Topic: Law and Civil Liberties

I’ll Take Unconstitutional Prosecutions for $1000, Alex

In 2011, federal authorities charged Calvin Walker, a Texas electrician, with 37 counts of fraud. Eighteen months later, Walker accepted a plea deal in exchange for all charges being dropped. That should have been the end of his legal saga. Yet two years later, Walker was again indicted for exactly the same alleged fraud, only this time by state authorities. He challenged this second prosecution as a violation of the Fifth Amendment, which guarantees that no person shall “be twice put in jeopardy of life or limb” for the same offense. But under a strange exception to the Double Jeopardy Clause created by the Supreme Court 60 years ago, both the state and federal governments are allowed to prosecute someone for the same act.

Cato has joined the Constitutional Accountability Center in filing a brief urging the Supreme Court to review of Walker’s case and overturn this misguided “dual sovereignty” exception. We make three principal arguments. First, none of the Framers would have contemplated such a large exception to Double Jeopardy protection. Even before the Founding, English jurist and legal theorist William Blackstone wrote that it was considered a “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.” And in congressional debates before the enactment of the Fifth Amendment, Rep. Roger Sherman observed that “the courts of justice would never think of trying and punishing twice for the same offence.”

Second, the practical magnitude of the dual-sovereignty exception is much greater today than it was 60 years ago. For most of our nation’s history, the federal government left most criminal matters to be handled by the states; there were relatively few offenses punishable by both authorities. But in recent decades, there has been “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” as Justice Clarence Thomas wrote in dissent in Evans v. United States (1992). Now that nearly every state crime has a federal analog, the dual-sovereignty exception risks entirely swallowing the Double Jeopardy rule.

Finally, the Supreme Court created the dual-sovereignty exception a decade before it held that the Double Jeopardy Clause fully applies to the states. Now that we know that it does, there’s no reason why a state prosecution shouldn’t “count” when a defendant objects to having been prosecuted twice. As Justice Hugo Black once put it, also in dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.” Bartkus v. Illinois (1959). The Court should take this common-sense advice and put an end to the misguided dual-sovereignty exception, at least as it works in practice in modern times.

The Court will decide whether to take up Walker v. Texas early in the new year.

65% of Americans Think Police Officers “Commonly” Racially Profile, but 63% Oppose the Practice

Sixty-five percent (65%) of Americans believe police regularly “stop motorists and pedestrians of certain racial or ethnic backgrounds because the officer believes that these groups are more likely than others to commit certain types of crimes.” However, 63% of Americans oppose police using racial profiling for traffic and pedestrian stops, according to a new Cato Institute/YouGov national survey of 2,000 Americans.

Find the full public opinion report here.

An overwhelming majority of African Americans (81%) believe the police regularly racially profile, as do a majority of Hispanics (70%) and Caucasians (62%). Democrats (80%) are considerably more likely than Republicans (53%) and independents (61%) to believe the police engage in racial profiling. Only respondents identified as ideologically conservative, according to our ideological typology, reach a majority (54%) who believe racial profiling does not commonly occur. In contrast, majorities of Liberals (87%), Communitarians (67%), and Libertarians (63%) think police routinely racially profile.

Most Americans Solidly Oppose Racial Profiling, but Slim Majority of Republicans Favor

Two-thirds (63%) of Americans oppose police officers “stopping motorists or pedestrians of certain racial or ethnic groups because the officer believes that these groups are more likely than others to commit certain types of crimes.” This percentage includes 34% who “strongly oppose” and 29% who “somewhat oppose” this practice. The remaining third (37%) support racial profiling, including 10% who “strongly support” and 26% who “somewhat support” it. 

Partisans see profiling differently. A slim majority (51%) of Republicans support racial profiling while nearly as many (49%) oppose. However, Black Republicans differ from their fellow partisans: 65% oppose racial profiling and 35% support it.[1] Hispanic Republicans also oppose by a margin of 57% to 43%. A strong majority (73%) of Democrats and independents (64%) oppose it while roughly 3 in 10 support its use.

