When Police Misread Tea Leaves They Violate the Fourth Amendment

Police militarization and excessive force have become increasingly pressing issues in American society. Fortunately, the Denver-based U.S. Court of Appeals for the Tenth Circuit – Justice Neil Gorsuch’s old stomping ground – held yesterday that innocent victims of improper police procedures during dynamic drug raids have some protections. Even if the court didn’t fully address the issues Cato raised in our brief, the ruling in Harte v. Board of Commissioners of Johnson County, Kansas is a step forward.

In 2011, Robert Harte and his two children visited a garden store to buy tomatoes for his 13-year old son’s school project. Little did they know that Sergeant James Wingo of the Missouri State Highway Patrol was watching the store and recording the license plate numbers of the visitors, assuming that they were there to buy marijuana despite little evidence for that assumption. The Johnson County Sheriff’s Office then examined the Hartes’ trash on two occasions, finding about an ounce of “saturated plant material.” Because they evidently couldn’t tell the difference between tea and marijuana, they field-tested the substance, which tested positive for marijuana.

In an inspiring display, the police launched a military-style raid the Hartes’ home. At 7:30 in the morning, they pounded on the Hartes’ door, forced Mr. Harte to the ground when he answered, and searched their home for three hours. As it became increasingly clear that there was no marijuana in the house, the police started to search for “any kind of criminal activity,” a far greater sweep than what a warrant to search for “marijuana” and “drug paraphernalia” allows. Heaping further indignities on the family, the officers also left canine units in the house longer than necessary to give them extra training. The police apparently wanted to turn lemons into lemonade by retroactively turning an early-morning drug raid – that didn’t find any drugs, lest we forget – into a training exercise.

After the district court granted summary judgment for the police, the Hartes appealed and Cato filed an amicus brief. We argued that the police violated an important Fourth Amendment rule that goes back to the roots of English common law by failing to knock and announce their presence in anything but a literal sense. They also exceeded the scope of their warrant to look for “any criminal activity” instead of just drugs. We urged the Tenth Circuit to reverse the district court, clarify the Fourth Amendment standard for assessing police raids, and remand for further proceedings.

The Tenth Circuit mostly agreed with Cato on the Fourth Amendment issue. Two judges on the three-judge panel found that the district court had been wrong to grant summary judgment to the police on the search and seizure issue, with Judge Carlos Lucero alluding briefly to the knock-and-announce requirement. It was a convoluted opinion that took a long time to produce because of each judge writing separately and different sets of judges coming together on different parts of the ruling. Most importantly, Judge Gregory Phillips, joined by Judge Lucero, found that “what the deputies learned early on in the search dissipated any probable cause to continue searching.” 

Ultimately, the judges only discussed in passing the police-militarization and general-warrant concerns raised by Cato and sided with the police on the excessive-force claims. Nevertheless, the court held that what the Hartes experienced qualified as unreasonable search and seizure – and also let them continue with their state-law claims – so Harte v. Board of Commissioners represents a positive development in the jurisprudence surrounding dynamic police raids.

Our National Security Whistleblower Crisis

Is the Trump-run Pentagon a hostile workplace for Defense Department whistleblowers? Or is there simply an anti-whistleblower organizational tradition at the Pentagon that stretches back decades? An examination of recent events and the historical record suggests it’s both, and the implications for taxpayers and American national security are serious. I’ll start with the latest developments.

As the Project on Government Oversight (POGO) first reported in December 2016, a three-member interagency Inspector General External Review Panel concluded in May 2016 that the then-Inspector General of the National Security Agency (NSA), George Ellard, had, according to POGO, “previously retaliated against an NSA whistleblower”—apparently during the very same period that Ellard had claimed that “Snowden could have come to me.” The panel that reviewed Ellard’s case recommended he be fired, a decision affirmed by NSA Director Mike Rogers. But there was a catch: the Secretary of Defense had the final word on Ellard’s fate. Outgoing Obama administration Defense Secretary Ash Carter, apparently indifferent to the magnitude of the Ellard case, left office without making a decision.

In the months after Donald Trump’s assumption of the presidency, rumors swirled inside Washington that Ellard had, in fact, escaped termination. One source, who requested anonymity, reported that Ellard had been seen recently on the NSA campus at Ft. Meade, Maryland. That report, it turns out, was accurate.

