Over at Cato’s Police Misconduct web site, we have selected the worst case for the month of August. This one goes to the City of Phoenix and its police agent, Kevin McGowan.

Here’s the background. Patrick D’Labik, age 18, admits that he ran away from the police. He ran because he said he had a bag of marijuana in his pocket and he didn’t want to go to jail. Phoenix police officer Kevin McGowan caught up with D’Labik in a convenience store and the store had security cameras that captured the encounter. Officer McGowan has his gun pointed at D’Labik, who was on his phone with his father, but who then quickly raises his hands in surrender. As D’Labik is getting on the ground, Officer McGowan kicks him. The force was so great that several teeth are knocked out.

In response to a complaint about excessive force, police commanders review the security camera footage and conclude the kick was unjustifiable. McGowan loses his job with the police department.

But wait, Officer McGowan is now back on the force, patrolling the streets of Phoenix. Turns out his termination was overturned by the Civil Service Board.

Here is security footage from the store:

Darren Chaker was under supervised release when he wrote on his personal blog that Ms. Leesa Fazal, an investigator with the Nevada Attorney General’s Office, was “forced out” of her previous post with the Las Vegas Police Department. That statement, according to the district court ultimately overseeing Chaker’s probation, was a violation of the requirement that he “not . . . disparage or defame others on the internet”—and so Chaker was returned to prison.

In so ruling, the court placed an unconstitutional prior restraint on Darren Chaker. But this country long ago moved past the notion of lèse majesté laws protecting public officials from harsh treatment by the press and the people. Indeed, the American people were so reviled by the enforcement of these statutes during the presidency of John Adams—particularly the Alien and Sedition Acts—that the people ousted the Federalist Party that proposed them. Since that time, Americans have given true meaning to their First Amendment rights against prior restraints on speech or on the terms by which public officials may be discussed.

Even prisoners and probationers receive constitutional protection; terms of supervised release must be narrowly drawn to avoid infringing substantive rights, like those of political expression. If the anti-disparagement provision of Chaker’s supervised release becomes widespread, it could easily stifle valuable speech by activists and others.

For instance, in his Letter from a Birmingham Jail, Dr. Martin Luther King Jr. remarked that “[w]e are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo.” Had King been subject to the same conditions as Chaker, he might have been resentenced for some of his most powerful writings. Worse still, he might never have published at all.

Imposing vague and broad restraints on speech leaves people like Darren Chaker guessing as to the limit of their rights and as to which leaders are “touchable” by the spoken and written word. The First Amendment needs appropriate “breathing space” to thrive, as the Supreme Court recognized in NAACP v. Button (1963). Much earlier, Sir William Blackstone noted, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.”

Public officials are appropriate objects of criticism and the protection of their feelings is not the appropriate province of the courts. Chaker’s words don’t even rise to the standard that must be met to constitute defamation of a public figure. Chaker didn’t act with “actual malice” or reckless disregard for the truth when he published his blogpost, which is the mental requirement necessary to sustain such a charge. His speech was thus constitutionally protected political discourse.

Accordingly, Cato has joined the ACLU, the First Amendment Project, the Electronic Frontier Foundation, the Brechner First Amendment Project, and the First Amendment Coalition on a brief supporting Darren Chaker before the U.S. Court of Appeals for the Ninth Circuit, which will hear the appeal this fall.

In late August, the North Dakota legislature approved a bill allowing police in the state to arm their drones with “less than lethal” weapons. Not surprisingly, “less than lethal” is defined nowhere in the bill. Thus, North Dakotans could see taser-armed drones in their police departments–even though police-used tasers have killed 42 people this year alone, according to the Guardian. And while current Federal Aviation Administration (FAA) regulations prohibit commerically operated drones from dropping objects, an FAA spokesperson told USA Today that

A government aircraft operation needs FAA authorization in the form of a Certificate of Waiver or Authorization (COA). We can’t speculate if an operation involving a Taser-equipped unmanned aircraft would be approved.

Notice that the FAA did not rule out approving a taser-armed police drones.

What else might a law enforcement entity want to put on a drone? Tear gas dispensers? Rubber bullets or other “non-lethal” projectiles? Or in the case of the Department of Homeland Security, the potential employment of unspecified “non-lethal weapons designed to immobilize” their targets?

