People, Let Me Tell You ‘Bout Your Worst Friend

Tired of the endless political posts on Facebook?  It could be worse. Much worse. With apologies to the late Harry Nilsson (and Bill Bixby), imagine if your Facebook best friend posted something like this:

Hey, those people that you saw on the news killing cops? Yeah, they worked for me. They were confidential informants, so I’m glad they’re dead. But more importantly, I head up a the local group of anarchists and we are going to blow up the courthouse, and kill some cops and judges. We have explosives and a massive arsenal. We will accomplish this no matter the cost!

You would be pretty horrified, right? Not everybody-I-went-to-high-school-with-is-so-old-now horrified, I mean legitimately horrified. That’s essentially what the Samuel Bradbury did in 2014, according to yesterday’s 7th Circuit opinion. I’ve paraphrased his diatribe in my example to starve it of any additional notoriety, but the essentials are there: (1) a shout out to recent, public, violent crimes, and (2) voicing an intent to take similar violent actions (3) against law enforcement and judicial officers.

Then, in the comment section, responding to a question from a friend, Bradbury explained that the entry was “complete satire . . .. This is simply a big mind game and satirical joke. . . . [I]t’s made to get you to think.” Though he deleted the message soon afterwards, the police received screenshots and an investigation followed.

The investigation led to Bradbury’s arrest and a search of his bedroom in his parents’ home. (That Bradbury still lived with his parents is easily the least shocking part of this story.) In the bedroom, police found thermite and magnesium, which probably means Bradbury is either really creepy or enjoys underwater welding in his spare time. Still, the defense must have been partially successful. After a trial, Bradbury was only convicted of maliciously conveying false information, which he appealed.

In any jury trial, the judge gives a set of instructions to the jury members. Think of them as answers to the Frequently Asked Questions the jury may have. These instructions often provide specific definitions of some of the terms used by the lawyers and the judge. In this case, the parties tasseled over the judge’s definition of maliciously. On appeal, Bradbury argued that the definition was too broad and would’ve allowed the jury to convict him even if the jury thought he was joking. But whether Bradbury intended to cause physical harm begs the question: when is a threat that puts people in fear or apprehension itself a criminal “harm”? The Court approved the trial court judge’s definition of maliciously, upholding Bradbury’s conviction:

To make a threat . . . is both intentional and malicious—intentional because [it is] deliberate and malicious because [it is] calculated to inspire fear and provoke a possibly costly response—even if the threatener doesn’t intend to carry out the threat. . . . Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. Sec. 844(e) . . . even if the harm that ensues is fright rather than physical injury.

The Hidden Pitfalls of Police Video

[W]itnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Indiana makes most government records available to the public for the asking. The law is formally known as the Access to Public Records Act (APRA). Its more famous federal cousin is the Freedom of Information Act (FOIA).  Most public records are, of course, mind-numbingly dull. Using public access laws can lead to strange results. For example, consider Mental Floss’s collection of ridiculous documents obtained through public records requests, which includes an FBI Twitter slang dictionary. I can only imagine how that impacted tweets in the bureau.

@SpecialAgentJones OMG your proposal for this task force had me totes ROTFLOL. #GManProblems.

I’m kidding. This can’t be an actual tweet. It uses the word “your” correctly.

Still, we’ve come to accept that the costs of APRA and FOIA are outweighed by the benefits of public accountability. So whenever someone wants to tinker with public access laws, it’s in our nature to fear that government accountability may suffer.  In that context, some proposed changes to APRA this session in the General Assembly have caused a stir.

Here are the basics of the law as it stands today:

General Rule: Government records are public.

Exception: Agencies have some discretion to decide whether to release certain kinds of records. For example, I.C. 5-14-3-4(b) says that public agencies have the discretion to withhold “investigatory records of law enforcement.”

The law being the law, there are many other exceptions, of course. And even a couple exceptions to this exception–but you get the idea. An agency does not have to disclose an otherwise-public record if it is an “investigatory record.” Although policies can vary, this discretion typically means that videos that are part of an investigation might not be released to the public, or the press, while the investigation is ongoing.

There are good reasons for this. Many videos may show crime victims, who may not want the public attention that comes with a video. Also, witnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Enter House Bill 1019, which would change the law in a few important ways.  First, it creates a new category of document called a “law enforcement recording,” which includes audio and video from body cameras and dashboard cameras.  Next, it creates a special standard for obtaining this video. This is where it gets a little more complicated. The person in the video can make a request and is entitled to see the video, with his attorney, at least twice, but is not allowed to copy it.  Anyone else who wants to see it must file a petition with the court and prove that (1) releasing the video is in the public interest, (2) no one will be harmed, and (3) there will be no “prejudicial effect” on any existing civil or criminal cases.

House Bill 1019 is now the subject scathing editorials in the Indianapolis Star and other papers, which can be a bit misleading.  With titles like “Police camera footage should remain public,” the editorials might lead the casual reader to presume that such videos are completely available to the public under the current law, which isn’t the case. Yes, HB 1019 would alter the way one requests a law enforcement recording, but even under current law, an agency has the discretion not to make such a record available if it’s an investigatory record.

