Topic: Law and Civil Liberties

Cities Notice Decline in Latino Crime Reporting Post-Trump

Sir Robert Peel

Effective policing requires that crime witnesses and victims contact the police and that citizens trust law enforcement. Without such trust and communication crimes go unsolved, criminals run free, and victims live in fear. Sadly, it looks as if the Trump administration’s immigration rhetoric could have prompted a chilling effect on Latino crime reporting. 

The father of modern policing, the British statesman Sir Robert Peel, understood how important public approval of the police is in order for police officers to effectively do their jobs. Peel founded London’s Metropolitan Police Force in 1829. The force issued new officers with copies of “General Instructions,” which included the “Peelian Principles” of effective policing.* The second Peelian principle urges officers

To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect. 

Although written for officers in London, the Peelian Principles migrated to the states, where now former New York Police Department Commissioner William J. Bratton featured them on his blog and they continue to be favorably cited by law enforcement and public safety officials.

The Renew Act of 2017

The old saying goes, “If you do the crime, you should to do the time.” In reality, however, many ex-offenders find out they’re effectively still being punished after they have served their sentence and have been told they paid their debt to society. These “collateral consequences” of arrest and incarceration include restrictions on potential jobs, housing, and benefits that help people get back on their feet. There are literally tens of thousands of restrictions at the federal, state, and local levels.

One way to alleviate some of these collateral consequences is called expungement. Expungement is a process by which a criminal conviction is effectively erased someone’s record, provided they meet certain criteria. There is already a law that allows first-time, non-violent federal drug possession offenders under the age of 21 to serve one year of probation and have the charges expunged after successful completion.

Today, Rep. Hakeem Jeffries (D-NY) and Rep. Trey Gowdy (R-SC) introduced H.R. 2617, “The Renew Act of 2017,” which expands the same expungement eligibility age from 21 to 25 years old.

Expungement expansion could make a big difference in the lives of young adults who make a mistake. Under current laws and practices, the effects of a criminal conviction can burden someone long after they’ve completed their sentence. As I’ve written before, it is simply unfair to expect ex-offenders to become productive members of society and impede their success at the same time. 

For more details, please check out this post by John Malcolm and John-Michael Seibler of the Heritage Foundation. 

Pushing Back on an Anti-Social Network

Power Ventures, Inc. offers a service to amalgamate various social-media platforms into one system; each user gives the company his usernames and passwords, including for Facebook. Facebook objected to Power Ventures’ use of Facebook in this manner and sent a cease-and-desist letter. When Power Ventures refused to comply, Facebook sued under the Computer Fraud and Abuse Act (“CFAA”).

The CFAA was designed to prevent hackers from accessing a computer system “without authorization” and has criminal penalties of up to five years in prison. The district court found that Power Ventures had indeed accessed Facebook without authorization and the U.S. Court of Appeals for the Ninth Circuit affirmed that decision. Power Ventures has petitioned the Supreme Court to review the case; Cato has filed an amicus brief supporting that petition.

We explain that there’s a split among the circuit courts as to the legal basis for an entry to be “authorized” under the CFAA. The Fifth and Seventh Circuits use agency law (scope of employer permission), the First and Eleventh Circuits use contract law (established policies), and the Second, Fourth, and Ninth Circuits use property law (the common law of trespass). The ideal resolution would involve an analogy to physical trespass, which various members of Congress involved in drafting the CFAA used to discuss the computer crimes that the law was designed to prevent.

In applying trespass law here, the facts begin to look like a landlord-tenant dispute over a third-party guest. A landlord typically can’t prevent a tenant from inviting guests to access the tenants’ property by using the common areas of the building, without a limitation in the lease. Here, Facebook’s users own the data (information, pictures, etc.) they put on the social network, as Facebook acknowledges, and there’s no guest-access restriction in the terms of service.

Many people share social-network, email, or other passwords without considering such actions to be criminal and the common law is presumed to conform to the customs of the people unless there’s explicit statutory text to the contrary. Otherwise millions of people could unwittingly be made criminals.

This is also the reason why the “rule of lenity” applies in Power Ventures’ favor, because an (at best) ambiguous statute cannot be used to punish someone.

The final reason that the Supreme Court should take the case is its importance to the online economy. Power Ventures is trying to compete with Facebook and Facebook’s ban prevents the market from being able to determine who has the better product. Many other companies, including Google, use a method of automated access similar to that which Power Ventures uses and could be imperiled by the lower court’s ruling. Internet companies need clear legal rules so they know what they can do nationwide without the threat of civil liability or criminal prosecution.

The Supreme Court may decide whether to take Power Ventures v. Facebook before it breaks for its summer recess at the end of June, or it could hold the decision over till the start of the next term in the fall.

Lucia and PHH: Two Cases, Two Arguments for Constitutional Principles

It’s not often an appellate court agrees to re-hear a case en banc—that is, reexamine a decided case with all active judges participating—and when it does, usually it’s because the case is of particular importance.  Today the federal appeals court in D.C. heard two such cases, and both address fundamental issues of due process and constitutional integrity.  Heavy and exciting stuff.  Cato filed amicus briefs in both cases, given their potential impact on core principles of liberty and the rule of law.

