Category: reason

20 years ago

March 2001

“Whatever one may think of the Florida high court’s handling of the election cases, there’s no disputing that when it comes to lack of judicial restraint, it’s the U.S. Supreme Court that takes the prize.”
Mike Godwin
“Election 2000”

“Adults who enlist in the anti-television crusade always insist that it is ‘impressionable youths’ whom they wish to protect. In the guise of shielding youths, however, adults are trying to contain and control them.”
Jib Fowles
“The Whipping Boy”

“Punditry rests on a foundation of easy stereotypes, clichés that make it easier to fit one’s ideas into a short op-ed or even shorter soundbite. So when social conservatives and liberal social engineers team up against speech that both find distasteful—be it pornography, South Park, or video games—the combination is inevitably labeled an ‘unusual alliance,’ even if those allegedly unusual allies have been snuggling for years.”
Jesse Walker
“Intolerant Alliance”

25 years ago

March 1996

“In the law journals if not yet in media of mass circulation, the Second Amendment has captured the attention of scholars, including some of the most eminent and respectable in the field, who find, somewhat to their own surprise as they reflect upon the matter for the first time, that the private right to keep and bear arms is very much in character with the Bill of Rights as a whole and with the thinking of the Framers of the Constitution.”
Daniel Polsby
“Second Reading”

40 years ago

March 1981

“So, while Ronald Reagan is certainly no libertarian, he has in the past occasionally demonstrated healthy attitudes toward reducing taxation. No doubt this has something to do with his almost constant struggle with IRS harassment since the end of World War II, not to mention his experience of having been in the 91 percent tax bracket during the late 1940s.”
Timothy Condon
“What Will Reagan Do About Taxes?”

“Mr. Reagan should reconsider the grey areas he has accepted as warranting compromise of the principle of individual liberty. He should take to heart his very own words that ‘libertarianism and conservatism are traveling the same path,’ and he should make this into a policy, not just a bland wish. The world and this country today need far more human liberty than anything else conservatives have to offer.”
Tibor Machan
“Some Thoughts for the New President”

“The United States has acquired an enviable reputation as a haven for refugees. The adventurous and the skilled have gravitated to its opportunities; the victims of political or religious repression and economic hardship have sought and found sanctuary on its welcoming shores. Until the Immigration Acts of 1921 and 1925, few were turned away, and those who were admitted generally found a better life than they had left behind.”
David Rees
“Who Can Cross Our Borders?”

50 years ago

March 1971

“Libertarians must stop looking to the past for allies in their struggle for a rational culture and look toward the future. Our hope lies, as difficult as it may be for some to accept, not with remnants from an illusory ‘golden age’ of individualism, but with tomorrow, with youth, with anyone who will listen. Our day has not come and gone. But it could be coming.”
Roy Childs
“Big Business and the Rise of American Statism, Part Two”

“To decide if the police are efficient, one must question the ethical suppositions which act as the rationale and source of wisdom for the present system. Because efficiency can be defined only with reference to desired goals, underlying premises need to be carefully examined. Indeed, the greatest portion of today’s police problems can be traced to either the fact that few people really know what they want the police to do or to the fact that people have exceedingly hazy or dogmatic reasons for asking police to do the tasks selected as ‘proper.'”
Lanny Friedlander
“The Gang That Couldn’t Shoot Straight”

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The Indiana Senate on Tuesday voted 37-8 to pass a bill that would give the government broad powers to seize assets from people suspected of “unlawful assembly,” which, under state law, is defined as “an assembly of five (5) or more persons whose common object is to commit an unlawful act, or a lawful act by unlawful means.”

If that sounds hazy, that’s because it is—perhaps intentionally so. “The one thing we know is that vague laws are often enforced as broadly as they possibly can be,” says Sam Gedge, an attorney at the legal nonprofit Institute for Justice, “and civil forfeiture is often enforced as much as it can be because the government stands to profit.”

That practice—civil forfeiture—is similarly foggy, a fitting accompaniment to unlawful assembly. The process allows the state to steal property and/or cash from people suspected of, charged with, or convicted of a criminal offense, depending on where you live. In Indiana, prosecutors need only to furnish a preponderance of the evidence to initiate forfeiture proceedings. They don’t need a criminal charge, much less a conviction.

The measure is part of a larger Senate package meant to bring the hammer down on violent riots, upping penalties for some of the inexcusable methods of protest employed over the summer in response to the police killing of George Floyd. It should go without saying that destroying or burning down businesses in your community should never be an appropriate response to racial injustice. Property rights are human rights, and many businesses that met their demise last summer were owned by the very people protesters claimed to stand for. 

