[I]f you're on that no-fly list, your access to the right to bear arms is cancelled, because you're not part of the American family; you don't deserve that right. There is no right for you if you're on that terrorist list[.]

That was Rahm Emanuel back in 2007. You can watch the video here.

That stupid, un-American and downright evil statement had been (quite properly) dismissed and forgotten, along with most of Emanuel's hyper-partisan, Rovian blather.

Unfortunately, there are plenty of other hyper-partisan, Rovian blatherers:

Citing a "terror gap," Sen. Frank Lautenberg (D-N.J.) … introduced legislation yesterday to give the U.S. attorney general authority to stop the sale of guns or explosives to terrorists.

Just one problem: Lautenberg's proposal does not concern "terrorists," but people on the no-fly list.

Some are quick to point out that the no-fly list (now over one million names and rising) is teeming with false positives — including children, generals and several members of Congress.

True that. But one must go further and ask why there are so many false positives on the list. As I noted elsewhere:

False positives aren't even the issue — true positives are just as problematic.

Suppose for the sake of argument that the no-fly list is constitutional, reasonable and inoffensive to libertarian sensibilities (big assumption, I know).

What Emanuel proposes here is that the (hypothetically appropriate) denial of a privilege (i.e., non-right), without traditional notions of due process (notice and a hearing before a neutral magistrate), be used to bootstrap to the denial of a full-fledged constitutional right (the Second Amendment right to bear arms).

This the Fifth Amendment simply does not allow. Not even close.

Keep this important point in mind as the hyper-partisan Rovian blather continues: This is not a Second Amendment issue — it is a Fifth Amendment issue. Anyone who supports the Lautenberg bill opposes the Fifth Amendment. The Second Amendment is entirely ancillary.

(Lautenberg, fully aware that his proposal is unconstitutional, nevertheless pretends that his plan comports with due process because anyone on the no-fly list can challenge the denial of her Second Amendment rights after the fact. This would be akin to saying that a couple convicted for violating an unconstitutional sodomy statute aren't denied their rights, because they are still entitled to appeal to have the conviction overturned after the fact. That's absurd, of course: Being forced to sue for rights wrongly denied you under an obviously unconstitutional law is still a due process violation. There is, in essence, a right not to have to sue for your rights.)

So I ask again: what happened to that new civil libertarian paradise that Obama and the hyper-liberal Congress were going to usher in?

It's probably in that same alternate reality where DOMA and DADT have already been repealed.

Previously:
–Think Twice Before Ordering a Special Meal
–"Secure Flight" Revisited
–CAPPS II Successor Unveiled
–CAPPS Capsized

The court concluded that the challenged provision, infringes the right to privacy guaranteed by Section 21 of India's Constitution as well as Section 14 (equality before the law) and 15 (discrimination on the basis of sex) of the Indian Constitution.

So this is clearly an "end of the beginning" situation rather than a "beginning of the end" (not even the U.S. can claim that status).

Meanwhile, let's not lose sight of how this landmark (if local) decision is serving to unite and inspire the entire nation of India — in religiously commanded hatred and bigotry:

"This Western culture cannot be permitted in our country," said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow.
…
Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality is out of step with India's deeply held traditions.

"We are totally against such a practice as it is not our tradition or culture," said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.

In New Delhi, Rev. Babu Joseph, a spokesman of the Roman Catholic Church, told New Delhi Television that while homosexuals should not be treated as criminals, "at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable."

Progress? That's a relative concept.

"I like your Christ. I do not like your Christians. They are so unlike your Christ."
–Mohandas Gandhi

The case is Naz Foundation v. Government of NCT of Delhi (PDF – 105 pages).

Previously:
–Global Christians Race to the Bottom on Gay Bigotry
–Naked Bigotry Update: Pope Urges Anglicans to Reject Gays

Contrast the commendable ruling in Safford with the outrageous decision in Morse v. Frederick, in which the Court held that an adult student, not enrolled in school that day and not on school grounds, essentially has no First Amendment rights, because — "OMG drugs!"

