Archive for the ‘Law and Civil Liberties’ Category
Guns in D.C.
Three years after the Supreme Court’s landmark Heller ruling, which declared Washington, D.C.’s gun control laws unconstitutional, city officials keep fighting. Under pressure from another lawsuit concerning a de facto ban, the city says that guns may now be purchased at the police station. No details yet on whether residents will have to change into orange jump suits and wait in the holding cells while the police process the paperwork.
More here.
The Risks of Playground Safety
New York Times science writer (and longtime libertarian favorite) John Tierney had a great piece yesterday under the headline, “Can a Playground Be Too Safe?” As Tierney observes:
The old tall jungle gyms and slides disappeared from most American playgrounds across the country in recent decades because of parental concerns, federal guidelines, new safety standards set by manufacturers and — the most frequently cited factor — fear of lawsuits.
Some researchers argue that the safety benefits of the revamped designs have been oversold; kids can break bones falling from not-so-high slides onto relatively soft surfaces, for example. One researcher outlines what sounds like a teeter-totter version of the Peltzman hypothesis: “If children and parents believe they are in an environment which is safer than it actually is, they will take more risks.”
Moreover, playgrounds with an element of genuine, unmistakable risk can offer children “the benefits of conquering fear and developing a sense of mastery,” thus helping them develop into adults who are venturesome rather than timid. Tierney closes the piece with a perfect pair of quotes from a Bronx 10-year-old and her mother:
“I was scared at first,” she explained. “But my mother said if you don’t try, you’ll never know if you could do it. So I took a chance and kept going. At the top I felt very proud.” As she headed back for another climb, her mother, Orkidia Rojas, looked on from a bench and considered the pros and cons of this unfamiliar equipment.
“It’s fun,” she said. “I’d like to see it in our playground. Why not? It’s kind of dangerous, I know, but if you just think about danger you’re never going to get ahead in life.”
If only the judges and legal academics who’ve made war on principles like “assumption of risk” in liability law were as insightful.
Shocker Reported from Delaware Judiciary
“[The] Delaware [court system] is now almost actively hostile toward cases they think are without merit,” Widener lawprof Larry Hamermesh tells the Wall Street Journal, regarding flimsily based suits in which lawyers seek to block corporate mergers and then collect fees when the target agrees to settle in order to get the deal done. Imagine that — almost actively hostile. If this keeps up, are lawyers supposed to hold back on unmeritorious cases, and only file the meritorious sort? Wouldn’t that be, like, monotonous?
Chicago Still Disrespects Second Amendment
That’s the upshot of a recent decision by the Seventh Circuit Court of Appeals in the case of Ezell v. City of Chicago. This was a challenge to the new regulations the city enacted in the wake of McDonald v. City of Chicago case, which applied the Second Amendment to the states.
In an attempt to circumvent the Supreme Court’s clear holding, Chicago’s ordinance first mandates that would-be gun owners receive training at a firing range but then prohibits firing ranges from operating in the city. The court, in a striking opinion by Judge Diane Sykes (put her on your Supreme Court shortlist for the next Republican administration), tells the city to go back to the drawing board.
I won’t go into the details, but the court applied something greater than intermediate (but “not quite strict”) scrutiny and found that Chicago has not presented anything approaching a compelling reason for its restriction. Here’s an analysis of the opinion by Josh Blackman and some follow-up commentary from Cato associate policy analyst Dave Kopel.
Gratifyingly, Judge Sykes cites the Pandora’s Box article that Josh and I published early last year in the run-up to the McDonald argument (see footnote 11 on page 31). It’s quite an honor to appear in the same footnote as Randy Barnett, Steven Calabresi, Brannon Denning, Glenn Harlan Reynolds (the Instapundit), and many other noted scholars — including Akhil Amar, who in the wake of our Obamacare debate and bet may not appreciate it as much.
Congratulations to the intrepid Alan Gura (who also litigated McDonald and Heller v. District of Columbia) and to all the citizens of Chicago!
Even Imaginary Guns Save Lives
Because we care about individual liberty here, we think you should be able to engage in self-defense to protect that liberty (and your life, if it comes to that). That includes the right to armed self-defense, of course, a right that becomes all the more important when encountering potential assailants who are stronger and/or more numerous than you.
Indeed you might recall from the legal fight to guarantee an individual right to keep and bear arms, that my colleague Tom Palmer once fended off some anti-gay marauders by just showing them that he had a gun.
And now we see that same story play itself out, except the would-be victim scared off a homophobic gang by merely maintaining the impression that he had a gun:
The situation could have gone either way: I could end up beaten or dead, or we could all go our separate ways.
All I could think to do was to get to my backpack and find my phone. As I fumbled for the phone, I heard one of them say, “Does he have a gun?”
So I kept my hand in my backpack, allowing them to wonder whether I was reaching for a gun. Then a couple of them started to run away, and the others soon followed. I got back on my bike and pedaled as fast as I could out of there.
When I got home, I began to reflect on what had happened, and more disturbingly what could have happened. I am in contact with the LGBT unit of the police department to file a report. But I’ve thought a lot about the turning point of the situation — the fact that one of them thought that I might have a gun. None of them said, “There’s a law against antigay hate crimes!” That wasn’t the deterrent. It was the possibility that I might have had a gun that saved my life Friday night.
