Latest Cato Research on Criminal Law and Civil Liberties https://www.cato.org/rss/research/criminal-law-and-civil-liberties en Robert A. Levy discusses tort law and contract law on The Bob Harden Show https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-tort-law-contract-law-bob-harden-show?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Wed, 18 Sep 2019 12:07:46 -0400 Robert A. Levy https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-tort-law-contract-law-bob-harden-show Constitution Day 2019: the Hidden Domestic Surveillance Crisis https://www.cato.org/publications/commentary/constitution-day-2019-hidden-domestic-surveillance-crisis?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Patrick G. Eddington <div class="lead text-default"> <p>As we mark the 232nd anniversary of the signing of America's governing charter in 1787, we have ample evidence that it continues to be violated by the federal officials charged with upholding it.</p> </div> , <div class="text-default"> <p>Last month, <em>The Young Turks</em> (TYT) news and talk network <a href="https://tyt.com/stories/4vZLCHuQrYE4uKagy0oyMA/mnzAKMpdtiZ7AcYLd5cRR" target="_blank">obtained</a> the FBI&rsquo;s 2018-2020 &ldquo;Consolidated Strategy Guide,&rdquo; which not only referenced the targeting of so-called &ldquo;Black Identity Extremists&rdquo; (BIE&rsquo;s) but also those designated as engaged in &ldquo;Anti-Government/Anti-Authority Extremism,&rdquo; &ldquo;Abortion Extremism,&rdquo; or &ldquo;Animal Rights/Environmental Extremism.&rdquo; In a House Oversight and Reform subcommittee <a href="https://oversight.house.gov/legislation/hearings/confronting-white-supremacy-part-ii-adequacy-of-the-federal-response" target="_blank">hearing</a> in June, FBI Counterterrorism Division Director Michael McGarrity had admitted under questioning that the FBI <a href="https://www.theroot.com/the-fbi-admits-black-lives-matter-was-never-a-threat-i-1835417043" target="_blank">could not cite</a> a single example of a murder that could be linked to any African American activist group, including Black Lives Matter. He also claimed that the Bureau had eliminated the entire category of &ldquo;Black Identity Extremists&rdquo; from its lexicon. The document obtained by TYT casts doubt on McGarrity&rsquo;s claim, particularly given the use of the term &ldquo;Black Racially Motivated Extremists&rdquo; (BRME) elsewhere in the Guide.</p> <p>The Guide does not disclose the precise criteria the FBI uses to label individuals or groups as extremists or alleged threats, but it does discuss in some detail the aggressive &ldquo;intelligence collection&rdquo; posture the FBI took against so-called BIE&rsquo;s. Page 1 of the section on BIE&rsquo;s contains the following:</p> </div> , <blockquote class="blockquote"> <div> <p>&ldquo;The FBIHQ-led Threat Mitigation Strategy IRON FIST was implemented to mitigate the potential threat posed by the BIE movement at the national level. IRON FlST will accomplish this by identifying actionable intelligence to directly support the initiation of FBI investigations and augment current efforts directed against BlEs. IRON FIST is designed to evolve and adapt to the ever-changing threat posed by BlEs, to proactively address this priority domestic terrorism target by focusing FBI operations via enhanced intelligence collection efforts. ln addition, FBIHQ works to develop potential [confidential human sources] CHSs and conduct assessments on the current BIE CHS base. Many BlEs are convicted felons who are prohibited possessors, therefore the FBI will continue to use their prohibited possessor status as a tactic to assist in mitigating the threat for potential violence.&rdquo;</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Indeed, this &ldquo;Threat Mitigation Strategy&rdquo; is a template that the FBI is applying to other groups and individuals designated as &ldquo;White Supremacy Extremists&rdquo; (WSEs), as revealed on page 1 of the section on WSE&rsquo;s:</p> </div> , <blockquote class="blockquote"> <div> <p>&ldquo;The FBIHQ-led Threat Mitigation Strategy SUPREME RENDITION was implemented to mitigate the potential threat posed by WSE movements at the national level and will accomplish this by identifying actionable intelligence to directly support the initiation of FBI investigations and augment current efforts directed against WSEs. SUPREME RENDITION is designed to evolve and adapt to the ever-changing threat posed by WSEs, to proactively address this priority domestic terrorism target by focusing FBI operations via enhanced intelligence collection efforts. ln addition, FBIHQ works to develop potential CHSs and conduct assessments on the current WSE CHS base. Noting that many WSE subjects are convicted felons and are prohibited from legally possessing firearms, the FBI is exploiting the Dark Web or Dark Net to determine whether persons with a WSE ideology are using these non-indexed &ldquo;hidden&rdquo; websites and domains to procure firearms, explosives, murder-for-hire, or other illegal services in furtherance of their beliefs. Also, the FBI will use their prohibited possessor status as a tactic to assist in mitigating the threat for potential violence.&rdquo;</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p><strong>The Threat of an Ideological Test</strong></p> <p>That the FBI is using an ideological test of its own devising to determine whether a person seeking products or services on &ldquo;the Dark Web&rdquo; is a threat raises a host of potential constitutional issues, including whether the monitoring of a person&rsquo;s online activities based on their ideology runs afoul of the First Amendment or the <a href="https://www.oyez.org/cases/1968/492" target="_blank"><em>Brandenburg v. Ohio</em></a> decision.</p> </div> , <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>For the Constitution to have meaning and force, the public —including the Congress, the courts, and the press —must be able to establish what the executive branch is doing in our name and with our tax dollars, particularly when it comes to the use —or misuse —of federal surveillance powers.</p> </div> </div> , <div class="text-default"> <p>Under the broad rubric of &ldquo;Racially Motivated Violent Extremism&rdquo; (RMVE), the Guide notes on page 3 of the RMVE section that &ldquo;Field offices will evaluate their need for an open Type 3 assessment file in regards to RMVE. An open assessment file allows for greater proactive collection techniques should the RMVE threat emerge in the wake of a police-involved incident that sparks potential RMVE activity.&rdquo;</p> <p>The FBI&rsquo;s Domestic Investigations and Operations Guide (<a href="https://www.documentcloud.org/documents/3416775-DIOG-Redactions-Marked-Redacted.html" target="_blank">DIOG</a>) describes a Type 3 assessment as follows:</p> </div> , <blockquote class="blockquote"> <div> <p>&ldquo;Type 3 Assessment: Identify, obtain and utilize information about actual or potential national security threats or Federal criminal activities, or the vulnerability to such threats or activities.&rdquo;</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>The language is sweeping and allows for the collection of information on the basis of hypothetical, not actual, threats, with Field Offices encouraged to &ldquo;conduct social media analysis of RMVE threats, as appropriate.&rdquo; (p. 3, RMVE section) Exactly what constitutes a validated &ldquo;RMVE threat&rdquo; is not defined, and nowhere in the document is any reference made to avoiding social media monitoring or other intelligence-collection activities solely on the basis of First Amendment protected activities.</p> <p>Even more troubling, there is now abundant evidence that the FBI&rsquo;s focus has expanded beyond known or alleged terrorists or &ldquo;extremists&rdquo; groups to those involved in America&rsquo;s immigration controversy.</p> <p>The latest indicator came in the form of a Sept. 4 <em>Yahoo! News</em> <a href="https://news.yahoo.com/exclusive-document-reveals-the-fbi-is-tracking-border-protest-groups-as-extremist-organizations-170050594.html" target="_blank">story</a> based on an FBI Phoenix Field Office &ldquo;External Intelligence Note&rdquo; dated May 30, 2019. The actual <em>Yahoo! News</em> story lede &mdash;&ldquo;Exclusive: Document reveals the FBI is tracking border protest groups as extremist organizations&rdquo; &mdash;was misleading in that the document obtained by Yahoo! News only referenced &ldquo;Anarchist Extremist&rdquo; groups, and only one by its acronym, BLF, presumably the <a href="https://www.facebook.com/caravansupportnetwork/" target="_blank">Border Liberation Front</a>, one of <a href="https://www.fightbacknews.org/2019/4/1/first-day-legalization-all-network-delegation-focuses-chicano-struggles-arizona" target="_blank">many groups</a> opposed to Trump administration policies in the southwest border region. Even so, the report raises an obvious question: what other immigration-related groups might the FBI be monitoring?</p> <p><strong>Groups Targeted for Surveillance</strong></p> <p>Earlier this year, I submitted Freedom of Information Act (FOIA) requests to the FBI on 37 groups publicly working on immigration policy issues, some of them direct client-services organizations. Many of these FOIAs remain outstanding or are in varying stages of appeal or potential litigation. However, FBI FOIA responses received to date indicate that at least five of these groups &mdash;Chula Vista Partners in Courage, <a href="https://www.pangealegal.org/" target="_blank">Pangea Legal Services</a>, <a href="https://theimmigrationhub.org/" target="_blank">Immigration Hub</a>, <a href="https://supportkind.org/" target="_blank">Kids In Need of Defense (KIND)</a>, and the <a href="https://transgenderlawcenter.org/" target="_blank">Transgender Law Center</a> &mdash; may have been targeted for surveillance.</p> <p>For each of the groups listed above, the FOIA appeal response I received from the Department of Justice&rsquo;s Office of Information Policy (OIP) contained the following language:</p> </div> , <blockquote class="blockquote"> <div> <p>&ldquo;To the extent that your request could encompass any national security or foreign intelligence records, I have determined that the FBI properly refused to confirm or deny the existence of any national security or foreign intelligence records responsive to your request because the existence or nonexistence of any such responsive records is currently and properly classified. See 5 U.S.C. § 552(b)(1).&rdquo;</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>In the world of FOIA, this kind of response is known as a &ldquo;Glomar&rdquo; &mdash;a reference to a 1981 FOIA case (<em><a href="https://www.leagle.com/decision/19811980655f2d132511758" target="_blank">Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981</a></em>), in which the D.C. Circuit Court of Appeals ruled that the CIA could refuse to confirm or deny even the very existence of information on a topic if the fact of its existence was itself deemed classified.</p> <p>The 1981 case revolved around the efforts of a <em>Rolling Stone</em> reporter to get records of conversations between CIA Director William Colby and the heads of various news organizations that had learned about a Tom Clancy-like CIA operation to raise a sunken Soviet sub from the Pacific Ocean. The CIA&rsquo;s argument, which the Court accepted, was that even the revelation of Colby&rsquo;s efforts to kill the story would tip off the Soviets that the CIA might, in fact, have managed to salvage at least something from the sunken Soviet sub.</p> <p>Since that 1981 D.C. appellate court decision, other federal courts have generally <a href="https://foia.wiki/wiki/Glomar" target="_blank">upheld</a> executive branch invocations of Glomar responses to FOIA requests. In my view, those ill-considered decisions have now led to a much wider and far more dubious resort to Glomar responses by federal agencies and departments, in this case by the FBI as it relates to immigration policy activism by domestic U.S. groups.</p> <p>For the five groups in question in my FOIA actions, the FBI is asserting FOIA&rsquo;s &ldquo;national security&rdquo; or (b)(1) exemption in a Glomar context. How can the provision of legal advice, counseling or other services to immigrants represent &ldquo;a threat to national security?&rdquo;</p> <p><strong>A Role for Congress</strong></p> <p>Congress should investigate whether the FBI is targeting these groups in the absence of a legitimate criminal investigative predicate and is using the Glomar exception (or other dubious FOIA evasion <a href="https://www.scribd.com/document/425859640/ACLU-Michigan-v-FBI" target="_blank">tactics</a>) to conceal that activity from the public and the courts. As for the courts, federal judges should cease taking executive branch Glomar assertions at face value and should require the production of all relevant documents for <em>in camera</em> reviews whenever a federal agency or department invokes Glomar to dodge a FOIA request.