What I found disappointing in the decision, however, was the total failure to critically review the claim that there was any legal basis to search the 13-year old girl at all — let alone by strip search.

The only basis for school officials to suspect Redding was because a fellow student — already caught with contraband "OMG drugs" (i.e., ibuprofen), therefore already in trouble, and with a prior disciplinary record that surely negates any credibility she might have, fingers a classmate ("they must be hers").

How is that "probable cause" to conduct any search, let alone a strip search? How does a busted delinquent trying to dig herself out of a disciplinary hole satisfy the "totality of the circumstances" test of Illinois v. Gates?

(Recall also that Gates lays down the criminal standard for basing probable cause on an unreliable witness. Safford was not a criminal case, but only a "school policy" case. If the police could not have strip-searched Redding based only on a non-credible fellow student's account, then how could school officials possibly do so?)

The Court got it exactly right in its recognition that "strip searches ought to be different." What it got wrong is its refusal to recognize that "school searches ought not be different."

Finally, another tweet of mine:

Thomas, whom the stupid wing of the libertarian movement adore for some reason, again opines that children have no rights in school. kthxbye

In loco parentis might — might — not be an insane educational policy if — if — school were voluntary.

But to compel government-run, or at least government-regulated, education (i.e., to negate parental control), and then turn around and suggest, as Thomas does, that schools should be allowed to exercise full parental control, is so overtly self-contradictory that it is hardly surprising that no other Justice even bothers to respond to it.

The case is Safford Unified School District #1 v. Redding, No. 08–479 (June 25, 2009) (PDF – 44 pages).

Previously:
–Linkfest: Two "School as Prison" Anecdotes
–Linkfest: Supreme Court Roundup

—

Regarding Ricci v. DeStefano, yet another tweet:

It's a funky day indeed when I agree wholeheartedly with Justice Scalia. Not since Kyllo perhaps.

The Court resolved the reverse discrimination case under Title VII of the Civil Rights Act of 1964, rather than under the Equal Protection Clause. Which is to say that the Court ignored the pesky fact that Title VII, as invoked in this case at least, is patently unconstitutional.

As Justice Scalia put it:

The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them.

The best "peace" would of course be to acknowledge the plain language of the Fourteenth Amendment and concede that overt reverse racial discrimination in the name of eliminating (real or imagined) covert racial discrimination is — ahem — racial discrimination and therefore proscribed under the Equal Protection Clause. Disparate impact can never be the justification for disparate treatment — it's downright Kafkaesque. Two statutory wrongs do not make a constitutional right.

Finally, this was too long for me to tweet, so I had to post it to my Facebook instead:

Ginsburg's claim that there was no discrimination, because "everybody's score was equally discarded" is as disgraceful and disgusting as saying that there is no anti-gay marriage discrimination, since gays can equally marry someone of the opposite gender. Absolutely outrageous. Shame on her.

More on that today from George Will.

The case is Ricci v. DeStefano, No. 07–1428 (June 29, 2009) (PDF – 93 pages)

Previously:
–No Gender Left Behind

Two bills have been introduced so far — S.436 in the Senate and H.R.1076 in the House. Each of the companion bills is titled "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act," or Internet Safety Act.

Each contains the same language: "A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user."
…
The legal definition of electronic communication service is "any service which provides to users thereof the ability to send or receive wire or electronic communications." The U.S. Justice Department's position is that any service "that provides others with means of communicating electronically" qualifies.

That sweeps in not just public Wi-Fi access points, but password-protected ones too, and applies to individuals, small businesses, large corporations, libraries, schools, universities, and even government agencies. Voice over IP services may be covered too.

Even the most asymptotic libertarians must recognize the propriety of (basic) child pornography restrictions (since the child cannot validly consent).

