Archive for the ‘Law and Civil Liberties’ Category
A Primer on ‘Judicial Activism’
In his recent preemptive attack on the Supreme Court, President Obama invoked what he took to be the conservative critique of “judicial activism”:
I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this [the Court’s possibly overturning the Affordable Care Act] is a good example. And I’m pretty confident that this court will recognize that and not take that step.
Those were the least problematic of the president’s Rose Garden remarks, because they rang true in large part. Over the years, many conservatives have indeed criticized the courts—and the Supreme Court in particular—along just those lines. But it’s also true that the debate has changed over that period. To shed some light on such changes, and how the president got it wrong, ultimately, it’s worth a brief look at the underlying issues. (See here for a more thorough discussion.)
Stand Your Ground Laws Cont’d
On Sunday, the Washington Post ran a front page story on Florida’s Stand Your Ground Law. And in an article for Jurist, just published, I explain why there is really no connection between the Stand Your Ground Law and the shooting death of Trayvon Martin. Here is an excerpt:
Stand Your Ground laws are designed to clarify the law in order to protect the honest homeowner who is under attack by a criminal. It is bad enough to have your home broken into and your life threatened. To then have to hire a lawyer to fend off a misguided prosecutor and a personal injury lawyer representing an injured criminal was considered just too much, at least for lawmakers in many jurisdictions. The recent enactments help the homeowner with two legal presumptions for the home invasion scenario: (1) that the person forcing entry into a house is presumed to be doing so with the intent of committing a violent act; and (2) that if the resident of the home used defensive force, it is presumed to be because of a reasonable fear of bodily harm or even death.
With respect to incidents outside the home, the Stand Your Ground statutes clarify the law for innocent persons by dispensing with any legal obligation to retreat, hence the name, “Stand Your Ground.” What has been overlooked is the fact that the statute only applies to a person under “attack.” Again, the rationale is that it is bad enough for an innocent person to find himself under attack by a criminal, but to then have to worry about whether the law requires a retreat is simply too much to ask. As Justice Oliver Wendell Holmes once observed, “detached reflection cannot be demanded in the presence of an uplifted knife.” The Florida law says that if you are under attack, retreat if you like, but be assured that you may also stand your ground and fight back if that seems to be the best option.
Looking at the standards of the Florida law and the circumstances surrounding the shooting death of Trayvon Martin shows there is no applicability. First, we know that Martin did not try to force his way into Zimmerman’s home. Second, we know from the recorded 911 call that Zimmerman was not under attack when he initially encountered Martin. Third, and this is very important, Martin did not commit any crime in Zimmerman’s presence. Despite the hyperbole about a “license to kill,” the Stand Your Ground law actually has a narrow application to a few scenarios that require no police training. When a criminal brandishes a weapon and says “Give me your money if you don’t want to get hurt,” there’s no ambiguity as to what is happening and the law is applicable. Outside of these types of scenarios the Stand Your Ground law does not apply.
When Zimmerman made the fateful decision to disregard the police dispatcher’s statement to await the arrival of the police and not to follow his “suspect,” he was acting outside and beyond the Stand Your Ground law. Other legal principles enter the picture and those principles run against Zimmerman. By following Martin, Zimmerman’s actions set up the perilous confrontation. Consequently, he will likely be seen as an aggressor in the eyes of the law. Even if Martin threw the first punch, that punch will likely be considered the result of Zimmerman’s provocation. Since Martin was unarmed, a gunshot in response to non-deadly force (fisticuffs) will probably be deemed beyond the bounds of normal self-defense. (The Florida legal system will have to consider all of the available evidence and ultimately determine Zimmerman’s legal responsibility.)
Cato will be hosting a policy forum on the Stand Your Ground Laws on Monday, April 23–details here.
Obama’s Comments: A Gift that Keeps on Giving
Today POLITICO Arena asks:
Does Senator Grassley’s tweet, that the American people “r not stupid as this x prof of con law,” make an important point or was it disrespectful? Is this a sign that Obama’s Supreme Court comments won’t be going away?
There’s enough disrespect to go around – for the president (Grassley), for the Supreme Court (Obama). It’s the larger question about Obama’s comments on the Court and the Constitution that’s more important, because it’s not going away, and for good reason. Look no further than to this morning’s Washington Post, where E.J. Dionne Jr. is falling all over himself in defense of Obama. After the Court’s oral arguments over ObamaCare, it’s finally dawning on modern liberals that their project for ubiquitous government is under serious political and even legal attack, so they’re fighting back.