</p> <p>The FBI and other federal departments and agencies are trying to erect an impenetrable legal shield over their potentially illegal surveillance activities via the misuse of FOIA exemptions, either statutory or court-constructed, as in the case of Glomar. For the Constitution to have meaning and force, the public &mdash;including the Congress, the courts, and the press &mdash;must be able to establish what the executive branch is doing in our name and with our tax dollars, particularly when it comes to the use &mdash;or misuse &mdash;of federal surveillance powers. If we are on the cusp of a de facto <a href="https://vault.fbi.gov/cointel-pro" target="_blank">COINTELPRO</a> 2.0, the infamous Cold War-era FBI program of domestic spying and organizational disruption, we need to end it. Now.</p> </div> Tue, 17 Sep 2019 09:39:15 -0400 Patrick G. Eddington https://www.cato.org/publications/commentary/constitution-day-2019-hidden-domestic-surveillance-crisis The Perverse Effects of Banning Flavored Vaping Products https://www.cato.org/multimedia/cato-daily-podcast/perverse-effects-banning-flavored-vaping-products?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Jeffrey Miron, Caleb O. Brown <p>Would a prohibition on flavored vaping products be a net-negative in reducing smoking-related illness? Jeffrey Miron discusses the apparent White House plan to ban flavors of vaping products.</p> Tue, 17 Sep 2019 03:00:00 -0400 Jeffrey Miron, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/perverse-effects-banning-flavored-vaping-products Timbs v. Indiana: Mere Constitutional Housekeeping or the Timely Revival of a Critical Safeguard? https://www.cato.org/publications/supreme-court-review/timbs-v-indiana-mere-constitutional-housekeeping-or-timely?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 16 Sep 2019 14:47:32 -0400 Brianne Gorod, Brian R. Frazelle https://www.cato.org/publications/supreme-court-review/timbs-v-indiana-mere-constitutional-housekeeping-or-timely Trump White House Mulls Monitoring the Mentally Ill for Future Violence https://www.cato.org/multimedia/cato-daily-podcast/trump-white-house-mulls-monitoring-mentally-ill-future-violence?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Julian Sanchez, Caleb O. Brown <p>The White House’s potential plan to use consumer tech to monitor those deemed mentally ill for potential violence already has some bipartisan support. The problem is that it won't work. Julian Sanchez comments.</p> Mon, 16 Sep 2019 10:17:34 -0400 Julian Sanchez, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/trump-white-house-mulls-monitoring-mentally-ill-future-violence The IRAA and SLAA: Moving Beyond Nonviolent Drug Offenders to Address Mass Incarceration https://www.cato.org/blog/iraa-slaa-moving-beyond-nonviolent-drug-offenders-address-mass-incarceration?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Jonathan Blanks <div data-embed-button="image" data-entity-embed-display="view_mode:media.blog_post" data-entity-type="media" data-entity-uuid="9c1e8098-203a-4105-ba59-75ebc865f50b" class="align-right embedded-entity" data-langcode="en"> <p><img srcset="/sites/cato.org/files/styles/pubs/public/2019-09/Prison_Bars_%285997920696%29_2.jpg?itok=5zBCr73e 1x, /sites/cato.org/files/styles/pubs_2x/public/2019-09/Prison_Bars_%285997920696%29_2.jpg?itok=F8l9wFkg 1.5x" width="700" height="525" src="https://www.cato.org/sites/cato.org/files/styles/pubs/public/2019-09/Prison_Bars_%285997920696%29_2.jpg?itok=5zBCr73e" alt="Prison Bars" typeof="Image" class="component-image" /></p></div> <p>“Mass incarceration” has become the term to describe the millions of people held in jails and prisons throughout the United States. The oft-cited statistic that Americans make up roughly <a href="https://www.wsj.com/articles/a-better-approach-to-violent-crime-1485536313">5 percent of the world’s population but hold 25 percent of the global prisoners</a> remains true. Part of the reason for this is that the United States incarcerates individuals for much longer sentences than most of the rest of the world. And while nonviolent drug offenders serving decades-long draconian sentences have gotten the most attention in legislation, presidential debates, and <a href="https://www.justice.gov/pardon/obama-commutations">executive commutations</a>, the data show that most people who are serving time in prison are in for violent offenses. Now, what “violent” means varies by jurisdiction—illegal possession of firearms, being a driver of a getaway car, and burglaries against vacant properties can nevertheless be considered violent in some states—but meaningfully reducing our incarcerated population will unquestionably require releasing people who have been convicted of serious violent crimes.</p> <p>If you just flinched a bit, bear with me.</p> <p>Most people who are sentenced to prison are going to be released at some point. They will at some point be expected—indeed, obligated—to rejoin society. So, for most inmates, the issue of release is a question of “when” not “if.” It follows, then, that if we want to reduce the prison population, we may be able to use early release as a mechanism for doing so while preserving the ideals of justice.</p> <p>A recent law implemented in the District of Columbia provides a good example of how to move toward decarceration productively. In 2016, the D.C. City Council passed the <a href="http://lims.dccouncil.us/Legislation/B21-0683" target="_blank">Comprehensive Youth Justice Amendment Act,</a> including a component known as the Incarceration Reduction Amendment Act (IRAA). The IRAA allowed D.C. Superior Court judges to revisit sentences imposed on people who were convicted of violent crimes when they were juveniles.</p> <p>We know adolescents—particularly adolescent males—are in the prime age cohort for making bad decisions without full comprehension of the consequences. This applies to small decisions and big ones, and under bad conditions—poverty, trauma, intoxication, and access to weapons, to name a few—the worst decisions can become devastating for themselves and others. None of these factors excuse a person’s actions, but when added to their youth, they help explain such terrible decisionmaking. Indeed, there is science to back this up. As <a href="https://slate.com/news-and-politics/2019/08/us-attorney-jessie-liu-dc-juvenile-criminal-justice-reform.html">Mark Joseph Stern explained in <em>Slate</em>:</a></p> <blockquote><p>Scientists now know that the part of the brain that <a href="https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_07_08_08_7412_NeutralAmCuAMAandAACAP.pdf">inhibits impulse</a> and <a href="https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_07_08_08_7412_PetitionerAmCu4HealthOrgs.pdf">risky behavior</a> does not fully develop <a href="https://www.cnn.com/2011/10/19/health/mental-health/teen-brain-impulses/index.html">until age 25</a>. The Supreme Court has noted this fact in prohibiting the <a href="https://www.supremecourt.gov/opinions/04pdf/03-633.pdf">execution</a> of juvenile offenders and <a href="https://www.supremecourt.gov/opinions/11pdf/10-9646g2i8.pdf">curtailing</a> juvenile sentences of life without parole. It has <a href="https://www.supremecourt.gov/opinions/09pdf/08-7412.pdf">explained</a> that “parts of the brain involved in behavior control continue to mature through late adolescence”—that is, the early 20s. Young individuals <a href="https://www.supremecourt.gov/opinions/15pdf/14-280_3204.pdf">are therefore</a> “less culpable” due to their “immaturity, recklessness, and impetuosity”; “less likely” <a href="https://www.supremecourt.gov/opinions/04pdf/03-633.pdf">to be deterred</a> by “possible punishment”; and <a href="https://www.supremecourt.gov/opinions/15pdf/14-280_3204.pdf">more likely</a> to have “potential for rehabilitation.”</p> </blockquote> <p>Building on this science, local lawmakers want to expand IRAA to cover individuals who were under the age of 25 when they committed the crime for which they were convicted. This new law is known as the <a href="http://lims.dccouncil.us/Download/41814/B23-0127-Introduction.pdf">Second Look Amendment Act of 2019</a> (SLAA). Although SLAA has already drawn criticism and hyperbole from the police chief and <a href="https://www.justice.gov/usao-dc/pr/new-bill-seeks-make-over-500-violent-criminals-including-many-rapists-and-murderers">the U.S. Attorney’s Office for the District of Columbia</a>, there’s good reason to believe that this law will serve the best interests of D.C. and the eligible offenders.</p> <p>To understand how SLAA would work, we can look to what has already happened with the IRAA. The IRAA allowed judges to revisit juvenile offenders many years after their crimes and convictions to determine whether they’ve matured and become better people while incarcerated. As amended in 2019, inmates that have served at least 15 years of their sentence but are not yet eligible for parole may apply for early release. Release is by no means automatic. The inmate’s application is thoroughly reviewed by a D.C. Superior Court judge, and other stakeholders involved with the offenders’ cases—including victims, community members, and the surviving families—may be consulted before a determination is made. <a href="https://www.washingtonpost.com/opinions/dc-has-gone-too-far-on-criminal-justice-reform/2019/08/03/aedccfa4-b55f-11e9-8949-5f36ff92706e_story.html">Contrary to some claims</a>, the law specifically provides for judges to consider the nature of the offense when determining whether to grant release.</p> <p>Since the IRAA has been passed, 18 inmates have been released under supervised probation because of the program. According to local defense attorney James Ziegler, <a href="https://thedcline.org/2019/08/13/james-zeigler-dc-councils-second-look-sentencing-efforts-are-thoughtful-safe-and-just-responses-to-crisis-of-mass-incarceration/">several of them have become violence interrupters and neighborhood advocates</a> to prevent more young people from going down the paths they took to prison. Zeigler also notes that none of the offenders released has recidivated—that is, been sent back to prison for a new crime.</p> <p>At this point, it might be helpful to think about what exactly society wants its criminal justice system to accomplish after a crime has been committed. Most people agree on several core functions that are essential to a decent criminal system, although how important each function is weighed will vary from person to person. These functions include, but may not be exclusive to: accountability for wrongdoing, punishment for wrongdoing, rehabilitation for wrongdoers, and keeping dangerous wrongdoers off the streets through incapacitation. Putting aside efforts to decriminalize behavior that libertarians and others don’t find blameworthy in the first place, criminal justice reform should be considered with these four systemic objectives in mind.</p> <p>IRAA and SLAA can be evaluated thus:</p> <ul><li><strong>Accountability</strong>—This is the easiest one. The offenders have already been found guilty of their crimes so we know they have received society’s condemnation by means of a criminal conviction.</li> </ul><ul><li> <p><strong>Punishment</strong>—To be eligible for relief under IRAA—and the SLAA, if passed into law—each offender must serve at least 15 years of his sentence. In the abstract, people tend to think of years in prison as less severe than they are. If you’ve ever heard or thought, “He only got five years for that?” you’ve probably been guilty of this. As laypeople and potential victims, we think of how angry we are about a particular crime, and then tack on a number—almost at random—to that offense. Legislators are no different, and sometimes they’re worse.</p> <p>But fifteen years is a very long time for a human being to spend living in a cage. The offender’s friends and loved ones have gone about their lives without them; the world has changed dramatically during that time; and the incarcerated person has missed technological innovations and cultural changes, but also graduations, weddings, births, funerals, and other social functions that help bring joy and comfort to our lives. Moreover, the personal changes between adolescence to adulthood are considerable for most individuals. One not need be a neuroscientist or sociologist to understand that most people behave differently in middle age than they do in middle or late adolescence. Whether or not an offender has been punished “enough” will vary, but no one can honestly say that 15 years in prison is a slap on the wrist.