But why civil forfeiture would be an appropriate response belies the imagination. Foremost: It is already illegal to riot, already illegal to obstruct traffic, already illegal to commit arson, already illegal to burglarize. Under the Indiana Senate bill, for instance, rioting transitions from a Class A misdemeanor to a level six felony, meaning perpetrators would spend up to 2.5 years in prison and pay up to a $50,000 fine. People who commit those crimes will be prosecuted and punished accordingly.

Unlawful assembly is also already a crime. As mentioned above, however, it’s much more nebulous, as it gives police the power to arrest people should they be in a big enough group and look sketchy enough to state actors. According to the bill, law enforcement would have the latitude to initiate “civil forfeiture of property that is used by a person to finance a crime committed by a person who is a member of an unlawful assembly.”

The practice is, in theory, leveraged by the state to put fissures in, and paralyze, criminal rackets. How that works here is unclear. 

“I don’t know what adding the civil forfeiture element really does,” says Gedge. Does it mean the government could take your car if you drive it to an “unlawful assembly”? Maybe, maybe not: “I think we can be confident at any time that when there is a lack of clarity in a civil forfeiture law,” notes Gedge, “the government is going to exploit that lack of clarity to enforce that law against more people.”

Indiana has already shown they are not above that approach. Consider the case of Tyson Timbs, who has been at the center of a yearslong legal saga over his $42,000 Land Rover, which the state says they have a right to possess simply because Timbs was caught selling drugs to an undercover cop. Timbs’ car was seized in 2013 and his plea proceeded to ricochet across the U.S. legal system, including up to the Supreme Court and back down again when a judge finally ruled in April 2020 that the state’s legalized robbery exceeded constitutional bounds. 

But the state has not stopped, declaring before Indiana’s highest court earlier this month that there should be no proportionality in civil forfeiture cases: no crime too small, and no asset too big. It was the third time they have made such an argument before the state Supreme Court over the last four years.

Governments have stolen more than $68 billion from people across the U.S. since 2000, even though the practice does not deter crime. Then again, that was never really the goal anyway.

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On February 10, in Hamen v. Hamlin County, the Supreme Court of South Dakota ruled that the government is not liable for police destruction of citizens’ property under Article VI, Section 13 of the state constitution, which requires payment of “just compensation” when the private property is “taken for public use, or damaged.” The case is one of a long series of rulings in which state and federal courts have held that the government is not required to pay takings compensation in cases where law enforcement operations damage or destroy private property. Robert Thomas, a leading commentator on takings law, has a helpful summary of the case at the Inverse Condemnation blog.

As Thomas notes, the case arose because the police were under the mistaken impression that Gary Hamen, a suspected wanted in connection with various crimes, was holed up in his parents’ mobile home. They thereby proceeded to inflict some $18,000 in damage on the home, in the process of trying to force Gary to come out and surrender (which, of course, he could not do because he wasn’t actually there in the first place). Despite the massive damage inflicted on the home of the completely innocent Hamens (the authorities do not allege that the parents had any role in their son’s alleged criminal activities), the Court ruled that no compensation was owed under the Takings and Damagings Clauses of the state constitution.

The standard rationale for this result, also adopted in Hamen, is that there is no taking in cases where the government is exercising its “police power,” which is what law enforcement agencies do when they destroy property in the process of pursuing suspects and other similar activities.  The police power is thereby distinguished from the use of “eminent domain” to seize property for some “public use” by condemnation. As the South Dakota Supreme Court put it:

[W]e join the courts that have denied a right of compensation by eminent domain when law enforcement damages private property while executing a warrant or pursuing a fleeing felon. Courts which have denied compensation under similar eminent domain provisions of their state constitutions have properly applied “the framework established by [their] constitution” that a taking or damage claim arises from a public use function, rather than a police power function.

I criticized that rationale in a post analyzing the 2019 Tenth Circuit decision in Lech v. Jackson, which ruled there was no taking, under the federal Constitutoion, in a case where the police destroyed an innocent family’s home in the process of pursuing a suspected shoplifter:

The distinction between “police power” and “eminent domain”—with only the latter leading to a taking—is a false dichotomy. In many situations, courts have ruled that a taking has occurred even if the government did not try to use eminent domain—its authority to formally condemn private property for public use. That includes numerous cases involving both regulatory takings and physical invasions.

