, but they should surprise no one, least of all the French. After all, France started bombing Islamic State forces 14 months ago. The targeting of civilians is morally monstrous. However, it is sadly predictable, an almost common practice by weaker powers.

A century ago ethnic Serbs and Russian anarchists employed this hideous tactic. More recently Sri Lankan Tamils and Iraqi Sunnis used it. Now the Islamic State is perfecting a weapon it had heretofore left to al-Qaeda.

The Paris killings weren’t an attempt “to destroy our values, the values shared by the U.S. and France,” as claimed by Frederic Lefebvre of the National Assembly. Rather, admitted French academic Dominique Moisi, the Islamic State’s message was clear: “You attack us, so we will kill you.” As America learned on September 11, 2001, intervening in other nations’ political and military struggles inevitably creates enemies and blowback.

Explanation is not justification. But any government that attacks the Islamic State should realize retaliation against people innocently going about their lives, as in Paris, is likely.