Topic: Law and Civil Liberties

The Importance of Just Saying No

George Will:

Conservatives are accused of being a party of “no.” Fine. That is an indispensable word in politics because most new ideas are false and mischievous. Furthermore, the First Amendment’s lovely first five words (“Congress shall make no law”) set the negative tone of the Bill of Rights, which is a list of government behaviors, from establishing religion to conducting unreasonable searches, to which the Constitution says: No.

‘The Police Became a Mob’

Chief Judge Frank Easterbrook recounts the horrific police attack on Frank Jude in a ruling this month from the Seventh Circuit Court of Appeals. 

By way of background, Jude tagged along with some young ladies to a house party late one evening.  The party was mostly off-duty cops who immediately made Jude feel unwelcome.  Jude left after just 5 minutes, but several men followed him out to the street and accused him of stealing someone’s police badge.  Then the beating began:

Men punched Jude’s face and torso; when he fell to the ground, they kicked his head and thighs. The partygoers behaved as a mob. Not a single person in the house tried to stop the attack or even to call for aid. Jon Clausing, who had slashed Harris’s face, explained his conduct as “just kind of going along with everybody.” That is the way of the mob. Society has police forces to pose a counterweight to mobs, yet here the police became a mob.

Schabel and Martinez were on duty and had not been drinking, so they should have put a stop to the violence. Instead Schabel joined it, while Martinez watched. On being told that Jude had stolen Spengler’s badge, Schabel called Jude a “motherfucker” and stomped on his face until others could hear bones breaking. After telling Martinez “I’m really sorry you have to see this,” Daniel Masarik picked Jude off the ground and kicked him in the crotch so hard that his body left the ground. Jon Bartlett then took one of Schabel’s pens and pressed it into each of Jude’s ear canals, causing severe injury and excruciating pain. The men also broke two of Jude’s fingers by bending them back until they snapped. Spengler put a gun to Jude’s head and said: “I’m the fucking police. I can do whatever I want to do. I could kill you.” Bartlett used a knife to cut off Jude’s jacket and pants, leaving him naked on the street in a pool of his own blood.

The attack was so violent that it couldn’t be ignored.  Several officers were prosecuted, but the blue wall of silence kicked in and several officers committed perjury to shield their criminal acts.  Judge Easterbrook writes, “The distance between civilization and barbarity, and the time needed to pass from one state to the other, is depressingly short.” 

Read the whole thing (pdf).  Previous coverage here.

HT: Sentencing Law and Policy.

One Year After Heller

One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.

The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.

The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.

Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.

It will be interesting to see what the next year brings for the Second Amendment.

Institutional Crisis Unfolds in Honduras

A serious institutional crisis is taking place in Honduras as a result of President Manuel Zelaya’s call for a new constitution that would allow for his reelection. Zelaya, a close ally of Hugo Chávez, is barred from pursuing a second term in the general elections in November.

Unfortunately for Zelaya, he doesn’t have the backing of his own party, much less any other major political group. So he has moved unilaterally to call for a referendum on the need for a new constitution. The vote, which is scheduled for this Sunday, has been declared illegal by the Supreme Court and the Electoral Tribunal, and condemned by the Honduran Congress and attorney general (whose office is not part of the cabinet in Honduras).

Despite the widespread institutional opposition to his plans, Zelaya is pushing for the vote. On Wednesday he ordered the Honduran armed forces to start distributing the ballots and other electoral materials throughout the country. The army chief, complying with the Supreme Court ruling, refused to obey the order. Zelaya sacked him, which prompted the resignation of all other leading army officers and the defense minister.

The attorney general is asking Congress to impeach Zelaya for violating the institutional order and abusing his powers. Last night, the Congress discussed removing Zelaya from his office. The president is defiant and has accused the Congress of attempting a coup.

In the meantime, thousands of Zelaya’s supporters are taking to the streets. Yesterday, a mob personally led by Zelaya stormed a Honduran air force base in order to retrieve the electoral materials that the generals refused to distribute. The army is reportedly deploying troops in the capital Tegucigalpa to prevent possible riots.

Zelaya’s mentor, Hugo Chávez, is not staying out of the row. Last night he warned that Venezuela and its allies won’t sit idle while the Honduran “elites” launch a coup d’etat against Zeleya. He threatened to do “whatever it takes” to defend him. It might be more hot air coming from Venezuela’s strongman, but it certainly raises the spectrum of foreign involvement in what constitutes a domestic Honduran crisis.

In an interesting twist, Zelaya has asked the Organization of American States (OAS) to intervene and defend Honduras’ democratic institutions. Most countries in the OAS are client-states of Chávez’s oil largesse. This is why the organization has repeatedly failed to condemn the abuses that Chávez and his Bolivarian friends in Ecuador, Bolivia and Nicaragua have committed against democratic institutions, independent media, the opposition, and so on. More recently, the general assembly of the OAS has lifted the membership suspension imposed on Cuba, despite the country’s blatant violation of the democratic charter of the organization.