Like others in the liberal establishment last week, Dionne links Obama’s and Franklin Roosevelt’s attacks on the Court. But he links those in turn to Obama’s ”social Darwinism” attack next day on the Ryan-Romney budget — a budget, Dionne writes, that would cut back “student loans, medical and scientific research grants, Head Start, feeding programs for the poor, and possibly even the weather service.” Indeed, it’s “so far to the right,” Obama said, that it makes the Republicans’ 1994 Contract With America “look like the New Deal.”
What Obama and his liberal apologists fail to accept, of course, is that their welfare-state project is spent, literally. They pose as defenders of welfare programs for the poor and, now, the middle class, while either ignoring the deficits and debt those programs have run up or, at best, arguing that taxing the rich will solve the problem, all evidence to the contrary notwithstanding. Thus the Democratic Senate has failed to pass a budget in over a thousand days, and no one gives the administration’s budget a moment’s thought. Their pose is just that, because unless we come to grips with these systemic problems, there will be no student loans, Head Start, and all the rest, because “entitlements” and service on the debt will consume everything, until they too will go by the way.
Our Constitution for limited government was written to avoid this dilemma. Roosevelt and his “Brain Trust” thought they were wiser than the Framers, much like today’s liberals. Grassley’s mistake was in choosing the wrong word. It’s not “stupid,” it’s “irresponsible.” Santa Claus comes only once a year. The rest of the year we have to behave like adults.
Graduating Law Students: Come Work for Liberty!
For almost three years now, Cato has been running a highly successful legal associate program. Talented recent law school grads have come to work for us during the time that their law firms have “deferred” their start dates (from a few months to a full year), with commensurate stipends, and many law schools have created post-grad fellowships with similar conditions.
Now that we’re again approaching graduation season, I thought I’d put out my annual call for more potential legal associates. We can always use the extra brain, you can always use Cato on your resume, and your firms/schools can always use your getting substantive legal experience/counting as “employed” for US News rankings—we all win!
And so, the Cato Institute invites graduating (and recently graduated) law students and others with firm deferrals or post-grad funding—or simply a period of unemployment—to apply to work at our Center for Constitutional Studies. This is an opportunity to assist projects ranging from Supreme Court amicus briefs to policy papers to the Cato Supreme Court Review. Start/end dates are flexible.
Interested students and graduates should email a cover letter, resume, transcript, and writing sample, along with any specific details of their availability to Jonathan Blanks at jblanks@cato.org. Note again that this announcement is for a non-paying job: we’ll give you a workspace, good experience, and an entree into the D.C. policy world, but we will not help your financial bottom line. You don’t have to be a deferred law firm associate or funded by your school, but you do have to be able to afford not being paid by us.
Please feel free to pass the above information to your friends and colleagues.
For information on Cato’s programs for non-graduating students—or graduates who would like to be part of our internship program (which does come with some minimal compensation)—contact Chip Bishop at cbishop@cato.org.
Will Pennsylvania Join the REAL ID Rebellion?
Since Congress passed a national ID law called the REAL ID Act in 2005, states have been registering their objections. The law tries to coerce states into implementing the feds’ national ID and would have them issue uniform drivers’ licenses and put drivers’ personal information into a federal data exchange. By 2009, fully half the states had barred themselves from implementing REAL ID or passed resolutions denouncing the law.
The states continue to play their constitutional role in counterbalancing federal overreach. I noted a few weeks ago how New Hampshire is resisting E-Verify, the federal background check system. But—as I also recently wrote—federal “bureaucrats and big-governmenters” are working to revive their national ID.
Pennsylvania may soon join the REAL ID rebellion. The legislature there has sent Governor Tom Corbett (R) a bill to opt the state out of REAL ID’s national ID system.
As we often see, though, there is confusion about the relevance of IDs and a national ID to national security. In the story linked above, state representative Greg Vitali (D) is cited saying that the 9-11 hijackers were carrying multiple phony drivers’ licenses. “And I’m just concerned with regard to the message that we send by backing away from more secure IDs,” he says.
Representative Vitali is mistaken on the facts. The 9/11 hijackers did not have false identification documents. The 9/11 Commission report said: “All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud.” Those “frauds” were things like fibbing about the length of their residency in Virginia, not their names.
