Topic: Law and Civil Liberties

Do Bring a Phonecam to a Snowball Fight

By now, you’ve probably heard the story—and seen the video.  During the weekend’s Snowpocalypse™ in DC, a gaggle of young urbanites, using Twitter and other social media, announced a big group snowball fight at the corner of 14th and U Streets.  For a while, it was all good fun, with the participants periodically stopping the skirmish to help dislodge a motorist for a snowdrift, amid collective cheers. But an off-duty plainclothes cop whose Hummer had been hit by a few snowballs lost his cool—and advanced on the crowd to berate them with his gun drawn. You’d think an angry, out-of-uniform guy brandishing a gun might set off a dangerous stampede in the snow, but true to form, the DC crowd responded with chanting: “You don’t bring a gun to a snowball fight!”

Initially, the Metropolitan Police Department “reviewed the evidence” and concluded that the officer had only been holding a cell phone after all—folks who’d said it was a gun must have just imagined it, what with all that snow. But it turns out there were a whole lot of video cameras and phonecams there, and still shots and recordings began to circulate on the Internet, making it impossible to deny what had happened.  By Monday, the chief of police had issued a statement calling the officer’s behavior “totally inappropriate” and announcing that he’d be relegated to desk duty pending further inquiry.

As anyone who follows the excellent work of my colleague Radley Balko will be well aware, things often play out quite differently—with departments circling the wagons, and no serious accountability for far more egregious abuses of authority. But video—increasingly ubiquitous and portable—can make a difference. And it strikes me that, in one sense, it helps remedy other kinds of social inequality.  Reviewing that video of the snowball scene, you might point out that the crowd is full of white 20-somethings, many of whom (given the city’s demographics) are almost certainly college-educated professionals, while police misconduct toward less privileged groups is far more likely to be ignored.

What is privilege, though? In cases like these, it consists largely in the ability to be seen and heard—to attract media attention, to articulate your story in a clear and compelling way, to be considered credible by press and the community. All of these, unfortunately, depend enormously on class, status, race, and education. Unless there’s video. And video is democratic these days. You’d have to poke around a bit to find even a bottom-of-the-line cheapo cell phone that didn’t come with at least a still camera, and likely video capture to boot. So while there’s been some attention paid to the potential of this kind of “Little Brother” surveillance to increase accountability—the to lessen disparity in power between citizen and cop—it’s also worth stressing the way it can lessen certain kinds of disparities between citizens.

That said, and just going by memory, it seems like most of the stories I encounter in this vein still involve white, middle-class, college-educated young people. One possibility is that this shows I’m wrong, and that other aspects of privilege still play into their videos circulating while others languish. Another, though, is just that they’re both accustomed to this kind of routine use of technology and sharing of data, and that they take their social power for granted. That is, it occurs more naturally to them that the right response to this kind of misbehavior is to record and circulate it. If it’s mostly the latter, we’re on an interesting precipice, where the main remaining precondition for the leveling effect to kick in is just awareness that the other preconditions are in place.  If that’s right, the next few years should be interesting.

Surveillance State More Popular than iPhone

pewtechpollA new Pew poll reveals that most of us think this decade’s been a bit of a bust—little enough surprise there. But when pollsters dug into people’s attitudes toward particular technological and social changes, I was a little taken aback by the incredible popularity of “increasing surveillance and security measures.” They’re not quite as popular as, say, the Internet—but folks love Big Brother better than iPhones, online retail, blogs, or reality TV.  That may seem especially odd because even someone who regards those changes as necessary and appropriate cannot be glad that we now find them necessary—and you might expect the association to pull the numbers down.

I won’t get too depressed about this just yet, because I generally think it’s an error to take polls either too seriously—if you ask people for an opinion they don’t have, they’ll formulate one on the spot, but it’ll be about a millimeter thick—or too literally. If you read “How are you? / Fine thanks.” as a sincere inquiry into and report on someone’s welfare, you’re missing something rather elementary about our social world. Ditto, I think, if you assume that the large numbers of people who purport to be unsure whether Barack Obama is perhaps a secret foreigner literally believe in an insane conspiracy theory. It has a propositional form, but it’s more about signaling an attitude than a factual belief. When “confidence” in government spiked right after 9/11, should we suppose people had really revised their assessment of the government’s competence upward?  Of course not, it was more like a vote of confidence. It’s like whispering “there’s no such thing as ghosts!” to yourself—something you do precisely when you don’t feel so certain anymore. (I’ve elsewhere referred to these as “symbolic beliefs.”)