How FDR’s Court Approved Vicarious No-Fault Criminal Liability

In a series of cases of which Dotterweich v. U.S. (1943) is emblematic, the U.S. Supreme Court has upheld the idea that a business executive can be criminally convicted over underlings’ violation of public welfare regulations, with no need to show that an executive facing charges knew of the violation, participated in it, intended it, or was negligent in failing to prevent it. This idea of vicarious criminal liability without a showing of mens rea (guilty intent) was controversial at the time, and the “responsible corporate officer” doctrine, as it is called, continues to be controversial today. Yet despite requests (as in this Cato amicus brief) that they consider scaling the doctrine back, the courts have generally declined to do so. 

Now Craig Lerner of George Mason/Scalia Law School has written an important working paper analyzing the origins of the doctrine in the trial of Joseph Dotterweich, general manager of a pharmaceutical company whose employees had allegedly shipped drugs that were misbranded and adulterated under FDA definition. From the abstract:

…with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Phamacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as “the question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial — the personal fault of the defendant — was carefully shorn from the jury’s consideration. …

The article argues that the “responsible corporate officer” doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” …

I call the responsible corporate officer doctrine “ripe with potential for injustice,” and discuss its relation to criminal laws that are ambiguous or not ascertainable by persons at risk of criminal liability, in my (newly written) chapter on white-collar prosecution in this year’s Cato Handbook for Policymakers.

Gun Control for Thee, Not for Me

A couple of news stories about Rep. Cedric L. Richmond (D-La.):

In a historic act of protest, Democratic members of the U.S. House of Representatives refused to observe the regular order of the House, staging a sit-in protest over the lack of legislation on gun control….

In sharp comments pointed directly at House Republicans, Reps. Maxine Waters (D-Calif.) and Cedric Richmond (D-La.) directed blame at the National Rifle Association and the cowardice of GOP members….

“You are doing what you are doing because you don’t have the guts to stand up to the gun lobby,” said Richmond in a speech at the start of the House-floor sit-in, with comments addressing what he viewed as GOP obstruction.

If you shoot a police officer, you’re going to make the 5, 6 and 10 o’clock news. But if you shoot a congressperson you’re going to make the world news,” said Rep. Cedric L. Richmond (D-La.)….

Some lawmakers are carrying firearms or installing security systems at their homes and offices. Some have decided not to hold town hall meetings at all — restricting voters from meeting their elected leaders. Some are demanding that the government pay for a security detail for every member of Congress….

It’s another reason to continue protecting themselves, several said.

“I definitely know where my firearm is at all times,” Richmond said.

So I’m curious: Does Rep. Richmond have a firearm in the District of Columbia? Does he have a valid permit for it, which is extremely difficult to get despite the Supreme Court’s Heller decision? Does he support the proposal by Rep. Barry Loudermilk (R-Ga.) to give members of Congress a special exemption from the strict D.C. rules? Does he believe that members of Congress should obey the same laws that apply to everyone else?

Knowing Your NAFTA Dispute Chapters: 11 vs. 19 vs. 20

There is likely to be confusion over many issues in the upcoming NAFTA renegotiation, but one particular area where I already see some misunderstandings is the NAFTA dispute process. To illustrate this, here’s a recent statement by Canadian Prime Minister Justin Trudeau:

as our ambassador said just last week to the Americans, a fair dispute resolution system is essential for any trade deal that Canada signs on to and we expect that to continue to be the case in any renegotiated NAFTA.

In context, it is clear he was talking about a particular type of NAFTA dispute, rather than the more general proposition that there must be a dispute system in place.  But there are actually several dispute provisions in NAFTA, and I’ve seen a number of people get them mixed up.  As a result, I thought it was worth explaining the key distinctions in a blog post, which I can then link to whenever the issue comes up in the future.

There are three main types of NAFTA disputes, set out in separate chapters: Chapter 11 (litigation over the treatment of foreign investment), Chapter 19 (appeals of anti-dumping/countervailing duty decisions), and Chapter 20 (government complaints about compliance with NAFTA obligations).

Chapter 11 is part of the investor state dispute settlement (ISDS) debate. Under Chapter 11, a foreign investor of one NAFTA party can sue the government of another party (e.g., a Canadian company who has invested in the U.S. can sue the U.S. government) on the basis that it has been treated worse than its American competitors, or that it has been treated badly in general (e.g., it did not receive treatment that was “fair and equitable”). I have questioned the value of such procedures, but they are strongly supported by business groups. As far as I know, the Canadian and Mexican governments favor their inclusion in NAFTA, and the Trump administration’s NAFTA negotiating objectives seem to envision including them (although I can imagine some members of the Trump administration who worry about sovereignty will be pushing to take them out).