To be sure, not every law enforcement recording will be an investigative record. If a police cruiser captures several hours of a 4th of July parade where no crimes are alleged to have occurred, that video is likely not an investigatory record and would fall under the general rule allowing public access. But let’s face it, if a video is so uneventful that it’s not part of an investigatory record, no news agency is going to be interested in seeing it.

That’s not to say that HB 1019 doesn’t have some problems:

  1. Identification of requesting party. I’ve seen many police videos. Although the quality has improved greatly in the past decade, it’s not always easy to tell who is in a video. The bill creates a scenario where somebody—probably a Sheriff’s Office or Police Department employee—will have to decide whether the person making the request for a video is the person in the video. In many cases, this will be undisputed, but, as the saying goes, “Hard cases make bad law.”
  1. Cost of compliance. The costs of compliance for both law enforcement and those making requests could be significant. These include the cost of supervising someone who has a right to watch a police video because she is in it, and making sure she doesn’t use her smartphone to make a copy; the cost of redacting material that should not be revealed; the costs of making (or opposing) a written petition to a court and meeting nebulous legal standards like “public benefit.”

In an effort to restore additional accountability, some have suggested expanding the permissible requestors of videos to include journalists. This creates a new problem: putting counties, cities, and towns in the position of determining who is—and who is not—a journalist. Do bloggers count or must a brick-and-mortar television studio or printing press be required? The First Amendment does not elevate the free speech rights of journalists above the rights of citizens, and Indiana’s public access laws should not either.

HB 1019 is currently scheduled to be considered by the Senate Judiciary Committee on February 24, 2016.

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UPDATE: 2/24/2016 – The Senate Judiciary Committee approved the amendment today which would switch the burden of proof to the public agency to withhold the video in any petition to obtain a Law Enforcement Video.

To Tailgate or Legislate? That is the Question.

Rep. Dave Ober of Albion, Indiana, has proposed language be added to a motor vehicle bill at the General Assembly this week that would clarify the responsibility of drivers not to lollygag in the passing lane. Including police authority to ticket a slow driver. That’s a ticket for not letting someone pass you fast enough. Pardon me while I assume the get-off-my-lawn cranky old guy stance.

When I learned the rules of the road, a slow poke in the passing lane was irritating, but not so problematic that police action was necessary. Slow-laners suffered from a lack of social awareness, a form of bad manners. Like cousin Billy with his elbows on the table, these folks needed education in the customs of polite society. Pulling up behind a Sunday Driver so that you occupied most of his rear-view mirror politely signaled the desire to pass. This reminded him–kindly, but firmly–that the passing lane has a purpose.  In rare circumstances where we needed a more noticeable signal, a quick flash of the headlights would catch his eye and bring the point home.

Alas, gentle social rules of the road seem to be giving way to the long arm of the law. It’s a measure of how much abrasiveness society tolerates that we eschew subtle Emily Post-style methods of communication with fellow drivers in favor of Tony Stewart bluntness. Instead of whispering suggested behavior, we scream for it. Instead of leading with the carrot, we raise the stick of punishment.

Ticketing our way to an open road?
Ticketing our way to an open road?

While police officers certainly must pursue both dangerous (speeding) and criminal (drunk driving) activity, behavior that is merely impolite should stay outside the scope of an officer’s duties. The use of police to get slow-movers out of the passing lane certainly risks overburdening police with trivial matters. One lawmaker supporting the amendment admitted that it was a “pet peeve” to be behind slow drivers in the passing lane, which is a pretty low standard for lawmaking.

Ticketing slow passing lane drivers would subvert cooperation in favor or rule-enforcement. There is a reason you’ve never seen a zebra-clad referee on the fairway of the 18th hole. That’s not to say golf has no rules. But golf rules are meant to be self-enforced. And like the passing lane slowpoke, a golf cheat is either an ignorant doofus, a cad, or a bit of both. Either way, dealing with him is everybody’s job, and outsourcing it would change the nature of golf. Likewise, Ober’s amendment would change the nature of road rules, at least at the margins, pushing more undesirable behavior from irksome to illegal, thereby leaving us with less to do corporately, socially.

It used to be considered a sign of patience–even inner strength–to tolerate boorish, impolite behavior. Not “tolerate” in the modern sense. Modern toleration is unfettered celebration, the way one must tolerate being handed a revolting craft beer because he’s too chicken to say out loud that pumpkin, cinnamon, and nutmeg just don’t make good dance partners inside a beer. Rather, tolerate in the sense that being able to endure the ill-treatment of others without ruin (to us) or retaliation (to them) makes us better people. What grandad called “building character.” But building character is hard and takes time. Think of the time I could save if only cops could fix all my pet peeves:

Somebody in the slow lane is in my way. It’s the skinny pedal on the right, Einstein!

That moron is writing a check for groceries and digging around for coupons. They are just groceries, lady!

This idiot in front of me is actually reading the McDonald’s menu–it’s the same at every McDonald’s, buddy, stop wasting my time!