The security issues are complicated. I dealt with them in my book, Identity Crisis: How Identification is Overused and Misunderstood. But here’s what it boils down to: Had REAL ID been the law prior to 9/11 and operating perfectly—100% compliance, no corruption at DMVs, and no forgery of breeder documents or licenses—that might have required the 9/11 attackers to keep their visas current. That’s the extent of its security value.
How many hundreds of millions of taxpayer dollars should we spend, how much of Americans’ privacy should we give up, and how much power should we transfer to the federal government when the only benefit is to mildly inconvenience some future attacker?
Many of the threats we imagined in the years after 9/11 were not real. Sleeper cells? Osama bin Laden sleeps with the fishes.
Terrorism didn’t get its start on 9/11, and it will never be non-existent. But our strong nation can celebrate its victory over terrorism by deep-sixing the national ID card. That’s the “message” that would come from defeating the federal government’s national ID law.
Update on the Brian Aitken Case
A New Jersey appellate court has just reversed Brian Aitken’s criminal convictions on two of three counts. Brian Aitken got caught up in New Jersey’s gun regulations as he was moving from Colorado to NJ. His firearms were lawfully purchased in Colorado but ran afoul of certain NJ rules. The jury pleaded with the trial judge three times for additional guidance as to its options in the event they were persuaded that Aitkin was indeed moving. Each time the jury was rebuffed. The judge said not to worry as he had already determined that Aitken did not qualify for the special moving exemption in NJ law. The appeals court has now ruled that the trial judge erred (pdf).
Some may recall that Governor Chris Christie took action in this matter—he commuted Aitken’s seven year sentence. Brian’s legal battle continues nonetheless. A criminal conviction makes his life difficult—among other things, it affects child custody, credit, and his ability to keep a gun in his home for self-defense.
One happy twist to his ordeal with the state has been that Brian now works for liberty with our friends at the Foundation for Economic Education.
Nat Hentoff among Century’s Outstanding Journalists
… but you already knew that. The Arthur L. Carter Journalism Institute at New York University, together with an Honorary Committee of alumni, selected “the 100 Outstanding Journalists in the United States in the Last 100 Years.” On that list is Cato Institute senior fellow Nat Hentoff. His range of expertise and experience is difficult to overstate and the award is well deserved. I always look forward to the opportunities I have to learn from him about topics ranging from civil liberties to American music.
You can read Nat’s recent columns or watch a few wide-ranging videos we shot with Nat just last year. Here’s my favorite:
$620,000 Jury Award for Dog Shooting
Yesterday a jury found that police officers entered a couple’s home without their permission and shot their dog for no good reason. The $620,000 award is a good outcome for the family, but all too often there is no accountability mechanism for police misconduct. Like the official response to the outrageous Cheye Calvo incident, the police insisted that they were just “doing their job,” which sounds like they’re going to keep on doing what they do.
Obama Weighs In, Desperately
Today POLITICO Arena asks:
Is Obama right to warn conservative justices on the Supreme Court that a rejection of his sweeping health care law would be an act of “judicial activism” that Republicans say they abhor?
My response:
Obama is losing it. How else to explain his contention that the Court’s overturning ObamaCare would be “unprecedented” – except if it’s meant to be a craven political posture by a man who can read the polls on the subject. The Supreme Court has been overturning congressional acts from its inception. Its job is to ensure that Congress and the president act within their constitutional bounds, not to rubber-stamp whatever they do. That’s not “judicial activism.” It’s upholding the law.
When Obama adds that it’s important “to remind people that this is not an abstract argument” and that “people’s lives are affected by the lack of availability of health care (sic),” he only compounds the problem by encouraging the public to believe that that is a constitutionally relevant consideration.
The irony in this posturing by Obama and others on the Left is rich, of course. They’re the ones who’ve promoted genuine judicial activism for 75 years – first urging the Court to find powers nowhere granted, then to find rights nowhere held or recognized. And now, when the Court looks at last like it may be taking the Constitution seriously, they scream “judicial activism”?! Please.
Cell Phone Location Surveillance: Now at a Police Dept. Near You!
As The New York Times reported this weekend, a series of freedom-of-information requests by the American Civil Liberties Union have confirmed what privacy and surveillance wonks long suspected: The use of cell phones as tracking devices by state and local law enforcement has become extremely common over the past few years, and is often done without the check of a Fourth Amendment search warrant based on probable cause.