</p> <p>So how long is the right amount of time? Considering the other functions of criminal justice, of which punishment is only one prong, it makes sense for the system to contemplate what society gains or loses if an offender spends unnecessary years in prison rather than returning as a productive member of society. Put in economic terms: society may get decreasing marginal utility from keeping a sufficiently punished, working-age inmate in prison rather than allowing him back into society.</p> </li> <li> <p><strong>Rehabilitation</strong>—Closely related to whether a person has been punished enough is whether they have been rehabilitated. That is, whether or not the personal failures that led to the criminal behavior in the first place have been addressed by the inmate. This will invariably involve judgment calls—including an assessment whether the person will likely reoffend and return to prison—but people change over time. Under the IRAA and SLAA, there will be at least 15 years of prison records to indicate whether they have been a “model prisoner” or otherwise shown marked improvement over time.</p> <p>Recall, though, the IRAA and SLAA also allows the judge to determine individual cases after talking with stakeholders—including victims—to determine whether the person should be released. While not everyone may be happy with a judge’s determination, IRAA and SLAA contain a built-in mechanism for a judge to determine whether an inmate will be likely to make better decisions when he is released than he did before he went in.</p> </li> <li><strong>Incapacitation</strong>—Clearly, a minimum of 15 years in prison has achieved the result of incapacitating the individual for that amount of time. But part of the IRAA and SLAA processes aim to determine whether more time is required to keep the public safe. While there is no evidence that long prison sentences deter crime by fear of their severity, there is evidence that people typically <a href="http://users.soc.umn.edu/~uggen/Piquero_LV_08.pdf?mod=article_inline">“age out” of crime</a> because older people are less likely to engage in behaviors that lead to prison sentences. This is not universal—hence the need for thorough individual evaluations—but it follows that the impulses and peer effects that can lead young men to violence are less prevalent later in life. Those who have been released to date have posed no danger to the community and, in fact, may be making it a safer place to live.</li> </ul><p>Because most inmates are going to be released back into society at some point, it makes sense to revisit the cases of people who have quite literally grown up in prison. If implemented properly, the IRAA and SLAA can reduce incarceration while satisfying the core goals of criminal justice.</p> Fri, 13 Sep 2019 16:08:11 -0400 Jonathan Blanks https://www.cato.org/blog/iraa-slaa-moving-beyond-nonviolent-drug-offenders-address-mass-incarceration San Francisco Deems NRA a Terrorist Group https://www.cato.org/multimedia/cato-daily-podcast/san-francisco-deems-nra-terrorist-group?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Walter Olson, Caleb O. Brown <p>Why take seriously San Francisco's declaration that the National Rifle Association is a domestic terror group? Walter Olson explains.</p> Fri, 13 Sep 2019 14:59:06 -0400 Walter Olson, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/san-francisco-deems-nra-terrorist-group Book Review: 'Why Meadow Died' https://www.cato.org/publications/commentary/book-review-why-meadow-died?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Corey A. DeAngelis <div class="lead text-default"> <p><strong>Book Review of <em>Why Meadow Died</em>, by Andrew Pollack &amp; Max Eden (Post Hill Press, 336 pp.)</strong></p> </div> , <div class="text-default"> <p>A sick person killed 17 people at Marjory Stoneman Douglas High School in Parkland last year. Conventional wisdom is that enacting various gun control laws, including banning assault weapons, is the solution to school shootings.</p> <p>But as <a href="https://www.washingtontimes.com/topics/andrew-pollack/" target="_blank">Andrew Pollack</a>, the father of one of the Parkland victims, and Max Eden, an education policy expert, explain in their new book &ldquo;Why <a href="https://www.washingtontimes.com/topics/meadow-died/" target="_blank">Meadow Died</a>: The People and Policies that Created the Parkland Shooter and Endanger America&rsquo;s Students,&rdquo; the story is far more complicated than that. </p> <p>As the book&rsquo;s title suggests, government policy bears significant blame for the Parkland tragedy.</p> <p>The shooter, <a href="https://www.washingtontimes.com/topics/nikolas-cruz/" target="_blank">Nikolas Cruz</a>, showed serious signs of violent and erratic behavior for years. He mutilated animals, brought bullets to school, made death threats and attempted suicide. And everyone &mdash; local and federal law enforcement, school staff, teachers, students and his family &mdash; knew it.</p> <p>Police officers were called to his house 45 times before the tragedy. His mother&rsquo;s friend called the sheriff&rsquo;s office, telling them &ldquo;this might be Columbine in the making&rdquo; &mdash; but they never called her back. Multiple students reported <a href="https://www.washingtontimes.com/topics/nikolas-cruz/" target="_blank">Cruz</a> to school leaders. And the school security staff even had a meeting where they agreed that if anyone would become a school shooter, it would be <a href="https://www.washingtontimes.com/topics/nikolas-cruz/" target="_blank">Cruz</a>.</p> </div> Fri, 13 Sep 2019 08:19:04 -0400 Corey A. DeAngelis https://www.cato.org/publications/commentary/book-review-why-meadow-died What Do Democrats Running for President Want from Criminal Justice Reform? https://www.cato.org/multimedia/cato-daily-podcast/what-do-democrats-running-president-want-criminal-justice-reform?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Clark Neily, Caleb O. Brown <p>A few Democratic candidates running for President have flagged the police protection known as qualified immunity as worthy of reform. Clark Neily discusses the various criminal justice proposals offered by Democratic White House hopefuls.</p> Thu, 12 Sep 2019 13:02:16 -0400 Clark Neily, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/what-do-democrats-running-president-want-criminal-justice-reform Protecting Gun Manufacturers from Frivolous Lawsuits https://www.cato.org/blog/protecting-gun-manufacturers-frivolous-lawsuits?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Trevor Burrus <p>In 2005, Congress passed the bipartisan Protection of Lawful Commerce in Arms Act (PLCAA) by a nearly two-thirds margin. PLCAA’s purpose was to curb efforts by gun-control advocates to circumvent state legislatures and attack Second Amendment rights through a never-ending series of lawsuits against manufacturers and retailers of firearms to hold them financially responsible for crimes committed using the weapons they make and sell. Although the dubious legal theories behind these lawsuits only rarely resulted in verdicts against manufacturers and retailers, the mounting costs of the lawsuits began to run gun makers and sellers out of business. Litigation-induced bankruptcy, it turned out, was an effective way of restricting Americans’ ability to exercise their Second Amendment right to keep and bear arms. Congress passed PLCAA to end that abuse of the judicial system, providing firearm manufacturers and retailers with immunity against legal claims resulting from the criminal use of their products.</p> <p>PLCAA is a common-sense law. Product liability suits are usually focused on actual manufacturing defects. A good backyard grill effectively grills meat, but if it blows up due to a manufacturing defect, then a tort suit is warranted. A good gun shoots reliably and accurately and doesn't blow up in your hands. While gun manufacturers should and are liable for guns that malfunction, they shouldn't be liable for making reliable and accurate guns that can be used for mayhem, of course, but can also be used for self-defense and sporting purposes. Similarly, a swimming pool would be a bad pool if it failed to effectively hold water, but if it is a good swimming pool that holds water it also inevitably increases the risk of drowning. Like a swimming pool, a gun's good qualities are inexorably tied to the dangerous ones.</p> <p>Despite PLCAA’s protections, victims of the mass shooting at Sandy Hook Elementary School and their family members are attempting to hold Remington, a gun manufacturer, responsible for the crimes of the killer because the rifle he used was made by Remington. They argue that the killer chose the Remington rifle from his mother’s legally owned collection of guns because Remington’s advertisements for the rifle connect it with the military, a subject the killer was interested in. The lawsuit claims these advertisements constitute an “unfair trade practice” under Connecticut law and therefore fit into a narrow exception to PLCAA’s protection. This exception applies only when sellers violate a law regulating the sale or marketing of their products and that violation leads to a crime committed with a gun they sell. The evidence shows, however, that Congress didn’t intend this exception to apply to lawsuits based on vague claims of “unfair trade practices.” In fact, this is exactly the type of lawsuit the PLCAA was intended to prohibit. A sharply divided Connecticut Supreme Court, however, decided that the exception applied and allowed Remington to be sued.</p> <p>Remington is now petitioning the U.S. Supreme Court to review the Connecticut decision and restore the scope of PLCAA’s protections to what Congress intended. Cato, together with the Firearms Policy Coalition, the Firearms Policy Foundation, the Madison Society Foundation, the Independence Institute, and a coalition of law professors, has <a href="https://www.cato.org/sites/cato.org/files/pubs/pdf/remington-v-soto.pdf">filed a brief </a>in support of Remington’s petition. We argue that lawsuits like this one are not a new phenomena—drowning political opponents in litigation costs to restrict the exercise of constitutional rights is the same strategy that opponents of the Civil Rights movement used to prevent newspapers from exposing abuses in the Jim Crow South. In 1964, the Supreme Court stepped in to halt these abusive lawsuits and protect the press’s ability to exercise its First Amendment rights in the landmark case of <em>New York Times v. Sullivan</em>. Just as the Supreme Court protected First Amendment rights against abusive suits in <em>Sullivan</em>, Congress protected Second Amendment rights against abusive suits with the PLCAA. Remington is now asking the Supreme Court to give the PLCAA a fair interpretation and prevent it from becoming a dead-letter.</p> <p>In <em>Sullivan</em>, the Court understood that newspapers exercising their First Amendment rights were being sued under vague and amorphous legal standards. Lawsuits that attempt to hold firearms manufacturers liable for gun crimes based solely on advertisements that evoke themes common in American arms culture, such as self-defense and the military, are similarly problematic. Firearms manufacturers have a First Amendment right to advertise their products with imagery and themes that have a close relationship with the exercise of Second Amendment rights. Congress passed the PLCAA to safeguard these rights. We urge the Court to support Congress’s efforts to protect Americans’ constitutional rights by restoring the full scope of PLCAA’s protection.</p> Wed, 11 Sep 2019 17:30:57 -0400 Trevor Burrus https://www.cato.org/blog/protecting-gun-manufacturers-frivolous-lawsuits Chelsea Follett discusses child safety on WPRO's The Matt Allen Show https://www.cato.org/multimedia/media-highlights-radio/chelsea-follett-discusses-child-safety-wpros-matt-allen-show?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Wed, 11 Sep 2019 11:27:25 -0400 Chelsea Follett https://www.cato.org/multimedia/media-highlights-radio/chelsea-follett-discusses-child-safety-wpros-matt-allen-show Robert A. Levy discusses tort law on The Bob Harden Show https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-tort-law-bob-harden-show-0?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Wed, 11 Sep 2019 11:21:16 -0400 Robert A. Levy https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-tort-law-bob-harden-show-0 Clark Neily discusses the Gun Safety Legislation Conference on Cronkite News https://www.cato.org/multimedia/media-highlights-tv/clark-neily-discusses-the-gun-safety-legislation-conference-on-cronkite-news?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Mon, 09 Sep 2019 12:03:10 -0400 Clark Neily https://www.cato.org/multimedia/media-highlights-tv/clark-neily-discusses-the-gun-safety-legislation-conference-on-cronkite-news Local Opinion: Arizona Should Use Needle Exchange to Combat HIV https://www.cato.org/publications/commentary/local-opinion-arizona-should-use-needle-exchange-combat-hiv?