So it wouldn’t be surprising for the OAS to come to Zelaya’s rescue with a statement in his favor, despite his efforts to subvert Honduras’ democratic institutions. Mimicking Chávez’s words, the OAS envoy to Honduras has already said that the organization won’t recognize any government that comes out of “a coup.” José Miguel Insulza, the OAS secretary general, gave a confusing and ambiguous statement regarding the sacking of the army chief, saying that “the Armed Forces should obey the constitutional mandate and the constituted authority.” It sounds more like an endorsement of Zelaya’s position. The OAS general assembly is meeting today to discuss the crisis.

It’s clear that Zelaya is deliberately generating an institutional crisis. He can rely on the support of Chávez and his regional allies in the OAS. And he knows that if the armed forces try to remove him, it would look like a “coup d’etat” that would probably be widely condemned all throughout Latin America.

This is a real test for the OAS and its supposed (and tarnished) commitment to democratic republican principles.

“Sweet” Victory in Oregon

As a follow-up to Jason Kuznicki’s post from January, I am pleased to report that yesterday Oregon Governor Ted Kulongoski signed HB 2817—a bill that eliminates the cartelization of the moving business in the Beaver state.

The old law required the Oregon Department of Transportation to notify existing moving companies of businesses that wanted to enter into their market. What’s more, those companies were given a veto over the would-be market entrants thereby locking out all competition to maintain artificially high prices—all with the government’s help.

The owner of a new moving company, Adam Sweet, enlisted the help of Pacific Legal Foundation lawyer and Cato adjunct scholar Tim Sandefur to litigate against the old law. That lawsuit, once it cleared challenges for dismissal, prompted several pieces of legislation that culminated into the bill that the governor signed yesterday.

Congratulations to Mr. Sweet, Tim, and PLF for their well-fought victory for economic liberty for the entrepreneurs and consumers of Oregon!

More details from PLF here.

Victory for Decency at the Supreme Court

The Supreme Court’s decision today in Safford Unified School District #1 et al. v. Redding was a victory for privacy and decency. The Court held that a middle school violated the Fourth Amendment rights of a thirteen-year-old girl by strip searching her in a failed effort to find Ibuprofen pills and an over-the-counter painkiller.

The Cato Institute filed an amicus brief, joined by the Rutherford Institute and the Goldwater Institute, opposing such abuses of school officials’ authority. The search in this case should have ended with the student’s backpack and pockets; forcing a teenage girl to pull her bra and panties away from her body for visual inspection is an invasion of privacy that must be reserved for extreme cases. School officials should be authorized to conduct such a search only when they have credible evidence that the student is in possession of objects posing a danger to the school and that the student has hidden them in a place that only a strip search will uncover.

Today’s decision should not come as a surprise. School officials were not granted unlimited police power in the seminal student search case, New Jersey v. T.L.O. Justice Stevens explored the limits of school searches in his partial concurrence and partial dissent, specifically mentioning strip searches. “To the extent that deeply intrusive searches are ever reasonable outside the custodial context, it surely must only be to prevent imminent, and serious harm.”

The Fourth Amendment exists to preserve a balance between the individual’s reasonable expectation of privacy and the state’s need for order and security. Unnecessarily traumatizing students with invasive and humiliating breaches of personal privacy upsets this balance. Today’s decision restores reasonable limits to student searches and provides valuable guidance to school officials.

The No-Rights List

A media drumbeat is steadily building to keep those on the government’s terrorist watch list from buying firearms. A month ago, Rep. Carolyn McCarthy (D-NY) introduced a bill to bar them from purchasing a gun even if they had no legally disqualifying criminal conviction. Now Sen. Frank Lautenberg (D-NJ) has introduced his own legislation to achieve the same goal.

This is arbitrary government at its best. The “no-fly” list used to prevent suspected terrorists from boarding aircraft has tagged Nelson Mandela, Sen. Ted Kennedy (D-MA), Rep. Loretta Sanchez (D-CA), Rep. Don Young (R-AK), Rep. John Lewis (D-GA), a retired general, a Marine reservist returning from Iraq, the President of Bolivia and dead 9/11 hijackers, a former federal prosecutor, and over twenty men named John Thompson as threats to our national security. The list now contains over 1 million names. This prompted calls for probes into the watch list, and the ACLU filed suit to challenge the list.

The push to prevent firearms purchases by persons on this list is nothing new. Here is White House Chief of Staff Rahm Emanuel saying in 2007 that, “if you’re on that no-fly list, your access to the right to bear arms is cancelled, because you’re not part of the American family; you don’t deserve that right. There is no right for you if you’re on that terrorist list.”

If the government can take an enumerated liberty away from selected citizens by placing them on a “no-rights” list without due process, the rule of law is dead.