Driving has become an inherently social activity. We spend more time interacting with each other as fellow drivers than we do as fellow neighbors, shoppers, sports fans, or church-goers. Even though it’s not deep interaction, it is frequent. Several times each day, we trust our safety to others, communicating through turn signals, head nods, speed variations, and hand gestures–some more expressive than others. We acknowledge both approval and disapproval in the way others drive, and those expressions are not invalid simply because they are not enshrined into law. The law is not the sole method by which society approves or disapproves of behavior, and there’s an argument to be made that it is not the most effective method, either. Each time we add to the law’s burden by banning behavior which is merely rude or inconsiderate, it’s a sign (and perhaps a reason) that we have given up influencing better behavior ourselves.

 

Of Ferguson and Ham Sandwiches

Aside from the usual noise over events in Ferguson, MO recently, which have lurched awkwardly from news(-ish) event coverage, to protest coverage, to riot coverage, I found two brief articles that shed light on the grand jury process. The Wall Street Journal has an article by Ashby Jones about the legal standards behind an officer’s use of force and how grand juries treat similar cases.  Over on SCOTUSBlog, Eric Citron writes about the use of exculpatory (defendant-friendly) evidence in grand jury proceedings. The grand jury is a mystery to most Americans, who have either forgotten what they learned in their ninth grade civics class, or were never taught about it. Of course, some of us are just too invested in Dancing With the Stars to learn about a part of the justice system that really should have seen its own “Schoolhouse Rock” song by now. (Spoiler: The Duck Dynasty girl came in second).

Themis 3439Interestingly, Citron notes that in federal prosecutions, grand juries rarely refuse to return an indictment. On its face, this is consistent with the famous quip attributed to New York Chief Judge Sol Watchler, that a prosecutor could “indict a ham sandwich” if he wanted. But the WSJ article quotes a criminal justice professor who claims that indictments against police officers for wrongful shootings are particularly difficult to obtain. Aside form the fact that Ferguson is a decidedly state-court matter and not a federal prosecution, it’s difficult to imagine the cause of the discrepancy. Why would grand juries, generally quick to return an indictment when a prosecutor presents evidence of probable cause, be particularly slow to do so when the target is a cop accused of wrongful or excessive use of force? Perhaps a reluctance to second-guess someone in a position of respect. Perhaps, as the WSJ notes, the test of whether the officer’s actions were “objectively reasonable in light of the facts and circumstances confronting them” insists that the jurors inspect the facts up-close, and allow some deference for the brief window of time in which officers are called to act.

Citron’s article suggests that Ferguson Prosecutor Robert McCulloch did not really pull out all the stops to get an indictment because he introduced evidence of both sides: witnesses and facts to support probable cause, and evidence which undermined the state’s case. The Supreme Court has ruled that the Constitution does not require a prosecutor to present exculpatory evidence to a grand jury. It is, after all, not a test of guilt but a test of whether the facts support charging someone with a crime. Of course, withholding exculpatory evidence at trial–where guilt is determined–is another matter entirely and amounts to prosecutorial misconduct. But a grand jury is an internal proceeding.

Imagine a football coach wants to determine the skills of his team’s offense. One coach might evaluate the offense without anyone else on the field, making sure they know all the plays in the play book. Another coach might want to see how it looks against a competent defense, because he’s less concerned about running clean routes than facing a challenge, so he calls up a full scrimmage.  Which approach is better depends on the coach’s goals and which technique better prepares his team for the big game.

The same could be said of a prosecutor’s goals. Is he to secure indictments or convictions? While both are deterrents to crime, the indictment is a always a partial measure–a temporary inconvenience–embarrassing and costly and perhaps even offensive, but always minor compared to a conviction. There’s a reason that nobody ever said, “That loser dating my sister is an indicted felon!” Convicted felon is the preferred slur (though the phrase is actually redundant). Also, a prosecutor with 100 indictments and no convictions probably should be looking for a new gig. It’s the conviction, not the indictment, that is the expression of the state’s authority, the cop’s vindication, and the prosecutor’s ability to pay his mortgage.

But how best to convict the burglar, the banker, or the barista of a crime is the real puzzle. A grand jury evaluation unhindered by exculpatory evidence would more likely return an indictment, and thereby force a plea agreement, even where the state’s evidence is not overwhelming. The result? More convictions through volume.  On the other hand, indictments that have overcome a rugged and more rounded examination by the grand jury might be considered battle tested, and result in a stronger, more compelling case, either for trial or by bringing a defendant to the bargaining table. The result? More convictions through precision.

By presenting exculpatory evidence, Prosecutor McCullough undoubtedly made it more likely that the officer would not be indicted. But the non-indictment from the grand jury suggests he may have also prevented a long, drawn-out trial process that would only have ended in an acquittal. Comments on this approach portrayed McCullough as both hero and zero. The Huffington Post called his actions “bizarre,” while William I. Aronwald, a former assistant district attorney and federal prosecutor, said that McCullough handled the situation “perfectly.”

Reasonable people can disagree about whether the Ferguson grand jury made the right decision. But 70 hours of testimony is a substantial amount of information. I dare say the average critic–or blind supporter–of the decision probably has not read through it. I sure won’t. And since grand jury proceedings do not occur in a public forum, like a criminal jury trial does, all praise and criticism happens with a heightened level of ignorance. Even a dry transcript does not always give the full account of a witness’s testimony, and courts have long held that a witness’s demeanor is relevant to a jury’s evaluation of his truthfulness.