It’s unfortunate that the people Mr. LaSalvia encountered are around — whatever their motivations — but would we be in a better world if people like him couldn’t imply the potential for armed self-defense?
Of course, in DC, Chicago, and many other places — which, after the recent Supreme Court rulings, must allow guns to be kept at home — it’s still illegal to carry a gun (open or concealed). If the thugs Mr. LaSalvia ran into knew the local gun regulations (as many professional criminals do) and accurately gauged their target as a law-abiding citizen, they would have known that he was bluffing.
Is that what gun-control proponents — many of whom I surmise strongly support gay and women’s rights — want?
(H/t: Lindsay Charles)
Campus Show Trials
Harvey Silverglate, co-founder and chairman of the board of the Foundation for Individual Rights in Education (FIRE) and a Cato adjunct scholar, has an excellent op-ed in today’s Wall Street Journal highlighting the emerging problem of due process violations on college campuses. As Ilya Shapiro has written about previously, the Department of Education’s Office of Civil Rights recently sent out a letter outlining new procedural requirements for dealing with claims of sexual harassment and assault. Despite its cordial opening — it begins with the words “Dear Colleague” — the letter carries the de facto force of law: universities that receive public funds (nearly all of them) may have their funding stripped if they don’t follow the new guidelines.
The new guidelines threaten to turn the campus courts at some of our most august institutions into “kangaroo courts” that ignore basic rights of the accused, such as the right to confront accusers. Most disturbingly, universities are now commanded to use a “preponderance of the evidence” standard in adjudicating claims of sexual assault, including rape. The preponderance of the evidence standard is little more than a hunch, and is often described as a simple 50.01% probability of guilt.
In 1970, in the case of In re Winshop, the Supreme Court ruled that a standard of proof “beyond a reasonable doubt” is constitutionally required in criminal cases. The Court wrote:
The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.
Moreover, use of the reasonable doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
While universities are not putting anyone in jail, merely being accused of a rape, much less being convicted by your university, has many of the same concerns as a criminal trial. As if to supply an object lesson that illustrates the Supreme Court’s well-articulated concerns, Silverglate opens his op-ed with the following harrowing story:
SB 1070: Constitutional But Bad Policy
That’s the title of an essay I wrote for SCOTUSblog as part of their symposium on United States v. Arizona. This is the big immigration case that will hit the Supreme Court’s doorstep later this month when Paul Clement, recently hired by Arizona, files his cert petition.
Here’s an excerpt:
…state governments, feeling tremendous pressure from their citizens to address the consequences of the federal failure to meet this nation’s immigration needs, are acting for themselves. Arizona happens to be the “tip of the spear,” but we’ve also seen various other immigration-related laws passed in states as different as Utah, Georgia, and California. Whether related to enforcement, expanded work permits, sanctuary cities, or other types of policy innovations, Congress’s abdication of its duty to manage our immigration system has spawned a host of federalism experiments.
And so we come to S.B. 1070 (as amended by H.B. 2162), which exemplifies the crucial distinction between law and policy that both liberals and conservatives tend to forget. A law that is good policy might be unconstitutional or preempted by some higher law. Here we see the converse: while S.B. 1070 is (with the exception of one provision) constitutional, it’s bad policy.
Relegate Mandatory Data Retention to the Dustbin of History
Greg Nojeim of the Center for Democracy and Technology reports on yesterday’s hearing in the House Judiciary Committee on H.R. 1981, the Protecting Children from Internet Pornographers Act of 2011. (I lamented the bill earlier this week, as did Julian Sanchez last week.)
Rep. Sensenbrenner [(R-Wis.)], Chair of the Crime Subcommittee, opened the hearing with an extraordinarily strong attack on the bill. Saying the Committee should relegate mandatory data retention to the dustbin of history, he attacked the data retention provision on economic and privacy grounds. “I believe this bill is bad policy and I will do my best to kill it.” He also said, “This bill runs roughshod over the privacy rights of people who use the Internet for thousands of lawful purposes … this bill should be defeated and put in the dustbin of history.” He also lashed out at the provision in the bill (Section 7) that would give the U.S. Marshals administrative subpoena authority to investigate unregistered sex offenders, reminding the Subcommittee that as Chairman of the full Committee during the debates about reauthorizing the Patriot Act in 2005 or 2006, he had examined the issues surrounding administrative subpoenas and determined that admin subpoena authority would be too much a risk to privacy to confer on the gov’t.
Kudos to Rep. Sensenbrenner for considering the privacy consequences of this bill and the risks in conferring too much power on the government. I’d be in favor of his keeping these concerns in mind with policies well beyond data retention.
Moral Panic and Your Privacy
Want to understand a big chunk of what Washington, D.C. does? Learn about “moral panic.”
Moral panic is a dynamic in the political and media spheres in which some threat to social order—often something taboo—causes a response that goes far beyond meeting the actual threat. It’s a socio-political stampede, if you will. You might be surprised to learn how easily stampeded your society is.
