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Posts Tagged ‘Civil Liberties’

Yesterday’s column focused on how police unions protect the bad apples who misbehave and therefore cause some people to resent law enforcement, especially in the minority community.

Curtailing the role of those unions would be an important step to create better bonds between the police and the citizenry.

Today’s column will explain the need to repeal or substantially curtail the doctrine of “qualified immunity,” which was created by courts to protect cops who trample on people’s rights.

It’s not a complete answer, just as fixing the union problem isn’t a complete answer. But getting rid of the doctrine at least will give citizens the opportunity to bring lawsuits when cops disregard their civil liberties. This tweet is a good summary for those who don’t have time to dig into the topic.

But hopefully you do have time to investigate this issue.

Here are excerpts from four articles about problems with qualified immunity.

This is not a new issue for libertarians and principled conservatives. Glenn Reynolds pointed out the injustice of the doctrine back in 2013 in a column for USA Today.

And David French condemned the practice in a piece for National Review in 2018.

Judges created qualified immunity, and they can end it. It’s past time to impose true accountability on public servants who violate citizens’ constitutional rights. First, some background. Since 1871, federal law has permitted Americans to file lawsuits against public officials who violate their constitutional rights. It’s a powerful tool that essentially deputizes members of the public to defend their own liberties. …However, after generations of judges have interpreted the statute, the phrase “shall be liable” has come to mean “may occasionally be liable.” …In 1982, …the law changed. In a case called Harlow v. Fitzgerald, the Supreme Court concocted the modern doctrine of qualified immunity. …As the doctrine developed, to prove that a right is clearly established, the plaintiff generally had to find and cite a remarkably similar case, with nearly identical facts, decided by a court of controlling jurisdiction. …the entire notion of “clearly established law” rests on a series of absurd, fantastical premises. Are we really to believe that a police officer doesn’t know he shouldn’t pound on the wrong door and blow away the innocent occupant unless a court said so in a case, say, five years before?

Writing for Reason, Professor Ilya Somin explains how fixing this bad bit of judge-made law could improve policing.

…there is much that can be done to curb police abuses. …The problem is not that police officers are unusually bad people. It’s that they have bad incentives, under which they are rarely held accountable for abuses. Those incentives can and should be altered. An important first step would be to get rid of the legal doctrine of “qualified immunity,” under which law enforcement officers are immune from suits for violating citizens’ constitutional rights… The Supreme Court interprets the term “clearly established” so narrowly that officers routinely get away with horrendous abuses… Qualified immunity is not required by the Constitution or even by a federal statute. It is a purely judge-made doctrine made up by the Supreme Court itself in a misguided effort to protect law enforcement officers from excessive litigation. …Both Justice Clarence Thomas, the Court’s most conservative member, and Justice Sonia Sotomayor, the most liberal, have been severely critical of qualified immunity. There is a real chance they can persuade at least three of their colleagues to take the same view. …state and local governments might respond by indemnifying police officers for the damages they have to pay in such cases. But even if that happens, it would still be a step in the right direction. Indemnification costs money that many local governments will be loathe to pay. They will therefore have an incentive to crack down on abusive officers, particularly repeat offenders who routinely force authorities to pay out large sums…

Thank goodness for Clarence Thomas. Not only is he one of the leaders in trying to address qualified immunity, he’s also a leader in the campaign to get rid of the odious practice of asset forfeiture, which effectively creates an incentive for government to steal private property.

Writing for the Bulwark, Clark Neilly adds his two cents to the discussion.

In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983”… Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right. …many conservatives…abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this…“living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights. …the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board.

Last but not least, in a new column for USA Today, Patrick Jaicomo and Anya Bidwell of the Institute for Justice explain some of the legal issues.

The Supreme Court created qualified immunity in 1982. With that novel invention, the court granted all government officials immunity for violating constitutional and civil rights… Although innocuous sounding, the clearly established test is a legal obstacle nearly impossible to overcome. It requires a victim to identify an earlier decision by the Supreme Court, or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune. …When the Supreme Court conceived qualified immunity, it promised that the rule would not provide a “license to lawless conduct” for government officials. Plainly, it has.

And here are some examples they cite.

And let’s not forget the examples of misbehavior I’ve cited in the past (examples hereherehereherehere, and here).

The point of this column is not to criticize or condemn cops as a group, but to highlight a bad policy that causes citizens to feel hostility against (what I assume to be) the vast majority of cops who do their jobs the right way.