But just because a government function is legitimate does not automatically imply that every government action in pursuit of that function is also legitimate. (There was a time, eons ago, when we spoke of laws in furtherance of enumerated powers being "necessary and proper." Alas…)

This proposed Internet SAFETY Act (which will almost certainly die in committee) is the height of government impropriety. Besides the absurdly prohibitive cost — the boring old financial cost — of establishing, implementing and maintaining these records, there is also the cost in terms of the privacy rights regarding the 99.9999% of Internet use that is not "trafficking in kiddie porn." That is a bona fide cost that simply must be weighed against the purported benefits of preventing or punishing such trafficking. It has been settled doctrine, for centuries, that sometimes justice must overlook the guilty in order to protect the innocent.

Compare this nightmarish bill to how we approach government censorship. While few dispute the propriety of not affording First Amendment protection to child pornography, that does not translate into giving government free rein to censor willy-nilly (as Justice Kennard would say) "for the children." The bar is set higher than that — much higher than that.

That is the respect we afford to the First Amendment. The Fourth Amendment deserves no less respect.

(Via Sex Crimes Blawg.)

Police officers pulled over a man with a sign in his pickup truck window that read "Abort Obama, not the unborn" and confiscated the placard, but later returned it after police supervisors found the officers' actions "overzealous."
…
Adrian Andrews, special agent in charge of the Secret Service's Oklahoma City field office, said agents determined Harrison was not a threat.
…
Harrison said the sign was back up in his truck, and that he was considering whether to pursue a civil matter against the police department for what he considers a violation of his right to free speech.

More power to him, but I would suggest that his grievance concerns the Fourth Amendment, not the First.

Law enforcement may only single out and stop a particular vehicle based on reasonable suspicion that some offense has occurred. (The standard ought to be the higher constitutional hurdle of "probable cause," but that's a whole other blogpost.)

Which invites the question: "Reasonable suspicion" — of what? Bad taste?

There was a bit of blogospheric buzz over whether "abort" is synonymous with "assassinate" (it's not), but that debate misses the point. Even a sign reading "Assassinate Obama" would still not rise to the level of reasonable suspicion of any crime. The pesky fact that the president was nowhere near Oklahoma City at the time certainly precludes that absurd proposition.

Where the Fourth and First Amendments intersect would be if the (still absurd) suggestion were made that Harrison were somehow attempting (while motoring down a highway) to incite a riot. In that case we would switch from Fourth Amendment jurisprudence to First Amendment precedent — specifically Brandenburg v. Ohio, 395 U.S. 444 (1969), which makes clear that potentially "dangerous" speech (and remember — "dangerous" is itself a dangerous word) may only be censored if it creates a risk of "imminent lawless action."

This isn't that.

While it is certainly too much to ask that rank-and-file police officers be held to the standard of "constitutional scholar," it is not too much to ask that they have a basic understanding of key provisions of the Bill of Rights (along with an understanding that "close" or unclear situations should be escalated to supervisors or prosecutors).

Let's abort frivolous vehicle stops that lack reasonable suspicion.

—

Meanwhile, regarding two side issues:

–Since the entire stop was clearly unconstitutional ab initio, seizing the sign was of course also unconstitutional.

–As for reporting Harrison to the Secret Service and its subsequent (brief) investigation of him, I have less of a problem with that. Had the police simply reported him without ever pulling him over, then I think that would have been permissible.

Previously:
–Questions, June 30th, 2008
–If, By "Probable," You Mean a 5% Chance…

Stories about corrupt judges are so rare that when one actually arises, it's huge news:

Mark A. Ciavarella Jr., and a colleague, Michael T. Conahan, appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care.

While prosecutors say that Judge Conahan, 56, secured contracts for the two centers to house juvenile offenders, Judge Ciavarella, 58, was the one who carried out the sentencing to keep the centers filled.

"In my entire career, I've never heard of anything remotely approaching this," said Senior Judge Arthur E. Grim, who was appointed by the State Supreme Court this week to determine what should be done with the estimated 5,000 juveniles who have been sentenced by Judge Ciavarella since the scheme started in 2003. Many of them were first-time offenders and some remain in detention.