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Jeffrey A. Singer <div class="lead text-default"> <p>The Centers for Disease Control and Prevention estimate 40,000 new cases of HIV every year, and a major source of these cases is needle sharing among non-medical users of IV drugs. Last Summer, CDC Director Robert Redfield told reporters in Arizona that Maricopa County is among 50 local jurisdictions in the U.S. responsible for nearly half of the country's newly diagnosed cases of HIV.</p> </div> , <div class="text-default"> <p>There are at least four needle exchange programs operating in Arizona. Technically they are all illegal because of Arizona's anti-paraphernalia laws. They are funded completely privately, but because they are illegal, they cannot openly fundraise or announce their presence to IV drug users. And they depend upon police officers humanely turning a blind eye to their activities.</p> <p>To stop the spread of HIV and other infectious diseases, Arizona needs to rethink its restrictive laws.</p> <p>Not listed among the 50 jurisdictions the CDC mentioned is Cabell County in West Virginia, long a hotbed of IV drug use, which announced this week that an alarming 74 new cases of HIV have been reported since January 2018.</p> <p>Arizona, West Virginia and many other states have stepped up efforts to combat overdose deaths by expanding access to treatment with methadone, buprenorphine, and other forms of rehabilitation and by making naloxone more widely available. But these efforts target treating people with substance use disorder and only indirectly and inadequately stop the spread of HIV among those who continue to use and share contaminated needles.</p> <p>The CDC has long endorsed syringe services programs, also known as needle exchange programs, as a proven method for reducing the spread of HIV, and even assists communities to set them up. A systematic review conducted by the CDC in 2013 confirmed that needle exchange programs reduced the prevalence of HIV and hepatitis infections.</p> <p>A 2014 systematic review and meta-analysis found needle exchange programs found an overall reduction in HIV transmission of 34%.</p> <p>While most research on needle exchange programs has centered on their efficacy in reducing HIV and hepatitis, recently needle exchange programs started distributing the overdose antidote naloxone along with test strips to screen for the presence of fentanyl in the drugs users buy on the black market. Fentanyl test strips, available from a Canadian manufacturer, are considered illegal drug paraphernalia in Arizona, but are legal life savers in many other states. These additional services provided by needle exchange programs should work to reduce overdose deaths in addition to cases of HIV.</p> <p>Cabell County opened a state-funded needle exchange program a little over two years ago, working in conjunction with Marshall University School of Medicine, also located in the county. The medical director of the county health department suggested the outbreak would have been much worse without the program.</p> <p>As of 2019, anti-paraphernalia laws have been reformed or repealed in 28 states and the District of Columbia, allowing needle exchange programs to function. With the CDC designating Maricopa County a leading locus of HIV outbreaks, it becomes more urgent than ever to reform Arizona's drug paraphernalia laws so the existing needle exchange programs can do their job more effectively and out in the open and new programs can develop to meet arising needs. There are plenty of dedicated people who want to help reduce overdoses and eradicate HIV. The paraphernalia laws stand in their way.</p> </div> Sun, 08 Sep 2019 12:12:41 -0400 Jeffrey A. Singer https://www.cato.org/publications/commentary/local-opinion-arizona-should-use-needle-exchange-combat-hiv Remington Arms v. Soto https://www.cato.org/publications/legal-briefs/remington-arms-v-soto?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss David B. Kopel, Joseph G.S. Greenlee, Ilya Shapiro, Trevor Burrus <div class="lead text-default"> <p>In 2005, Congress passed the bipartisan Protection of Lawful Commerce in Arms Act (PLCAA) by a nearly two-thirds margin. PLCAA’s purpose was to curb efforts by gun-control advocates to circumvent state legislatures and attack Second Amendment rights through a never-ending series of lawsuits against manufacturers and retailers of firearms to hold them financially responsible for crimes committed using the weapons they make and sell. Although the dubious legal theories behind these lawsuits only rarely resulted in verdicts against manufacturers and retailers, the mounting costs of the lawsuits began to run gun makers and sellers out of business. Litigation-induced bankruptcy, it turned out, was an effective way of restricting Americans’ ability to exercise their Second Amendment right to keep and bear arms. Congress passed the PLCAA to end that abuse of the judicial system, providing firearm manufacturers and retailers with immunity against legal claims resulting from the criminal use of their products.&#13;</p> </div> , <div class="text-default"> <p>Despite PLCAA’s protections, in 2014 victims of the mass shooting at Sandy Hook Elementary School and their family members attempted to hold Remington, a gun manufacturer, responsible for the crimes of the killer because the rifle he used was made by Remington. They argued that the killer chose the Remington rifle from his mother’s legally owned collection of guns because Remington’s advertisements for the rifle connect it with the military, a subject the killer was interested in. The lawsuit claims these advertisements constitute an “unfair trade practice” under Connecticut law and therefore fit into a narrow exception to PLCAA’s protection. This exception applies only when sellers violate a law regulating the sale or marketing of their products and that violation leads to a crime committed with a gun they sell. The evidence shows, however, that Congress didn’t intend this exception to apply to lawsuits based on vague claims of “unfair trade practices.” In fact, this is exactly the type of lawsuit the PCLAA was intended to prohibit. A sharply divided Connecticut Supreme Court, however, decided that the exception applied and allowed Remington to be sued.&#13;</p> <p>Remington is now petitioning the U.S. Supreme Court to review the Connecticut decision and restore the scope of PCLAA’s protections to what Congress intended. Cato, together with the Firearms Policy Coalition, the Firearms Policy Foundation, the Madison Society Foundation, the Independence Institute, and a coalition of law professors, has filed a brief in support of <a dir="ltr" href="//2">Remington’s</a> petition. We argue that lawsuits like this one are not a new phenomena—drowning political opponents in litigation costs to restrict the exercise of constitutional rights is the same strategy that opponents of the Civil Rights movement used to prevent newspapers from exposing abuses in the Jim Crow South. In 1964, the Supreme Court stepped in to halt these abusive lawsuits and protect the press’s ability to exercise its First Amendment rights in the landmark case of <em>New York Times v. Sullivan</em>. Just as the Supreme Court protected First Amendment rights against abusive suits in <em>Sullivan</em>, Congress protected Second Amendment rights against abusive suits with the PCLAA. Remington is now asking the Supreme Court to give the PCLAA a fair interpretation and prevent it from becoming a dead-letter.&#13;</p> <p>In <em>Sullivan</em>, the Court understood that newspapers exercising their First Amendment rights were being sued under vague and amorphous legal standards.  Lawsuits that attempt to hold firearms manufacturers liable for gun crimes based solely on advertisements that evoke themes common in American arms culture, such as self-defense and the military, are similarly problematic. Firearms manufacturers have a First Amendment right to advertise their products with imagery and themes that have a close relationship with the exercise of Second Amendment rights. Congress passed the PCLAA to safeguard these rights. We urge the Court to support Congress’s efforts to protect Americans’ constitutional rights by restoring the full scope of PCLAA’s protection.</p> </div> Wed, 04 Sep 2019 16:16:00 -0400 David B. Kopel, Joseph G.S. Greenlee, Ilya Shapiro, Trevor Burrus https://www.cato.org/publications/legal-briefs/remington-arms-v-soto Robert A. Levy discusses metadata and the PRISM program on The Bob Harden Show https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-metadata-prism-program-bob-harden-show?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Wed, 04 Sep 2019 11:05:00 -0400 Robert A. Levy https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-metadata-prism-program-bob-harden-show Jonathan Blanks discusses his co-written article, “On Guns and Opioids, Fear Is Driving Policy,” on Virginia Institute for Public Policy’s Freedom and Prosperity Radio with Joe Thomas https://www.cato.org/multimedia/media-highlights-radio/jonathan-blanks-discusses-co-written-article-guns-opioids-fear?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Wed, 04 Sep 2019 10:01:00 -0400 Jonathan Blanks https://www.cato.org/multimedia/media-highlights-radio/jonathan-blanks-discusses-co-written-article-guns-opioids-fear Johnson & Johnson, Opioids, and Public Nuisance Law https://www.cato.org/multimedia/cato-daily-podcast/johnson-johnson-opioids-public-nuisance-law?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Walter Olson, Caleb O. Brown <p>Johnson &amp; Johnson went to court to fight claims of its contribution to the "public nuisance" of the opioid crisis. They lost. Walter Olson discusses what public nuisance torts mean for future litigation.</p> Sat, 31 Aug 2019 03:00:00 -0400 Walter Olson, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/johnson-johnson-opioids-public-nuisance-law Segregation and the School Choice Movement https://www.cato.org/publications/commentary/segregation-school-choice-movement?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Neal McCluskey <div class="lead text-default"> <p>America is, rightly, having a reckoning on race. The nation’s history is scarred by its too-often horrific mistreatment of African Americans, from slavery, to Jim Crow, to discriminatory government housing policies that lasted into the 1960s. Righteous indignation can, and should, well up in one’s heart. Progress, though, depends on understanding that there are good people who see the same problems, but not the same solutions. It requires operating with the starting assumption that even those on opposite sides of the policy debate are animated by good intentions.</p> </div> , <div class="text-default"> <p>Journalist Amanda Ripley wrote <a href="https://thewholestory.solutionsjournalism.org/complicating-the-narratives-b91ea06ddf63" target="_blank">an excellent article</a> recently aimed at helping journalists cover controversial issues in our sharply divided society. After speaking with the likes of <a href="https://www.amazon.com/Righteous-Mind-Divided-Politics-Religion/dp/0307455777" target="_blank"><em>Righteous Mind</em></a> author Jonathan Haidt, Ripley concluded that the key to productive interaction is to get to know your ideological opponents—learn about who they are, and why they believe what they believe—and to wrestle with their experiences and beliefs. Doing so often reveals our opponents to be decent human beings, and complexity—seeing the nuances of what they believe—causes us to “become more curious and less closed off to new information.”</p> <p>It can often turn out that those with whom we disagree, even vehemently, also want to serve justice. But how they see justice is different.</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Many people support school choice not only out of principle, but based on historical and present reality: public schooling has repeatedly produced repression, exclusion, and other chronic problems.</p> </div> </div> </aside> , <div class="text-default"> <p>Which brings us to “<a href="https://southernspaces.org/2019/segregationists-libertarians-and-modern-school-choice-movement" target="_blank">Segregationists, Libertarians, and the Modern ‘School Choice’ Movement</a>,” a recent article by Steve Suitts of the Southern Education Foundation. Suitts asserts that school choice supporters are at best “indifferent” to school segregation, and cynically promote choice by invoking civil rights. Suitts ties choice supporters directly to Southern segregationists who, following the 1954 <em>Brown v. Board of Education</em> Supreme Court decision requiring public school desegeregation, advocated for choice so whites could attend private “segregation academies.”