Tuesday, August 19. 2008Plame and Wilson lose on appeal against Libby and company.
Bill of Rights. (From the public domain.)
For awhile, the Valerie Plame/JoeWilson/Scooter Libby story went on the backburner. Then, in late July 2008, Robert Novak -- whose column blowing Plame's CIA cover led to the prosecution and conviction of Libby -- hit a pedestrian and kept driving, followed by an announcement shortly thereafter of his malignant brain cancer and retirement.
Not long thereafter, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit voted 2-1 (Judges Sentelle and Henderson affirming and Judge Rodgers concurring in part and dissenting in part) to uphold the dismissal of Plame's and Wilson's lawsuit against Libby and company over damages allegedly caused by the revelation of Plame's covert CIA status. Wilson, et al., v. Libby, et al., __ F.3d _ (D.C. Cir., Aug. 12, 2008).
Plame and Wilson's suit seeks damages for Constitutional violations under Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which is a case governing private party lawsuits against federal officials for Constitutional violations. In affirming the dismissal of Plame's and Wilson's lawsuit, the Court of Appeals stated: "We have discretion in some circumstances to create a remedy against federal officials for constitutional violations, but we must decline to exercise that discretion where 'special factors counsel[] hesitation' in doing so. See Bivens, 403 U.S. at 396; Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir. 1988) (en banc). In Bivens, the Court implied a remedy where there were no '"‘special factors counselling hesitation in the absence of affirmative action by Congress’"' that required 'the judiciary [to] decline to exercise its discretion in favor of creating damages remedies against federal officials." Spagnola, 859 F.2d at 226 (quoting Bivens, 403 U.S. at 396)." Here, the Court of Appeals found that the Privacy Act provided a remedial scheme for Plame and Wilson that precluded a Bivens action.
The D.C. Circuit further declared: "Litigation of the Wilsons’ allegations would inevitably require an inquiry into 'classified information that may undermine ongoing covert operations.' See Tenet, 544 U.S. at 11. The amended complaint alleges that the disclosure of Valerie Plame Wilson’s identity 'impaired . . . her ability to carry out her duties at the CIA,' Am. Compl. ¶ 43, increased therisk of violence to her and her family, id. at ¶ 42, and subjected her to treatment different from that given other similarly situated agents, id. at ¶¶ 51–52. We certainly must hesitate before we allow a judicial inquiry into these allegations that implicate the job risks and responsibilities of covert CIA agents. In cases involving covert espionage agreements, '[t]he state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection [the Court] found necessary in enunciating the Totten rule.' Tenet, 544 U.S. at 11. Here, although Totten does not bar the suit, the concerns justifying the Totten doctrine provide further support for our decision that a Bivens cause of action is not warranted."
Responding to the majority, Judge Rogers wrapped it up as follows: "In conclusion, the court’s decision is not the product of the application of the Bivens doctrine to appellants’ claims as Wilkie directs, 127 S. Ct. at 2598. It is rather the result of the refusal to acknowledge precedent that Bivens is a remedial doctrine and absent special factors applies where Congress created statutory protection for some persons in some circumstances but did not address the type of constitutional claims alleged by Mr. Wilson and in part by Ms. Wilson. The disclosure concerns identified by the court as counselling hesitation are either unfounded or premature because there has been no discovery or presentation by the Wilsons to the district court of how they will attempt to prove their claims. Contrary to separation of powers, then, the court effectively cedes to Congress the judiciary’s defined role to decide issues arising under the Constitution, despite the fact that the Privacy Act neither is nor purports to be a universal bar to all constitutional relief related to the release of agency records. Accordingly, I concur in Parts II and III.B of the court’s opinion, and in the judgment regarding Ms. Wilson’s equal protection and due process property claims, but I respectfully dissent from the affirmance of the dismissal of Mr. Wilson’s First and Fifth Amendment claims against each appellee and Ms. Wilson’s due process state-endangerment claims (except against appellee Armitage), and would leave to the district court to address in the first instance appellees’ defenses of immunity, see, e.g., Saucier v. Katz, 533 U.S. 194, 201 (2001); Davis, 442 U.S. at 249; Butera, 235 F.3d at 646."
Judge Rogers' partial dissent/partial concurrence provides very strong arguments to increase the chances of en banc review by the entire District of Columbia Circuit over the very critical issue of when to permit and not permit a Bivens action to proceed forward. Jon Katz. Wednesday, July 23. 2008Mukasey and racial profiling.