More importantly, grand jury decisions are not sweeping democratic policy statements, like Acts of Congress. Broad conclusions about culture, racial identity, or the landscape of what America has become–all perched atop a single grand jury decision–are precarious at best. Improving the justice system is a slow and tedious process, and the loudest voices in the Ferguson melee simply don’t have the patience for it. MSNBC and Twitter are ill-suited to the task. Those with a sincere interest in institutional changes that improve the justice system will use the voting booth, not the hashtag.

 

The Not-So-Grand Inquisitor: Equal Justice and Police Interrogations in Indiana

Much of what passes for interesting reading for lawyers is just mind-numbingly tedious procedural minutia to everyone else. But the recent Bond v. State decision from the Indiana Supreme Court actually poses some questions that non-lawyers might find interesting, too.  At issue is how far police can go when using deceptive methods to obtain a confession from a suspect. The case has ignited much discussion in legal circles about criminal justice, police investigatory techniques, and race.

Suppose the police suspect Bert and Ernie of robbing a liquor store and shooting a clerk in the process, and the detectives arrest them both and put them in separate holding areas. They question Bert, and then Ernie. Then they return to Bert and tell him that Ernie has already confessed and if Bert would only fess up too, the prosecutor would be more likely to recommend a lenient sentence to the judge.

Of course, anyone who has seen Law & Order (or has an extremely cynical take on Sesame Street) knows that Ernie has not confessed. The police are lying to Bert. And there are endless variations on this lie. The police could claim to have Bert’s fingerprints.  Or that the liquor store clerk identified his photo from his hospital bed. Or that a surveillance video from the pawn shop across the street clearly identifies Bert and Ernie leaving the liquor store’s parking lot. The U.S. Supreme Court held long ago that the police may use deceptive methods when interrogating witnesses. Frazier v. Cupp, 394 U.S. 731 (1969).

ImageBut are there limits on deceptive police techniques? Sure. Imagine that the officer questioning Bert tells him that someone in the next room has Big Bird strapped to a car battery and standing in a bucket of water, and that the only choices that Bert has now are, “original, extra crispy, or confession.” So Bert signs the confession. Isn’t this just another deception used to trick him into confessing? No. In this case, Bert’s confession is coerced. Bert isn’t tricked into confessing, he’s forced into confessing. Big difference.  A permissible deception can’t trick an innocent person into confessing–at least in theory.  If Bert and Ernie are innocent, then the police assertion that Ernie “has already confessed” will only be met with bewilderment by Bert. However, threats to the life of Big Bird would cause even an innocent Bert to confess.

As long as Bert’s confession is not coerced or forced, then Bert’s motivation for making the confession can legally be based on a false premise, even a false premise the police create.

So how was Bond v. State noteworthy? In the Bond case, the detective told Bond that he would not receive a fair trial from people in Schererville and Crown Point because he is black.

While both the trial court and the Court of Appeals found the officer’s behavior deplorable, neither could say that it was illegal.  Since it was not illegal, the confession was admissible as evidence against Bond. However, the Indiana Supreme Court is more suited to make law than lower courts, and to consider the broader policy implications of rules of court procedure. In this case, the Court found that the technique of suggesting that Bond could not receive a fair trail because of his race was fundamentally different than a deception about the evidence against him. “[I]n this case Bond was intentionally deceived as to the fairness of the criminal justice system itself because of the color of his skin,” the Court noted.  It also said:

Regardless of the evidence held against him or the circumstances of the alleged crime, [Bond] was left with the unequivocal impression that because he was African American he would spend the rest of his life in jail. Unless he confessed. And in unfortunate days gone by, this might have been the case. But no one wants to go back to such a time or place in the courtroom, and so we will not allow even the perception of such inequality to enter the interrogation room.

Courts are normally utilitarian in their use of words, which seldom affords them the opportunity to be truly artful within a court opinion, but the Bond case was different than most. It provided an historic platform to look back at the progress of equal access to justice, and speak for–and to–the ages.  The Court continued:

As Dr. King did, we likewise “refuse to accept the view that mankind is so tragically bound to the starless midnight of racism.” Dr. Martin Luther King, Jr., Acceptance Speech at Nobel Peace Prize Ceremony (December 10, 1964). We simply cannot and will not risk this going further, and therefore draw a firm line today.

Thus . . . this deception by the detective tips the scale to involuntariness. We cannot tacitly countenance the erosion of everything so many have worked so hard to achieve in the realm of racial equality in the justice system—and continue to work to achieve—by disapproving of the statement but finding Bond’s confession nevertheless admissible.

As a practical matter, Bond’s confession is now inadmissible.  If Bond did commit a crime, the State will have to find other evidence if it wants to convict him.

A recent entry in the Indiana Law Blog described the feedback from the legal community surrounding this case.  One comment identified what it considered the “elephant in the room” of the Court’s opinion: was the representation the detective made true? What if Bond really can’t get a fair trial from a jury drawn from Schererville and Crown Point? This is not to single out any one community. Indiana’s racial history certainly has its jagged edges, and many of us have anecdotal evidence of racism, often associated–correctly or not–with entire communities. The point to ponder is whether such a technique is really a police deception at all if it’s true.