Take a look at H.R. 1981, the Protecting Children from Internet Pornographers Act of 2011. It’s got everything: porn, children, the Internet. And it’s got everything: financial services providers dragooned into law enforcement, data retention requirements heaped on Internet service providers, expanded “administrative subpoena” authority. (Administrative subpoenas are an improvisation to accommodate the massive power of the bureaucracy, and they’ve become another end-run around the Fourth Amendment. If it’s “administrative” it must be reasonable, goes the non-thinking…)
This isn’t a bill about child predation. It’s a bald-faced attack on privacy and limited government. Congress can move legislation like this, even in the era of the Tea Party movement, because child predation is a taboo subject. The inference is too strong in too many minds that opposing government in-roads on privacy is somehow supporting child exploitation. Congress and its allies use taboos to cow the populace into accepting yet more government growth and yet more surveillance.
I’m not turned to mush by taboos, so the question I’m most interested in having asked at tomorrow’s hearing on the bill in the House Judiciary Committee is: “Under what theory of the Commerce Clause is this bill within the power of the federal government?”
The Casey Anthony Verdict and the Criminal Justice System
The Casey Anthony case is all over the news this week. I did not follow the case closely, but Harvard law professor Alan Dershowitz has a good article about the case and the criminal law in today’s Wall Street Journal. One thing I do know is that this highly-publicized trial will reinforce a commonly held view about criminal justice in America–that juries weigh evidence and decide whether the accused is guilty or not. As I note in the July issue of Reason magazine, trials are infrequent events in our legal system.
Most Americans are under the mistaken impression that when the government accuses someone of a crime, the case typically proceeds to trial, where a jury of laypeople hears arguments from the prosecution and the defense, then deliberates over the evidence before deciding on the defendant’s guilt or innocence. This image of American justice is wildly off the mark.
Read the whole thing. The July issue of Reason is chock full of good articles about various aspects of criminal injustice.
I Guess the ‘You Are All Criminals Act’ Didn’t Have the Same Ring
If you thought it was the height of cynicism when legislators dubbed a massive expansion of government surveillance power the “USA Patriot Act” (recently extended—really!—under the heading of small business legislation), feast your eyes upon the Protecting Children from Internet Pornographers Act of 2011, on which the House Judiciary Committee is slated to hold a hearing next Tuesday. What kind of monster would dare be on the record opposing that bill?
As you may have already guessed, the handful of provisions in the bill that really deal specifically with child porn are a fig leaf for its true purpose: A sweeping data retention requirement meant to turn Internet Service Providers and online companies into surrogate snoops for the government’s convenience. Any provider of an “electronic communication” or “remote computing” service—meaning broadband providers like Comcast, but also companies like Google—would have to retain records of the “temporarily assigned network address” (such as an IP address) associated with each account for 18 months. Some of the other provisions in the act seem perfectly reasonable (though I don’t know enough to say whether they’re necessary), but as a hearing earlier this year made crystal clear, it’s the data retention requirement that the government really cares about.
Thanks to an unwise Supreme Court decision dating from the 70s, information about your private activites loses its Fourth Amendment protection when its held by a “third party” corporation, like a phone company or Internet provider. As many legal scholars have noted, however, this allows constitutional privacy safeguards to be circumvented via a clever two-step process. Step one: The government forces private businesses (ideally the kind a citizen in the modern world can’t easily avoid dealing with) to collect and store certain kinds of information about everyone—anyone might turn out to be a criminal, after all. No Fourth Amendment issue there, because it’s not the government gathering it! Step two: The government gets a subpoena or court order to obtain that information, quite possibly without your knowledge. No Fourth Amendment problem here either, according to the Supreme Court, because now they’re just getting a corporation’s business records, not your private records. It makes no difference that they’re only keeping those records because the government said they had to.
Your Year in Wiretaps, by the Numbers
Last week—on the Thursday before a major holiday weekend—the annual Wiretap Report was finally released by the Administrative Office of the U.S. Courts, fully two months behind schedule (the first time in over a decade it’s been so late). While we often focus on the growth of the surveillance state in the context of national security and the War on Terror—such as foreign intelligence wiretaps, which aren’t counted in this report—it’s clear that surveillance is on the rise for ordinary law enforcement purposes as well. State and federal investigators obtained 3,194 wiretap orders in 2010, an increase of 34 percent over the previous year, and a whopping 168 percent increase over 2000. Only one wiretap application was denied—which you can choose to take as evidence that law enforcement is extremely scrupulous in seeking applications, or that judges tend to rubber stamp them, according to your preferred level of paranoia. Just half the states reported any wiretaps, and nearly 68 percent of the total 1,987 state wiretaps were attributable to just three states: California, New York and New Jersey.
The average wiretap order swept up the communications of 118 people (since, of course, each individual target converses with many people, including many innocent people). If there were no overlap between wiretap orders, that would imply 376,892 people affected. Since it’s common for multiple orders to be sought as part of a single investigation, however, many of the same people are presumably being counted as having been caught under more than one wiretap order. Even on the wildly charitable assumption that only a third of those were unique individuals, though, that would still be well over 125,000 people spied upon, many innocent of any wrongdoing.
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