More than 200 law enforcement agencies have responded to the ACLU’s request so far, and all but ten acknowledge tracking cell phone location for some purposes. Many do so primarily in emergency situations to locate potential victims of crime or accident, and of those that also make use of location tracking for investigative purpose, several insist that they always obtain a probable cause warrant. But many others either have unclear standards, or rely on subpoenas or court orders based on the low and easily-met standard of “relevance” to an investigation. In effect, they assert the right to put a virtual tracker on citizens—the same conduct the Supreme Court unanimously held to be covered by the Fourth Amendment when a physical tracking device is used—without any need to persuade a judge that a lojacked individual is actually engaged in any criminal conduct.
Perhaps the most troubling revelation, however, is the evidence that at least a handful of law enforcement agencies reported seeking “tower dumps” revealing everyone near a location at a particular time, a form of mass surveillance that can be used to generate a list of potential suspects. I was aware of only one previous case where such a method had been used, back in 2008 in Texas, and at the time that case was unique as far as anyone knew. Now, however, it appears to be sufficiently routine that major providers have a standard price sheet: A one hour “tower dump” from T-Mobile will run you $150, while Verizon Wireless charges $30–$60 for every 15-minutes worth of mass location data. This is a method in serious tension with our constitutional tradition of “particularity” in searches, and if it were to be permitted under any circumstances, it would require extraordinary safeguards, ideally established by a clear legislative framework—not a patchwork of agencies making up the rules as they go.
Don’t be surprised if you hadn’t heard about this happening in your town: Training materials obtained by the ACLU instruct police to never mention such tracking capabilities when speaking to media, and to omit them as far as possible from police reports. The goal, no doubt, is to avoid reminding criminals that any powered-on phone is a potential tracker. But this also means that a signally intrusive form of government monitoring has become widespread with minimal public awareness, let alone discussion or debate. Let’s hope media attention to these disclosures changes that.
Cato’s Amicus Brief Helps Persuade Supreme Court to Protect Private Property Rights
This blogpost was co-authored by Cato legal associate Anna Mackin.
Today, the Supreme Court agreed to hear Arkansas Game & Fish Commission v. United States, the Fifth Amendment Takings Clause case whose cert petition Cato supported with an amicus brief. In that brief, we joined the Pacific Legal Foundation in urging the Court to preserve a remedy long-recognized in American courts: compensation for government destruction of private property.
Over a year ago, the Federal Circuit blithely ignored this constitutionally guaranteed protection, ruling that so long as it might be characterized as “temporary,” no government flooding of private land can constitute a Fifth Amendment violation. If upheld, this sweeping opinion could prevent recovery for the destruction of private property whenever the government characterizes its own actions as “temporary,” without any assurances of the length of this “temporary” loss.
Notable Supreme Court commentators saw the importance of this case early on, and our amicus brief was featured on SCOTUSblog’s “petition of the day” page. Many thanks to Brian Hodges at PLF for working with Cato on the brief — one of just four filed in the case. Congratulations also and especially to Matthew Miller & Julie Greathouse of Perkins & Trotter, who represent AGFC, for their successful legal strategy.
It is gratifying to see the Court snap up this opportunity to protect private property rights – it is more likely than not that it will reverse the lower court – implicitly validating the position Cato and PLF advanced in this case. We’ll now be filing a brief on the merits that will urge the Court to maintain constitutional protections against government intrusions on private property. The Court will hear the case next term, probably this fall, with a final decision expected by early 2013.
For more on AGFC v. United States, check the case’s SCOTUSBlog page or its Supreme Court docket page. Jonathan Adler also blogged about the case at the Volokh Conspiracy.
Biden Confident about ObamaCare Litigation. Should He Be?
Over the weekend, Vice-President Joe Biden said that he was confident the Supreme Court would not invalidate President Obama’s health care law. Here’s Biden:
I’m not going to speculate about something I don’t believe will happen.
Flashback to 2000 when the Supreme Court declared then-Senator Biden’s initiative, the Violence Against Women Act, unconstitutional because it was beyond the limited powers of Congress. At the time, Biden wrote:
I am disappointed, but not surprised, by the U.S. Supreme Court’s 5-4 decision Monday to strike down the one piece of the landmark Violence Against Women Act that empowers a victim of domestic violence or sexual assault to sue her attacker in federal court. … The Supreme Court has been inching toward this decision for the last several years. In case after case, the court has grown increasingly bold in stripping the federal government of its ability to make decisions on behalf of the American people. … This court, molded by conservatives, has proven eager to substitute its own judgment for that of the political branches democratically elected by the people to do their business.
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