Another commenting attorney made the point that he has advised African-American clients that certain communities would be more likely to convict based on race, and that those clients have accepted plea agreements more readily as a result. So, the argument goes, how can it be unacceptable for a police detective to advise a criminal defendant of something that his own lawyer might say?  And is the lawyer to be reprimanded for his actions, or commended for frank and wise counsel to his clients?

In some respects, racial equality in the justice system is a victim of its own success. When racism was more widely accepted, objective evidence that a community would spawn racist juries would have been easier to come by. Today, racism is so widely condemned that it’s simply not possible to prove that a given community will always–or event predominantly–produce racially biased juries. So all we will ever have is anecdotal evidence, the “I knew a guy who . . .” stuff that legends are made of.

My support of the Bond decision does not require quantifying racially biased juries. If an African-American would confess, or accept a plea agreement more quickly, for fear that a jury would be racially motivated to convict him, then we need not prove actual racial bias in the justice system because the specter of racial bias has already caused harm.  Like a self-fulfilling prophesy, the fear of biased juries causes certain defendants to exercise less than the full panoply of rights given them by law, which is a harm all its own. The fear of biased results begets biased results. For a police officer–the embodiment of state power–to invoke that fear is inconsistent with the promise of equal justice under law.

If you’d like to sit in on more of this debate, the Supreme Court’s oral arguments are available online.

Ind. Legislative Action Not Involving the You-Know-What Amendment

Vapor doesn’t have the lung cancer-causing impact of cigarettes because–wait for it–they aren’t cigarettes.

Just in case you were wondering, there are a few things going on in the Indiana General Assembly that have nothing to do with HJR 3, the Resolution formerly known as HJR 6.  Here, in no particular order, are some goings on under the dome.

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Bill: HB 1141
Boring Name: Methamphetamine Lab Disclosures in Property Sales House List.
Fun Name: Meth House. (♪It’s a meth . . . house. It’s mighty-mighty. Just letting it all hang out.♪)

Summary: If any house is used for meth-manufacturing purposes, it would go on a list maintained by the state police. It comes off the list 90 days after it is declared clean. The law also requires homeowners to disclose if a property has been used to manufacture meth.

What’s good: Presumably nobody wants to buy a house that has undiscovered anhydrous ammonia in the spare bedroom closet just waiting for a chance freeze your appendages off.

What’s not-so-good: It seems duplicative or unnecessary.  The State already licenses home inspectors.  Couldn’t consumers start to demand that a meth-house check be part of an adequate home inspection?  Couldn’t banks that finance home purchases demand that title searches–which already search for judgments in various databases–also inquire with law enforcement about any manufacturing history?  Of course.  If the market already demands something, and there are no legal prohibitions to providing it, the market tends to get what it wants.  This well-intentioned bill will create another special inspector. And in a housing market that needs to decrease transaction costs, this will have the opposite effect–making it more difficult to buy and sell houses, particularly in rural and poor urban neighborhoods.  Even property with zero contamination will not be sold until someone has paid the costs of an inspection.

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StatehouseBill: HB 1174
Boring Name: Taxation of Electronic Cigarettes
Fun Name: If it Quacks Like a Duck, Tax it Like a Duck.

Summary: Vapor-producing machines, commonly called “electronic cigarettes” would be taxed just like cigarettes.

What’s good: This is the closest Indiana has come since it’s controversial state-wide smoking ban to showing respect for smokers, of sorts, in that it promises to tax them at the same level once they become former smokers. Ah, parity.

What’s not-so-good: Whatever one’s reaction to the word “tax,” taxing goods to raise revenue is at least logical. Taxing behavior to offset the state’s costs of cleaning up after that behavior is also logical.  This tax is neither. About 2.5 million people in the entire country use e-cigarettes, and even assuming Indiana’s trends are equal to the entire country, that’s just over 50,000 people in Indiana using vapor machines. So a few bucks a month from a population roughly the size of Elkhart Indiana is hardly a budget-saving measure. Nor can the state be jumping in to protect consumers from health dangers of water vapor, unless dumber-than-dirt teens are putting their faces over boiling pans of water hoping to “ride the vape” high. On second thought, give it time.  That’ll probably happen.

Instead, this measure seems designed to keep the perceived competitor (e-cigs) from having a significant cost advantage over conventional cigarettes because its customers would otherwise not have to pay taxes.  Vapor pens are what economists call “substitute goods” which are a natural part of how markets respond to innovation. Vapor doesn’t have the lung cancer-causing impact of cigarettes because–wait for it–they aren’t cigarettes. They don’t contain tobacco. Come on, why should a little thing like not actually being cigarettes stop them from being taxed like cigarettes?  Right. That’s a bit like taxing bicycles like cars just because someone might choose to ride a bike to work instead of driving.  Nevermind that bicycles don’t cause potholes, and don’t pollute.  They commit a greater sin.  They compete.