</p> <p>I have struggled with how to respond to Suitts, and contemplated a blistering condemnation. But indignation over injustice, which Suitts expresses, is normal, and he is absolutely correct that there has been great injustice inflicted on African Americans. Rather than try to satisfy my immediate urges and pummel Suitts with acidic attacks on his character and blind spots, my hope instead is to present and explain the <em>good</em> motives I believe animate many school choice supporters—the justice-seeking motives—hopefully advancing the kind of understanding approach to political debate that can contribute to real progress.</p> <p><strong>The Principle</strong></p> <p>The bulk of Suitts’ condemnation of school choice is grounded in the fact that some segregationists offered arguments for choice couched in the same terms as current choice supporters. These include appeals to freedom of association, invoking the power of competition among schools, and religious freedom. All of these can be seen as laudable—even essential—principles. Indeed, Suitts recognizes that the principles invoked by many choice supporters are generally considered good. “What could be more American than the freedom of parents to choose their children’s schools—public or private—with public financial support,” he writes.</p> <p>Accepting that the principles invoked are not themselves inherently bad, and assuming our goal is to get to workable solutions to social problems and avoid poisonous demonization, then the root question is, if people invoke laudable principles for bad ends, do those principles suddenly become bad? Logically, the answer is “no.”</p> <p>If the principles themselves do not cease to be good even when they are used for ill, then it cannot be the case, as Suitts suggests, that anyone who invokes those principles must be at best “indifferent” to bad things that happen under them, any more than saying we need water for all automatically makes one indifferent to drowning. One <em>could</em> be indifferent, but one could also truly believe that the good of upholding such basic principles as freedom of association—government cannot tell you with whom you must live, or socialize, thus controlling basic personal decisions—outweighs the good of compensating for past government violations of that freedom with the flip side of forced integration. This is not to say that there are not good, maybe even superior, arguments for government-influenced integration in the face of centuries of forced segregation, only that it is unfair to assume that anyone who upholds a good principle must be, at best, indifferent to bad things that happen under it. Indeed, some may believe—myself included—that upholding freedom is important to achieving real, sustainable, and highly desired racial integration.</p> <p><strong>Milton Friedman</strong></p> <p>To a significant extent, Suitts makes economist Milton Friedman the exemplar of indifferent school choice advocates. Suitts focuses on the arguments in Friedman’s seminal 1955 essay “<a href="https://la.utexas.edu/users/hcleaver/330T/350kPEEFriedmanRoleOfGovttable.pdf" target="_blank">The Role of Government in Education</a>,” which called for separating government funding of education from its provision by letting families choose private schools with vouchers. Looking at Friedman’s essay, including its lengthy footnote about the burgeoning use of school choice to dodge desegregation, Suitts declares that Friedman “was at best agnostic about segregation,” and that he “never joined forces with segregationists, but he remained indifferent about how his libertarian arguments aided their strategies.”</p> <p>This seems unfair to Friedman. Though it’s impossible to know for sure what is in anyone’s heart, it is possible to know what Friedman wrote. He not only condemned forced segregation, he argued in favor of voluntary racial integration on both principled and practical grounds. As Suitts himself acknowledges, in the 1955 essay Friedman “assured readers that he deplored segregation and racial prejudice.” Indeed, Friedman made it clear in his footnote that while he favored government letting people freely decide with whom they attended school, if choosing between forced segregation and forced integration, he would select integration. But in keeping with seeing freedom of association as essential, Friedman wrote that “the appropriate activity for those who oppose segregation and racial prejudice is to try to persuade others of their view.”</p> <p>It is also inaccurate to assert that after writing “The Role of Government in Education” Friedman expressed indifference about segregation. Friedman essentially rehashed his school choice arguments in his 1962 book <a href="https://www.amazon.com/Capitalism-Freedom-Anniversary-Milton-Friedman/dp/0226264211" target="_blank"><em>Capitalism and Freedom</em></a>, and in the body of the text reiterated his opposition to segregation. He wrote that “we should all of us, insofar as we possibly can, try by behavior and speech to foster the growth of attitudes and opinions that would lead mixed schools to become the rule and segregated schools the rare exceptions.”</p> <p>Going beyond saying supportive things about integration, Friedman argued that choice would be <em>more</em> likely to achieve integration and harmony than public schooling, stating in a <a href="http://newlearningonline.com/new-learning/chapter-9/friedman-on-school-vouchers" target="_blank">1976 article</a> that rather than “increase racial and class separation in schools, exacerbate racial conflict and foster an increasingly segregated and hierarchal society…nothing could do more to moderate racial conflict and to promote a society in which black and white cooperate in joint objectives, while respecting each other’s separate rights and interests.” This is consistent with “Contact Theory,” <a href="https://www.basicbooks.com/titles/gordon-w-allport/the-nature-of-prejudice/9780201001792/" target="_blank">propounded in 1954 by Harvard psychologist Gordon Allport</a>. That theory argues that interpersonal contact among people of different groups is crucial to building bridges among those groups. To be successful, the theory says, such contact must be “in pursuit of common goals” and occur with all groups in a situation of “equal status.” These provisos are more consistent with voluntary contact than coerced, with no built-in assumption that one group needs the help of the other, and no school assignment that feels like a zero-sum contest.</p> <p>In hindsight we know how staunchly many people and governments resisted desegeregation, making it easier to criticize Friedman’s stance. But we also know that civil rights advocates often <a href="https://www.pbs.org/wgbh/frontline/article/debate-w-e-b-du-bois-and-booker-t-washington/" target="_blank">disagreed</a> <a href="https://lsupress.org/books/detail/shattered-glass-in-birmingham/" target="_blank">amongst</a> <a href="https://thenewpress.com/books/free-all-along" target="_blank">themselves</a>about the best approaches to achieve their shared goals. Advocating different strategies, especially given the <a href="https://eric.ed.gov/?id=ED140420" target="_blank">highly contentious</a> reality of desegregation, does not reveal that someone is indifferent to racism or injustice.</p> <p><strong>Reality</strong></p> <p>Many people support school choice not only out of principle, but based on historical and present reality: public schooling has repeatedly produced repression, exclusion, and other chronic problems. Just as most choice supporters may well support choice for good reasons, likely, too, so do public schooling defenders. Most, no doubt, believe that equality and unity are best served by everyone having common schools, and they deplore abuses. But support for school choice must be seen in the context of public schooling reality, an often ugly one that Suitts almost completely ignores.</p> <p>Public schooling—a system of government-run and funded schooling—was created and justified, in large part, to <a href="https://www.amazon.com/Common-School-Charles-Leslie-Glenn/dp/1558155228" target="_blank">build attachments to the state</a>. For some, this alone sounds loud alarms. Government deciding what children should know, and what they should value and be attached to, could too easily subject children’s minds to primarily government approved thought. There are understandable arguments for this, and they were especially salient in the early United States, when common schooling gained many adherents: we had a new country, which itself was a loose affiliation of states, and large-scale government “by the people” was an idea with <a href="https://www.amazon.com/Republic-Plato/dp/1420931695" target="_blank">historical precedent</a> for failure. It was not unreasonable to desire a common education system to bring everyone together.</p> <p>Alas, coercive efforts to impose uniformity were not just theoretical fears. The first major push for school choice, mention of which Suitts relegates to a single sentence in a footnote, was by <a href="https://www.amazon.com/State-Non-Public-School-1825-1925/dp/0826206336" target="_blank">Roman Catholics, who wanted to use tax money to educate their children</a> in their own schools rather than the public schools that were not only often <em>de facto</em> Protestant, but sometimes openly attacked Catholics. This spurred creation of a parochial school system that at its 1965 peak enrolled about <a href="https://www.catholiceducation.org/en/education/catholic-contributions/the-current-situation-of-americas-catholic-schools.html" target="_blank">5.5 million children</a>. Attacks on Catholics reached their apogee in 1922, when Oregon passed a law essentially outlawing private schooling, a measure for which the Ku Klux Klan—which was virulently anti-Catholic and anti-Jewish, as well as racist—crusaded.</p> <p>Suitts ignores this, not mentioning the Klan’s animus toward private schooling, and especially Catholics, at all. Indeed, he only mentions the <a href="https://www.oyez.org/cases/1900-1940/268us510" target="_blank"><em>Pierce v. Society of Sisters</em></a> Supreme Court case—which, in striking the Oregon law down, famously pronounced that a child is not a “mere creature of the state”—in order to critique school choice. He notes that segregationist Fortney Johnston invoked a part of the <em>Pierce</em> ruling to justify his choice proposal.</p> <p>It was not just Klan members who wished to use public schooling to force Anglo-Saxon, Protestant culture and ideas on others. Ellwood Cubberley, a leading thinker in education policy in the early twentieth century, called for public schooling to transform immigrant communities, whether they liked it or not. In 1909, writing about the influx of non-“Anglo-Teutonic” peoples, <a href="https://archive.org/details/changingconcepti00cubbuoft/page/i" target="_blank">Cubberley wrote</a>:</p> </div> , <blockquote class="blockquote"> <div> <p>Everywhere these people tend to settle in groups of settlements, and to set up their national manners, customs, and observances. Our task is to break up these groups of settlements, to assimilate and amalgamate these people as a part of our American race, and to implant in their children, as far as can be done, the Anglo-Saxon conception of righteousness, law and order, and to awaken in them a reverence for our democratic institutions and for those things in our national life which we as a people hold to be of abiding worth.</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>More directly related to Suitts’ concern was not the frequently hostile or belittling treatment of Roman Catholics and other minorities whom public schooling allowed in, but its treatment of those it for so long excluded. After some states made teaching African-Americans illegal before the Civil War, when they finally permitted black people to access education they <em>required </em>segregation. This was unquestionably a far wider, longer, and deeper infliction of harm than “segregation academies,” yet choice opponents such as Suitts want public schooling to “win.”</p> <p>Today, we continue to see what could be viewed as massive Anglo-centrism and inequality in public schooling, whether it is hugely <a href="https://www.epi.org/publication/the-color-of-law-a-forgotten-history-of-how-our-government-segregated-america/" target="_blank">segregated housing and, thus, public schooling</a>, curricula that <a href="https://www.theguardian.com/commentisfree/2015/jul/10/black-history-slavery-civil-rights-education" target="_blank">ignore or downplay</a> minority groups, major underrepresentation of <a href="https://www.huffpost.com/entry/teacher-racism-black-discrimination_n_58ebdcc2e4b0c89f912083dc" target="_blank">African Americans in the teaching force</a>, or other inequalities. Which gets to the support of choice which most powerfully undermines an assumption of “indifference” to segregation: African-Americans tend to be strong supporters of choice. Surveys <a href="https://www.cato.org/blog/african-americans-speak-themselves-most-want-school-choice" target="_blank">have repeatedly revealed</a> majority or plurality African-American support for school choice, and almost always support outpacing the general public.