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In my first column on jury nullification, I applauded ordinary citizens for producing a not-guilty verdict when the federal government tried to impose bad U.S. tax law on a Swiss banker who lived in Switzerland and obeyed Swiss law. Simply stated, borders should limit the power of a government.

In my second column on jury nullification, I approvingly wrote about how citizens on another jury rebelled against the government’s persecution of western ranchers (while also noting that dramatically reducing government land ownership would be the solution to the underlying controversy).

To be sure, I don’t think jury nullification is the ideal way of dealing with over-criminalization and abusive law enforcement. It would be much better to repeal bad laws and get rid of the bad people working for government. But until those things happen, I’m glad nullification exists as a last line of defense.

Now let’s look at a third example. Except it’s probably more accurate to say it’s an example of pre-jury nullification.

Here are some excerpts from a heartwarming story from New Mexico (oops, I mean Arizona…I blame Chuck Asay!).

You may have heard that saying: If prosecutors want to, they could get a grand jury to indict a ham sandwich. It’s a knock on how much control prosecutors hold over the grand juries to whom they give evidence for possible indictments. The 269th Pima County Grand Jury could not be controlled like that. …this one was led by a criminal-defense attorney and populated by freethinkers who took to heart their role as “conscience of the community.” They went so far as to decline to indict people even though there was enough evidence to show probable cause, foreman Natman Schaye and others told me. That, in essence, is grand-jury nullification — not carrying out the law because, in the jury’s opinion, it is unjust.

This grand jury, which was labeled as “The Notorious 269th” by the press, decided that justice was more important than obeying the government.

Rick Myers, a well-known Tucsonan who is a member of the Arizona Board of Regents, also was on the Notorious 269th. What bothered him was the many cases of small quantities of drugs that were charged as Class 4 felonies, as state law dictates. He said he began making a distinction between what’s actually a “crime” and what’s “breaking the law.” The reason, another grand juror, Jodi Kautz, said was: They were presented with possession cases involving drug amounts as tiny as 2/100th of a gram, a trace amount. …Myers said. “There’s a whole lot of people getting charged for things that are not hurting other people.”

Here’s some background info on the role of the grand jury.

Grand juries have their roots in 12th-century England, but in early America took on more of a judicial role — that of a body of citizens standing between the government and a person accused of a crime. The grand jury eventually came to stand as a check, ensuring the government had enough evidence to pursue a criminal case. …Prosecutors run the grand-jury sessions… They bring proposed indictments to the jurors and call police officers as witnesses, without a defendant or a defense attorney present. The grand jurors, though, make the ultimate decision as to whether to indict, and on what charges.

Unsurprisingly, government officials don’t approve of grand jurors exercising independent thought.

As to the grand jurors’ decision to reject some cases with adequate evidence, Acosta said that really isn’t their place. They take an oath to follow the law before taking their seats, she said. “If somebody has a particular agenda, I suppose they can go to the Legislature and say, ‘We don’t like this law, maybe you should change it.’ But the grand jury isn’t the place for that kind of activity,” she said.

Sorry, Ms. Acosta, that’s not right.

The grand jury (or regular jury) may not be the ideal place to protect against injustice, but it’s better than nothing when governments have bad laws and/or government officials abuse citizens.

If you don’t believe me, just ask Andy JohnsonAnthony Smelley, the Hammond familyCharlie EngleTammy CooperNancy BlackRuss CaswellJacques WajsfelnerJeff CouncelllerEric GarnerMartha Boneta, Corey Statham, James SlaticCarole HindersSalvatore Culosi, and James Lieto, as well as the Sierra Pacific Company and the entire Meitev family.

There’s a philosophical principle involved. In many cases, nullification is appropriate because governments have criminalized actions that have no victims. Which is why the movement’s motto, as noted in this Ron Swanson meme, is that there is no crime when there’s no victim.

I’ll close on a personal note. I’ve lived in Fairfax County for almost three decades and I’ve only received one summons for jury duty. When that happened, I immediately fantasized about being a hero and using nullification to block an unjust gun prosecution or unjust drug prosecution. But it turned out that the case was a lawsuit between a contractor and consumer, so I was happy they wound up finding enough people before my name was called.

But maybe my nullification fantasy eventually will become a reality. Though I’ve noted that my fantasies (at least the ones involving public policy) never seem to happen.

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What word best describes the War on Drugs?