The fact that the “police power” may have been involved does not normally immunize the government from takings liability…. [T]he police power extends to government actions “for the protection of public health, safety, and welfare.” Modern jurisprudence defines these concepts very broadly. Yet, in many contexts, courts nonetheless routinely rule that takings have occurred even though the purpose of the law at issue was to protect health or safety. For example, in the classic 1922 case of Pennsylvania Coal v. Mahon, the Supreme Court ruled that a prohibition on mining can qualify as a taking, even though its purpose was to protect the safety of people and property on the surface. Similarly, environmental regulations can sometimes qualify as takings if they destroy enough of the value of a property, even though their purpose is often to promote health or safety.

Cases where the government does go through the formal process of eminent domain often also involve the protection of health or safety. For example, the condemnation of property to build a road can increase health and safety if the new road is safer than the old, and thereby reduces the rate of traffic accidents. Yet, the government could not use that fact to seize the property and build on it without paying compensation.

A “police power” exception can potentially justify denying compensation in cases where the property itself—or the owner’s use of it—poses a threat to public safety, as when the owner uses the property to commit a crime, or in cases where his use of it can cause the spread of dangerous communicable diseases (this is why courts have generally denied takings compensation to property owners harmed by Covid-19 shutdown orders).

But that doesn’t apply in cases where the government damages or destroys the property of innocent people for the purpose of apprehending suspects or otherwise enforcing the law against third parties. The latter scenario is little different from other cases where the government seizes or destroys property for the purpose of advancing some general public interest, such as building a road, or flooding one area to prevent greater damage elsewhere. Such actions may well be beneficial. But that doesn’t mean the government can deny takings compensation. As the Supreme Court put it in Armstrong v. United States (1960), “[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

Sadly, this is one of a number of areas where current jurisprudence gives law enforcement a pass on egregious behavior that would be ruled unconstitutional in almost any other context, as under the doctrine of qualified immunity (which also comes up in other parts of Hamen ruling itself, where the court considers other claims made by the plaintiffs). To the argument that allowing takings liability would make police unduly hesitant to enforce the law, I would respond that is often a feature rather than a bug. Law enforcement should be more sensitive to the harm it inflicts on innocent people during the course of its operations. Sometimes, it may be better to let a suspect get away than to inflict massive damage on innocents in order to apprehend him.

Moreover, any extra sensitivity is likely to be modest in nature, since individual officers are unlikely to have to pay for the damage out of their own salaries.

All of these points apply to Hamen no less than to similar cases decided under the Takings Clause of the federal Fifth Amendment. But Hamen is particularly egregious because it denied compensation under a state constitutional provision that requires compensation for government “damaging” of property, as well as takings. As Harvard Law School Professor Molly Brady explains in a path-breaking article on the subject (I discussed her article here), the whole point of “damagings clauses” (which have been adopted by 27 state constitutions), is to require compensation in situations where the government damages or destroys property in ways that might not qualify as “takings,” and where there has not been any use of eminent domain. Even if you can argue that police operations like the ones in Hamen and Lech do not really “take” property, it’s hard to conclude they don’t “damage” it.

As the Hamen court recognizes, there is a divergence among state courts on this issue. Appellate courts in  California, Georgia, Oklahoma, and Washington, have all ruled that damagings clauses do not apply to law enforcement operations; South Dakota has now joined them. By contrast, state supreme court rulings in Iowa, Minnesota, and Texas have all gone the other way. The latter group of states is right, and I hope their position will ultimately prevail in the long run.

The issue might also be rendered moot if the federal Supreme Court ever addresses this issue under the Takings Clause of the Fifth Amendment and overrules cases like Lech v. Jackson. But the Court refused to hear the Lech case itself, and I am far from certain it is going to take up this question anytime soon.

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The Los Angeles Unified School District (LAUSD) will slash the number of police officers patrolling hallways in the nation’s second-largest school district by a third.

The New York Times reported that the LAUSD school board approved a plan on Tuesday to eliminate 70 sworn officers, 62 non-sworn officers, and one support staff member. The school district will shift $25 million to fund support services for black students. Officers at secondary schools in L.A. will be replaced with “climate coaches” to mentor students and resolve conflicts. The plan will also ban the use of pepper spray against students.

The move follows months of pressure from activists and students to reduce the number of police in Los Angeles schools. During the summer of 2020, as protests over the police killing of George Floyd swept through major U.S. cities, many school districts began reconsidering their use of school resource officers (SROs). The LAUSD already cut its school police budget by a third last June.