</p> <p>The first reason for this support is likely that African Americans tend to be in the public schools with <a href="https://reason.com/2009/05/04/reasontv-barack-obama-the-dc-s/" target="_blank">the worst outcomes</a>. But that is not the only reason. There have <a href="https://www.chalkbeat.org/posts/ny/2018/05/10/fifty-years-ago-teacher-oustings-that-led-to-new-york-citys-massive-teacher-strikes/" target="_blank">long been</a> some African Americans who have wanted schools in which they are the majority and, hence, they have <a href="https://www.nytimes.com/2006/04/15/us/15omaha.html" target="_blank">control</a>. Some explicitly want schools with <a href="https://www.theroot.com/new-york-city-s-afrocentric-schools-get-more-love-as-se-1831678286" target="_blank">Afrocentric cultures and curricula</a>. Some just want schools where their children will feel comfortable, and they do not believe they will feel that way in schools in which they are a minority. Finally, the ultimate empowerment is liberty—the ability to make decisions for oneself—not government force either excluding you from, or assigning you to, a school directly or indirectly based on your race. All of these things likely help to explain why some school choice supporters disapprovingly cited by Suitts—including African Americans Senator Tim Scott, Republican of South Carolina, and Martin Luther King III—refer to school choice as a civil rights issue.</p> <p>Finally, research hints that, in keeping with the theory or Allport and Friedman, American school choice programs have a <a href="https://www.edchoice.org/wp-content/uploads/2019/04/123s-of-School-Choice.pdf#page=26" target="_blank">small but positive</a> integrating effect. There is also <a href="https://eric.ed.gov/?id=ED428992" target="_blank">research</a> <a href="https://www.amazon.com/Learning-School-Choice-Paul-Peterson/dp/0815770154" target="_blank">that</a> <a href="https://www.researchgate.net/publication/326910138_Can_private_schools_improve_school_climate_Evidence_from_a_nationally_representative_sample" target="_blank">suggests</a> that private schools have better racial climates after adjusting for racial student body make-up. They have fewer racial tensions and greater “bridging” among children of different races.</p> <p><strong>A Call for Respectful Discussion</strong></p> <p>Contemplating the injustice perpetrated against African Americans for so much of American history rightly elicits feelings of indignation. But if we let that understandable anger control how we approach not just social and political issues, but how we feel and talk about people with different ideas for seeking justice, we will not only unfairly demonize others, we will make it much harder to find sustainable ways to address injustice’s lasting effects.</p> <p>I hope that readers will understand how someone with good intentions could support the principles that many—including, yes, some segregationists—have invoked to advance school choice, and will proceed in this debate by assuming that choice supporters, unless they offer compelling evidence otherwise, seek just outcomes. Then let us have a discussion in which we listen with open minds and seek solutions.</p> </div> Fri, 30 Aug 2019 09:09:00 -0400 Neal McCluskey https://www.cato.org/publications/commentary/segregation-school-choice-movement Julian Sanchez discusses recent developments regarding James Comey on KURV's The Drive Home https://www.cato.org/multimedia/media-highlights-radio/julian-sanchez-discusses-recent-developments-regarding-james-comey?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 29 Aug 2019 11:58:00 -0400 Julian Sanchez https://www.cato.org/multimedia/media-highlights-radio/julian-sanchez-discusses-recent-developments-regarding-james-comey Robert A. Levy discusses the Obama administration’s stance on the assassination of American citizens on The Bob Harden Show https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-obama-administrations-stance-assassination?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Wed, 28 Aug 2019 10:16:00 -0400 Robert A. Levy https://www.cato.org/multimedia/media-highlights-radio/robert-levy-discusses-obama-administrations-stance-assassination FamilyTreeDNA, Government Overreach, and Unethical Nudges https://www.cato.org/blog/familytreedna-government-overreach-unethical-nudges?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Aaron Yelowitz <p>A disturbing story about <a href="https://www.wsj.com/articles/customers-handed-over-their-dna-the-company-let-the-fbi-take-a-look-11566491162">FamilyTreeDNA</a> highlights issues about consumer privacy, government collaboration, and poor stewardship by a private company. Digging deeper, the story also highlights how behavioral economics can go awry, through self-serving choices by a moralistic CEO that violate basic ethical principles of choice architecture design. Bad nudges is an issue I have highlighted before in the context of <a href="https://www.cato.org/blog/bad-nudges-kentucky-medicaid">Kentucky Medicaid</a> plan choice and <a href="https://www.cato.org/blog/government-mandated-state-run-auto-iras-can-cause-real-harm">state-run auto-IRAs</a>.&#13;<br /> &#13;<br /> The short version: FamilyTreeDNA’s database contains more than 1.5 million customers, and the FBI approached company president Bennett Greenspan in late 2017 and early 2018 to access those records in hopes of finding genetic links for some unsolved crimes. As the Wall Street Journal notes:&#13;<br /> &#13;<br /><em>He didn’t tell the FBI attorney to come back with a court order. He didn’t stop to ponder the moral quandaries. He said yes on the spot. “I have been a CEO for a long time,” said Mr. Greenspan, 67 years old, who founded the Houston-based company in 1999. “I have made decisions on my own for a long time. In this case, it was easy. We were talking about horrendous crimes. So I made the decision.”</em>&#13;<br /> &#13;<br /> Any libertarian would certainly agree that consumers and companies should be free to come to any agreement they want on sacrificing personal privacy for other product characteristics (including lower prices). Even with an open-ended user agreement, it is hard to fathom that even the most imaginative users from 15 years ago would have envisioned the sort of law enforcement overreach that we see today. If informed, some subset of customers would likely support FamilyTreeDNA’s collaboration with the FBI. The user agreement did not require the company to inform customers that the FBI was searching their records, and the company did not inform customers until after <a href="https://www.buzzfeednews.com/article/salvadorhernandez/family-tree-dna-fbi-investigative-genealogy-privacy">Buzzfeed</a> revealed the collaboration in January 2019.&#13;<br /> &#13;<br /> Although the CEO appears to be an enthusiastic participant in the FBI’s dragnet, this may be the exception, rather than the rule. Other DNA testing companies – such as 23andMe, Ancestry, and MyHeritage – do not collaborate with law enforcement unless legally required to do so. One must wonder how much extra legal costs are borne by private companies from law enforcement overreach like this, and how much it would cost a company to vigorously fight back against the fishing expeditions? Surely, the cost of law enforcement overreach is passed on to customers who pay more in submission fees, in order to have their privacy invaded.&#13;<br /> &#13;<br /> It is important to put the company’s subsequent response to the fallout into a behavioral economic lens.&#13;<br /> &#13;<br /><em>In March (2019), FamilyTreeDNA said it figured out a way <strong>to allow customers to opt out of law-enforcement matching</strong> but still see if they matched with regular customers. … (Mr. Greenspan) said <strong>less than 2% of customers have requested opting out</strong> of law-enforcement searches.</em>&#13;<br /> &#13;<br /> In his pioneering work, Prof. Cass Sunstein lays out <a href="http://www.law.harvard.edu/programs/olin_center/papers/pdf/Sunstein_809.pdf">ethical considerations</a> for choice architecture. He argues that the objective of nudging is to “influence choices in a way that will make the choosers better off, as judged by themselves.” In this context, when confronted with obvious outrage and bad publicity, FamilyTreeDNA had important decisions to make. Sunstein’s “as judged by themselves” principle would suggest the opposite choice architecture: <strong>the company should have set the default as automatic opt-out of law enforcement matching,</strong> and allowed users to opt-in to law enforcement matching if they so decided. Many of the 1.5 million customers are likely infrequent, inactive users of the website, and many were likely unaware of the FBI collaboration, even after the news broke. They would be appalled by the collaboration. Mr. Greenspan’s opt-out figure of 2% strikes me as a very large response, given that FamilyTreeDNA has customers going back 20 years, and many likely ignore emails and news stories about this scandal.&#13;<br /> &#13;<br /> The criticism of this company’s choice architecture – and feature stories in prominent newspapers – of course would not exist without unabated government overreach. From a handful of inquiries in early 2018, there are now 50 law-enforcement agencies requesting matching from FamilyTreeDNA. Buyer beware.</p> Sun, 25 Aug 2019 15:30:00 -0400 Aaron Yelowitz https://www.cato.org/blog/familytreedna-government-overreach-unethical-nudges Dissenters in Fifth Circuit Qualified Immunity Case Misunderstand the Relationship between "Originalism" and Section 1983 https://www.cato.org/blog/dissenters-fifth-circuit-qualified-immunity-case-misunderstand-relationship-between-originalism?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Jay Schweikert <p><a href="https://www.cato.org/blog/two-recent-en-banc-decisions-exemplify-injustice-impracticality-persistent-confusion-inherent">Yesterday</a> I wrote about two recent en banc decisions from the Fifth and Eighth Circuits on the subject of <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">qualified immunity</a>, and how those cases fit into the rising tide of opposition to the doctrine generally. But I wanted to expand upon a point of disagreement between two of the dissents in <a href="http://www.ca5.uscourts.gov/opinions/pub/14/14-10228-CV3.pdf"><em>Cole v. Hunter</em></a> (the Fifth Circuit case), which may prove to be one of the central questions if and when the Supreme Court decides to reconsider the doctrine -- namely, the relationship between qualified immunity, Section 1983, and originalism. I'll note that both <a href="https://reason.com/2019/08/20/the-fifth-circuit-divides-on-qualified-immunity-and-originalism/">Josh Blackman</a> and <a href="https://reason.com/2019/08/23/judge-don-willett-butts-heads-with-fellow-trump-appointees-over-qualified-immunity-for-cops/">Damon Root</a> have already written about this aspect of the <em>Cole</em> decision, but as someone who's spent the better part of the last two years waging a campaign against qualified immunity I wanted to offer my take on the many ways in which Judges James Ho and Andrew Oldham seriously misunderstand qualified immunity, Section 1983, and originalism itself.  &#13;<br /> &#13;<br /> As I noted previously, Judge Don Willett -- a Trump appointee and one of the judges on his shortlist for the Supreme Court -- has emerged as a prominent critic of qualified immunity, and has now repeatedly urged the Supreme Court to reconsider the doctrine. A few months ago, in <em><a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">Zadeh v. Robinson</a></em>, he explained how "[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the <em>first</em> to behave badly." Judge Willett again picked up this theme in his separate dissent in <em>Cole</em>, beginning his opinion with the assertion that "[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal." (Note that Judge Willett agreed with the other dissenters that, under <em>current</em> precedent, the defendants in <em>Cole</em> were entitled to immunity, which is why his opinion was also a dissent, even though it takes a very different approach.)&#13;<br /> &#13;<br /> Perhaps sensing that the tide is turning against qualified immunity, Judges Ho and Oldman -- both Trump appointees themselves -- wrote separately to respond to the general idea that qualified immunity should be reconsidered. In particular, they say the following about the "originalist" critique of qualified immunity -- i.e., the <a href="http://www.californialawreview.org/print/2-is-qualified-immunity-unlawful/">historical fact</a> that the common law of 1871 (when Section 1983 was first passed) provided absolutely nothing like the sweeping, across-the-board defense for state officials that characterizes qualified immunity today:&#13;<br /> &#13;</p> <blockquote><p>[S]ome have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution. . . . As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.