Next up is Chapter 19, which sets out a special appeals process related to the imposition of anti-dumping and countervailing duties. This is the dispute procedure Trudeau had in mind. Anti-dumping and countervailing duties are imposed on the basis of decisions by domestic agencies (in the U.S., it is the Department of Commerce and the International Trade Commission), and the decisions of these agencies can be appealed to domestic courts (in the U.S., appeals go to the Court of International Trade, then the Court of Appeals for the Federal Circuit, and then the Supreme Court). NAFTA Chapter 19, however, sets up a special appeals process which allows Canadian and Mexican respondents in U.S. proceedings to appeal the agency decision to an ad hoc NAFTA panel (i.e., private lawyers who act as judges in a particular case) instead of to domestic courts.  (The process is also available in relation to Mexican and Canadian anti-dumping and countervailing duty cases, taking appeals out of their domestic courts).  When reviewing U.S. agency decisions, a NAFTA Chapter 19 panel acts like the Court of International Trade, in the sense of reviewing the agency’s interpretation and application of U.S. law, and remanding to the agency if necessary. Unlike the Court of International Trade, NAFTA Chapter 19 panel rulings cannot be appealed.

It’s not clear to me that this process is constitutional (a law review article discussing the predecessor provision in the Canada-U.S. FTA is here), and I’m not sure at this point how different the results are as between U.S. courts and the NAFTA process (this is something I plan to look into further). The Canadians insist they want to keep Chapter 19, while the Trump administration says it wants to take it out, which means this could be a major hurdle in the negotiations.

Finally, there is NAFTA Chapter 20. This is the core state-to-state NAFTA dispute process, where one government can allege that another is not complying with its obligations. Chapter 20 has not worked that well in practice, in part due to problems with getting panelists in place. I am working on an article that proposes some fixes.

My hope is that these basic explanations can cut through some of the confusion. All of these provisions set out NAFTA dispute procedures, but the policy implications and the politics of each are very different.

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African Americans Speak for Themselves: Most Want School Choice

Private school choice is the work of racists. That message, it seems increasingly clear, is going to be a major weapon wielded by opponents of educational freedom for the foreseeable future. It is the explicit contention of a new Center for American Progress report, The Racist Origins of Private School Vouchers, and of Randi Weingarten, President of the American Federation of Teachers, who has been proclaiming that modern choice programs are “only slightly more polite cousins of segregation.”

As I and others have written, the assertion that school choice originated in racism, or somehow has a more repellant history than public schooling, would be laughable if the implications of the charge were not so serious. Remember, Brown v. Board of Education was about massive, mandated segregation in public schools, the schools that defenders love to tell us serve the vast majority of students. Segregation in them meant—and means—segregation for huge swaths of people. Perhaps that is why a response to my critique of the CAP report from the Century Foundation’s Kimberly Quick focused not on history, but my pointing out that private school choice is popular with African Americans.

According to Quick this is not so, and by the way, on what grounds does someone at Cato speak “on behalf of the black community”? Cato has no African American policy scholars.

I never wrote that I speak on behalf of African Americans. I do not presume to speak for anyone other than myself. But the survey literature—African Americans speaking for themselves—is overwhelmingly on my side.

To demonstrate that polls do not show majority African American support for private school choice, Quick cites the oft-used question from the annual Phi Delta Kappa poll, which employs wording notoriously loaded against choice: “Do you favor allowing students and parents to choose a private school to attend at public expense.” “At public expense” sounds like freeloading, and “choose a private school” rather than to choose among schools minimizes the empowerment of families. Not surprisingly, this wording garners only 33 percent African-American support, though that outpaces the general public.

What is much more telling is what the polling reveals when the question is more neutral, which excludes surveys that get both high negative and positive numbers. What follows is not an exhaustive list, and there are other ways to game survey outcomes such as question order, but there have been many, more neutrally worded surveys that have shown that African Americans want private school choice.

The journal Education Next has for several years asked questions both neutral and not so neutral to gauge school choice support. As I noted in my initial response to the CAP paper, the 2016 survey found “a whopping 64 percent of African Americans supported ‘a tax credit for individual and corporate donations that pay for scholarships to help low-income parents send their children to private schools.’” The 2015 survey revealed that 58 percent of African Americans favored a program “that would give all families with children in public schools a wider choice, by allowing them to enroll their children in private schools instead, with the government helping to pay the tuition.” 66 percent supported a similar program just for low-income families, and even when using wording closer to PDK’s, pluralities of African Americans supported it. In 2016 EdChoice asked three forms of a question about vouchers, and the composite average was 61 percent of African Americans favoring them.