Bill of Rights. (From the public domain.)
The websites at such kindred organizations as the American Civil Liberties Union and the Alliance for Justice decry the United States Justice Department's purportedly proposed inclusion of racial considerations in investigating terrorism. However, other than news articles briefly addressing the matter, I have not found any details from Justice Department sources, including the department's website.
An article in the July 9, 2008, USA Today reports the following:
"[Attorney General] Mukasey said he is considering changes so FBI agents have 'clear and consistent rules for conducting investigations while maintaining vital civil liberties protections.' The proposed policy, first reported last week by the Associated Press, would let FBI agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious. Factors that could make a U.S. citizen or resident the subject of an investigation include travel to regions of the world known for terrorist activity, access to weapons or military training and someone's race or ethnicity.
"When questioned about whether or not someone's ethnicity is enough to put them under investigation, Mukasey gave an emphatic 'no.' However, when asked whether a U.S. citizen from Pakistan, whom [sic] makes frequent trips to Pakistan, would be subject to investigation, Mukasey said he was not prepared to discuss hypothetical questions. He added that 'this is part of an ongoing process.' Mukasey's tone often remained careful and sometimes ambivalent during his exchanges.
"When pressed by Sen. Russ Feingold, D-Wis., on whether people might be investigated based on their ethnicity, travel habits and whether they own a gun, Mukasey declined to answer directly. He said, 'the nature of evidence gathered and the way that it's gathered will be subject to review.'"
The following excerpt comes from a July 2, 2008, Associated Press article on the matter:
"The Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups. Law enforcement officials say the proposed policy would help them do exactly what Congress demanded after the Sept. 11, 2001, attacks: root out terrorists before they strike. Although President Bush has disavowed targeting suspects based on their race or ethnicity, the new rules would allow the FBI to consider those factors among a number of traits that could trigger a national security investigation.
"Currently, FBI agents need specific reasons — like evidence or allegations that a law probably has been violated — to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told The Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious. Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person's race or ethnicity."
Fox News's July 2 article claims to add additional information to the foregoing Associated Press article.
Do any of you know where I can find primary sources on such "changes" being considered by Attorney General Mukasey? I have not found such information through searching the Federal Register. Nor have I found such information through a general Google search, nor through a search of the Justice Department's website, nor through reviewing some of the webpages discussing the issue. Jon Katz. Tuesday, July 22. 2008Of FCCENSORSHIP, Bono, and Janet Jackson's bared right breast.
Bill of Rights. (From the public domain.)
Welcome to the land of bland: A land where television is dumbed down to a child's level, where broadcasters furiously self-censor, and where most Americans keep returning for more and more and more. It is the land of broadcast television, where so-called oral and visual "indecency" is forbidden from 6:00 a.m. to 10:00 p.m.
When courts first permitted indecency bans on broadcast (versus cable and Internet) television and radio, the theory behind it apparently included reliance on the limited number of available space for broadcasters, who are required by law to include service to the so-called "public interest." That basis by now is archaic, when cable stations and satellite radio abound.
Americans ultimately have themselves to thank for this state of affairs, not only because the anti-censors have not spoken out enough and effectively enough (do too many of them fear television content that they do not like if they speak up against broadcast censorship?), but also because tens of millions of viewers daily return for more of such broadcast pablum.
Enter Janet Jackson and Justin Timberlake at the 2004 Super Bowl, challenging the land of bland during the halftime show, with Timberlake singing "gonna have you naked by the end of this song,” while, unscripted, ripping off part of Jackson's costume to reveal her right breast for nine-sixteenths of a second until CBS cut the image. Were this Europe, the reaction would have been no different than to the thousands of barebreasted women sunning themselves on beaches in France and Italy, exercising their right not to cover up any more than men are required.
This not being Europe, though, countless Americans fear bared breasts. Fortunately, women have won the right to breastfeed in public in most places, and in some locales publicly bared breasts are permitted, whether by legislative intention or oversight. For whatever reason, bared breasts are more eroticized overall in American society than the many places where it is commonplace for women to be barebreasted all the time in public, causing little more notice than if they were covered up.