&#13;<br /> &#13;<br /> The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines. <em>See Crawford-El v. Britton</em>, 523 U.S. 574, 611–12 (1998) (Scalia, J., joined by Thomas, J., dissenting).&#13;<br /> &#13;<br /> A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand, as well as limit, § 1983 liability:&#13;<br /> &#13;<br /> "[O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted . . . . [But] [t]he § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of <em>Monroe v. Pape</em>, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom, or usage of any State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law."</p> </blockquote> <p>In other words, qualified immunity may well lack any plausible textual or historical basis. But because, say Judges Ho and Oldham, the Supreme Court erroneously <em>expanded</em> the reach of Section 1983 in <em>Monroe v. Pape (</em>by holding that state officials could be sued even when they were acting contrary to a state's own laws), then two wrongs make a right, and we should just keep qualified immunity as is, as a kind of compensating error. Indeed, they conclude this section of the opinion by saying: "If we’re not going to do it right, then perhaps we shouldn’t do it at all" -- with "it" here meaning, actually interpret statutes as written.&#13;<br /> &#13;<br /> Lest this argument seem like an abstruse, academic rejoinder, I can personally attest, having now participated in or observed several debates on qualified immunity, that this is <em>the</em> most frequently and fervently raised rebuttal to the otherwise insurmountable assertion that modern qualified immunity lacks any plausible historical basis. But despite its veneer of reasonableness, this "two wrongs make a right" argument is so deeply, fundamentally flawed, on so many levels, that it's worth spelling out each of them in detail:&#13;<br /> &#13;<br /><em><span>First</span></em>, perhaps a pedantic point, but Judges Ho and Oldman's august reference to the "Founder's Constitution" is out of place in this discussion. Qualified immunity is not a constitutional doctrine; it is, nominally, a gloss on the statute currently codified at <a href="https://www.law.cornell.edu/uscode/text/42/1983">42 USC § 1983</a>, but which was originally enacted by the Reconstruction Congress in 1871. And as even the Supreme Court has acknowledged, “the statute on its face does not provide for <em>any</em> immunities.” <em>Malley v. Briggs</em>, 475 U.S. 335, 342 (1986). Thus, the only conceivable legal basis for qualified immunity is the Supreme Court's false assertion that “[c]ertain immunities were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” <em>Buckley v. Fitzsimmons</em>, 509 U.S. 259, 268 (1993). I will not go into detail here explaining why this defense of the doctrine fails utterly as a matter of actual historical fact, but <a href="http://www.californialawreview.org/print/2-is-qualified-immunity-unlawful/">Will Baude</a> has addressed the question extensively, and I summarize the issue <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">here</a>. Suffice to say, the debate here isn't over "originalism" as an overarching theory of constitutional interpretation, and isn't really about the Constitution at all -- we're talking about how to correctly interpret and apply a particular statute.&#13;<br /> &#13;<br /><em><span>Second</span></em>, Judges Ho and Oldman (and Justice Scalia, in his <em>Crawford-El</em> opinion) seem to take it as a given that <em>Monroe v. Pape</em> was wrongly decided, which is what gives them justification to accept the obvious (but in their view, counter-balancing) errors with qualified immunity itself. But that assumption simply isn't justified -- indeed, there's a very good <em>originalist</em> argument that <em>Monroe</em> was, in fact, correctly decided, which of course would entirely negate this "two wrongs make a right" defense of qualified immunity. To restate Justice Scalia's (and by extension, Judges Ho and Oldman's) criticism of <em>Monroe</em>: The text of Section 1983 creates liability for those who act “under color of any statute, ordinance, regulation, custom, or usage of any State.” Thus, in Justice Scalia's view, a state official can only be liable under Section 1983 if they were, in fact, acting in accordance with state law. Therefore, by holding that state officials could be liable even when their actions were <em>not</em> authorized by state law, the <em>Monroe</em> Court massively expanded liability under Section 1983, in contravention of the statutory language.&#13;<br /> &#13;<br /> Though superficially plausible, the problem with this argument is that it glosses over the meaning of the phrase "under color of." After all, the statute <em>could </em>have been written to cover violations committed "<strong>in accordance with</strong> any statute, ordinance, regulation, custom, or usage, of any State." If <em>that</em> were what the statute said, Justice Scalia's criticism of <em>Monroe</em> would be well taken. But, as a historical, <em>originalist</em> matter, that is simply not what the phrase "under color of" means. To the contrary, this phrase is actually a longstanding term-of-art which was well understood to encompass <em>false</em> claims to authority. As detailed by Steven Winter in an <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2391&amp;context=mlr">article on exactly this subject</a>, the use of this phrase goes back more than 500 years, to an English bail bond statute that voided obligations taken by sheriffs “by colour of their offices,” if they failed to comply with statutory requirements. In other words, it encompassed illegal acts by government agents who abused or exceeded their statutory authority -- which is exactly the sort of unlawful conduct recognized by <em>Monroe</em>. Therefore, contra Justice Scalia's suggestion in <em>Crawford-El</em>, a faithfully originalist understanding of Section 1983 would seem to <em>support</em> the result in <em>Monroe</em>. And if that's the case, then obviously the whole "two wrongs make a right" theory collapses.&#13;<br /> &#13;<br /><em><span>Third</span></em>, let's assume -- as I do not think is the case -- that <em>Monroe v. Pape</em> was incorrectly decided. If we are unwilling to revisit that decision on "originalist" grounds, is that a sufficient reason to refuse to reconsider qualified immunity as well? Absolutely not. For one, even <em>if</em> <em>Monroe</em> were wrong, it meets absolutely all the traditional criteria for respect as precedent -- even if incorrect, the question is at the very least a close call, in light of the textual/historical argument I noted above; it has produced a clear, unambiguous rule, which lower courts routinely apply without any confusion or disagreement; and it has been thoroughly accepted by both the judiciary and the general public as legitimate and appropriate.&#13;<br /> &#13;<br /> In sharp contrast, modern qualified immunity doctrine is at the opposite end of the spectrum on all of these criteria. No one -- absolutely no one -- will look you in the eye with a straight face and tell you that contemporary qualified immunity doctrine represents the <em>best</em> interpretation of the text and history Section 1983. As evidenced by Justice Scalia's <em>Crawford-El</em> opinion and Judges Ho and Oldham's dissent in <em>Cole</em>, the judicial defenders of qualified immunity aren't even trying to make this argument. Indeed, the most robust defense of the doctrine that I'm aware of is the recent piece by Aaron Nielson and Chris Walker, appropriately titled "<a href="http://ndlawreview.org/wp-content/uploads/2018/08/3-Nielson-Walker.pdf">A Qualified Defense of Qualified Immunity</a>" -- and even there, the most they argue is that the historical evidence isn't <em>quite</em> as one-sided as Will Baude suggests, and that while <em>some</em> form of qualified immunity might be justified, the Court's current doctrine is still in need of correction.&#13;<br /> &#13;<br /> Moreover, in contrast to the clear rule from <em>Monroe</em>, the Court's "clearly established law" standard has proven hopelessly amorphous, malleable, and incapable of consistent, predictable application in lower courts. And as evidenced by the diverse and growing chorus of judges, academics, and public-policy voices calling for the Supreme Court to revise or abolish the doctrine, it has hardly been accepted as legitimate. Far from being a mere technical error, this noxious doctrine regularly denies relief to victims of egregious state misconduct, undermines accountability for government agents at a structural level, and exacerbates the national crisis of confidence in law enforcement generally. Thus, even <em>if</em> both <em>Monroe</em> and qualified immunity merit originalist criticism, there is a far, far stronger case for reexamining the latter than the former.&#13;<br /> &#13;<br /><em><span>Fourth</span></em>, setting aside the object-level questions of whether <em>Monroe</em> was correct, how bad it is compared to qualified immunity, etc., we should reject the "two wrongs make a right" approach to judicial decision-making at a fundamental level. Yes, the Supreme Court sometimes reaches the wrong answer. Yes, sometimes those wrong answers will distort other areas of law. But in a world where we're going to predictably <em>disagree</em> on which cases are correct or not, "you got this case wrong so I'm allowed to get this other case wrong" is a license for endless, unresolvable turmoil. If qualified immunity has gone "too far" in correcting for the supposed mistake in <em>Monroe</em>, are judges allowed to distort the meaning of <em>other </em>statutes to fix this problem? What compensating errors will be necessary to address the distortion to <em>those</em> statutes? If we all agree the Supreme Court has made <em>some</em> mistakes, then "two wrongs make a right" becomes a fully general argument for defending flawed legal conclusions, so long as they can plausibly be tied to a past alleged mistake. That way lies madness, not the rule of law.&#13;<br /> &#13;<br /> More generally, Judges Ho and Oldham suggest that, if we're going to reconsider qualified immunity on originalist grounds, we're somehow honor-bound to reconsider <em>Monroe</em> as well. But that's just not how doctrine is developed in our adversarial system. The Supreme Court doesn't act as a regulatory body, issuing advisory opinions on several related subjects simultaneously so as to ensure general harmony in the case law; rather, it resolves disputes in the individual cases it decides to take. Textualism and originalism, at their best, aim to provide a principled, predictable, value-neutral means of deciding cases. Of course, some questions will still be hard even under this approach, and how originalists should deal with non-originalist precedent is a famously thorny problem. But the best that judges can do is try to get the right answer in each case that comes before them -- and the "two wrongs make a right" theory renders this principled approach impossible.&#13;<br /> &#13;<br /> * * *&#13;<br /> &#13;<br /> In my view, the opponents of qualified immunity have made a persuasive argument that the doctrine is utterly without legal or historical justification, that it is impossible to apply with the consistency or predictability that generally warrant respect for precedent in the first place, and that is actively corrupting what would otherwise be the best means we have of ensuring accountability for government agents. That argument deserves to be met on its own terms. If the defenders of qualified immunity think <em>Monroe</em> is wrong too, then fine. Let them make that argument. Let them engage in the detailed textual and historical analysis that would actually be necessary to justify it. Let them convince the judiciary and the public at large that this error is so egregious and harmful that it warrants reconsideration. I'm quite skeptical these folks <em>actually</em> want to make such an argument, but if they do, it deserves to be met on its own terms as well. But it is cowardly, unprincipled, and decidedly <em>anti</em>-originalist to refuse to meet the challenge to qualified immunity face-to-face, just because there's some other alleged mistake to hide behind.</p> Fri, 23 Aug 2019 17:21:06 -0400 Jay Schweikert https://www.cato.org/blog/dissenters-fifth-circuit-qualified-immunity-case-misunderstand-relationship-between-originalism Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity https://www.cato.org/blog/two-recent-en-banc-decisions-exemplify-injustice-impracticality-persistent-confusion-inherent?