Civil liberties groups and disability advocates have long argued that increases in school police and zero tolerance policies for petty disturbances have fueled the “school-to-prison” pipeline and led to disproportionate enforcement against minorities and students with disabilities.

“Investments and behaviors must be different if we want outcomes to be different,” LAUSD board member Mónica García said in a statement. “Black students, parents, teachers and allies have demanded that we interrupt the school-to-prison pipeline.”

Organizations like the National Association of School Resource Officers (NASRO) argue that carefully selected, well-trained officers actually act as a filter and decrease arrests by building strong relationships within the school with staff and students.

So far, San Francisco is the largest school district to move toward defunding its SRO program. The Oakland school board also voted unanimously to eliminate the district’s police department and shift its $2.5 million budget to student support services. Minneapolis, Denver, Seattle, Charlottesville, and Portland, Oregon, have also ended or suspended relationships with local police.

The Des Moines School Board also announced this week that it will replace its SROs.

Reason reported last year on concerns from civil liberties groups and parents over the significant increase in the number of SROs in Florida, where the state legislature passed a law following the mass shooting in Parkland requiring an armed officer or guardian in every K-12 school in the state.

Those fears were backed up by a study published last September that found the number of school arrests in Florida—which had been declining for years—suddenly started to rise after the passage of the law. There was also a sharp increase in the use of physical restraint against students.

“The presence of law enforcement in schools was related to increases in the number of behavioral incidents reported to the state, the number of such incidents reported to law enforcement, and student arrests,” the report concluded. “The results suggest a need to reconsider whether law enforcement should be present in schools, and, if they are, how they can be implemented in a way that minimizes unnecessary exposure of students to law enforcement and arrests.”

Those concerns have been exacerbated by numerous viral videos of excessive force incidents involving SROs.

A North Carolina mother filed a civil rights lawsuit last October against a policeman who handcuffed and held her autistic 7-year-old son prone on the ground for nearly 40 minutes. 

Last August, body camera footage emerged showing officers in Key West, Florida, trying and failing to handcuff an 8-year-old boy, whose wrists were too small for the cuffs. An Orlando school cop made national headlines in 2019 when he arrested a 6-year-old girl.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Friends, qualified immunity is not our favorite doctrine; in fact, it’s among our least favorite. (We might even go so far as to say it’s worse than Noerr-Pennington, though certainly reasonable minds might quibble.) Which is why IJ has drafted model legislation that legislators can use to reform (or nuke) the doctrine. And we’re pleased to report that a bill that hews closely to our model bill passed New Mexico’s House of Representatives this week. Among other highlights, the bill gives victims a remedy when gov’t employees violate their constitutional rights and requires gov’t agencies (or their insurers) to cover the cost of litigation and any judgments, rather than imposing personal liability on gov’t employees. Click here to learn more.

New on the Short Circuit podcast: Thanks to special guest Ed Walters of Georgetown Law we finally live up to the 1980s-movie-sense of our name and talk robot law.