No sooner does Janet Jackson get removed from the halftime stage than the complaints of her bared breast come flooding into the Federal Communications Commission. Ultimately, finding Ms. Jackson's and Mr. Timberlake's bared breastcapade "indecent" -- how on earth can a bared breast be indecent? -- the FCC hit CBS with a $550,000 fine, which I decried in an interview with the USA Today McNewspaper. Mind you, a $550,000 fine in and of itself is a drop in the bucket for CBS, which likely paid its lawyers more than that amount to litigate against the fine through the appellate level, but repeated indecency fines can add up and can lead to more self censorship.
CBS's investment in legal counsel paid off yesterday with the Third Circuit's reversal of the entire half million dollar fine. CBS v. FCC, __ F.3d _ (3rd Cir. July 21, 2008). Kudos to fellow First Amendment Lawyers Association member Robert Corn-Revere for successfully arguing the case. Shame on the FCC for having levied any fine, and shame even more for having imposed such a huge fine as to chill smaller broadcasters with much shallower financial pockets.
The Third Circuit -- in a 2-1 opinion, with the concurring-dissenting judge as spiritedly in agreement with the result and with most of the reasoning therefor -- reversed the FCC's fine on CBS on two grounds. First, the court found that the FCC's fine amounted to an arbitrary and capricious retroactive application of a new policy banning fleeting indecent images (the change was spurred by Golden Globe award-accepting Bono's exclamation that “this is really, really f--king brilliant”, where if I were the awardee, I might have opted for the pithier "F--king 'A'") where previously the FCC had at least allowed indecent fleeting words. Second, the Third Circuit found that CBS -- which the FCC conceded had no foreknowledge of the then-impending bared breast -- was not liable (with willfulness being the liability standard) for the breast-baring actions of independent contractors Jackson and Timberlake no matter how one slices it, whether, for instance, on a theory of employer liability or vicarious liability, or on a theory of a responsibility to have time-delay technology for presenting visual images, which technology CBS only had implemented for sound transmissions.
As the Third Circuit recounts, in the FCC's upholding the half million dollar fine on CBS, "the FCC relied on a contextual analysis to find the broadcast of Jackson’s exposed breast was: (1) graphic and explicit, (2) shocking and pandering, and (3) fleeting... It further concluded that the brevity of the image was outweighed by the other two factors... The standard applied by the Commission is derived from its 2001 policy statement setting forth a two-part test for indecency: (1) 'the material must describe or depict sexual or excretory organs or activities,' and (2) it must be 'patently offensive as measured by contemporary community standards for the broadcast medium.'” CBS v. FCC, __ F.3d _.
CBS v. FCC, explains that, unlike obscenity, indecency still gets First Amendment protection on the airwaves, which led the FCC to "confine[] enforcement of indecency restrictions to the hours 'between 6:00 a.m. and 10:00 p.m.' See 47 C.F.R. § 73.3999," which are the hours when youngsters are more likely to be watching and listening to broadcasts. CBS v. FCC, __ F.3d _.
Will the FCC seek review of this case in the Supreme Court? The agency probably has at least four good friends if cert. is granted: certainly Justices Thomas and Scalia, and likely Chief Justice Roberts and Justice Alito. From considering his concurrence in Los Angeles v. Alameda Books, 535 U.S. 425 (2002) -- which left open the door to challenging the multitude of tired and disingenuous negative secondary effects "studies" that are repeatedly recycled by municipalities to try to zone out adult video stores and strip clubs --
In the meantime, congratulations CBS, Janet Jackson, and Justin Timberlake, and thanks to the Third Circuit for keeping life breathed into the First Amendment. Jon Katz.
ADDENDUM: See my First Amendment defense brother Marc Randazza's views on this CBS v. FCC case. Friday, July 18. 2008Circuits are split on sex offense as crime of violence.
Bill of Rights. (From the public domain.)
Following is a brief overview of a federal circuit split that likely will find its way to the Supreme Court to resolve this split that likely affects a large number of criminal defendants. Although I have tried to keep the language as non-graphic as possible, you have been so advised.
