… notes the ACLU’s Chris Calabrese in this story about the use of license photos to search for criminal suspects.
Cato at Liberty
Cato at Liberty
Constitutional Law
Yesterday I went to the Supreme Court to watch the argument in Alvarez v. Smith, a case about civil forfeiture in which Cato filed an amicus brief.
Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various of legal and policy issues — from property rights to due process. The question in Alvarez is the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge.
Illinois’ forfeiture law allows the State to wait as long as six months before having to prove the legitimacy of the seizure, which proceeding may then be delayed indefinitely for “good cause.” The six plaintiffs in Alvarez — three of whom were never charged with a crime — had their cars or money seized without a warrant for months or years without any judicial hearing, and sued the state and city authorities for violating their rights to due process. The Seventh Circuit found the Illinois law to be unconstitutional because of the delay between the seizure and the forfeiture proceeding and ruled that the plaintiffs must be afforded an informal hearing to determine whether there is probable cause to detain the property. The Supreme Court agreed to review the case at the request of the Cook County State Attorney.
Cato’s brief, joined by the Goldwater Institute and Reason Foundation, supports the individuals whose property was seized. Written by David B. Smith, who previously supervised all forfeiture litigation for the Department of Justice and is now the nation’s leading authority on civil and criminal forfeiture, the brief makes three arguments: 1) Because the Illinois law, unlike the federal Civil Asset Forfeiture Reform Act of 2000, is stacked in favor of law enforcement agencies and lacks protections for innocent property owners, the Court should apply the due process analysis from Mathews v. Eldridge, rather than the more lenient test the State proposes; 2) What has become known as a Krimstock hearing has proven to be an effective and not overly burdensome means of preventing government delay and a meaningful opportunity to contest seizure; and 3) the State’s comparison of the time limits in CAFRA with those in its own law is misleading.
Unfortunately, though some justices appeared at argument inclined to rule that at least some prompt process was due — many other states require that the police quickly come before a judge to make a showing equivalent to the one necessary to get a search warrant — several seemed to want to avoid the due process question for another day because Alvarez was procedurally flawed, so to speak. That is, Justice Scalia pointed that none of the six plaintiffs have a live claim any more — three have had their cars returned, two defaulted on their claims, and the State reached agreement with one — so the case was “moot.” And Justice Stevens noted that the appellate court left it to the trial court to determine the details of the hearing to which the plaintiffs were entitled. (Of course, if the latter “problem” ends up being the key to the case, the Court will simply dismiss the appeal and let the Seventh Circuit’s ruling stand, which is good news — but only for people in Illinois, Indiana, and Wisconsin.)
For more on the case, see George Mason law professor and Cato adjunct scholar Ilya Somin’s oped, and his related blog post at the Volokh Conspiracy.
Radley Balko exposes the politicians who play the game of enacting laws for symbolic purposes. In this game, whether the proposed law has any actual impact on the supposed problem seems entirely beside the point. Excerpt:
Maryland just passed a texting ban, but state officials are flummoxed over how to enforce it. The law bans texting while driving but allows for reading texts, for precisely the reasons just mentioned. But how can a police officer positioned at the side of a highway tell if the driver of the car that just flew by was actually pushing buttons on his cellphone and not merely reading the display screen? Unless a motorist is blatantly typing away at eye level, a car would need to be moving slowly enough for an officer to see inside, focus on the phone, and observe the driver manipulating the buttons. Which is to say the car would probably need to be stopped—at which point it ceases to be a safety hazard.
Read the whole thing. Until this feel-good-gesture-legislation game is broken up, the number of laws will continue to multiply. And that means the sphere of government expands while the sphere of liberty recedes.
When both the New York Times and Fox News poke fun at a school district it’s a good guess that district has done something pretty silly. That seems to be the case in Newark, Delaware, where the Christina School District just suspended a 6‑year-old boy for 45 days because he brought a dreaded knife-fork-spoon combo tool to school. District officials, in their defense, say they had no choice — the state’s “zero tolerance” law demanded the punishment.
Now, the first thing I’ll say is that I was very fortunate there were no zero-tolerance laws — at least that I knew of — when I was a kid. Like most boys, I took a pocket knife to school from time to time, and like most boys I never hurt a soul with it. (I’m pretty sure, though, that I was stabbed by a pencil at least once.) I also played a lot of games involving tackling, delivered and received countless “dead arm” punches in the shoulder, and brought in Star Wars figures armed with…brace yourself!…laser guns! I can only imagine how many suspension days I’d have received had current disciplinary regimes been in place back then.
Before completely trashing little ol’ Delaware and all the other places without tolerance, however, there is a flip side to this story: Some kids really are immediate threats to their teachers and fellow students. And as the recent stomach-wrenching violence in Chicago has vividly illustrated, there are some schools where no one is safe. In other words, there are cases and situations where zero tolerance is warranted.
So how do you balance these things? How do you have zero-tolerance for those who need it, while letting discretion and reason reign for everyone else? And how do you do that when there is no clear line dividing what is too dangerous to tolerate and what is not?
The answer is educational freedom, as it is with all of the things that diverse people are forced to fight over because they all have to support a single system of government schools! Let parents who are not especially concerned about danger, or who value freedom even if it engenders a little more risk, choose schools with discipline policies that give them what they want. Likewise, let parents who want their kids in a zero-tolerance institution do the same.
