June 2, 2020 4:31PM

Don’t Lean on the Military to Solve Our Problems–But Learn from Them

I’ve taken a close interest in civil‐​military relations for decades. I was taught the importance of civilian control over the U.S. military as a young NROTC midshipman. While on active duty, I opined publicly in the Naval Institute’s Proceedings on the reaction of servicemembers to Bill Clinton’s election as president. And in graduate school, I carefully studied several incidents from the 1950s, when senior military officers defied the wishes of the sitting president, and took their concerns about the state of the nation’s defenses directly to the American people. These varied experiences affirmed the original lesson: the U.S. military must strive to avoid becoming wrapped up in the nation’s politics.

But this isn’t easy. The U.S. military is held in very high regard by the American people, at a time when most institutions are not. Unsurprisingly, politicians and policy advocates often invoke the support of members of military, both active duty and those no longer serving, to rally support on particular issues. Indeed, researchers Tyler Jost and Joshua Kertzer found that Americans disproportionately value the opinions of those with military experience — even on issues of purely domestic concern.

In the week since George Floyd, an unarmed black man, was killed by a white police officer in Minneapolis, peaceful protests and demonstrations have spread to a number of American cities. Some have turned violent (why remains in dispute). Predictably, some want the U.S. military to solve the problem. Sen. Tom Cotton (R-AR) called for the 101st Airborne to deal with the “terrorists.” Military helicopters buzzed protesters in DC, and Secretary of Defense Mark Esper and General Mark Milley, the chairman of the Joint Chiefs of Staff, appeared prominently with President Trump as he strolled across a public park (cleared of peaceful protesters minutes before by tear gas) and stood before St. John’s Episcopal Church for a photo op. Earlier in the day, Esper had explained to America’s governors of the “need to dominate the battlespace.

Thankfully, others with military service are pushing back. Gen. Martin Dempsey, who also served as chairman of the Joint Chiefs, tweeted “America is not a battleground. Our fellow citizens are not the enemy.”

Meanwhile, a particularly poignant and eloquent statement by a currently serving member of the U.S. military gives me a glimmer of hope. In a long thread on Twitter, Kaleth O. Wright, Chief Master Sergeant of the Air Force, spoke both as black American, and as a representative of his service, addressing himself chiefly to those also serving in the Air Force. He explained:

While we can’t change the world, we can change the communities we live in and more importantly, those where our Airmen strive to be seen, heard, and treated as human beings…

[…]

What should you be doing? Like me, acknowledge your right to be upset about what’s happening to our nation…

But you must then find a way to move beyond the rage and do what you think is right for the country, for your community, for your sons, daughters, friends and colleagues…for every Black man in this country who could end up like George Floyd.

[…]

Like you, I don’t have all of the answers, but I’m committed to seeing a better future for this nation. A future where Black men no longer suffer needlessly at the hands of White police officers, & Black Airmen have the same chance to succeed as their White counterparts.

Trust me, I understand this is a difficult topic to talk about… Difficult…not impossible… Difficult…but necessary.

He closed as he began his post:

Who am I?… I am Kaleth. I am a Black Man who happens to be the Chief Master Sergeant of the Air Force and I am committed to making this better.

The exalted status that the U.S. military currently enjoys is unhealthy in a constitutional republic. Nevertheless, Americans could learn how to emerge from the current crisis by listening to those who wear the uniform — without expecting them to save us by waging war here at home.

June 1, 2020 5:40PM

You Ought to Be Able to Challenge Your Placement on the No‐​Fly List

Placement on the FBI’s Terrorist Screening Database (the “Watchlist”) is never a good thing. For 23 Muslim‐​American litigants, among thousands of others listed, it means reduced employment opportunities, potential arrest and detention, and, most notoriously, severe limitations on their freedom to travel by air. The government insists it doesn’t need court approval before placing someone on the Watchlist, and that those listed cannot even sue for their removal. A federal district court in Virginia disagreed, holding that the plaintiffs didn’t receive enough due process. The government appealed. Cato has joined the Rutherford Institute on a brief supporting the challengers and asking the U.S. Court of Appeals for the Fourth Circuit to affirm the lower court’s ruling.