So what are people doing when they say increased surveillance and security measures are a “change for the better.” Some people, of course, are really expressing a considered political opinion about the PATRIOT Act or other reforms. The phrase “security measures” may suggest to others just those measures which make us more secure—in the same way “Terrorist Surveillance Program” implies a program that surveils only terrorists, even if the rationale for the program is precisely the lack of sufficient evidence that its targets are terrorists.  But I expect there’s also an element of “there’s no such thing as ghosts” at work. Given that our intelligence efforts fell spectacularly short at the decade’s start, we have to hope there’s been a net change for the better. And the downsides to expanded surveillance are largely invisible, slow, and structural: You have to go out of your way to think about them or they’re not especially evident. The rest of the survey items, though, prime people to think about “better” in terms of concrete differences in our daily experience. They may think of the inconveniences of lines at the airport, but there’s nothing in the rest of the context that seems likely to activate longer-term political concerns. The same question in a survey about other explicitly political trends might trigger a different response.

This is, incidentally, one reason I think privacy advocates make an understandable error when we put too much emphasis on the personal effects of expanded surveillance: “Do you want the government reading your e-mail?” For a lot of people, this will just spotlight how little direct harm they seem to individually experience as a result of surveillance. It’s less dramatic an appeal, but you really do need to ask people to focus on what the explosion of surveillance means for the structure of a free society, not just gauge immediate consumer satisfaction.

Properly Extending the Right to Keep and Bear Arms to the States

I recently blogged about an interesting op-ed in which Ken Klukowski and Ken Blackwell of the American Civil Rights Union argue that the Supreme Court need not overturn The Slaughter-House Cases while “incorporating” the right to bear arms against the states.  (Josh Blackman fisked the article in more depth here.)   This piece was essentially a distillation of the ACRU’s amicus brief in McDonald v. City of Chicago, which ultimately argues, like Cato’s brief, that Chicago’s gun ban is unconstitutional.

It has come to my attention, however, that I mischaracterized one aspect of the Kens’ op-ed (sorry about that): while they are indeed against overturning Slaughter-House, the authors still seek to apply the Second Amendment right through the Privileges or Immunities Clause (like Cato and most libertarians), rather than through the Due Process Clause (like many conservatives and gun rights proponents).  This is the ACRU’s main argument, and it is based largely on Ken Klukowski’s recent law review article – indeed, the brief’s body cites Klukowski article some 20 times, often for propositions that find no further support in case law or academic literature.  (Josh has also provided a short critique of the ACRU brief/Klukowski article, so I won’t do that here.) 

In any event, this clarification gives me an opportunity to name and outline the five possible ways a justice could come down in the McDonald case:

  1. “Extreme Anti-Gun” – Affirm the lower court in its entirety, deciding that it correctly interpreted Supreme Court precedent, that reconsideration of this precedent is unwarranted, and therefore that neither the Second Amendment nor the right to bear arms it protects extends to people in the states (as opposed to in federal territories, like the District of Columbia).  I can’t imagine that any justice will vote for this way; even those who dissented in Heller generally support the selective incorporation of rights against the states.
  2. “Conventional Liberal” – Affirm the lower court in part but clarify that while the Second Amendment is indeed “incorporated” as against the states via the Due Process Clause, Chicago’s gun ban is still okay – possibly under a test weighing the individual right against the city’s interest in reducing gun violence. There may be one to four votes for this position: Justice Breyer likes balancing tests; Justice Stevens may feel that his hometown’s regulations are justified; and Justices Ginsburg and Sotomayor may feel the same way about New York.
  3. “Conventional Conservative” – Reverse the lower court, “incorporate” the Second Amendment via the Due Process Clause – adopting an analysis akin to that of Ninth Circuit Judge Diarmuid O’Scannlain in the Nordyke case – and strike down Chicago’s gun ban.  The NRA’s brief primarily advocates this position, as do many conservatives fearful of the Privileges or Immunities Clause.  There may be one to eight votes for this position: The “minimalist” Chief Justice Roberts may be hesitant to overturn longstanding precedent; Justice Scalia may decide that the devil he knows (substantive due process) is better than the one he doesn’t (privileges or immunities); Justice Kennedy may feel vested in his own expansive “fundamental rights” jurisprudence under the Due Process Clause (see my review of a book analyzing that jurisprudence); Justice Alito may share one or more of the above sentiments; and one or more of the aforementioned liberals may decide to “bite the bullet” and go along with this position.
  4. “Mend Slaughter-House, Don’t End It” – Reverse the lower court, overturn three old precedents – Cruikshank (1876), Presser (1886), and Miller (1894), which were decided at a time when none of the rights in the Bill of Rights was considered to apply to the states – “incorporate” the Second Amendment via the Privileges or Immunities Clause without touching Slaughter-House, and strike down Chicago’s gun ban.  This is the ACRU position, and while I don’t think it’s textually or historically supportable – a scholarly consensus across ideological lines holds that Slaughter-House was both wrongly decided and forecloses any significant application of the Privileges or Immunities Clause – it could emerge as a political “compromise.”  (If Justice O’Connor were still on the Court, I could maybe see her advancing this position.) 
  5. “Originalist/Libertarian” – Reverse the lower court, overturn Slaughter-House and the three aforementioned cases, extend the right to keep and bear arms to the states (which is technically distinct from “incorporating” the Second Amendment), and strike down Chicago’s gun ban.  This is Cato’s position – as well as that of the liberal Constitutional Accountability Center on behalf of eight leading constitutional law professors from across the political spectrum – and there will be one and may be up to all nine of the justices here: Justice Thomas has long said that he’d like to revisit Slaughter-House in the appropriate case, and he surely led the push to grant a cert petition whose question presented called for briefing about the Privileges or Immunities Clause; any of the others who seriously grapple with the arguments in Alan Gura’s brilliant petitioners’ brief (and those of his amici, us included) will also have to go this way despite their various political qualms.