The first case, Lucia v. SEC, considers the role of the Administrative Law Judge (ALJ).  While the case was nominally about whether ALJs are inferior officers, and therefore subject to certain constitutional appointment and removal proceedings, at its heart is the question: what makes a judge a judge?

Most Americans expect that if the government is going to haul them in for alleged wrongdoing, they’ll at least have their case heard by an impartial judge, with all the usual legal protections.  And this is what Americans should expect.  Unfortunately, some federal agencies operate differently, using their own internal administrative proceedings, with their own ALJs, to determine if someone has broken the rules, and to impose a fine or other punishment.

The vast majority of ALJs work for the Social Security Administration, determining whether individuals are eligible for benefits.  As Lucia’s lawyer pointed out in argument today, there is a big difference between ALJs determining whether someone will receive something from the government, as the Social Security Administration’s ALJs do, and determining whether the government will take something from someone.

Jeff Sessions Pulls Back on Bullying Sanctuary Cities

Throughout his presidential campaign Donald Trump pledged to defund so-called “Sanctuary Cities.” Since his election the president and his administration have had to backpedal on this commitment thanks to serious constitutional issues with such a proposal. Recent news that Attorney General Jeff Sessions has narrowed the category of funds that can be withheld from sanctuary cities as well as the definition of sanctuary jurisdictions is good news for constitutionalists and federalists who oppose the federal government bullying cities and states.

Before unpacking Sessions’ recent memo it’s worth taking a look at the Trump administration’s actions against “Sanctuary Cities,” a term that has no legal meaning but is usually used to describe cities and localities where local officials have decided not to assist with federal immigration enforcement.

On January 25, President Trump signed Executive Order 13768: Enhancing Public Safety in the Interior of the United States. Section 9 of this executive order is the “sanctuary” section and reads, in part (emphasis mine):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

There is a good argument that 8 U.S.C. 1373 is unconstitutional. 8 U.S.C. 1373 is a prohibition on a prohibition, banning local governments from preventing police departments from sending or receiving immigration status information to or from federal immigration authorities. This law potentially runs afoul of the 10th Amendment’s “anti-commandeering” doctrine, which bans the federal government from compelling local officials into enforcing federal law.

A Tale of Two Disciplines

At the National Police Misconduct Reporting Project, we keep tabs on a wide range of misconduct. Whether the misbehavior is excessive force on duty or a DWI off duty, we catalog the event and track the officer’s case as it goes through the administrative, civil, or criminal justice systems. Part of the reason we do this is to show whether police departments and other responsible government agencies are holding their officers accountable.

Depending on local laws and union contracts, police leadership can be limited in how much punishment they can dole out for a given offense. However, when a crime appears to have been committed and the police simply administer minor officer discipline, it sends a message that officers can act above the law. This message is amplified when officers who exposed that potentially criminal behavior are punished more severely than the offending officer.

This seems to be the case in Fort Worth, Texas. Two senior officers, Assistant Chief Abdul Pridgen and Deputy Chief Vance Keyes, have been demoted for allegedly leaking camera footage of their fellow officer, William Martin, violently attacking a woman who had called police for help after her son was assaulted. The video went viral, and Martin was suspended for ten days.

The attorney for the woman who was attacked and arrested, Jacqueline Craig, had this to say:

“[Officer] Martin amassed a series of felonies on that day from assault, to aggravated assault, to perjury, official corruption, false arrest [and] to each of these he received no criminal investigation, no criminal prosecution. He received a 10-day vacation and he was returned to the force with a scheduled promotion,” [Lee] Merritt said. “It’s a sad day for the city of Fort Worth. The level of blatant racism and unapologetic hypocrisy should no longer be tolerated and so we take this stand together today.”

Such retribution against senior officers who appear to have acted as whistleblowers will almost certainly have a chilling effect on reporting misconduct within the department. Moreover, it tells the people of Fort Worth–especially those in minority communities–that police violence against them is a less serious offense than exposing misconduct by fellow officers.

At least one of the officers reported that he plans to sue over this discipline.

You can read the full news report here.

This is an edited cross-post from PoliceMisconduct.net.

Patent Defendants Win a Big One

This morning’s Supreme Court opinion in TC Heartland v. Kraft Foods, hinging on what I described in January as a dry point of statutory interpretation, is likely to stand as a landmark win for defendants in patent litigation – and, on a practical level, for fairer ground rules in procedure. A unanimous Court (8-0, Thomas writing, Gorsuch not participating) rejected the broad reading of a venue statute by which the Federal Circuit had empowered lawyers to forum-shop disputes from all over the country into a few decidedly pro-plaintiff venues, above all the largely rural Eastern District of Texas. From here out, defendants can still be sued in a district such as E.D. Tex. if they have a regular and established place of business in it, but the decision is likely to shrink what I called in my January preview a “jackpot patent litigation sector… that shifts around billions of dollars.” By redirecting cases into more neutral venues, it should bring outcomes closer to reflecting cases’ actual merits, which would in turn do much toward restoring confidence in this sector of the law.

If Congress believes the Court has erred it is free to restore patent venue to a more shopper-friendly set of rules. But after the experience of recent years, it is unlikely that a Congress of either party or any likely political complexion will have an appetite for doing that.

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