In May 2015, the International Association of Chiefs of Police issued a model policy that provided the best answer regarding small unmanned aircraft systems (sUAS) operations

The sUAS shall not be equipped with weapons of any kind (emphasis added)

When he testified before the House Homeland Security Committee in March 2015, IACP president Chief Richard Beary spent a lot of time talking about potential criminal uses of drones. He did not discuss the perils of law enforcement arming its own drones, or the privacy implications of police-operated drones. While the IACP model policy was not yet public when he testified, it’s a shame Beary didn’t use his appearance before the committee as a forum to discredit the idea of arming police drones, and to talk about the need for police departments to get a warrant for drone use if such use might “intrude on reasonable expectations of privacy.” Those were messages the North Dakota legislature clearly needed to hear before passing their armed drone bill.

“The godfather of inequality research,” is how The Economist describes septuagenarian British economist Anthony Atkinson. A frequent co-author with Thomas Piketty and Joe Stiglitz, Sir Atkinson has written a book about inequality which a New York Times reviewer described as a “flurry of largely recycled policy proposals.” Inequality: What can be done? is all about “unapologetic support for aggressive government intervention,” says The Economist, and “a throwback to the 1960s and 1970s.” 

There is no need to buy the book, because the following summary – “15 Proposals from Tony Atkinson’s book ‘Inequality: What can be done?’ – is more than enough. Each Proposal is in the author’s own words, but followed by my own view of Problems with those plans. [I skip Proposals 9–11, which are just inflated versions of policies similar to those in the U.S. – the earned income credit, estate & gift tax, and property tax.]

Proposal 1: The direction of technological change should be an explicit concern of policy-makers, encouraging innovation in a form that increases the employability of workers and emphasizes the human dimension of service provision.

Problem 1: To invite political officials to obstruct labor-saving technology or to encourage (subsidize) employment growth at the expense of output growth are plans to depress the growth of real output per worker (productivity) and therefore depress real income per worker.

Proposal 2: Public policy should aim at a proper balance of power among stakeholders, and to this end should

(a) introduce an explicitly distributional dimension into competition policy;

(b) ensure a legal framework that allows trade unions to represent workers on level terms; and

(c) establish, where it does not already exist, a Social and Economic Council involving the social partners and other nongovernmental bodies.

Problem 2: The first proposal (2a) hopes to turn antitrust lawsuits into a device for reducing profits, apparently based on a zero-sum notion that smaller profits ensure larger wages. The second proposal (2b) insinuates that current law is biased against unions in unspecified ways. The third (2c) endorses a Social and Economic Council composed of private interest groups. Such councils already exist at the Arab League and U.N., apparently as a pretext for conferences.

Proposal 3: The government should adopt an explicit target for preventing and reducing unemployment and underpin this ambition by offering guaranteed public employment at the minimum wage to those who seek it.

Problem 3:  Guaranteed public employment at the minimum wage would have to be financed by taxes, which reduce employment in the private sector. If the minimum wage were both high and binding, this could shift a large and growing share of employment away from production of marketable products into provision of “free” government services of unknown value to consumers. By creating a growing constituency for large increases in the minimum wages, guaranteed tax-financed public jobs could displace or “crowd out” more and more private employment. In the U.S., the legal minimum of $7.25 an hour is not binding; it applies only to certain formal and visible forms of employment. The U.S. Bureau of Labor Statistics reports that in 2014 there were only 550,000 people over the age of 25 earning the federal minimum wage of $7.25 an hour, but 999,000 earning less than that minimum wage. 

Proposal 4: There should be a national pay policy, consisting of two elements: a statutory minimum wage set at a living wage, and a code of practice for pay above the minimum, agreed as part of a “national conversation” involving the Social and Economic Council.

Problem 4: How could the proposed overturning of private labor contracts by an unelected “Council” be consistent with any concept of political or economic liberty? This comes frighteningly close to saying governments (e.g., Nixon’s wage controls) and/​or non-governmental interest groups (e.g., Medieval guilds) can and should dictate to workers how much they should charge for their work, and how much employers must offer. Yet inequality is famously low in countries with no minimum wage, such as Sweden, Austria, Denmark and (until 2015) Germany. And inequality is very high in U.S. cities with a high minimum wage, such as San Francisco. The concept of nationwide “living wage” is arbitrary gibberish, since such a goal cannot possibly be the same for an Alabama teen living with parents as it is for a single mother in Manhattan with four children. 