In short, I see at least five votes in favor of extending the right to keep and bear arms to the states, but it’s an open question as to whether the Court will do that via the Due Process of Privileges or Immunities Clause of the Fourteenth Amendment.   

Now, you may ask why, if I’m so confident that the fifth option above is correct, don’t all conservatives qua self-professed “originalists” gravitate towards it (and, conversely, why some liberals qua “living constitutionalists” do).  That’s an unlawyerly matter of policy preferences: as the Kens’ op-ed details, conservatives (and some libertarians), while wanting to extend Heller’s interpretation of the Second Amendment to the states, are wary of opening a Pandora’s Box of positive rights (health care, housing, welfare, etc.), as well as the perpetual culture-war bogeymen (abortion, gay marriage, pornography, etc.).  Liberal intellectuals, meanwhile, are holding their nose at having to extend gun rights because they feel that’s the only concession they have to make to achieve their utopic constitutionalization of the entire progressive agenda.

While libertarians share the conservative concern about positive rights – as well as legal, if typically not policy, qualms about courts’ handling of social issues (e.g., that Roe v. Wade is bad law even if some libertarians are pro-choice; that Lawrence v. Texas is good law but achieved through Kennedy-esque hand-waving rather than sound legal reasoning) – many of us see the benefits of being able to protect economic liberties and other natural rights.  For example, unlike conservatives, we generally like Lochner, the 1905 case that struck down on “liberty of contract” grounds a New York law limiting bakers’ hours.

Yes there’s a danger – particularly if President Obama gets to replace not only Justices Stevens and Ginsburg, but also Scalia and Kennedy – that overturning Slaughter-House will open the aforementioned Pandora’s Box, but: 1) that danger isn’t necessarily mitigated by somehow managing to use the Privileges or Immunities Clause without overturning Slaughter-House; 2) the danger is no different than under the current substantive due process doctrine; and 3) if we are to remain originalists not just in overturning Slaughter-House but in future jurisprudence, the progressives’ arguments fail, the danger is averted, and the Box stays sealed. Josh Blackman and I wrote our article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms,” in part to address the valid concerns (sketched in the Kens’ op-ed) about the consequences of truly reviving the Privileges or Immunities Clause.

While we won’t assuage the staunchest social conservatives – (adult) pornography is protected speech (but even more so is political advertising!) – we should mollify many faint-hearted originalists.  Anyone who thinks the Constitution is a “dead” document, whose text is to be interpreted according to its original public meaning, has to admit that the Privileges or Immunities Clause protects something more than what Slaughter-House said it did.

To see how all this works in greater detail, read our Pandora’s Box article, which I’ve previously discussed here , here, and here.  And again, Cato’s amicus brief is here; see also this law review article by its principal author, Cato adjunct scholar Timothy Sandefur.