As the nation experiences state and local lockdowns in response to a pandemic and protests against police misconduct, more of us are waking up to the drawbacks of unquestioned deference to the wisdom of law enforcement. Indeed, the Watchlist is hardly the first instance in which the government has asked us for blind trust. In times of crisis, especially, the governments at all levels ask us to defer to their apparent wisdom on questions of national security.

The problem, of course, is that such powers, once acquired, often hold firm, even years after the instigating emergency has passed. The judiciary should at all times check officials’ self‐​proclaimed knowledge of what is in our best interest. Our history shows that government regularly overreaches when its powers go unchecked by judicial review. Modern sensibilities do not change the essential truth that power, once gained, is not so readily relinquished.

Official power grabs by the post‐​9/​11 national security establishment are no less dangerous than those made in earlier times, under the Alien and Sedition Acts of 1798, during the Civil War, or through the Espionage Act of 1917. If anything, modern technological capabilities make the phenomenon more dangerous than ever. And the Watchlist—a product of the War on Terror—is perhaps the best example of this. It makes it effortlessly simple for law enforcement to identify individuals for extra, often unwarranted, attention, most of whom have no opportunity to petition a court to prevent or reverse their being listed.

Judicial review does not only ensure that the process of including people on the Watchlist is constitutional. Daylight also compels the list‐​keepers to make more accurate choices; to exclude people from the list for whom there is no justifiable reason to include. Anybody could have the misfortune of being mistakenly placed on a government watchlist, and the consequences are severe.

To avoid these severe consequences and other injustices resulting from ill‐​considered inclusions on the Watchlist, it is vital that the judiciary maintain its role in protecting basic freedoms. While some deference to the government’s wisdom on matters of national security is appropriate—we don’t want courts second‐​guessing generals on the battlefield—invoking national security doesn’t grant authorities a blank check that can never be reviewed, let alone revoked.

June 1, 2020 5:00PM

A Quarter Century of Cato Research on Police Accountability

You’ve probably seen some of Cato’s recent work on police misconduct and accountability, notably writings on the Supreme Court’s qualified immunity doctrine by Clark Neily and Jay Schweikert (more) and Aaron Yelowitz’s post on the high cost of police‐​community mistrust. If you’re new here, though, you may not realize that Cato has for decades made itself a center for principled, empirically oriented research on police misconduct and how best to bring accountability to the public use of force.

A sampling of work Cato has sponsored, published, or supported:

* Radley Balko’s 2013 book The Rise of the Warrior Cop: The Militarization of America’s Police Forces has become the standard work on its subject. Since then we’ve stayed on the topic of police militarization: check out Trevor Burrus‘s chapter on the subject in the 2017 Cato Handbook for Policymakers.

* Policing in America, led by Emily Ekins, was our 2016 survey probing deep into public opinion on the subject.

* Two institutional barriers to identifying and removing police officers responsible for the unjustified use of force are police union contracts and the state laws known as Law Enforcement Officers’ Bill of Rights, both of which tie investigators’ hands in various ways. Police unions have been a recurring topic at my long‐​running Cato blog Overlawyered, which discussed or mentioned them in more than 100 posts. (Overlawyered ended its posting run yesterday after nearly 21 years.) I wrote here about LEOBR/LEOBOR laws, which are on the books in at least 14 states. States with such laws include Minnesota, where George Floyd was asphyxiated in police custody May 25, and Kentucky, where Breonna Taylor was fatally shot by Louisville police May 13, as well as Maryland, where the 2015 death of Freddie Gray in police custody sparked days of unrest.

* In recent years Cato has covered too many other aspects of the problem to count, including the public’s right to record police activity in public places; racial disparities in policing; efforts to collect data on police shootings; why civilian review boards get subverted; sexual misconduct against persons in police custody; pretextual stops; and much, much more.

* Nor is our interest in over‐​policing recent. Here’s then‐​Cato chairman Bill Niskanen way back in 1994 calling for repeal of the then‐​new federal crime bill.

Around the country, people of good will are searching with new urgency for practical, Constitutional ways of protecting civilians from exposure to needless death and injury at the hands of law enforcement. There is no better place to begin that search than here at Cato.