Two hasty stitches:

1. How many "corrupt judge" stories have you read recently? How many "corrupt politician" stories? Remind me again who should have the final say over the actions of whom?
2. Note how quickly and mercilessly the judiciary polices itself. There is no blather about how (passive-voice) "mistakes were made" or about rehabilitation or any other insolent bromides. These judges are gone and gone forever, in total and unequivocal disgrace. How quickly and mercilessly do politicians police themselves?

No one is perfect. Even "public servant" lawyers — prosecutors, public defenders, judges and non-profit attorneys — are driven in part by personal ambition and the quest for, if not power, then at least prestige. Point conceded.

The distinction between judges and politicians is the recognition of this imperfection and the standards that they craft to grapple with it.

More thoughts at SL&P, Jurist Forum, ACSblog.

Previously:
–The Difference Between Judges and Politicians

A 14-year-old Wisconsin girl who refused to stop texting during a high school math class was arrested and charged with disorderly conduct, according to police. The teenager was busted last Wednesday at Wauwatosa East High School after she ignored a teacher's demand that she cease texting. The girl … initially denied having a phone when confronted by a school security officer. However, the phone was located after the girl was frisked by a female cop. The Samsung Cricket, the police report noted, was recovered "from the buttocks area" of the teenager. The student was issued a criminal citation for disorderly conduct, which carried "a bail of $298," and had her phone confiscated.

Whatever happened to, "go to the principal's office"? Whatever happened to, "please come to the school to pick your child, who has been suspended"? Whatever happened to, "some incidents simply do not rise to the level of probing a 14-year old girl's buttocks for a cell phone" (not a weapon, not drugs — a cell phone)?

Are teachers these days really such weaselly wimps that they must call the cops to subdue every smart-aleck (but utterly harmless) brat?

Previously:
–Kids in Cuffs: 8-Year Old Aspie Charged With Battery
–From "Kids in Cuffs" to "Kids in Padded Cells"

Police this week removed an unruly 7-year-old from his classroom and forced him to be hospitalized under the state's Baker Act — against the wishes of his outraged parents.

The boy spent the night alone at Morton Plant Hospital before he was seen by a child psychologist the next day and discharged.
…
By all accounts, the second-grader threw a tantrum at Mildred Helms Elementary on Wednesday. [Largo deputy police Chief John] Carroll said the boy tore up the room during his fit. In the process, he stepped on a teacher's foot and "battered" a school administrator. Carroll said the tantrum was so bad that school officials had to evacuate students from the classroom.

School officials called the parents and police. When officers arrived, they decided the boy needed a mental health examination.

This was not the first time the boy had acted up, Carroll said, and the lead officer, Michael Kirkpatrick, decided the boy couldn't just go home again with his mother.

I was not aware that rank-and-file police officers receive advanced training in child psychiatry.

In any case, the notion that an unarmed seven-year old can pose a credible threat to himself or to teachers is facially absurd and impermissibly extends beyond whatever legitimate confinement power that Florida's "Baker Act" (which "requires a person show a substantial likelihood of causing serious injury to himself or others") might confer to law enforcement.

One more time: If the situation at the school has been contained, the parents are available to remove the disruptive child, and qualified child welfare authorities have been notified for follow-up, then both the duty and the authority of rank-and-file police have ended.

What's next — sending fourth graders to Guantanamo Bay?

Previously:
–Kids in Cuffs: 8-Year Old Aspie Charged With Battery

Here, a property manager thought that the level of short-term traffic coming to and leaving from Baumann's apartment was odd and suspicious.
…
Although neither the manager nor Detective Buetow determined how many people would constitute a "high amount" or a "high volume," or what length of time amounted to "short term" or a "short amount of time," these characterizations were expressions of activities and circumstances the manager actually observed. From those reported facts, Detective Buetow, a trained narcotics investigator, drew an inference that there might be illegal drug activity occurring in the Baumann apartment, and he arranged to confirm the inference through a dog-sniff search.