The Black Alliance for Educational Options has also conducted polling, with very straightforward wording, such as “do you support or oppose parent choice,” and “do you support school vouchers/scholarships?” Asking African Americans in New Jersey, Tennessee, Alabama, and Louisiana these questions, in 2015 BAEO reported support ranging from 61 percent to 65 percent, depending on the state.

Of course, EdChoice and BAEO advocate for school choice, and Education Next features many choice proponents. But some of the longest running evidence of African-American support for choice comes from the Joint Center for Political and Economic Studies, “a non-partisan, non-profit public policy organization that supports elected officials and policy experts who serve communities of color across the country.” Over many years it has consistently found plurality to significant majority African-American support for choice. Its most recent poll of which I am aware, conducted in 2008, reported that 63 percent of respondents said “yes” when asked if they “support vouchers.” At least in 2000, the exact question asked was, “Would you support a voucher system where parents would get money from the government to send their children to the public, private, or parochial school of their choice?” (I haven’t been able to confirm the question for other years.)

Perhaps all of this is why Quick’s colleague Richard Kahlenberg recently said in answer to a question I asked about black support for school choice, his understanding of the polling was the same as mine: African Americans want choice. (Or so I recall—I’m not sure if event video will be up to confirm this.) Indeed, Quick herself concedes that “it makes sense that black and brown families, too often lacking options beyond segregated, under resourced, and underperforming schools, would want alternative options for their children.”

Now, about Cato for a moment. Again, I claim no insight based on personal experience into what African Americans individually or collectively want, and I certainly wish there were more black libertarians. But when I first started working at Cato, a major player in the fight for choice in Washington, DC, was Casey Lartigue, an African American Cato scholar. Similarly, Jonathan Blanks, a Cato researcher, who is African American and recently wrote that libertarians must not downplay racism or think it will be overcome just by free markets, but school choice is nonetheless important for the black community. Of course, none of this makes choice right or wrong, nor does it make Cato any more or less a spokes-tank for African Americans.

I’ll let the evidence, and individual African Americans, speak and act for themselves. Indeed, empowering the formerly powerless to act for themselves is exactly what school choice is about.

D.C.’s Rule Requiring a “Good Reason” to Carry a Gun Struck Down

The District of Columbia has suffered another defeat in its decades-long effort to restrict gun rights.

Today the D.C. Circuit Court of Appeals struck down the District’s “good reason” requirement, which obliges individuals to demonstrate a special need before being allowed to carry a gun.

Some background: the District banned all handgun possession, including in the home, in 1976.  That policy was ruled unconstitutional in the Heller I decision in 2008, which held that the 2nd Amendment protects an individual right to have a handgun in the home for self-defense. The District responded to Heller I by banning the public carrying of handguns.  That ban was ruled unconstitutional in Palmer v. District of Columbia in 2014 (Cato’s own Tom Palmer was the named plaintiff in that case). The District was undeterred, and responded to the Palmer ruling by requiring permit applicants to provide a “good reason” why they should be allowed to carry.

The “good reason,” as defined by the D.C. government, is incredibly narrow. Simply being concerned about crime, or living/working in a crime-ridden area of the city does not suffice. Effectively the only people capable of meeting the D.C. test are those working in extraordinarily high-risk occupations or people who have received substantive, specific threats against them.

Two different District Court judges ruled against the “good reason” requirement (one ruling was set aside due to a bit of a procedural morass), and those two cases were combined on appeal to the D.C. Circuit. In a 2-1 decision, a panel of the Court of Appeals struck the “good reason” rule down as unconstitutional.

Judge Griffith of the D.C. Circuit writes:

At the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense. In fact, the Amendment’s core at a minimum shields the typically situated citizen’s ability to carry common arms generally. The District’s good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That’s enough to sink this law under Heller I.

 […]

We are bound to leave the District as much space to regulate as the Constitution allows - but no more. Just so, our opinion does little more than trace the boundaries laid in 1791 and flagged in Heller I. And the resulting decision rests on a rule so narrow that good-reason laws seem almost uniquely designed to defy it: that the law-abiding citizen’s right to bear common arms must enable the typical citizen to carry a gun.

 

It’s important to note that this case is not over.

The District can appeal this ruling back to the D.C. Circuit in order to have it reheard en banc. The case could also ultimately end up in front of the United States Supreme Court which, since its rulings in Heller (2008) and McDonald (2010), hasn’t seen fit to offer further guidance to lower courts on whether the 2nd Amendment applies outside the home. With various federal courts coming to different conclusions on that question, this case represents a great opportunity to finally get a definitive answer from the high court.

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