The right answer is All of the Above. Politicians have ruined lives and wasted money in a futile campaign to stop people from recreational drug use.

It may be true that people who use drugs are being stupid. Or even immoral. But the key thing to understand is that it’s a victimless crime.

Actually, that’s not true, there are victims. They’re called taxpayers, who have to finance the government’s drug war. And there are secondary victims thanks to bad laws (dealing with asset forfeiture and money laundering) that only exist because of the drug war.

Speaking of which, here’s another horror story from the drug war.

A report by the Justice Department Inspector General released Wednesday found that the DEA’s gargantuan amount of cash seizures often didn’t relate to any ongoing criminal investigations, and 82 percent of seizures it reviewed ended up being settled administratively—that is, without any judicial review—raising civil liberties concerns. …the Inspector General reports the DEA seized $4.15 billion in cash since 2007, accounting for 80 percent of all Justice Department cash seizures.

Here’s the jaw-dropping part of the story.

…$3.2 billion of those seizures were never connected to any criminal charges.

In other words, the government took people’s money even they weren’t charged with a crime, much less convicted of a crime.

Drug users also can be victims. Heck, sometimes people are victims even if they’re not users, as we see from this great moment in the drug war.

“They thought they had the biggest bust in Harris County,” Ross LeBeau said. “This was the bust of the year for them.” A traffic stop in early December led to the discovery of almost half a pound of what deputies believed to be methamphetamine. The deputies arrested LeBeau and sent out a press release, including a mug shot, describing the bust. According to authorities, the arrest was due to deputies finding a sock filled with what they believed to be methamphetamine. …After the arrest, LeBeau was fingerprinted and booked into a jail where he spent three days before being released. The problem came after two field tests, performed by deputies, came back positive for meth. Later a third test was conducted by the county’s forensic lab which revealed that the kitty litter was not a controlled substance. The case was later dismissed.

And more bad things like this are probably going to happen because the Justice Department now wants a more punitive approach to victimless crimes.

C.J. Ciaramella of Reason reports on the grim details.

Attorney General Jeff Sessions ordered federal prosecutors to seek the toughest charges and maximum possible sentences available, reversing an Obama-era policy that sought to avoid mandatory minimum sentences for certain low-level drug crimes. …the overall message is clear: Federal prosecutors have the green light to go hard after any and all drug offenses. …The shift marks the first significant return by the Trump administration to the drug war policies that the Obama administration tried to moderate. In 2013, former Attorney General Eric Holder ordered federal prosecutors to avoid charging certain low-level offenders with drug charges that triggered long mandatory sentences. The federal prison population dropped for the first time in three decades in 2014, and has continued to fall since.

Some Republicans are unhappy about this return to draconian policies.

“Mandatory minimum sentences have unfairly and disproportionately incarcerated too many minorities for too long,” Sen. Rand Paul (R-KY) said in a statement. “Attorney General Sessions’ new policy will accentuate that injustice. …Sen. Mike Lee (R-UT), although he did not directly criticize Sessions, wrote in a tweet Friday morning that “to be tough on crime we have to be smart on crime. That is why criminal justice reform is a conservative issue.”

For what it’s worth, Sessions isn’t the only one who deserves blame.

While it’s easy to point the finger at Sessions, …Congress ultimately passed the laws the Justice Department is tasked with enforcing. Lawmakers in Congress had a golden window of opportunity over the past three years to revise federal sentencing laws—with bipartisan winds at their back and a friendly administration in White House—and failed miserably.

And there is a tiny bit of good news.

…the Office of National Drug Control Policy… Trump plans to reduce the agency’s budget by 95 percent… there are plenty of actual harm reduction advocates who would be happy to see the agency close up shop.

Though don’t get too excited.

…you know what federal agency with drug policy ramifications is not dormant? The Justice Department. …In the grand scheme of the drug war, who might occupy the ONDCP’s bully pulpit matters less than the army Sessions is building.

So don’t hold your breath waiting for better policy.

Here’s another reason why the war on pot is so absurd. As reported by the Daily Caller, people without access to marijuana are more likely to get in trouble with opioids.

Opioids continue to claim 91 lives a day across the U.S., but new research shows medical marijuana programs are drastically cutting down on rates of painkiller abuse. Research from the Journal of the American Medical Association is adding to a growing body of evidence showing states with medical marijuana programs have lower rates of opioid related overdoses. Patients who are offered pot as an alternative treatment for chronic conditions are increasingly shifting off their prescription opioids entirely, reports WLBZ. The researchers found states with medical marijuana programs in 2014 had an opioid overdose rate roughly 25 percent lower than the national average.