Proposal 5: The government should offer via national savings bonds a guaranteed positive real rate of interest on savings, with a maximum holding per person.

Problem 5: U.S. Treasury inflation-protected securities (TIPS) guarantee a positive real rate if held to maturity, as do similar bonds in Europe. There could be no maximum holding of such bonds unless savers were somehow prohibited from selling their securities (which would make them illiquid and undesirable). If Atkinson means to offer a higher real return than the market provides then the proposal would misallocate capital and increase government (taxpayer) debt.

Proposal 6: There should be a capital endowment (minimum inheritance) paid to all at adulthood.

Problem 6: This proposal would everyone a check for about $15,000 upon reaching adulthood, described as “capital” yet likely used for consumption. This indiscriminate transfer payment is to be financed by a 65% death tax. Higher tax rates on the capital accumulation of older savers to pay for large subsidies to the consumption of young consumers would, as Joe Stiglitz explained in 1978, reduce productivity and weal wages by reducing the ratio of capital to labor.

Proposal 7: A public Investment Authority should be created, operating a sovereign wealth fund with the aim of building up the net worth of the state by holding investments in companies and in property.

Problem 7: Atkinson is proposing to emulate Arabian princedoms, China and other autocratic states by investing taxpayer funds (like the U.S. Social Security trust fund) in private equites and real estate. Malaysia’s wealth fund, for example, is the majority shareholder in Malaysian Airlines, whose stock recently fell 90%. Governments with budget deficits would be investing borrowed funds in stock markets, which is as speculative as individuals buying stocks on margin. The authority to allocate taxpayer capital by political favoritism could not safely be entrusted to even the most saintly and omniscient bureaucrats and politicians, and they would bear none of the losses from bad investments.

Proposal 8: We should return to a more progressive rate structure for the personal income tax, with marginal rates of tax increasing by ranges of taxable income, up to a top rate of 65 per cent, accompanied by a broadening of the tax base.

Problem 8: If a top tax rate of 65% would be harmless to the economy and raise more revenue, then why is no country in the world adopting this advice? All of the fastest-growing economies in Asia and Eastern Europe have very low and sometimes flat marginal tax rates, particularly on capital. All countries with very high and/​or rising marginal tax rates (France, Greece, Japan, etc.) have performed quite poorly. U.S. tax revenues were a larger share of GDP when the top tax rate was 28% than when it was 70% or 91%.

Proposal 12: Child Benefit should be paid for all children at a substantial rate and should be taxed as income.

Problem 12: Atkinson views his “Child Basic Income” (CBI) plan as an intermediate stepping stone toward his comprehensive Basic Income plan because he thinks it easier to peddle to intransigent voters than his actual Basic Income goal for everyone. Basic Income is essentially the 1967 “credit income tax” plan designed by James Tobin of Yale and converted into a $1000 “demogrant” for Sen. McGovern’s 1972 Presidential campaign. What McGovern missed is that a flat tax was the other key element of Tobin’s plan, as was confirmed by later work by Atkinson and Stiglitz on optimum taxation.

Proposal 13: A participation income should be introduced at a national level, complementing existing social protection, with the prospect of an EU-wide child basic income.

Problem 13: Participation income  is another rhetorical device (like CBI) for moving toward a Basic Income on a piecemeal basis. The pretense is to make guaranteed income conditional on “participation in the society” by residents (not just citizens). In addition to all children and seniors, checks go out to those participating in approved training, taking approved care of children; doing approved volunteer work, etc. Caseworkers empowered to decide which activities get approved would have treacherous authority to promote politically-favored nonprofits and thwart others. If he can’t sell this idea, Atkinson’s alternative Proposal 14 is to simply to spend more on “social insurance, raising the level of benefits and extending their coverage.”

Proposal 15: Rich countries should raise their target for Official Development Assistance to 1 per cent of Gross National Income.

Problem 15: Foreign aid has often been used to prop-up bad policies and authoritarian politicians, and has never helped those economies in Asia and elsewhere which lifted themselves from chronic poverty to rapid economic growth – after reducing tax rates, tariffs and regulations. Besides, no academic has any right to tell taxpayers of sovereign nations how their elected representatives “should” spend their money

After his 15 Proposals, Atkinson also mentions even stranger “Ideas to pursue.” The zaniest, borrowed from Thomas Piketty, is “a global tax regime for personal taxpayers, based on total wealth.” Try to imagine the size and power of the required global army of tax collectors attempting to assess every wealthy individual in every country and collect a tax based on such inevitably arbitrary assessments. If such a tax could be enforced on a global scale, there would clearly be no democracy anywhere.