Another Crazy California Law

Imagine that you’re a small business owner getting ready to go into your busy season, when several protestors come onto your property and begin disrupting your workers. Ordinarily, you would call the police and have the trespassers removed so that you could continue with your operations. But in California, that’s not an option for some property owners.

Cedar Point Nursery—a strawberry farm near the Oregon border—didn’t have to imagine that scenario. In fall 2015, union protesters entered Cedar Point’s property at five o’clock in the morning, moving through trim sheds—where hundreds of employees were preparing strawberry plants during the final stage of the six-week harvesting season—with bullhorns, distracting and intimidating its workers.

This is where you would think you could appeal to the authorities to have unwanted visitors removed, but in 1975, California’s Agricultural Relations Board (ALRB) promulgated a regulation that promotes trespassing! This law—known as the “Access Regulation”—grants a right of access by union organizers to the premises of an agricultural employer for up to three hours a day and 120 days a year. In other words, California has granted an easement for unions to enter onto private property, extinguishing the owner’s right to exclude others.

The Fourth Amendment, however, protects private businesses (and everyone else) from such an invasion of their property rights. Indeed, the Fourth Amendment was drafted as a bulwark against the rampant government oppressions—invasions of people’s houses and businesses without a warrant—that existed before the Founding. The right to exclude was a fundamental aspect of the protection of property at common law, and has continued to be recognized as such throughout our nation’s history. Yet the Access Regulation essentially deputizes trespassers who, through their disruptive presence, are allowed to seize private property.

Cedar Point brought a civil rights suit against the ALRB and United Farm Workers, but the district court ignored the importance of property rights in determining whether the Fourth Amendment was implicated and upheld the law. Cato has now filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit, supporting Cedar Point and other property owners and asking that the district court be reversed.

California’s Access Regulation granted outsiders a gratuitous easement and extinguished the important right to exclude others, thus creating a classic seizure of property that violates the Fourth Amendment. 

11 Key Facts About Americans’ Attitudes Toward the Police

The Cato Institute has released Policing in America—an extensive national public opinion report that explores Americans’ attitudes toward the police based on an original Cato Institute/YouGov national survey of 2,000 Americans. Here are eleven key facts about Americans’ attitudes toward the police. 