Here's the sad part about this throwaway case from Minnesota: The dog sniff that was supposedly based upon "reasonable" suspicion was only of the common hallway; it was not the basis for entering the defendant's apartment (until after the dog alerted in the hallway, of course, resulting in an otherwise valid search warrant for the apartment proper).

But why should any quantum of suspicion be required at all for the owner of private property (through his agent) to authorize a search of his premises? Why go through the motions of "getting to reasonable suspicion" (and debasing the standard in the process) when no suspicion whatsoever is required in the first place?

A tenant "buys" a certain amount of privacy when she enters into a lease. That's capitalism. But unless the lease specifically covers common areas such as hallways, then such areas remain under the control of the landlord, who should be able to invite law enforcement onto the non-exclusive areas of the premises for any reason, or even for no reason at all. To the extent that Minnesota law says otherwise, Minnesota law is a ass.

I'm of course not defending sniff dogs — not even close. Nor the War on Drug Users. I don't even like the reasonable suspicion standard, which itself reflects an insolent disregard for the plain text of the Fourth Amendment.

What I'm defending are simple, straightforward, self-apparent principles of property law. (And of contract law: If you want a warranty that there will be no invitations to bring sniff-dog into common areas, then negotiate for it in the lease.)

The case is State v. Baumann, 2009 Minn. App. LEXIS 20 (January 13, 2009) (PDF – 9 pages). Via FourthAmendment.com.

Previously:
–If You Need "Rights," Then You Don't Deserve Them?
–Doesn't the Fourth Amendment Generate Heat Too?
–If, By "Probable," You Mean a 5% Chance…

Relying on expert testimony, the court ruled that the California prison system, the nation’s largest with more than 150,000 inmates, could reduce its population by shortening sentences, diverting nonviolent felons to county programs, giving inmates good behavior credits toward early release, and reforming parole, which they said would have no adverse impact on public safety. The panel said that without such a plan, conditions would continue to deteriorate and inmates might regularly die of suicide or lack of proper care.
…
Federal judges have already ruled that the state's failure to provide medical and mental health care is killing at least one inmate every month and has subjected inmates to cruel and unusual punishment, which is prohibited by the Constitution.

Attorney General Jerry Brown, who has no shortage of creative views regarding constitutional law and the role of the judiciary, denounced the ("activist"?) judges and vowed an appeal to the Supreme Court if necessary.

From a libertarian perspective, there are distinct pre- and post-Bayesian lessons from the overcrowding fiasco. The initial question must of course be why California is putting so many people in prison — especially people whose release "would have no adverse impact on public safety" — in the first place? Could it be the War on Drug Users? Could it be anything other than the War on Drug Users?

Meanwhile, taken strictly as an un-libertarian fact that these prisoner-creating laws are on the books in California, the next question becomes why the state is not adequately funding the legitimate public good of "prisons"?

Yet again we see government, especially state and local government, funding any and every illegitimate expenditure that any and every two-bit moral defective activist legislator can concoct, but when it comes to one of those rare true public goods — prisons — suddenly the money runs out. Compare to NYC mayor Michael Bloomberg, in the midst of a fiscal collapse, proudly showing off taxpayer-funded "NYC-brand" condoms and Barney Frank's relentless Sunday-morning hysterics about his district laying off police and firefighters.

Two wrongs make, not a right, but a very-wrong. This pathetic situation is one anti-libertarian government failure after another: Too many crimes, too many prisoners, too many distractions from proper public goods, too many excuses to violate the Eighth Amendment.

But at least they're eradicating gay marriage, right?

The case is Coleman v. Schwarzenegger, NO. CIV S-90-0520 (E.D.Cal., February 9, 2009) (PDF – 10 pages). More thoughts at Sentencing Law & Policy.

Previously:
–Libertarianism on the Retreat!
–Splitting the Ninth Circuit, Revisited
–U.K. Runs Out of Jail Cells
–Are Juries "Too Expensive"?