Numerous circuits are split on "whether a sex offense perpetrated in the absence of consent — and which does not have as an element the use, attempted use, or threatened use of physical force — constitutes a 'crime of violence' under the Guidelines," because the federal sentencing guidelines do not sufficiently define "forcible sex offense," which is a crime of violence that increases a defendant's sentencing guidelines. U.S. v. Chacon, __ F.3d _ (4th Cir. July 14, 2008). This is a critical question, as Mr. Chacon -- whose instant case involved a conviction for unlawfully re-entering the United States -- full well knows, from having received an increase in his Sentencing Guidelines base offense level by sixteen levels due to his previous Maryland second degree rape conviction. Notably, Chacon does not say whether the second-degree rape for which he was convicted in Maryland was based on an allegation of non-consensual sex with an adult or so-called consensual sex with an underage person, which the law treats as non-consensual based on the age of the victim.
What is a "sex offense" as to the above issue? Rape was Mr. Chacon's prior conviction, and the Fourth Circuit had no problem classifying rape as a sex offense, just as courts likely will have no problem classifying non-consensual oral sex and anal sex as sex offenses. However, my initial review of Chacon does not seem to define sex offense, thus leaving open the question of the extent to which the following commonly prosecuted crimes will receive sex offense classification by the federal courts for sentencing guidelines purposes: non-consensual feeling of the clothed or unclothed body parts of another for purposes of arousal; and non-consensual penetration by finger or other object of one's genitals or anus.
How does it feel to defend sex crime cases, at least where it seems clear that the person committed the alleged crime? I answer that here in discussing my defense of a man accused of raping his grandmother. Jon Katz. Monday, July 14. 2008When office-runners run roughshod over free speech.
Bill of Rights. (From the public domain.)
Last Friday I blogged about the undemocratic aspects of the judicial branch of government. Of course, the remaining branches of government are hardly immune from undemocratic actions, which are repeated and rampant by the executive and legislative branches at the federal, state and municipal levels. As just one of legions of examples, the 1968 Chicago police abuse of demonstrators during the Democratic presidential convention may have been extreme, but certainly was not the only instance of abuse of power by government that continues to this day.
Unfortunately, candidates for elected office and high government officials repeatedly abdicate their responsibility to protect the First Amendment right of people to protest against them; and probably agree with the suppression and pretend to be unaware of such suppression, as if the suppression is being handled independently by the candidate's handlers (where does the buck stop?). Such suppression happens with both Tweedledee and Tweedledum parties. We see repeatedly see huge demonstration-rein zones during Democratic and Republican presidential conventions, backed by force, arrests and prosecutions. We saw such manhandling last September, when John Kerry kept droning on and on as an obnoxious questioner's microphone (he raised some valid points, though) was cut off, followed by cops manhandling him, and then tazing him when he would not go quietly. Clearly, Kerry knew the man's mike had been cut off and that the police had carted him away to leave a sanitized auditorium; Kerry did nothing, except to continue to drone. See my full blogtails here.
Two Novembers ago, as then-Senator George Allen was about to be booted out of office, some of his goons shoved away a dissenter when he asked questions designed to make Allen wince. See my full blog details here.
Donald Rumsfeld -- who does not count me as a fan -- in this video uploaded by my lawyer brother Marc Randazza, shows how easy and essential it is for a government official to put the brakes on police otherwise chomping at the bit to wrongfully arrest a speaker exercising the First Amendment right to dissent. If politicians do not want to hear dissent, they should avoid public appearances and find another line of work; I am not holding my breath, lest I expire.
Thanks to brother Randazza for continuing to follow the suppression of dissenters at politicians' political stops with this YouTube video showing the ongoing sanitizing of dissent by politicians at the expense of free expression, with the July 7 trespassing arrest/citation in Denver of a librarian holding a McCain=Bush sign as she waited to enter his so-called town hall meeting. (How is it a true town hall meeting if dissenters are ejected before they even enter?).
This opinion piece in the Rocky Mountain News complains of an alleged anti-McCain slant in the coverage of the foregoing ejection of the anti-McCain dissenter. The writer, David Kopel, asserts that the woman was not on government property to be able to get First Amendment benefits. Opinion writer David Kopel says: "[A]ccording to the venerable left-wing magazine The Progressive (Dec. 12, 2007), police acting at the behest of the Obama campaign expelled three peaceful anti-nuclear waste protesters from the area outside a University of South Carolina stadium where Obama was scheduled to speak. Post columnist Susan Greene made a start at examining the Obama side of Colorado speech control. On Thursday, she wrote that 'Kreck's [the foregoing arrested librarian with the McCain=Bush sign] citation came the same day Englewood's police chief convinced the City Council to pass an anti-picketing ordinance meant to control protesters in August. A note written by the city's attorney's office inexplicably says the language of the measure was "recommended by the [Democratic National Committee."'"