June 1, 2020 10:57AM

As Qualified Immunity Takes Center Stage, More Delay from SCOTUS

I fear I may have become trapped in a time loop, in which every week I am doomed to write the same blog post about how the Supreme Court has delayed consideration of its qualified immunity docket. Back in April, I noted that the Court had scheduled thirteen different qualified immunity cases for its May 15th conference, including three cases explicitly calling for the Court to reconsider the doctrine entirely. Many of these petitions had already been fully briefed and ready for consideration since last October. But the Court then rescheduled the bulk of those cases again, and again, and again.

This morning, the Court kicked the can down the road once more. There were eight different qualified immunity cert petitions that went to conference last Thursday, but none of those petitions were either granted or denied in this morning’s orders. We expect that these petitions will soon be relisted for the Court’s conference this Thursday, June 4th, which means we could get a decision in these cases as soon as Monday, June 8th.

While it’s obviously impossible to know for sure what is motivating the Justices’ continued delay in these cases, I expect that the death of George Floyd, and the continuing outrage and chaos his death has provoked, are weighing heavily on their minds. As my colleague Clark Neily discussed last week, the senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐​zero accountability for law enforcement. And while that culture has many complex causes, one of the most significant is qualified immunity. As I noted over the weekend, reporters and commentators of all stripes have recognized the profound connection between George Floyd’s death and the Supreme Court’s lawless rewriting of our primary civil rights statute.

The Justices have a critical opportunity now to take the first steps toward correcting the legal and moral perversities of qualified immunity. If they do so, perhaps it will effect some small measure of redemption for the tragic death of George Floyd, and so many like him. If not, it is difficult to overstate how severe our crisis of confidence in law enforcement will become.

June 1, 2020 8:33AM

Let Investors Decide, Part 1

The SEC's "accredited investor" definition bars investors who earn less than $200,000 a year or have a net worth less than $1 million from taking part in private securities offerings. It's a definition even its mother no longer loves: SEC Commissioner Elad Roisman says it "stands between millions of Americans and opportunities for them to invest their wealth in private offerings," while SEC Commissioner Hester Peirce calls it "one of the more offensive concepts lurking in our federal securities laws." Although the definition was intended to offer "investor protection," it has instead "shut out all but the wealthiest from upside gains that private companies have made over the last several decades," according to Roisman.

In light of such negative opinions from inside the SEC, one might have expected a proposed amendment to the rule to be dramatic. Currently, the SEC's rules define an accredited investor as any natural person: (i) whose net worth, individually or with spouse, exceeds $1,000,000 not counting his primary residence or (ii) who had an individual income of more than $200,000 individually (or $300,000 with spouse) for the past two years and expects to receive the same income this year. But, after taking more than a decade to reconsider it, the SEC's proposal merely expands this old definition, adding certain financial services professionals to the ranks of those well-to-do persons already permitted to invest in private offerings. This is the wrong approach.

The right approach is the most simple: eliminate the accredited investor definition altogether. Permit investors to make their own investment decisions. Far from undoing "investor protection," this change would be one that investors—especially less wealthy ones—would have every reason to welcome.

To understand why, let's start with a bit of background. (For a more in-depth background reading, see this policy analysis.)

Read the rest of this post »
June 1, 2020 8:07AM

Longer‐​Run Impacts from Outrageous Policing Incidents

The past few weeks have seen broad‐​based community outrage from extremely disturbing incidents involving current or former police officers in the killing of 44‐​year‐​old George Floyd in Minneapolis, 26‐​year‐​old Breonna Taylor in Louisville, and 25‐​year‐​old Ahmaud Arbery near Brunswick, Georgia. In all cases, the victims were African‐​American and the events have spotlighted the role of racism in policing.

In the immediate aftermath—which exploded during the week of May 25th—there were both peaceful and violent protests, destruction of private and public property, and additional injury in Minneapolis, Louisville, Atlanta, and far beyond. There is no question that the short‐​run costs to each city and its residents will be enormous.