On July 1, 2012, when Indiana relegated smoking to private homes, clubs, outdoors (sometimes) and at least 8 feet from every door in the state, we were told that public health was paramount.  Apparently, that concern does not extend to the state’s tax policy, as taxing vapor machines will create a completely artificial disincentive to those trying to kick the habit. Dear Hoosier Health Crusaders: You’ll have to speak louder. I can’t hear you over these these crickets.

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Bill: HB 1351
Boring Name: Welfare matters; drug testing.
Fun Name: Keep a stash, get no cash.

Summary: Some TANF recipients would be required to undergo drug testing.  Those who fail the tests could risk losing benefits if they refuse to seek treatment for addictions.  Those supporting the law believe it will weed out (pun intended) drug users from the deserving welfare recipients.  Opponents claim that the costs will exceed the savings achieved.

What’s good: Someone is still willing to put it in writing that using drugs is bad.  And paying people to use drugs is idiocy.

What’s not-so good: While I’m not sure the “this experiment has failed in other states” criticism takes the deterrent effect into account, it is not hard to imagine that the costs of drug testing would exceed the benefits that can be measured.  Instead of creating a new program, we should find a way to use metrics already known and inexpensively gathered, like drug convictions, serving as a basis to limit or monitor benefits.

UPDATE:  As if reading my mind, I noticed today that the bill has been amended to include only those with drug convictions within the prior 10 years.  Probably to lower costs.

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Bill: SB 101
Boring Name: Agriculture Operations and Criminal Trespass
Fun Name: Ag Gag

Summary: Undercover videotaping of farm activities would be a crime.  Recent changes limit the crime to situations in which a trespasser causes property damage.

What’s good: Protection of private property, though last year’s version had more teeth.

What’s not-so-good: The limitation of the crime to incidents that have caused property damage seems to effectively gut this bill.  It’s already a crime to cause property damage.  And it’s already a crime to trespass.  Surely creating a new category of crime by doing them both at the same time is a not a net benefit.

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Bill: HB 1143
Boring Name: Environmental Rules and Standards
Fun Name: The IDEM Leash

Summary: Prohibits the Indiana Department of Environmental Management from adopting any rule or standard that is more stringent what its federal equivalent.

What’s good: Consistency.  While Indiana can’t prevent the feds from doing anything, it can give businesses and individuals some predictability in knowing that IDEM’s rules won’t be more restrictive than their federal counterparts.

What’s not-so-good: If this becomes law, expect significant litigation.  Interest groups will parse the shades of meaning in the ample volumes of federal environmental regulation to fight over what is or is not more restrictive than the fed’s version.

So Is it Harder or Easier to Buy a Gun Now? Answer: Yes

The New York Times published an interesting article yesterday detailing the results of the approximately 1500 new gun-related bills that have been proposed in states in the past twelve months, or as the Times measures it, “since Newtown.”  Only 109 such bills were signed into law.  While that might not seem like many, it’s slightly higher than the average 5% chance of a bill has of becoming law.

Aside from being a good example of why graphic-friendly, statistical-based news articles just work better online, it’s a pretty even-handed piece for the Times. The article divides the legislation into two camps: laws that “tighten” gun restrictions and those that “loosen” them.  However, like a cartographer flatening a globe into a map, the result of separating legislation into two simple categories can be a bit distorting.

iStock_000016146459SmallThough the only reference the Times makes is Newtown, I think the tapestry of state legislation reveals two motivations, which are not at odds, but are working simultaneously.  First, there is the post-Sandy Hook reaction.  It is revealed in the laws of at least 15 states which made it harder for the mentally ill to obtain handguns, either by increasing some form of reporting requirements from the mental health community, or by releasing mental health records into criminal databases, or both.  Also, the 6 states that passed so-called “assault” weapons laws probably did so largely in response to Sandy Hook.

The second motivation is likely a longer trend of protection of lawful gun ownership. These laws include authorizing more offices to issue permits, making handgun permit records confidential, and allowing concealed firearms in more locations.  Ever since District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Supreme Court definitively held that the second amendment conveyed a personal right to use of a firearm for lawful purposes, and its 2010 sibling, McDonnell v. Chicago, 561 U.S. 3025 (2010), voters have become more aware the breadth of anti-gun legislation.  Add to this the Obama administration’s use of agencies as disparate as the EPA and OSHA to effectively curtail the availability of guns and ammunition, and voters collectively started to take notice.

The Times suggests a certain inconsistency in the data.  But states are the laboratory of ideas, and most labs have many experiments running at the same time.

What You Can’t Say Can Hurt You: a Penny for Your (Political) Thoughts

In a recent post, I argued that Millennials have a warped view of free speech, though it was not of their own making.  It’s due to the two headed dragon of modern First Amendment lore, one fire-breathing head to discourage political speech that is not well-regulated and controlled, and another to encourage all manner of speech once considered obscene, as the personal life-fulfillment of its author.  I’ll leave the discussion of what is legally obscene for another day.  But whether the burgeoning field of campaign finance law really has a chilling effect on free speech creates a paradox of sorts.  It’s difficult to prove but easy to recognize.  In that respect, it is reminiscent of Justice Potter Stewart’s famous quip about pornography: “I know it when I see it.”