Kopel likely is correct when he asserts that "the evidence suggests that when it comes to squashing protesters, McCain and Obama are two peas in a pod." Those peas should change their seasoning, and pronto. Jon KatzFriday, July 11. 2008Judges: Respect is a two-way street.
Bill of Rights. (From the public domain.)
In many ways, judges are antithetical to America's finest democratic ideals. Who else in American government gets cloaked in such enforceable majesty as judges? What other government official walks into and leaves a government chamber with commands to rise from everyone's seats, but ordinarily not rise in reciprocation? What other government official gets called your honor, but responds with "Mr." or "Ms." to the speaker? What other government official can find a person in contempt for disrespecting that official or his or her office, even if the disrespect is expressed in a calm tone of voice? What other government official gets a protected office of power for life at the federal level and for plenty of years in between elections and re-appointments in the states that do not have lifetime judicial seats?
Judges are humans, and humans err. The republic will not collapse if we democratize judges more, even if that is to commence no further than eliminating commanding the audience to rise when the judge enters and leaves the courtroom. I applaud the judges who opt to have the room advised to remain seated, and at least one federal court has a tradition of reciprocating the rising by coming down from the bench after oral argument to shake the hands of the arguing lawyers. I am not ready to say that judges' tenure should be subject to the political winds any more than what already affects such tenure. I am wondering, though, about the extent to which all this majesty with which judges are cloaked is more a holdover from the insufficiently democratic English tradition than an adaptation to the more democratic governing system that purportedly took hold in America despite the inclination of some even to turn General George Washington into a king.
State and federal executive branches further get in on the act of the undemocratic nature of judging, through the administrative law judge system. Just walk into any immigration courtroom, for instance, where you will see administrative law judges cloaked in black robes, looking superficially like real judges, being called "your honor", and being analogized to a "court". Heck, they are not real judges; they are employees picked by the executive branch, never considered or confirmed by the legislative branch, consequently not sufficiently independent from the executive branch, but so often acting in an undemocratic manner. What a sleight of hand to follow a spirited contested election for president, governor or mayor, with the victor or his or her appointees selecting these administrative law judges who are not real judges and who serve in such undemocratic roles. I say to strip administrative law judges of the title of judge, to strip them of their black robes, and to call them what they really are: hearing examiners, hearing board members, adjudicators, tribunal presiders, or anything else other than words that smack of judge, your honor, or court.
Fortunately, many judges are folksy people who care about doing the right thing (as they define the right thing, of course) and who are unmoved by the trappings of the office and are motivated more by the best judicial traditions of Solomon. Fortunately, many judges do not get jaded through day-in and day-out visits to variations on the same often seemingly-whining/complaining themes, while battling often crushing dockets and insufficient resources to justly serve each litigant. Such judges continue to see each litigant as an individual on his or her merits, with real problems riding on the court case, and not as just another drunk driving case; just another divorce case; or just another fender bender. They continue to engage in conversation with laypeople and lawyers, without crossing over the line of ex parte communications and ex parte favoritism. Those are the judges who should be the role model for every new judge and for every judge at risk for being jaded or worse, or who already has crossed that line.
A lawyer I know who seems to be highly respected by judges and who is the age contemporary or older than most of them told me that many judges he knows very much dislike plenty of what they do. It seems that some of them started out with the goal of serving the public, but got jaded. If the jading does not go away, should the judge stay on the bench?
At a trial lawyers seminar several years ago, I got a chance to serve as a mock judge at a mock personal injury jury trial. I was surprised when one of the mock jurors told me afterwards that I would make an excellent non-mock judge. How would I be able to last as a judge without being impeached? Imagine my first bond hearing: Judge Katz: "I see you are charged with burglary after having been convicted of burglary three times already, I am reducing your bond to $5.00." Defendant: "Huh?" Judge Katz: "Okay, fifty cents, then, but not a penny lower." Imagine how I would be at sentencing; criminal defense lawyers would fight each other to be first on the path to my courtroom.
The best judges treat litigants, lawyers, witnesses, jurors and everyone else as if the judges were not wearing black robes in the first place, but who instead feel honored and humbled to have the opportunity to exercise such awesome power and who invest themselves fully to exercising that power fairly, justly, and according to the real meaning of the law. For them, the black robe is not something that elevates them over the courtroom's other visitors, but is a reminder to them of the extraordinary power that they weild. When judges take that approach, I do not get too concerned about their being called "your honor" or "the court" or entering and leaving the court after everyone else is told to rise.