  1. There are stark racial and partisan divides in favorability toward policebut no group is anti-cop: 68% of white Americans have a favorable view of the police, only 40% of African Americans and 59% of Hispanic Americans also have a favorable view. Republicans (81%) are 22 points more favorable toward the police than independents (59%) and Democrats (59%). Although some groups have less positive views of the police, findings weaken the ascertain that these groups are “anti-cop.” For instance 9 in 10 white, black, and Hispanic Americans oppose cutting police forces and 6 in 10 worry the police have very dangerous jobs. [1]
  2. 54% say police using military equipment goes too far, while 46% say it’s necessary for law enforcement purposes. Majorities of whites (53%), Hispanics (51%), and blacks (58%) oppose police using military weapons and armored vehicles. Most Republicans (65%) believe police need to use military weapons, while 60% of both Democrats and independents believe police using such equipment goes too far.
  3. 84% of Americans oppose civil asset forfeiture. Americans oppose police seizing “a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted.” When police departments seize people’s property, 76% say the local department should not keep the assets. Instead Americans think seized assets should go either to the state general fund (48%) or a state-level law enforcement fund (28%). A quarter (24%) say police departments should keep the property they seize.
  4. 79% support outside law enforcement agencies conducting investigations of police misconductwhile 21% prefer police departments handle such investigations internally. Strong majorities of Republicans (76%), independents (77%), and Democrats (83%) all agree that outside agencies should conduct such investigations.
  5. 89% of Americans support police body cameras and majorities are willing to raise taxes pay for them (51%) and let police look at the footage before making official statements (52%). Body cameras aren’t a zero-sum proposition: 74% think body cameras protect both officers and citizens equally.
  6. Only 30% say police should prioritize enforcing drug laws.  Instead, Americans want police to prioritize investigating violent crime (78%), protecting people from becoming crime victims (64%), and investigating property crime (58%). Americans across partisan and demographic groups share these top three priorities for law enforcement.
  7. Nearly half (49%) of Americans say “most” police officers think they are “above the law.” African Americans (61%), Hispanics (61%), and Democrats (61%) are considerably more likely than whites (46%) and Republicans (36%) to say that most police officers think they are above the law. Instead, a majority of whites (54%) and Republicans (64%) say police don’t think they’re above the law.
  8. 65% of Americans think police officers “commonly” racially profile Americans and 63% oppose itMajorities of whites (62%), Hispanics (62%), and blacks (77%) oppose police stopping “motorists and pedestrians of certain racial or ethnic backgrounds because the officer believes that these groups are more likely than others to commit certain types of crimes.” Republicans stand out with a slim majority (51%) in favor of racial profiling and 49% opposed. Black Republicans, however, disagree, with 65% who oppose racial profiling and 35% who support it.[2]
  9. 61% say there is a “war on police” in America. Sixty-five percent (65%) of Americans worry that police officers have “very dangerous jobs,” and 58% feel officers too often must deal with recalcitrant citizens who don’t show enough respect. Although Republicans and Democrats both believe police have dangerous jobs, Republicans are more than 30 points more likely than Democrats to believe there is a “war on police” today (82% vs. 49%) and that Americans show insufficient respect to officers (77% vs. 45%). 
  10. African Americans are nearly twice as likely as whites to report a police officer swearing at them. About a quarter of African Americans (26%) and Hispanics (22%) report police using abusive language or profanity with them compared to 15% of whites. Nearly 4 in 10 African Americans (39%) and 27% of Hispanics report knowing someone physically mistreated by police, compared to 18% of whites.
  11. 60% say it’s more important to protect the innocent than punish the guilty. When asked which would be worse, 60% say it would be worse to imprison 20,000 innocent people, while 40% say it would be worse to have 20,000 guilty people who are free. Majorities of Republicans (55%), independents (60%), and Democrats (64%) all agree it’s worse to imprison innocent people. However, Donald Trump’s early core supporters stand out with a majority (52%) who say it’s actually worse to not punish the guilty. Other Republican voters disagree. For instance 65% of Ted Cruz’s early primary supporters say it’s worse to imprison the innocent.[3] 

“60 Minutes” Covers ADA Shakedowns

On Sunday Anderson Cooper at CBS “60 Minutes” covered one of our favorite topics: the way lawyers and clients sue retail businesses by the dozens or hundreds over defects in ADA accessibility compliance and then cash in the complaints for quick settlements. Actually entering the business is not always necessary: it can be enough to drive around the parking lot spotting technical violations, in what is known as a “drive-by lawsuit.”

South Florida store owner Mike Zayed says before the complaint arrived “no disabled customer had ever complained about the ramp, the sign, or the parking space.” Zayed “doesn’t think the person who sued him was a real customer because the man claimed he encountered barriers inside the store that didn’t exist.” And now we’re beginning to see “Google lawsuits” in which the complainant consults online aerial maps to discover, for example, which motel owners haven’t yet installed the pool lifts that federal law recently made obligatory. The same attorney using the same client sued more than 60 defendants in 60 days over lack of pool lifts. “At last count, that attorney has sued nearly 600 businesses in just the last two years, many for not having pool lifts.” [Dec. 4 segment and script; full show here (segment begins 32:47).

[adapted from Overlawyered]

Police Misconduct — The Worst Case in November

Over at Cato’s Police Misconduct web site, we have selected the worst case for the month of November: The Albuquerque Police Department, (APD) which is now under investigation, once again, for misconduct.

Here’s the background.  A few years ago, after numerous complaints from community leaders, the Department of Justice (DOJ) launched an investigation of the APD.  In April 2014, the DOJ announced its finding that there was indeed a pattern of excessive force by officers with the APD.  Police officials promised to change and improve.