Judge Dresses Down Federal Prosecutors

When we hear the phrase “witness intimidation” we’re likely to think of a gang member who is on trial or about to go on trial and, to evade justice, tries to have key witnesses change their story so the case will collapse.  We hardly ever hear about cases where the prosecutors try to intimidate witnesses.  But it happens.  In an extraordinary proceeding this week in Santa Ana, CA, a federal judge reprimanded prosecutors for contemptible conduct toward witnesses.  This story needs telling.

Here’s the gist of the case: William Ruehle was charged with criminal securities law violations.  Mr. Ruehle’s defense was that his actions were always made in good faith – that he did not act with criminal intent.  That’s an important aspect of the case.  To take another example that most people can relate to, we all know the tax code is very complicated.  People (including IRS employees) make honest mistakes about it all the time.  Under the law, the government can only make a case for criminal tax evasion if it can persuade a jury that the person accused knew what the tax law required and proceeded to violate it anyway.  

Crucial to Mr. Ruehle’s defense were three witnesses whom he wanted to call on his behalf at trial.  They were familiar with his business dealings and would support his good faith defense.  That was the plan anyway. 

In preparation for trial,  prosecutors embarked on an outrageous mission to “flip” or  destroy the defense witnesses.  One lady was fired from her job after prosecutors called her employer and spread innuendo.  Prosecutors then pressured her into pleading guilty to some offense that allegedly took place seven years earlier  – a very peculiar prosecution under the surrounding circumstances.  And then her plea deal was contingent upon this lady changing her story to support the prosecution, not Mr. Ruehle.  Taking all this in, the judge said he had ”absolutely no confidence that any portion of [this lady’s] testimony was based upon her own independent recollection of events as opposed to what the government thought her recollection should be on those events.” 

And that’s just one witness.  It gets worse.

Here, in summary, is how Judge Cormac J. Carney viewed the case:

I have a solemn obligation to hold the government to the Constitution.  I’m doing nothing more and nothing less.  And I ask my critics to put themselves in the shoes of the accused. 

You are charged with serious crimes and, if convicted on them, you will spend the rest of your life in prison.  You only have three witnesses to prove your innocence and the government has intimidated and improperly influenced each one of them.  Is that fair? Is that justice?  I say absolutely not.

Judge Carney proceeded to dismiss the case before the jury could begin its deliberations because the government’s conduct was so egregious. 

Some of the defense attorneys in the courtroom said that they had started their careers as prosecutors and that they were well aware that there is a “cloak of credibility” when prosecutors represent events to employers, reporters, and judges.   (Ask yourself what you would think if a prosecutor told you that “Mary Smith is an unindicted co-conspirator in our on-going investigation…”) Watching this judge correct a miscarriage of justice, they said, was one of the most remarkable events they had witnessed in their legal careers.  They hoped the judge’s ruling would be heard “throughout the country.”

The ruling is only about 15 pages, double spaced.  Read the whole thing (pdf).  (Really – do it this time!)  I was obviously not present during the proceedings in this case, but it is an extraordinary move for a federal judge to dismiss a case, with prejudice, during a trial.  It is my view that the conduct  of the prosecution must have been truly blatant. 

This seems like a true scandal.  In a just world, the prosecutors would now be investigated for criminal witness intimidation and for professional misconduct by bar associations.  Judge Carney’s opinion should be reprinted verbatim in law school textbooks to teach future judges to keep their eyes open, to keep an open mind, to be impartial, and to beware of those with a “win-at-all-costs” mentality.

For related Cato work, go herehere, and here.

Obama’s Copenhagen Speech

Politico asks, “Was he convincing?”

My response:

In Copenhagen this morning, President Obama convinced only those who want to believe — of which, regrettably, there is no shortage.  Notice how he began, utterly without doubt:  “You would not be here unless you, like me, were convinced that this danger is real.  This is not fiction, this is science.”  The implicit certitude is no part of real science, of course.  But then the president, like the environmental zealots cheering him in Copenhagen, is not really interested in real science.  Theirs, ultimately, is a political agenda.  How else to explain the corruption of science that the East Anglia Climate Research email scandal has brought to light, and the efforts, presently, to dismiss the scandal as having no bearing on the evidence of climate change?  If that were so, then why these efforts, or the earlier suppression of contrary or mitigating evidence that is the heart of the scandal?