Judges being human, judges wielding extraordinary power, and power being what it is, such horror stories as the following ordeal of Casey Price (see here, too) will continue to happen. The key is to make them as rare an occurrence as possible. In a nutshell, Casey Price proceeded to a jury trial for drunk driving. Judicial blunder number one: As the jury deliberated, the judge was already talking aloud about the type of sentence she might impose in the event of a guilty verdict.
Kudos to Ms. Price for being acquitted by the jury. But wait. The joyous aftermath does not happen for Ms. Price. Instead, in judicial blunder number two the judge orders Ms. Price to be drug tested, rather than releasing her from the courthouse on the spot. Next, a courthouse drug testing office blunder rears its ugly head as Ms. Price gets treated as if she is a criminal rather than as the innocent person the jury declared her to be.
Some lawyers say wonderful things about this judge. Apparently this judge is mainly experienced with civil cases. If this judge is not removed from the bench, hopefully she will be removed from criminal cases.
This week, Casey Price filed a criminal complaint against her judge. You heard that right, a criminal complaint, not a civil complaint. If Ms. Casey's complaint were only civil in nature, I would be patting her on the back all the way. However, I am not inclined to cross over from my criminal defense role to encouraging Ms. Price's criminal complaint; I will wait first for her to file a civil complaint.
In any event, an essential element to being a great judge is to follow the golden rule. Respect is a two-way street; no exceptions. Jon Katz. Friday, July 4. 2008July 4 is meaningless without an ongoing struggle for civil liberties.
Bill of Rights. (From the public domain.)
NOTE: While you enjoy the long weekend, here is a reprint of what I wrote last year on July 4.
Whenever I look around on July 4, the scene is long on fireworks, beer, and merrymaking, and too short on discussion of what Independence Day is all about.
The Declaration of Independence was hardly signed by a bunch of pacifists. The signers must have realized the bloodshed among the warring sides would lengthen and intensify with the Declaration of Independence, and it did. Violence begets violence, and the rampant violence that led to Britain's surrender did not take place in a vacuum; instead, it fed into all subsequent American wars and smaller military actions. The United States' repeated victories in wars (with the Vietnam war probably ending all the later to delay America's first war defeat) likely made the United States all the more militaristic and cocksure militarily.
By now, the United States government thrives on control backed by force, the threat of force, and punishment, not only through military might, but also through an overgrown and overbearing criminal "justice" system of police, laws, money, prosecutors, courts, and prisons; an overgrown national security system that leaves us little privacy, security, or sufficient liberty; and an overgrown spying and "intelligence" system.
Fortunately, a strong movement continues in favor of civil liberties and government by the governed rather than the reverse. The movement is led by the American Civil Liberties Union, fearless and skilled criminal defense and Constitutional lawyers, the drug legalization movement, and the list goes on.
July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle. Jon Katz. Wednesday, July 2. 2008Thursday, June 5. 2008DC Atty General: “I’m not worried about the constitutionality" of Mayor's state of emergency.
Bill of Rights (From public domain.)
Giddiness seemed to run wide over Adrian Fenty's ascension to the District of Columbia mayoral throne two years ago at age thirty-five. He apparently made good at knocking on more voters' doors than his competition, had the energy to get his daily work done and still run for miles weekly, and learned valuable work ethic lessons from his parents who took a risk at opening an ultimately thriving running store.
Of course, civil liberties violations often are caused by well-meaning people. That truism arrived like a sledgehammer this week, when mayor Fenty gave police chief Cathy Lanier carte blanche to authorize ten-day "Neighborhood Safety Zones" where, according to mayor Fenty's June 4, 2008, news release, "public safety checks will be established along the main thoroughfares of the established neighborhoods. Anyone driving into a designated area may be asked to show valid identification with a home address in that neighborhood, or to provide an explanation for entering the NSZ, such as attending church, a doctor’s appointment or visiting friends or relatives. Pedestrians will not be subject to the public safety checks...Initiatives such as the Neighborhood Safety Zones have been accepted by federal courts as a legitimate law enforcement practice in keeping with the Constitution’s Fourth Amendment. The constitutionality of the NSZ initiative has been reviewed by the D.C. Office of the Attorney General."