Sir Atkinson’s old-fashioned “policy polemic,” as the New York Times’ reviewer described it, is surprisingly disappointing. He wrote a much bolder and better book back in 1995: Public Economics in Action: The Basic Income/​Flat Tax Proposal. In it, he suggested replacing all means-tested and social insurance benefits (such as unemployment or disability benefits) with a guaranteed annual income (refundable tax credit). This would, he wrote, “do away with the present complicated means-tested benefits” and shrink unemployment. A key second part of the plan required replacing the progressive income tax with an optimal flat tax of 16–31%. The combination of a flat tax and basic income, he concluded, “should definitely be on the agenda for public discussion.” What Atkinson now proposes, unfortunately, is the exact opposite – numerous lavish political gifts ostensibly financed with destructive tax rates on capital and entrepreneurship. These proposals would soon leave any country that adopted them in ruins. 

When the clerk of Rowan County, Kentucky, went to jail rather than have to license same-sex marriages, she wasn’t committing civil disobedience — whether you think her action was courageous or bigoted. No, civil disobedience involves an intentional violation of an unjust law. Another name for it is nonviolent resistance: think Martin Luther King or Gandhi.

Kim Davis isn’t doing that; she’s instead declining to fulfill her duty as a government official, even after a judicial order confirming that duty. That’s official disobedience.

That Davis’s action (or inaction) is based on her religious belief is of no moment. She isn’t being ordered to give up her faith under penalty of law. Instead, as a public official, she has to enforce the law or, if she can’t in good faith (literally) do that, resign — at which point she would no longer be in contempt of court or face any other public sanction.

But why is a clerk in a county and state where gay marriage is unpopular bound by a ruling of U.S. Supreme Court? It’s not the Constitution’s Supremacy Clause, whereby state law must yield to (properly enacted) federal law to the contrary. Instead it’s because Justice Kennedy’s majority opinion in Obergefell v. Hodges, while not exactly the apotheosis of legal reasoning, stands for the proposition that state laws denying marriage licenses to same-sex couples violate the Fourteenth Amendment. So it’s not federal law that trumps state law, but individual rights that trump state law.

The Fourteenth Amendment worked a fundamental transformation in our constitutional order: As of its ratification in 1868, Americans can turn to federal courts to enforce infringements of their liberty against the states. And that principle stands whether a state infringes the right to keep and bear arms or the right to equality under the law.

To put a finer point on it, the Fourteenth Amendment says that “No state shall” violate rights to privileges or immunities, due process, and equal protection. That’s a prohibition on public actions, not private ones.

Both progressives and social conservatives miss that public-private distinction.

In other words, states must extend to same-sex couples whatever recognition they do to opposite-sex — though I don’t see a need for government involvement in marriage in the first place — but it’s illegitimate for them to bend the will of people who have religious differences from the prevailing viewpoint. Private citizens should be free to live their lives according to their consciences. Obergefell doesn’t say that everyone now has to support same-sex marriage, just that governments have to provide for it.

That’s where Barronelle Stutzman comes in. She’s the florist in Washington state who was fined for declining to provide arrangements for a same-sex wedding. Or Aaron and Melissa Klein, the bakers in nearby Oregon who were put out of business under similar circumstances. Or Elaine Huguenin, the New Mexico wedding photographer. There are, of course and alas, many more examples. Unlike Kim Davis, these people are indeed being forced to compromise their sincerely held beliefs under penalty of law.

Oh sure, they could “resign” too, and stop running businesses that are typically hired as wedding vendors (which, in theory, could be nearly anyone; I once attended a wedding where an economist gave the homily). But people have a basic right to earn an honest living, as well as to associate (or not) with whomever they choose. 

After all, we’re all born free and equal under the law. While governments must treat everyone equally, individuals should be able to make their own decisions on whom to do business with and how — on religious grounds or otherwise. Those who disagree with those choices can take their custom elsewhere and encourage others to do the same.

