Topic: Constitution, the Law, and the Courts

Motion to Dismiss this Lawsuit … With Extreme Prejudice!

Item: Criminal brings lawsuit against John Q. Citizens for defending themselves.

Nonlawyers are quick to ask, “Can he really do that?!”

Let me attempt a quick answer:

Any person can sue any other person for anything. You can file a lawsuit against a newborn baby for “disturbing the peace” in a park. But there is a legal mechanism to dispose of meritless lawsuits without a trial or even a preliminary hearing–it’s called a motion to dismiss. And a motion to dismiss with prejudice will bar the litigant from bringing such an action again. When law students learn about the motion to dismiss with prejudice, their textbook should illustrate the concept by mentioning the case of the criminal who tried to sue his victims.

On the general subject of self-defense, we should all remember this gem from Colorado Sheriff Bill Masters: “It is your responsibility to protect yourself and your family from criminals. If you rely on the government for protection, you are going to be at least disappointed and at worst injured or killed.”

More on self-defense here. To listen to a talk that Masters gave at Cato, click here.

The American Meddling Association

The American Medical Association has long ceased to be a serious advocate for doctors. It instead has become a propaganda arm for the wackier factions of the public health movement. The Chicago Sun Times reports that at its annual meeting this week, the AMA is considering throwing its support behind a move to tax soda sales, with proceeds going to various anti-obesity measures. This, despite little evidence that soda consumption is linked to weight gain (non-diet soda consumption has remained virtually unchanged since 1988). Not to mention the fact that if we’ve learned anything about sin taxes, it’s that they’re inevitably used for projects far removed from those educational programs promised when they’re enacted.

The soda tax endorsement comes on the heels of the AMA’s embarassing attempt to pass off a web-based survey (which the organization later admitted was an “advocacy” tool) about alcohol consumption as scientific research, complete with a fake margin of error. Last year, the same organization and its president expressed shock that – gasp! – most minors get their first taste of alcohol from… their parents. Seems to me that the supervising eye of a parent would be the ideal circumstance under which a minor would get his first sip of beer or wine, wouldn’t it?

Consider these other action items from the agenda for the AMA’s annual meeting this week:

  • Support a 50 percent reduction in salt in processed foods, fast foods and restaurant meals over the next decade.
  • Oppose beer ads on college sports broadcasts.
  • Prepare a report summarizing video game research, including emotional and behavioral effects and addictive potential.
  • Push to ban smoking in all public places and workplaces.
  • Support mandatory school instruction on the dangers of Internet pornography.

Meanwhile, as it continues to tell parents how to raise their children, and push for government regulation of private behavior, the AMA has been conspicuously silent, passive, or just plain wrong on issues you’d think would be high-priority for a group that claims to represent doctors: The relentless DEA campaign against doctors who specialize in pain management, for example. Pain activists say the AMA has been AWOL. And not only didn’t the AMA oppose many of the more onerous HIPAA regulations, it lobbied for their enforcement. The organization has also taken a relatively passive stance of the federal prohibition on medical marijuana, which puts political drug eradication goals ahead of patient care.

The AMA’s percentage of revenue from membership dues has fallen over the last few years. It now counts just 26% of U.S. physicians among its dues-paying members.

Given the organization’s priorities, I can see why. Journalists should keep that figure in mind when reporting on official AMA positions. The group certainly doesn’t represent the opinion of all doctors. Of, for that matter, even a majority of them.

Come Back with a Warrant

Last month in Dallas:

Jamie Dolloff was expecting a routine code inspection to check smoke alarms and an electrical breaker box in her northeast Dallas apartment.

She said she wasn’t prepared for a loud banging on her door and police officers entering her apartment and searching her belongings.

“Cops were going through my bathroom drawers. Then I heard them going through my kitchen,” Ms. Dolloff said of the police who accompanied fire and code inspectors during the search.

“I told them, ‘You don’t have a warrant. You’d better stop what you’re doing’,” she said. “They shouldn’t have been going through my stuff.”

Ms. Dolloff is one of at least 21 Dallas residents who have filed complaints with the U.S. Department of Housing and Urban Development over the March 13 incident at Bent Creek Apartments.

The searches were part of a sweep instigated at the behest of a local, politically powerful homeowners’ association.

The situation in Dallas is part of a disturbing trend. Police and municipal officials are increasingly using utility, fire, or regulatory inspections to circumvent the need for a search warrant. Once inside, police who accompany the inspectors snoop around. Given that the resident of the home let them in voluntarily, anything incriminating that they might find is, in theory, fair game.

Two years ago, police in Manassas Park, Va., conducted a massive SWAT raid on a local pool hall involving about 70 officers. Though they were looking for drug activity, the raid was conducted under the auspices of an inspection from the state’s Alcoholic Beverage Control, again negating the need for a search warrant.

Last April, police in Buffalo, N.Y., conducted a series of no-knock SWAT raids in low-income neighborhoods across the city, dubbed “Operation Shock and Awe.” A month later, many of the arrests were thrown out because of insufficient evidence or police errors in obtaining the search warrants. Police officials were livid – at the thrown-out arrests, not at the fact that many innocent people’s homes were wrongly raided, or that innocent people were wrongly arrested. The officials openly discussed using the city’s “Operation Clean Sweep” program to conduct future raids. “Operation Clean Sweep” sends police out with fire code inspectors, electric inspectors, social workers, and other non-police agencies. They tell residents they’re conducting routine inspections. Once inside, police search the homes for evidence of drugs or other illegal activity, again without a search warrant.