Shortly thereafter, an APD officer shot and killed 19 year old Mary Hawkes.  It looks like Hawkes stole a car and the police were trying to catch her.  The police said she was a threat and so deadly force was necessary.  Hawkes’ family sued the city for excessive force.  Prior to trial, lawyers asked to see any police body camera footage from the incident.

Now we come to the latest news reports of APD misconduct.  Reynaldo Chavez was an employee of the City of Albuquerque and his job was handling records requests.  Chavez says he was aware that the police department had a peculiar policy regarding police body camera footage.  When the footage helped the police, it was released to the public.  When the footage hurt the police, such as showing excessive force, the footage was altered or destroyed.  In other words, the APD had a policy of tampering with evidence, which is a crime.

Chavez reportedly turned over incriminating body camera footage to the lawyers representing the Hawkes family.  Chavez then lost his job and he is now fighting to get his job back because he says he was punished for doing what he was legally supposed to do.

The APD has denied any wrongdoing, but the state attorney general has seen enough to launch yet another investigation into APD practices.

Trump and the Emoluments Clause: What Congress Needs to Do

This morning President-elect Donald Trump announced via Twitter that “I will be holding a major news conference in New York City with my children on December 15 to discuss the fact that I will be leaving my great business in total in order to fully focus on running the country in order to MAKE AMERICA GREAT AGAIN! While I am not mandated to do this under the law, I feel it is visually important, as President, to in no way have a conflict of interest with my various businesses. Hence, legal documents are being crafted which take me completely out of business operations. The Presidency is a far more important task!”

With that announcement, Trump takes one important step toward addressing both the wider problem of conflicts of interest, and within it the narrower problem—of distinct constitutional dimensions—of the Trump Organization’s complex ongoing dealings with foreign governments. On those latter entanglements, I argue in a new Philadelphia Inquirer piece that under the Emoluments Clause of the Constitution, Congress will affirmatively need to “decide what it is willing to live with in the way of Trump conflicts”—and it should draw those lines before the fact, not after. Excerpt:

…That clause reads in relevant part: “And no Person holding any Office of Profit or Trust under [the United States] , shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”…

The wording of the clause itself points one way to resolution: Congress can give consent, as it did in the early years of the Republic to presents received by Ben Franklin and John Jay. …

…it can’t be good for America to generate a series of possible impeachable offenses from a running stream of controversies about whether arm’s-length prices were charged in transactions petty or grand. …

There is no doubt that doing the right thing poses genuine difficulties for Trump not faced by other recent presidents. If he signals that he understands the nature of the problem, it would not be unreasonable to ask for extra time to solve it.

For reasons that Randall Eliason outlines in this helpful explainer, Emoluments Clause issues do not map well onto the concept of “bribery.” (Payments can violate the Emoluments Clause even if made with honest intent on both sides; bribery, for its part, is subject to a separate ban.) Removing himself from day-to-day management should help Trump avoid some violations of the Clause (for example, it will become less likely that a foreign state firm will wind up compensating him for his time). Stephen Bainbridge of UCLA has suggested that if the President-elect refuses to divest ownership of his business he at a minimum “needs to create an insulation wall separating his political activities from those of the organization. Such walls were formerly known in colloquial legal speech as ‘Chinese walls.’”

Even if Trump does that, serious Emolument Clause issues will remain, especially those surrounding favorable treatment that a presidentially owned business may not have sought out but which may nonetheless constitute “presents.” Congress should expect to ramp up the expertise it can apply to these problems, and (absent divestiture) assign ongoing committee responsibility to tracking them. And it should issue clear guidelines as to what it is willing and not willing to approve. Such a policy will not only signal that lawmakers are taking their constitutional responsibilities seriously, but could also benefit the Trump Organization itself by clarifying how it needs to respond if and when foreign officials begin acting with otherwise inexplicable solicitude toward its interests.

Expanded and adapted from Overlawyered.