Mayor Fenty: Just because courts let government actions pass Constitutional muster does not make the actions wise or right. Courts are not charged with only allowing wise or beneficial laws. For instance, in dissenting from the Supreme Court's ruling invalidating Connecticut's law criminalizing providing contraception even to married couples, as well as advising them about it, Justice Stewart, joined by Justice Black, confirmed: "I think this is an uncommonly silly law... But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do." Griswold v. Connecticut, 381 U.S. 479 (1965) (emphasis added).
(Aside: As the PBS website recounts about the foregoing Griswold v. Connecticut case: "Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, doctor and professor at Yale Medical School, were arrested and found guilty as accessories to providing illegal contraception. They were fined $100 each. Griswold and Buxton appealed to the Supreme Court of Errors of Connecticut, claiming that the law violated the U.S. Constitution. The Connecticut court upheld the conviction, and Griswold and Buxton appealed to the U.S. Supreme Court, which reviewed the case in 1965." Such unenlightnment was going on in my natal state even after my birth. I am pleased that my father grew up on a street with the same name as the petitioner, Griswold Drive in West Hartford.)
The Examiner newspaper quotes D.C.'s interim attorney general Peter Nickles as saying: “This is a very targeted program that has been used in other cities... I’m not worried about the constitutionality of it.” Fortunately, even a D.C. city councilmember who tentatively supports this neighborhood safety zone approach said "he worried about D.C. 'moving towards a police state.'” Worried about moving to a police state? With this neighborhood safety zone plan, the District of Columbia will already be a police state.
The Washington Post gives background to the situation: "The 'Neighborhood Safety Zones' program announced this morning is a response to a triple slaying in Trinidad at 4 a.m. Friday, and other recent violence. In the 5th police district, which includes Trinidad, 22 people have been killed so far this year, one more than in all of 2007."
The Washington Post further reports: "Police will search cars if they feel they have probable cause to do so. Drivers who don't cooperate with the request to produce identification or who object to being refused entrance to the block could face arrest for failing to obey police." Fortunately, the Supreme Court's 2004 decision in Hiibel v. Sixth Judicial District Court of Nevada prohibits arrests for identification refusal (and leaves open the door to prohibit cops from requiring anything more than one's name, versus one's photo identification and address, unless the person is driving a car) except where police have reasonable suspicion to believe the suspect has committed a crime. (See Mr. Hiibel's Constitutional rights being shredded here.) Clearly, reasonable suspicion will not arise merely for driving into a police-designated neighborhood. Also, people have a right to object to police activity under the First Amendment; unfortunately, too many courts have allowed disorderly conduct laws to erode the First Amendment, making that a route for police to arrest people, for example, who yell at the cops that they're jackasses for taking actions that create a police state. More fundamentally, I believe that it is clearly unconstitutional to stop all cars entering neighborhoods targeted by the cops in this "neighborhood safety zone" program, particularly where the cops will require identification and will prohibit entrance to the neighborhood if the police are not satisfied with the visitor's explanation for their visit. It is bad enough that courts permit cops to estabilsh "sobriety checkpoints" to enable them to stop every passing car (I was a victim of such a checkpoint in D.C.'s Georgetown neighborhood); unlike the neighborhood safety zone plan, at least the sobriety checkpoints do not involve requiring identification nor prohibition against drivers continuing on their way (unless they get arrested for drunk driving).
Certainly, Washington, D.C., was no civil liberties paradise even before the mayor's "neighborhood safety zone" plan. For instance, since the mid-1990's, D.C.'s anti-loitering law permits the police chief to establish drug-free zones where merely walking with one or more other people can lead to police hassling. The D.C. police department's own website proclaims: "It is illegal for members of a group to continue to congregate on public space in the Drug Free Zone after being instructed to disperse. Failure to obey the officer’s instruction will result in arrest without a second warning. This holds true if they regroup and continue to congregate in any public space within the boundaries of the Drug Free Zone. Any person who violates the act shall, upon conviction, be subject to a fine of up to $300, imprisonment for up to 180 days, or both."
Yes, the District of Columbia has seen a huge number of homicides since last weekend. Unfortunately, mayor Fenty's "neighborhood safety zone" plan adds to the violence by aiming at the heart of the Bill of Rights. Jon KatzTuesday, May 6. 2008 |