Enviros Embrace “Free Market Environmentalism”!

We don’t need no stinkin’ environmental regulations to save the earth – all we need are well functioning property rights for environmental resources and common law courts to protect that property against trespass. Pollution is simply a neighbor’s garbage dumped in your backyard without permission. If we simply recognize and enforce property rights for nature, the need for most environmental regulation goes away.

That’s the libertarian pitch anyway, and it goes by the moniker “Free Market Environmentalism,” or “FME” to its acolytes.  FME was given a firm theoretical foundation by Ronald Coase, embellished and blessed by libertarian economist Murray Rothbard, given academic life by the Political Economy Research Center and the Foundation for Research on Economics and the Environment, popularized in Washington by the Competitive Enterprise Institute, and even pitched by yours truly to the Board of Trustees of the Natural Resources Defense Council about nine years ago.

Alas, there has never been much evidence to suggest that libertarians were making much headway with these arguments and I have come to believe that they have less promise than I had once imagined. But what do you know? FME is now all the rage amongst environmentalists who have discovered that suing polluters for tresspass is easier than passing satisfactory laws against the same.

Think I’m pulling your leg? Read this from Darren Samuelsohn in today’s issue of Greenwire (subscription required):

Efforts to force a stronger U.S. global warming policy through the courtroom came under sharp scrutiny yesterday as eight states, New York City and conservation groups pressed for reduced greenhouse gas emissions from the nation’s five largest electric utilities.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals pressed plaintiffs over why their case was necessary when other avenues exist for addressing global warming – from Capitol Hill to state courts. “My basic question is should we be invoking this doctrine in this very unusual case when there are many other remedies available?” asked Judge Sonia Sotomayor, the lone Democratic appointee on the 2nd Circuit’s panel.

Connecticut Attorney General Richard Blumenthal (D) replied that the utilities’ emissions violate federal common law by harming residents in multiple states. The utilities’ emissions are creating a public nuisance and must be reduced to counteract a variety of global warming effects, including California’s diminished snow pack and more intense heat waves.

Addressing Sotomayor’s question, Blumenthal said his case is not unusual compared with other seminal common law challenges upheld by the Supreme Court, including suits over Illinois sewer water running into Lake Michigan and air pollution from two Tennessee smelters.

“We’re dealing with a developing area of science where federal common law provides a remedy under the doctrines that exist,” Blumenthal said.

Plaintiffs singled out the five companies and their subsidiaries for litigation almost two years ago because they are the largest emitters of carbon dioxide from the power sector in the United States.

… The electric utilities’ defense covered some of the same ground offered successfully last summer before a federal district court, which dismissed the case on the grounds it raised political questions better left to the other two government branches. Both current and former sessions of Congress and presidents have not adopted such an aggressive climate change policy, argued Washington-based industry attorney Joseph Guerra.

Guerra also insisted federal common law has not been applied to an issue of such sweeping scale. Of the Supreme Court precedents Blumenthal cited, Guerra replied, “None of those cases could have possibly affected the entire U.S. economy.”

Pushing another line of the industry’s defense, Guerra cautioned the litigation would be a precursor to more global-warming nuisance claims – with no end in sight as plaintiffs tick through other sources of greenhouse gas emissions.

But Sotomayor, who asked the bulk of the questions during the hearing, took issue with the line of industry defense. “That’s the nature of every tort action,” she told the utility attorney.

Sotomayor also said she had a problem with dismissing the case just because potential remedies were so large.

OK, I’ll grant that enviros are going the common law route less out of conviction than out of necessity.  But so what?  What was once a fringe argument has now migrated into the political and legal mainstream with a vengeance.  Good news for libertarians, right?

Well, if libertarians and fellow-travelling conservatives are popping champagne bottles, it has escaped my attention.  FME blogs are dead silent. Conservatives are taking the corporate line that common law is an inappropriate venue for all of this with no dissenters that I can tell.  In short, FME’ers either aren’t paying attention or aren’t willing to back their doctrines when they are employed by the Left.

Sure, one can argue that the plaintiffs don’t have proper standing, that there is really no nuisance here to begin with, that the tort system is so messed up that employing it in such cases is problematic, etc.  But nonetheless, this is a growing trend and libertarians seem surprisingly ambivalent about it.

Marriage Amendment Failure

Supporters of the Marriage Protection Amendment say that even though it failed in the Senate on Wednesday, they are pleased that it did better than two years earlier. But let’s do the math. In 2004 supporters lost a cloture vote 48-50, with two opponents not voting. So their strength on moving the amendment to a floor vote was 48-52. This year the vote was 49-48, far short of the 60 needed to invoke cloture or the 67 for a constitutional amendment. If all senators had voted, the vote would likely have been 50-50. So maybe that’s a pickup of two votes for amendment supporters.

But the Republicans picked up four Senate seats in the 2004 election. So relative to the number of Republicans in the Senate, support for the amendment actually slipped by two votes. Supporters picked up no Democrats, and they lost two Republicans. Judiciary Committee chairman Arlen Specter voted for cloture in 2004, though he would have voted against the amendment itself; this year he voted against cloture and quoted two Cato publications in his Senate speech. Judd Gregg joined his New Hampshire colleague John Sununu in voting for federalism over centralism after realizing that the 2003 Massachusetts court ruling for marriage equality in that state is not being replicated nationwide. Given that younger voters are much more supportive of same-sex marriage than older voters, it seems unlikely that support for an amendment will grow in future years.