Poor underlying race relations between the police and community has long‐​term costs, too, an issue that I explored with my colleague Tim Harris in a study published in Journal of Housing Economics in 2018. In the study, we explored whether poor underlying race relations in an area might create a chilling effect on homeownership for minorities. We focused on home ownership—an easily measured outcome in many data sets—because it is related to the decision to “plant one’s roots” and invest in a community. It has been argued that home ownership is associated with both private benefits (such as wealth accumulation and better child outcomes) as well as community benefits (such as investment in social capital). Given the illiquidity of homeownership, it can be thought of as a longer‐​term investment for many people.

From 2012 onward, there were a series of high‐​profile events in the U.S. related to police brutality which highlighted racial tension. Using Google Trends, we characterized a locality’s underlying racial climate based on search interest in these charged events. We used data from the American Community Survey prior to any of these flare‐​ups and showed that the ownership decision for black people is responsive to the underlying racial climate; African‐​American homeownership in localities with the most charged racial climates was 5.6 percentage points lower than in the least charged racial climates.

Our findings, insofar as our measure captures problems with the criminal justice system, suggest that some recent proposals with bipartisan support to reform policing and sentencing may have larger social benefits beyond those directly aggrieved. Reforms in police tactics—such as additional training, body cameras, and the use of outside agencies to investigate misconduct—have broad‐​based support. Improving policies has the potential to improve race relations and consequently increase investment in communities through homeownership.

May 30, 2020 5:36PM

In the Wake of George Floyd’s Death, All Eyes Turn to SCOTUS

This past Monday, George Floyd was killed by a police officer, Derek Chauvin, who pressed his knee against Mr. Floyd’s neck for over eight minutes, while Mr. Floyd and onlookers alike begged for the officer to stop and let Mr. Floyd breathe. George Floyd’s death was no aberrant act of random violence. Rather, as my colleague Clark Neily wrote earlier this week, Mr. Floyd was “the latest victim of our near‐​zero‐​accountability policy for law enforcement.” As such, I expect his death has been weighed with a special kind of gravity on One First Street, where the Justices of the Supreme Court deliberated this week on whether to reconsider qualified immunity—an atextual, ahistorical judicial doctrine that shields public officials from liability, even when they break the law.

Over the last several days, I have observed with grim satisfaction that reporters and commentators of all stripes have appropriately recognized the direct connection between qualified immunity and the senseless murder of George Floyd. For example:

  • The New York Times pulls no punches, running an editorial on the subject of “How the Supreme Court Lets Cops Get Away With Murder.” They correctly explain that, while there are a variety of reasons police officers are rarely held to account for their misconduct, “it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity.”
  • Fox News also reports that “[t]he death of George Floyd at the hands of a Minneapolis police officer has done more than just trigger massive protests and riots—it’s brought a simmering debate on ‘qualified immunity’ for government officials to a veritable boil.” The Fox piece describes how qualified immunity has “come under fire even from judges on President Trump’s Supreme Court shortlist, like Fifth Circuit Court of Appeals Judge Don Willett,” who wrote in a 2018 concurring opinion that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable.”
  • At USA Today, Richard Wolf describes how “Legal immunity for police misconduct, under attack from left and right, may get Supreme Court review.” He notes that “[t]he brutal death of George Floyd at the hands of Minneapolis police has re‐​energized a national debate over misconduct by law enforcement officials that the Supreme Court may be poised to enter.”
  • Slate’s Mark Joseph Stern writes that “George Floyd’s killing by Minneapolis police officers shows the damage the court has wrought” through the doctrine of qualified immunity. He further explains how “[a]t their conference on Thursday, the justices will have an opportunity to begin unraveling the catastrophic case law that allows so many officers—including, apparently, Floyd’s killers—to murder civilians with impunity. The court has an obligation to fix what it broke.”
  • At Reason, C.J. Ciaramella writes that “The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd’s,” and explains that the Court “could announce as early as Monday that it’s taking up several cases involving the doctrine.”

Suffice to say, when both the New York Times and Fox News have basically the same take on such a charged issue, it’s a good sign they’re onto something. On Monday morning, we’ll learn whether the Supreme Court intends to take the first step toward correcting the legal and moral perversities of qualified immunity. If the Court declines to address this issue now, it will not only be a shameful black mark on the Court’s reputation—it will also exacerbate what is already a severe crisis of confidence in law enforcement across the nation.