Ultimately, let parents and schools make their own decisions, and no child will be subjected to disciplinary codes with which his parents disagree; strictness will be much better correlated with the needs of individual children; and perhaps most importantly, discipline policies will make a lot more sense for everyone involved.
In Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Supreme Court gave trial courts more latitude to dismiss a lawsuit at a very early stage, before the parties have had a chance to engage in discovery (the often lengthy and expensive fact-finding stage of civil litigation), if judges think the suit is not founded on “plausible” allegations of wrongdoing.
There’s a rich, angry debate about the effect the decisions will have on dismissal rates of meritorious suits in lower courts. But the consensus among academics seems to be that both decisions will trigger a sea-change in lower court practice—one deeply unfavorable to plaintiffs.
We won’t know the real effect of these decisions for many years to come. But a 2007 study by the Federal Judicial Center on the effect of a trio of similarly controversial 1986 Supreme Court decisions (known as the “Celotex trilogy”) raises questions about dire claims that Twombly or Iqbal will dramatically change lower court practice.
The debate over the Celotex trilogy in the 1980s is eerily similar to today’s debate over Twombly and Iqbal. Responding to concerns that juries award arbitrarily large judgments against corporate defendants, the Celotex trilogy gave lower courts more latitude to grant summary judgment—that is, to toss lawsuits at the end of discovery, before a case gets to a jury, when the judge thinks there is insufficient evidence to justify a jury trial. Many academics complained that the cases would result in a radical sea change in lower court practice—one that benefited corporate defendants at the expense of plaintiffs.
The FJC’s 2007 study is the most comprehensive study of the effect of the decisions to date. Based on data drawn from 15,000 docket sheets in randomly sampled terminated cases in six district courts, the FJC found (as expected) that, before and after the trilogy, summary judgment filing and disposition rates vary significantly from circuit to circuit and between types of cases. After controlling for differences in filing rates across circuits and for changes over time in the types of cases filed, the authors found that “the likelihood that a case contained one or more motions for summary judgment increased before the Supreme Court trilogy, from approximately 12% in 1975 to 17% in 1986, and has remained fairly steady, at approximately 19% since that time.” Moreover, between 1975 and 2000, “no statistically significant changes over time were found in the outcome of defendants’ or plaintiffs’ summary judgment motions, after controlling for differences across courts and types of cases.” Indeed, despite anecdotal claims that Celotex prompted a significant increase in summary judgment in civil rights cases, the authors found “no evidence that the likelihood of a summary judgment motion or termination by summary judgment has increased” in civil rights cases since 1986.
It’s easy to overstate the FJC’s findings. (The data tell us nothing about the quality of summary judgment decisions before or after Celotex, and shed no light on disposition rates at a micro-level, i.e. in product liability actions, as opposed to other tort actions, or Title VII actions, as opposed to other civil rights actions, for example.) The study nonetheless lends some plausibility to the view that Celotex was less a catalyst for change than a ratification of preexisting lower court practice that had evolved largely in spite of the Supreme Court and which the Court was, and is, largely powerless to control.
It’s easy to think of reasons why trial courts’ summary judgment practice might evolve independently of the Supreme Court. A surprisingly large number of trial court decisions, including grants of partial summary judgment, are not immediately appealable—and the pervasiveness of settlement means many of these decisions are never appealed. Intermediate appellate courts, moreover, affirm trial court decisions at an incredibly high rate. And the Supreme Court, which takes only about 80 appeals a year, has dramatically limited capacity to police the innumerable summary judgment dispositions made daily throughout the federal court system. The upshot is that trial courts, as a practical matter, have long had wide discretion to decide even pivotal motions, like summary judgment, with relatively light appellate oversight.
Are Twombly and Iqbal a replay of the Celotex trilogy? Only time will tell. But what we know, to date, about the Celotex trilogy suggests that, whatever you think about Twombly or Iqbal, strong claims about the influence of either decision may well overstate the Supreme Court’s power and influence over trial court practice.
The Wall Street Journal has an article today about a small businessman in Chicago, James Andrews. Mr. Andrews started a hot-dog stand and hired ex-convicts as employees. The name “Felony Franks,” came to him and he thought it was catchy. Since it was his business, Mr. Andrews didn’t think twice about the name. Enter Chicago Alderman Robert Fioretti. The alderman doesn’t like the name and will not “permit” Mr. Andrews to set up signs to attract more customers. (Btw, How many people like the name Robert Fioretti anyway? Maybe it should be changed to … eh, never mind) Neighborhood “activists” are also setting up meetings to discuss the hot-dog business and the “exploitation” of the workers. Kevin Jones, 42, an employee at Felony Franks, tells the reporter he does not feel exploited, “Working here allows me to provide for myself and my family.”
What a farcical situation. First, the politicians manufacture scores of felons. Next, the pols have their own ideas on how to “help” the ex-cons return to civil society. Those ideas entail spending taxpayer money.
According to today’s Washington Post, the Cato pocket Declaration of Independence and Constitution have made the bestseller list!
This is going to make establishment Washington nervous — with good reason.