Citizens United and Citizens United

Just as the Roe in Roe v. Wade and the Miranda in “Miranda warnings” represent actual people, Citizens United represents an actual organization.  It’s a conservative political organization, that exists, as many such groups do, for the purpose of “education, advocacy, and grass roots organization.” It existed decades before its famous Supreme Court namesake, Citizens United v. Federal Election Commission.  If you don’t recall the details of Citizens United, Wikipedia’s got your back:

The conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or “BCRA”).[2] In a 5–4 decision, the Court held that portions of BCRA §203 violated the First Amendment.

Of course, it is illegal for a corporation to donate directly to a political campaign. That was not the issue in Citizens United.  At issue in Citizens was this: at what point does spending on political issues become spending on behalf of a political candidate?

Citizens United complained to the FEC that Michael Moore’s “documentary” Fahrenheit 9/11 was critical of the Bush administration and, therefore, the documentary and its ads constituted “electioneering communication” and should not have been aired within 30 days prior to an election in 2004, as such expenditures were illegal at the time.  After the FEC rejected these arguments, C.U. made its own film critical of Hillary Clinton. When the FEC took C.U. to court over its Hillary film, the case went to the U.S. Supreme Court. The FEC’s slippery attempts to draw legal distinctions between the two films illustrated the absurdity of the law it was charged with enforcing. The Court found that portions of the McCain-Feingold Act violated the First Amendment by prohibiting collective groups of people, like associations, corporations, or unions, from spending money advocating for political candidates.

Citizens unite against “Citizens United.” Before that decision, if just one of them mentioned a candidate’s name during this rally, it would probably have been illegal. I doubt they appreciate the irony.
(Photo Credit: Flickr Barryelevine)

Citizens United is a lesson in recent history wrongly recalled.  It did not allow corporations or unions to donate to political campaigns.  Nor did the decision hold that “corporations are people.” Soylent Green is people.  Corporations are not people.  However, a corporation is an association of people, and the First Amendment makes no distinction between the free speech rights of one random guy, and the rights of a hundred of his neighbors, whatever form their association may take.  If Congress or any state can distinguish between the free speech of some citizens and the lesser (back-of-the-bus?) free speech rights of others, based solely on the nature of their association, how far could it go?  The Court rightly found such distinctions inconsistent with free speech under the First Amendment.

Hello, I’m Ed.  Would you like to talk politics then be my cellmate?

Citizens United was a step in the right direction.  If you need convincing of the absurdities of the long-arm of campaign finance laws, consider the case of Ed Corsi.

Mr. Corsi started a website to discuss his political views.  Then he got together with some friends and sponsored speakers locally, and passed out flyers at the county fair.  Not that it should matter, but Corsi’s speakers only addressed public policy issues, and did not stump for individual candidates.  Records later showed that the website cost him $40 per month and he had perhaps a couple hundred dollars annually in other expenses.  According to the State of Ohio, such activities are illegal without first registering with the state and making reports as to one’s activities.  Apparently, Ed Corsi is the new face of Big Money in politics that must be rooted out if democracy is to survive.

In an op/ed piece last month in the Wall Street Journal, no less than the former chairman of the Federal Election Commission, Professor Bradley Smith, came to Corsi’s defense and lamented the absurdity of laws that put Americans in the position of risking prosecution for engaging in politics.  “Even printing yard signs or running an email list can trigger [state] requirements” he notes.  Corsi’s case, and much more, may depend on how the Supreme Court and Congress address the future of campaign finance.  Handled well, and we might restore some common sense and raise the effectiveness of political debate.  Handled badly, and the mechanisms of government will continue to suppress speech under the guise that Americans fear “big money” in politics more than the plague.

You could say that this year’s Citizens United is McCutcheon v. Federal Election Commission. It was argued on October 8, 2013 in the Supreme Court and involves a challenge to the limits of individual donations.  A decision is not expected until next year, but could come at any time.

As Professor Smith points out, 47 years ago, the Supreme Court struck down a law that prohibited newspaper editorials favoring a particular candidate on an election day, stating: “[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”

I’m sure Ed Corsi hopes that’s still true.

Cleaning the Slate – Indiana’s New Expungement Law, Part One

Records “expunged” under the new law are either sealed by court order or identified as expunged. Records are not destroyed.

So Indiana has a new expungement law.  It just might be a hot mess.  Not so much for you or me, but if you have a friend or relative working for a local clerk’s or sheriff’s office managing arrest or conviction records, be prepared.  Draw that person a hot bath and make sure you have some Excedrin in the house.  There are more than a few migraines in the on deck circle.

This is the first of two blog entries about the new law.  Next time I’ll examine the impact on courts and employers, but today I’ll describe the basic mechanics of the statute.

Here are 5 things you should know:

1. Expungement ≠ Destruction

Records “expunged” under the new law are either sealed by court order or identified as expunged.  Records are not destroyed.  Rest assured, once the government makes a record, it won’t give it up for good.  May your paranoia live on in all its grandeur.