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Jay Schweikert <p>In the last week, the Fifth and the Eighth Circuits, sitting en banc, have each issued major, fractured decisions on the subject of <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">qualified immunity</a> -- the judge-made defense to civil rights claims under <a href="https://www.law.cornell.edu/uscode/text/42/1983">Section 1983</a>, which shields state actors from liability for their misconduct, even when they break the law. In <em><a href="http://www.ca5.uscourts.gov/opinions/pub/14/14-10228-CV3.pdf">Cole v. Hunter</a>,</em> decided yesterday, the Fifth Circuit, in an 11-7 decision, affirmed the denial of summary judgment for two defendant police officers, who shot a teenage boy and then lied about what happened. The lawsuit brought by the victim and his family will therefore be able to go to trial, making this one of the rare instances where a civil rights plaintiff is able to overcome qualified immuniity. But in <em><a href="https://cases.justia.com/federal/appellate-courts/ca8/17-2181/17-2181-2019-08-13.pdf?ts=1565710223">Kelsay v. Ernst</a></em>, decided last week, the Eighth Circuit held, 8-4, that a police officer was entitled to qualified immunity, after he had grabbed a small woman in a bear hug and slammed her to ground -- because she walked away from him. Although the courts here reached different outcomes, both cases amply illustrate the legal, practical, and moral infirmities with qualified immunity. The fractured decisions and many separate opinions in both cases also make clear that the doctrine is on increasingly shaky footing with both the judiciary and the general public.&#13;<br /> &#13;<br /><strong>I. <em>Cole v. Hunter</em>: A rare but narrow victory for a victim of egregious police misconduct</strong>&#13;<br /> &#13;<br /> This Fifth Circuit case arose out of an incident in Garland, Texas in October 2010, when police were looking for Ryan Cole, then a 17-year-old boy, who had reportedly been walking around the neighborhood with a handgun. Ryan was seen by some officers and ordered to stop, but Ryan pointed the gun at his own head and walked away toward a wooded area. When Ryan reemerged, a group of officers observed him for about five seconds and did not announce themselves or give any warning. Then, while Ryan was facing away from them with the gun still pointed at his head, one or more of the officers fired at him, striking him several times and causing him to involuntary discharge his own gun into his skull and brain. When two of the officers were questioned after the shooting, they falsely claimed that Ryan had turned to face them and pointed his gun at them before they fired -- an assertion belied by ample forensic and physical evidence (specifically, the location of Ryan's bullet wounds, and the location of shell casings and Ryan's blood).&#13;<br /> &#13;<br /> Ryan and his family brought a civil rights suit against these officers, claiming that they used excessive force and fabricated evidence in violation of Ryan's Fourth and Fourteenth Amendment rights. The district court denied qualified immunity to the defendants at summary judgment, a panel of the Fifth Circuit affirmed, and the Fifth Circuit then agreed to rehear the case en banc. The court then held, 11-7, that a reasonable jury could have found that Ryan posed no threat to the officers, and that it was clearly established that “shooting a mentally disturbed teenager, who was pointing a gun the entire time at his own head and facing away from the officer, in an open outdoor area, and who was unaware of the officer’s presence because no warning was given prior to the officer opening fire, was unlawful." Although the defendants presented a starkly different view of the facts, the majority correctly recognized -- as courts often fail to do in qualified immunity cases! -- that it lacked jurisdiction to consider the officers' competing factual narrative in this appeal. Rather, the disputed facts would have to be resolved by a jury.&#13;<br /> &#13;<br /> Seven judges dissented, however. The principal dissent, by Judge Edith Jones, accused the majority of defining "clearly established law" at too high a level of generality, arguing that even <em>if</em> the facts clearly established that Ryan posed no threat (and thus that shooting him violated the Fourth Amendment) the relevant question for purposes of qualified immunity was "whether <em>every</em> reasonable officer in this factual context would have known he could not use deadly force" -- and then arguing that no prior cases involved this precise factual context. This framing in the abstract is dutiful to the Supreme Court's qualilfied immunity jurisprudence, but in application, it's clear that the degree of specificity employed by the dissent would be practically impossible to overcome. To wit, the dissent went on to say:&#13;<br /> &#13;</p> <blockquote><p>[T[he importance of grounding the inquiry in a specific factual context cannot be overstated. In this case, if Officer Hunter had stood a hundred feet away from Cole, or Cole had not been turning toward the officers, or Cole had put the handgun in his pocket and wasn’t touching it, the analysis of qualified immunity could be quite different.</p> </blockquote> <p>On the one hand, the dissent is correct that the Supreme Court has insisted that immunity analysis be "particularized" to the facts of individual cases. On the other, the example of factual distinctions used by the dissent here plainly illustrate that there will never be a prior case involving <em>all</em> of the potentially relevant facts -- and even the Supreme Court has purported to say that a case <em>exactly</em> on point is unnecessary. Thus, while the dissent's analysis is not a wholly unreasonable application of existing precedent, it demonstrates how the "clearly established law" standard is inherently amorphous, and incapable of consistent, predictable application.&#13;<br /> &#13;<br /> Most notably, Judge Don Willett filed a separate dissent in this case. Although he would have held that "the Supreme Court’s unflinching, increasingly emphatic application of 'clearly established law' compel[led] dismissal," the bulk of his opinion is devoted to explaining that "[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal." Judge Willett's dissent therefore echoes his recent criticisms of qualified immunity in <em><a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50518-CV1.pdf">Zadeh v. Robinson</a></em>, although he did stress that the Supreme Court has "several 'mend it, don’t end it' options," which would substantially revise the doctrine without eliminating it entirely. Also, he again discussed the <a href="https://www.cato.org/blog/cato-files-brief-challenging-qualified-immunity-for-warrantless-strip-search-of-4-year-old">Cato-organized cross-ideological <em>amicus</em> brief from <em>Doe v. Woodard</em></a>, noting that "perhaps the most ideologically diverse amici ever assembled" were urging the Supreme Court to reconsider qualified immunity.&#13;<br /> &#13;<br /><strong>II. <em>Kelsay v. Ernst</em>: Greenlighting egregious and unnecessary police violence against the supposed victim of a crime</strong>&#13;<br /> &#13;<br /> Melanie Kelsay, her three children, and an adult friend of hers were swimming at a public pool in Wymore, Nebraska. She and her friend were engaged in what she called “horseplay,” but some onlookers thought he might be assaulting her and called the police. The police arrested her friend and put him a patrol vehicle, even though she repeatedly told them he hadn’t assaulted her; they then decided to arrest <em>her</em>, the alleged victim of this non-crime, because she was "getting in the way of the patrol vehicle door." While talking with Deputy Matt Ernst, Kelsay saw that her daughter had gotten into an argument with a bystander, and tried to go check on her. Ernst grabbed her arm and told her to “get back here,” but released her. Kelsay then said she needed to go check on her daughter, and again began walking toward her. At that point, without giving any further instructions, Ernst ran up behind her, grabbed her, and slammed her to the ground in a “blind body slam” maneuver, knocking her unconscious and breaking her collarbone.&#13;<br /> &#13;<br /> Kelsay then brought a Section 1983 suit against Ernst, and the district court denied qualified immunity, but a panel of the Eighth Circuit reversed, 2-1. The Eighth Circuit then agreed to rehear the case en banc, and affirmed the panel's grant of qualified immunity, in an 8-4 decision. The majority, of course, relied on the idea that there were no prior cases involving the "particular circumstances" of this case; i.e., no prior cases specifically held that "a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to 'get back here' and continued to walk away from the officer." No case exactly on point, qualified immunity, Q.E.D. The principal dissent by Chief Judge Lavenski Smith correctly noted that that the Supreme Court has never required "a case directly at point," and that here, an ample body of case law would have "put a reasonable officer on notice that the use of force against a non-threatening misdemeanant who was not fleeing, resisting arrest, or ignoring other commands violates that individual’s right to be free from excessive force."&#13;<br /> &#13;<br /> To make matters worse, the majority refused even to decide whether Ernst's conduct did, in fact, violate Kelsay's Fourth Amendment rights. So any officer could engage in <em>exactly</em> the same misconduct tomorrow, and it still would not be "clearly established" that the conduct was unlawful. Judge Steven Grasz wrote a separate dissent taking issue with this particular aspect of the court's decision. Though acknowledging that courts have discretion under <em><a href="https://supreme.justia.com/cases/federal/us/555/223/">Pearson v. Callahan</a></em> to grant immunity without deciding the merits, he argued that the exercise of such discretion was  "inappropriate in this case as it perpetuates the very state of affairs used to defeat Ms. Kelsay's attempt to assert her constitutional rights." Judge Grasz clearly grasps the circular nature of qualified immunity, noting that the judiciary's persistent refusal to decide constitutional questions under Section 1983 "imposes a judicially created exception to a federal statute that effectively prevents claimants from vindicating their constitutional rights."&#13;<br /> &#13;<br /><strong>III. The rising tide of opposition to qualified immunity</strong>&#13;<br /> &#13;<br /> Two circuit courts recently decided to take qualified immunity cases en banc, even though neither case involved any <em>new</em> legal questions or suggested reversals of circuit precedent; that fact itself is a testament to how important this issue has become, and how much rising pressure there is to modify or abolish this doctrine. <em>Cole</em> and <em>Kelsay</em> hardly stand alone as examples of recent or ongoing high-profile qualified immunity cases. Just last month, the Eleventh Circuit issued a truly appalling decision in <a href="https://www.cato.org/blog/eleventh-circuit-grants-immunity-officer-who-shot-child-lying-ground-while-trying-shoot"><em>Corbitt v. Vickers</em></a>, granting immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The Supreme Court unfortunately denied cert in <a href="https://www.cato.org/blog/cato-files-brief-challenging-qualified-immunity-for-warrantless-strip-search-of-4-year-old"><em>Doe v. Woodard</em></a> at the end of its last term, but there's another outstanding cert petition explicitly calling for the Court to reconsider qualified immunity (<em><a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1287.html">Baxter v. Bracey</a></em>), which will be considered at the long conference on October 1st. And there will probably be additional cert petitions challenging one or more of the decisions in <em>Corbitt</em>, <em>Kelsay</em>, and <em>Cole.</em>&#13;<br /> &#13;<br /> In other words, this issue isn't going away. Day by day, more and more lower court judges add their voices to the growing chorus calling upon the Supreme Court to reconsider this noxious doctrine, and agitation by public policy groups across the ideological spectrum continues to grow. Some of the <a href="https://blogs.findlaw.com/blotter/2019/08/what-is-qualified-immunity-and-why-is-everyone-talking-about-it.html">Democratic presidential candidates</a> have even started to call for the abolition of qualified immunity. The day of reckoning may well be coming soon.</p> Thu, 22 Aug 2019 14:35:26 -0400 Jay Schweikert https://www.cato.org/blog/two-recent-en-banc-decisions-exemplify-injustice-impracticality-persistent-confusion-inherent Randy E. Barnett discusses due process on a Federalist Society produced video https://www.cato.org/multimedia/media-highlights-tv/randy-e-barnett-discusses-due-process-federalist-society-produced?utm_source=rss_topic&utm_medium=rss&utm_campaign=rss Thu, 22 Aug 2019 11:25:00 -0400 Randy E. Barnett https://www.cato.org/multimedia/media-highlights-tv/randy-e-barnett-discusses-due-process-federalist-society-produced