• The Horse Protection Act bans intentionally injuring horses’ limbs so they have fancy gaits in shows and exhibitions. But the law is enforced before administrative law judges who, under a recent Supreme Court case, haven’t been strictly speaking constitutionally appointed. The feds now admit that, in a prosecution that began in 2017, the ALJs it used were not-okay (but only kind of not-okay). Do they get a re-do in front of new ALJs? D.C. Circuit: Yes. Petitioners didn’t raise the constitutional issue they now seek to press below, and so it is waived. Concurrence: You don’t have to preserve constitutional issues because ALJs can’t do anything with them anyway.
• Plaintiffs challenge new federal rules protecting free speech and due process rights in “Title IX Hearings.” Free speech groups move to intervene, claiming the feds will not adequately protect their interests. District court denies motion before any response with sparsely written order. First Circuit: Affirmed. When it comes to the gov’t we gotta assume it’s here to help. Plus, even though district court didn’t have great reasons, we came up with some.
• In 2020, New York repealed section 50-a of its Civil Rights Law, which shielded police disciplinary records from disclosure under the state’s Freedom of Information Law. New York Police Union: If our disciplinary files are made public, our members will have a hard time getting jobs! Second Circuit: Sounds like that one’s on you guys.
• Convicted mafioso fights deportation to Italy, arguing that if he’s sent back, he’ll face the country’s “41-bis prison regime,” a highly restrictive form of solitary confinement that he alleges violates the international Convention Against Torture. Second Circuit: It’s bad, but it’s not torture. Dissent: Isn’t it, though?
• Texas law allows officers of religious organizations—but not secular celebrants—to conduct marriage ceremonies, a prohibition that the Dallas County Clerk enforces by refusing to record marriage licenses signed by secular celebrants. Secular celebrants sue, seeking order requiring clerk to record marriages they officiate. Fifth Circuit: Because the law also criminalizes the secular celebrants’ conduct, and they didn’t also sue to enjoin those criminal penalties, ordering the clerk to record the marriages won’t completely redress their injury and thus they lack standing.
• Can a case ripen while on appeal? Or must it be dismissed and the plaintiff required to file a new case? Fifth Circuit: Since the plaintiff gets to litigate the claim in either case, it’s tough for us to see what’s wrong with remanding the existing lawsuit.
• Two Goliad County, Tex. sheriff’s deputies pursue a man and allegedly beat him after he surrenders. He sues. District court: A police car’s dashcam video “substantially contradicted” the man’s account. Qualified immunity! Fifth Circuit: What? The dashcam didn’t record the altercation at all. To trial the case must go.
• Two teenagers walking home from a party are killed in an El Paso, Tex. drive-by shooting in 1993. Through coercive tactics (including threatening prison rape and the electric chair), officers obtain witness statements implicating a 16-year-old and then a confession from him (that he recants within hours). No physical evidence implicates him, but loads of evidence point to two brothers. The teen is convicted, sentenced to two life sentences. Texas courts overturn his convictions; he’s tried again and acquitted. All told, he spends nearly 20 years in prison for crimes he did not commit. Fifth Circuit: His lawsuit against the officers can go forward. (More details on the case from the district court opinion.)
• The Sixth Circuit is willing to put scare quotes around the “books” that this roadside adult bookstore purveys, but it is not willing to let Kentucky impose content-based restrictions on its signage.
• In 2017, Arkansas enacted a law requiring government contractors to certify that they won’t boycott Israel. Would-be contractor: That violates our First Amendment rights. Eighth Circuit: When it comes to boycotts, there might be some tricky lines between commercial activity (not protected by the First Amendment) and speech (protected). But Arkansas’s law potentially covers activities like posting anti-Israel signs and even publicly criticizing the law itself. So to that extent, at least, the law is unconstitutional. Dissent: Read most naturally, the law doesn’t reach the speech conjured up by the majority.
• Stiffed in the suburbs, a St. Louis cabbie places a late-night call to the cops. Two officers arrive, search the neighborhood for the fare-skipper, notice that one house has a slightly open door, and enter the home with guns drawn. Displeased, the rudely awakened residents (who were not cabbie stiffers) sue. Eighth Circuit: Under the “community caretaker” exception to the Fourth Amendment, the officers enjoy qualified immunity for entering the garage. But barging into the house itself? That’s beyond the pale. Kobes, J., concurring and dissenting: No qualified immunity for any of it.
• Missouri only lets licensed in-state retailers deliver alcohol directly to Missouri consumers. Out-of-state retailers: That violates the Dormant Commerce Clause and the Privileges and Immunities Clause. Eighth Circuit: No it doesn’t and no it doesn’t.
• New Arizona resident wants to register to vote in the 2016 election. Uh oh! The last day for voter registration in 2016 fell on Columbus Day! Was the state required to accept registrations submitted the following business day? Ninth Circuit: It was not (though the state has wisely corrected this problem).
• Huntington Beach, Calif. police officer sees a man standing on the sidewalk wearing a sweater on a warm day, decides to investigate. A melee ensues, and the cop shoots the man without warning six times, followed by a warning and then a seventh shot. The man dies. In this context, the Ninth Circuit provides a primer on the differences between California negligence law and the Fourth Amendment and allows the negligence claim to go to trial.

Last summer, officials in Sierra Vista, Arizona ordered residents to leave their homes within 30 days. These residents are elderly, disabled, or living on a fixed income, and there is nothing wrong with their homes. The city simply decided that the best time to begin enforcing a long-unenforced provision of its zoning code was during a pandemic. The code bans living in certain kinds of trailer homes in one part of the neighborhood, but not the other. This means the residents will all be forced to move, including off land they own free and clear, to rent worse property just down the street which costs more and which they can’t afford. Moreover, the neighborhood is chock-full of abandoned and derelict properties the city has ignored. Instead, it is focusing its resources on kicking people out of well-maintained homes. This week, IJ filed suit in state court. If the city is going to force people out of their homes, Arizona’s Constitution demands that officials have a good reason. Click here to read more.

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