2. Limit one expungement per customer (sort of).

Each individual gets one expungement request, that’s it.  One clean slate.  But the petition must be brought in the county where the conviction took place.  If the person has multiple convictions, he has to bring the request in a single petition.  If he has convictions in multiple counties, the petitions in each county must all be brought within one year, and that will be considered a single request.

stacksnew3. Discretion is limited.

For arrest records, misdemeanors, and D Felonies (the least severe rung on the felony ladder), the individual only needs to meet certain criteria called for in the statute. He doesn’t need to convince the judge that the expungement is a good idea.  If he meets the requirements, the law says the court “shall” grant enter an expungement order.  For more serious crimes, the court “may” enter such an order and for the most serious of eligible crimes, the prosecutor’s consent must be obtained, making expungements for many moderate and serious felonies a rarity.

4. Keep it clean.

It’s no surprise that an individual asking the court to expunge a record of a conviction has to have a clean record since the conviction, and must have successfully completed the entire sentence.  But it also requires that there be no active or pending driver’s license suspension–even if the suspension is not related to the conviction.  So  as Johnny Cash says, “Walk the Line.”

5. Watch for Arresting Developments

Indiana’s new expungement law also applies to arrests.  Essentially, any arrest which did not result in a conviction (or the conviction was overturned on appeal) may be expunged.  This means that it will no longer be accessible without a court order.

Frankly, even though this portion of the law is the simplest, requiring only a showing that the arrest is one year or more old and did not result in a conviction, it may be the hardest to enforce.  Law enforcement agencies make records of arrests and investigations that follow.  Except for records involving juveniles or those which are part of an ongoing investigation, these are public records.  I expect that law enforcement agencies will now have to segregate expunged records in a manner that has not previously existed, which may be painful and, in some cases, expensive.

Next time: What Expungement means for employers and the rest of us.

There’s No Justice Like Show Justice

The First Amendment isn’t what it used to be.  It used to be an integral part of the Bill of Rights.  It’s more of a slogan now.  Its common meaning, once vigorous, has been slaughtered on the altar of intellectual complacency and insipid self-gratification.  Its invocation today is more banal than brave; more ordinary than audacious.

One recent illustration of this is the opposition to Indiana’s Senate Bill 373. The bill would make it illegal for someone to take video or images of an agricultural operation without the consent of the owner. The bill would not apply to law enforcement officers.  Since the Fourth Amendment requires a warrant, the net effect of the bill is to say that only police officers (presumably for good cause shown) can enter into private agricultural property and take pictures without the permission of the owner.

By the reaction of some, including Matthew Tully of the Indy Star, you would think SB 373 protected Abu Ghraib-style secret prison abuse of animals.  Tully recently lamented the bill, arguing that it creates a society where “bad actors know they’ll be able to get away with more,” and “face less chance of public embarrassment and ridicule[.]” Of course, those playing by the rules will also face less chance of unwarranted public embarrassment and ridicule, and that’s the point the bill’s detractors are missing.  But like the proverbial hammer-wielding carpenter for whom everything begins to look like a nail, Tully suggests that the weapons of free speech – “embarrassment and ridicule” – are the most effective tools society has to combat wrongdoing.

You Tube justice pretends to be a crusader of the First Amendment, but has no patience with the Constitution as a whole.
You Tube justice pretends to be a crusader of the First Amendment, but has no patience with the Constitution.

In reality, law enforcement is both more effective and better-equipped to address most criminal behavior, including animal cruelty.  Aside from some specific exceptions, law enforcement officers must seek a warrant before entering onto private property.  This requires probable cause, shown to a judge. Only then can the alleged wrongdoer be charged with a crime, and only if guilt is proven beyond a reasonable doubt will punishment be tolerated.  These steps are rooted in protections as integral to the Constitution as the vaunted First Amendment.

But for the Über Free Speech crowd, that path is too slow and ineffective.  After all, they say, what if the system protects its own and the wrongdoer escapes the justice of the First Amendment posse?  Ask Richard Jewel, George Zimmerman, or the Duke lacrosse team about the “justice” of embarrassment and ridicule in lieu of thorough criminal investigations.

Tully even acknowledges that the bill creates an exception for those who turn the video over to law enforcement within 48 hours.  But that’s still not good enough: “So, what, we’re going to hope that the sheriff in Farmtown, Indiana, suddenly joins PETA?” he asks.  With all due respect, this question betrays the heart of the bill’s opposition.  Not only is Tully impatient with Constitutional protections that happen to reside outside of the First Amendment, he doesn’t trust elected officials in “Farmtown” to uphold their oaths of office.  (I’ve never been to Farmtown, but I’m guessing it lies somewhere outside of the commute between Carmel and downtown Indianapolis.)  A single prosecution for animal cruelty, while effective, is not sensational. It’s not You Tube-worthy.  Which means it’s dull news and not an effective fund raiser for PETA.

By the way, would Tully’s boss object to a broadcasted hidden video of the goings-on of the editorial boardroom of the Indianapolis Star?  Of course he would. Hidden video is only a noble cause when it finds wrongdoing.  All of the hidden video that is taken and unused–or worse, falls in the hands of competitors–doesn’t catch bad behavior at all. It erodes private property rights.