On the other hand, nobody has a right to a government job and I doubt it violates any religion to resign a government job (my colleague Walter Olson in jest called such an apocryphal religion “cool,” but given my Soviet background, the mere idea causes me to shudder).

Which doesn’t mean that we should applaud Kim Davis’s tenure behind bars. Frankly, the only colorable criticism I’ve seen of the contempt order is that it would’ve made more sense to fine Davis the amount of her salary — a fitting recompense for failure to do her job and also a lessening of her current martyr status — but Judge Bunning had a point in reasoning that outside groups would’ve simply paid those fines.

This whole episode really shows a failure to adjust to the needs of a pluralistic society, to give the law some “play in the joints” — as Justice Ginsburg has advised in other contexts. North Carolina passed a law allowing clerks to recuse from transactions that violate their consciences and Texas’s attorney general issued a directive along similar lines. If such regimes can work without impeding the orderly processing of official documents or giving the appearance of “separate but equal” (a big if), they may do the constitutional trick. A friend of mine suggested that all wedding bureaus institute a waiting period, so everyone waits the same amount of time while accomodating potential religious objections (including to remarriage after divorce, interfaith marriage, and who knows what else).

None of this is to say that Kim Davis was at all justified. But we shouldn’t equate the legal obligations of public officials with those of private citizens.

Across the political landscape this morning, people on one side are discovering that lawlessness is bad, while people on the other are discovering that the machinery of our justice system is harsh. If experience is any guide, these lessons will last a lunchtime.

Yesterday federal judge David Bunning ordered elected Rowan County clerk Kim Davis jailed for defying his court’s order that she resume issuing Kentucky marriage licenses; she had stopped doing so on the grounds to have her name go on a marriage license for a same-sex couple, as state law now prescribes following Obergefell, would run counter to her religious feelings. As those close to our legal system know, the age-old civil contempt power of the Anglo-American courts is something not to be trifled with. Some Davis defenders, like former Arkansas Governor and presidential candidate Mike Huckabee, dodge the contempt issue entirely, while many others invoke episodes of doubtfully lawful official conduct that fell short of defying court orders, or in some cases was not even unlawful. 

Kim Davis purges the contempt if she either carries out her public duties or quits her public office. So she is not in jail for refusing to violate her religion, unless her religion requires her to keep her public job (cool religion!). Courts’ use of contempt remedies is itself bounded by law, and they are not supposed to resort to harsher remedies if milder ones such as fines would obtain compliance. But the Davis camp has not suggested that milder measures would secure her compliance; indeed, Davis’s Liberty Counsel lawyers have been associated with other cases in which clients claiming a religious justification have, if anything, gone to more remarkable lengths than Davis in defiance of court orders. (Michelle Meyer has more on the professional obligations of lawyers counseling clients regarding contempt.) As Chris Geidner notes at BuzzFeed, Kentucky does not provide for such alternative remedies as voter recall of county clerks or removal by the governor for official misconduct. 

A curious argument making the rounds posits it as somehow relevant that marriage law changed after Davis won elected office, supposedly upsetting her reliance on expectations of what duties she would be called on to perform. That’s not really a legal question, in the sense of casting any doubt on whether she is expected to follow the laws of Kentucky and the United States in current form if she wants to hold office. It’s more like a union shop steward’s argument — “you can’t change my job duties unless you bargain with me first.”

Among Republican White House candidates, Carly Fiorina seems to be among the few willing to draw appropriate public-private distinctions: “when you are a government employee, I think you take on a different role.” Also from a conservative perspective, Dan McLaughlin has a thoughtful what-goes-around-comes-around view on lawlessness and the pervasiveness of double standards. 

Davis’s defenders also have a point worth bearing in mind as we go forward: the traditional civil contempt power of the Anglo-American courts does generate many harsh, disturbing results. As defense lawyer Scott Greenfield has written, “calling the jailing of a person ‘civil’ doesn’t mean they put curtains on the cell windows.” Targets of civil contempt orders remain in jail — sometimes for a remarkably long time — if they remain obdurate on principle or simply fail to satisfy a judge that compliance is impossible. Dads get jailed for trying to see their kids more often than a court order permits. To me, among these disturbing outcomes, pressure to resign a public office rates fairly low on the scale. But they all could benefit from overdue discussion.

[adapted from an earlier post at Overlawyered]