We find such an effort in this morning’s Washington Post, by one of those at the center of the scandal, Penn State’s Professor Michael E. Mann.  Set aside his opening gambit — “I cannot condone some things that colleagues of mine wrote or requested” — this author of the famous, now infamous, “hockey stick” article seems not to recognize himself in Climategate.  That he then goes after Sarah Palin as his critic suggests only that on a witness stand, confronted by his real critics, he’d be reduced to tears by even a mediocre lawyer.  One such real critic is my colleague, climatologist Patrick J. Michaels, who documents the scandal and its implications for science in exquisite detail in this morning’s Wall Street Journal.

But to return to the president and his speech, having uncritically subscribed to the science of global warming, Mr. Obama then lays out an ambitious policy agenda for the nation.  We will meet our responsibility, he says, by phasing out fossil fuel subsidies (which pale in comparison to the renewable energy subsidies that alone make them economically feasible), we will put our people to work increasing efficiency in our homes and buildings, and we will pursue “comprehensive legislation to transform to a clean energy economy.”

Mark that word “legislation,” because at the end of his speech the president said:  ”America has made our choice.  We have charted our course, we have made our commitments, and we will do what we say.”  But we haven’t made “our choice” — cap and trade, to take just one example, has gone nowhere in the Senate — even if Obama has made “our commitments.”  And that brings us to a fundamental question:  Can the president, with no input from a recalcitrant Congress, commit the nation to the radical economic conversion he promises?

Environmental zealots say he can.  Look at the report released last week by the Climate Law Institute’s Center for Biological Diversity, “Yes He Can: President Obama’s Power to Make an International Climate Commitment Without Waiting for Congress,” which argues that in Copenhagen Obama has all the power he needs under current law, quite apart from the will of Congress or the American people, to make a legally binding international commitment.  Unfortunately, under current law, the report is right.  I discuss that report and the larger constitutional implications of the modern “executive state” in this morning’s National Review Online.

There is enough ambiguity in the president’s remarks this morning to suggest that he may not be prepared to exercise the full measure of his powers.  But there is also enough in play to suggest that it is not only the corruption of science but the corruption of our Constitution that is at stake.

Vague Laws Defy the Rule of Law

Following Enron’s downfall, the federal government charged company CEO Jeffrey Skilling with “honest services fraud” connected to the alleged manipulation of Enron’s market value (and other securities irregularities).  This charge — also at issue in two other cases before the Court this term — is based on a statute which says, in its entirety: “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”

Skilling was convicted, and his conviction was upheld by the Fifth Circuit.  The Supreme Court agreed to review the application of the “honest services fraud” statute to Skilling (as well as the issue of potential jury bias stemming from pretrial publicity in Houston).  Cato, joined by the Pacific Legal Foundation, filed an amicus brief supporting neither party, arguing simply that vague statutes such as the one at issue here offend due process.

We take no position on whether Skilling committed a crime, or even the crime at issue here (whatever that may be).  Instead, we argue that the Court should clarify that the constitutional prohibition on vague laws protects sophisticated and unsophisticated defendants alike in the realm of economic regulation, as well as in criminal law.  The due process requirements of fair warning and definiteness apply equally in the contexts of white collar business crimes, business torts, and civil regulations.

Vague laws involve three basic dangers:  First, they may harm the innocent by failing to warn of the offense.  Second, they encourage arbitrary and discriminatory enforcement because vague laws delegate enforcement and statutory interpretation to individual government officials.  Third, because citizens will take extra precautions to avoid violating the law, vague laws inhibit our individual freedom.

For more on this issue, see Tim Lynch’s posts here and here, Gene Healy’s op-ed, or the related policy forum and podcast.

A Civil Liberties Roundup

Here are some interesting new items on the web:

  • Cato Senior Fellow Nat Hentoff is interviewed by John W. Whitehead of the Rutherford Institute.  Nat says “Obama has little, if any, principles except to aggrandize and make himself more and more important.”  And “Obama is possibly the most dangerous and destructive president we have ever had.”  Go here for the full interview.
  • Cato adjunct scholar Harvey Silverglate is blogging this week over at the Volokh Conspiracy on his new book, Three Felonies a Day.
  •  Cato Adjunct Scholar Marie Gryphon, who is also a Senior Fellow with the Manhattan Institute, has just put out a new paper, It’s a Crime: Flaws in Federal Statutes That Punish Regular Businesspeople.
  • Cato Media Fellow Radley Balko takes a look at the pathetic machinations in the Chicago Police Department.  Reminds me of the proud boast from a patronage worker in the political machine: “Chicago ain’t ready for reform!”

Good stuff here.  For more Cato scholarship, go here.