law

CBP Dodges Sen. Wyden’s Electronic Searches Question

Sen. Ron Wyden (D-OR) is concerned about Customs and Border Protection’s (CBP) searches of travelers’ electronic devices at the border and ports of entry. CBP’s responses to Wyden’s queries about such searches are illuminating but far from reassuring.

In February, Sen. Wyden sent a letter to Department of Homeland Security (DHS) Secretary John Kelly, asking a range of questions about searches of electronic devices. DHS responded to this letter, but the agency’s response didn’t satisfy Sen. Wyden, who posed some followup questions to CBP acting commissioner, Kevin McAleenan.

McAleenan’s answers to Sen. Wyden’s questions are revealing, in part because of what they don’t discuss.

The answers begin by noting that the Supreme Court recognizes the CBP’s “broad scope” of authority to conduct border searches.

One Police Video, Many Interpretations

Members of the public should be able to access the body camera footage related to Tuesday’s police-involved shooting that left Keith Scott dead and prompted violent protests in Charlotte, North Carolina. But we shouldn’t be under any illusion that everyone who watches the footage will arrive at the same opinion about the police officer’s behavior. Two people can watch the same video and come to different moral conclusions. A study on video footage that proved instrumental in a Supreme Court case helps illustrate this fact.

In Scott v. Harris (2007) the Supreme Court considered whether a police officer (Scott) had violated the Fourth Amendment when he deliberately ran Harris’ car off the road during a high-speed chase, which resulted in Harris being left a quadriplegic. An 8-1 majority found that, “a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

Harsh Consequences Required for Officers Who Fail to Activate Body Cameras

Last Thursday, a Chicago police officer shot unarmed 18-year-old Paul O’Neal in the back, killing him. O’Neal reportedly crashed a stolen car into a police vehicle during a chase and then fled on foot. Two officers then fired at O’Neal. This is the kind of incident where body camera footage would be very helpful to investigators. The officer who shot O’Neal was outfitted with a body camera. Unfortunately, the camera wasn’t on during the shooting, raising difficult questions about the rules governing non-compliance with body camera policy. While there is undoubtedly a learning curve associated with body cameras officers who fail to have them on during use-of-force incidents should face harsh consequences.

Body camera footage of O’Neal’s shooting would make the legality of the killing easier to determine. The Supreme Court ruled in Tennessee v. Garner (1985) that a police officer cannot use lethal force on a fleeing suspect unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The Chicago Police Department’s own use-of-force guidelines allow officers to use a range of tools (pepper spray, canines, Tasers) to deal with unarmed fleeing suspects under some circumstances, but the firearm is not one of them.

O’Neal’s shooting would be legal if the officer who shot him had probable cause to believe that he posed a threat of death or serious injury to members of the public or police officers. Given the information available, perhaps most significantly the fact that O’Neal was unarmed, it looks likely that O’Neal’s died as a result of unjustified use of lethal force.

So far, the Chicago Police Department has stripped three officers involved in the chase and shooting of police powers, with Superintendent Eddie Johnson saying that the officers violated department policy. O’Neal’s mother has filed a federal civil rights lawsuit, alleging that her son was killed “without legal justification.”

School Choice Lowers Crime

New research by Harvard professor David J. Deming studied the crime rates of young adults who participated in a random lottery at the middle or high school level. The lotteries decided whether students were able to attend a school of their choice or whether they were forced to attend their assigned public school. Students who won the lottery committed significantly fewer crimes as young adults than those who lost it.

Natural Law in the Nursery

“It’s my toy” = property law
“You promised” = contract law
“He hit me first” = criminal law
“Daddy said I could” = constitutional law

—Examples that the late Prof. Harold Berman of Harvard and Emory liked to invoke to show how children, from a very early age, grasp some of the basic principles of law. [John McGinnis, Liberty and Law]

What Privacy Invasion Looks Like

The details of Tyler Clementi’s case are slowly revealing themselves. He was the Rutgers University freshman whose sex life was exposed on the Internet when fellow students Dharun Ravi and Molly Wei placed a webcam in his dorm room, transmitting the images that it captured in real time on the Internet. Shortly thereafter, Clementi committed suicide.

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