Last but not least, an article in Reason explains how greedy politicians are undermining the otherwise successful pot legalization in Colorado.

Colorado…voters legalized recreational marijuana in 2012, transforming the popular stuff from a prohibited vice to a substance that could be produced, bought and sold without the hassle of hiding dealings from the authorities and the fear of arrest for voluntary transactions. Yet the marijuana black market is still going strong over four years later, with many sellers and customers willing to take a chance on legal consequences rather than make a risk-free deal. …the driving force behind the black market…is taxes so sky high and regulations so burdensome that they make legal pot uncompetitive. “An ounce of pot on the black market can cost as little as 180 dollars,” according to PBS correspondent Rick Karr. “At the store Andy Williams owns, you have to pay around 240 dollars for an ounce. That’s partly because the price includes a 15 percent excise tax, a 10 percent marijuana tax, the state sales tax, and Denver’s marijuana sales tax.” Colorado also piles on expensive regulatory requirements to get a license.

This is not a surprise.

I wrote back in 2015 that the tax burden was excessive.

Indeed, I even wondered if legalization in Colorado was a good thing if the net result was a big pile of tax revenue that could be used to expand government.

The libertarian part of me says Colorado made the right decision, though the fiscal economist part of me definitely sees a down side.

And that down side may become an even bigger downer.

Governor John Hickenlooper wants to increase the marijuana sales tax from 10 percent from 8 percent. “It seems kind of odd that at the same time they’re trying to do something about the black and gray markets they’re going to ratchet up the taxes and drive more people to the black and gray markets,” state Sen. Pat Steadman (D-Denver) commented.

P.S. I wonder if Senator Steadman realizes he just embraced the Laffer Curve?

P.P.S. It’s worth noting that voices as diverse as John Stossel, Mona Charen, Gary Johnson, Pat Robertson, Cory Booker, John McCain, and Richard Branson all agree that it’s time to rethink marijuana prohibition. 

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The tax code is punitive and corrupt, but the economic damage caused by a bad revenue system is just part of the problem.

Thanks to a punitive “worldwide” approach to taxation, we have needless conflicts with other nations, leading the United States to side with high-tax governments and persecute low-tax nations.

But the impact on civil liberties and constitutional rights may be how the internal revenue code does the greatest damage to America.

In part, this involves the loss of basic rights. Our Constitution, for instances, guarantees the presumption of innocence. But that fundamental freedom has been thrown out the window to help the IRS enforce a bad tax system. If the IRS decides you’ve done something wrong or not coughed up enough cash, you are guilty until you prove yourself innocent.

Now there’s a new – and very disturbing – development. A reckless federal judge has decided to let the IRS go on a fishing expedition of California real estate records because it is theoretically possible that some people haven’t reported information on their tax returns. Here are some details from a report at Forbes.

A federal district court  judge has given the Internal Revenue Service permission to serve a “John Doe” summons on the California State Board of Equalization demanding the names of residents who transferred property to their children or grandchildren for little or no money, from 2005 to 2010. The IRS wants those names as part of a crackdown on what it believes is the widespread failure to file required tax returns when real property is passed between family members. …officials of California’s BOE said state law prohibited them from disclosing the information without a court approved summons. …With a normal summons, the IRS seeks information about a specific taxpayer whose identity it knows.  A John Does summons, by contrast, allows the IRS to get the names of all taxpayers who are members of a certain group.

To put this in context and to understand how sinister this is, imagine if some agency of government decided that to comb through the records of all African-Americans because some blacks commit crime? Or they decided to investigate all Occupy Wall Street protesters because of the crimes committed by some of the campers? Or how about snooping on the private lives of all tea partiers simply because the government doesn’t like dissent?

We would all agree (hopefully!) that these steps would represent unjustified fishing expeditions. And if there is any justice left in our system, the courts would stop the government from infringing our rights.

But, for some reason, the Constitution gets thrown under the bus when it comes to taxation.

The answer, as you hopefully agree, is to rip up the entire tax code and replace it with a simple and fair flat tax. This video explains.

America already has a tax code that ranks in the bottom half of the “tax oppression index.” If we don’t fix the IRS soon, don’t be surprised if we wind up in last place at this rate.

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