Guest Post

  • April 16, 2015
    Guest Post

    by Kanya Bennett and Nkechi Taifa. Bennett is the Legislative Counsel at American Civil Liberties Union, and Taifa is the Senior Policy Analyst at Open Society Foundations.

    “The FOP does not disagree that there is a need for civil asset forfeiture revision.” That is what the Fraternal Order of Police said at yesterday’s Senate Judiciary hearing on civil asset forfeiture. And when Chairman Chuck Grassley (R-Iowa) asked if FOP stood by those words, the response was “absolutely” – even though FOP’s testimony suggested otherwise.

    Grassley even offered him some advice, saying that, now is “not the time to oppose needed reforms,” in light of national headlines on police violence

    This should make it clear to everyone that the time is ripe for federal reform. Though work remains to convince some that community policing instead of “slush funds” must be law enforcement’s number one priority, we should be optimistic.

    Grassley said “legislation is necessary” and Ranking Member Patrick Leahy (D-Vt.) believes that “we can come together on a bipartisan basis to fix what is broken.”  

    For months there has been national discourse around civil asset forfeiture and all that is uncivil about it. Members on both sides of the aisle – and organizations across the spectrum – are demanding reform. And rightfully so. 

    Civil asset forfeiture gives law enforcement the power to take property away from someone who has not been convicted of a crime. And this property can be cash, cars, homes, and anything else – like a “simple gold cross” – that law enforcement believes is connected to a crime. Yes, a woman had her gold cross necklace seized when she was pulled over for a minor traffic violation!

    And just how does one go about getting a necklace … or money, or car, or house back? Well, often they don’t. Due process requirements don’t require judicial hearings. More than 60 percent of federal forfeitures were uncontested over the past few years.  

    When property owners do get notice and muster the courage to go up against the government, they find the deck is stacked against them. Property owners bear the cost of going to court and the burden of proving their property’s “innocence.” And in almost all instances, property owners are not entitled to counsel.

    So, what is driving this practice that sounds unfair, unjust, and un-American? How is it that we still have this “thorn in the side of civil liberties?” Civil asset forfeiture is big business for law enforcement at all levels – federal, state, and local. The practice generates billions of dollars annually and law enforcement is permitted to keep the assets it seizes. 

  • April 16, 2015
    Guest Post

    by Jed S. Rakoff, U.S. District Judge for the Southern District of New York; Adjunct Professor, Columbia Law School

    *The following is a speech given by the author at the Harvard Law School Conference on Lawyers as Professionals and Citizens on April 10, 2015.

    I have read with great interest the brilliant essay on Lawyers as Professionals and Citizens by Ben Heineman, Bill Lee, and David Wilkins that is the subject of the conference, and I want to build my little talk around the fourth ethical responsibility they enunciate in that essay, namely, the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.  I want to discuss that responsibility – which I will refer to here simply as the “Fourth Principle” – as it applies to lawyers and as it applies to judges; and while I recognize that the essay that is the subject of this conference focuses particularly on corporate and economic issues, I want to address this Fourth Principle in terms of other issues, such as war and such as imprisonment.

    I was introduced to this Fourth Principle, in effect, as a very junior associate at the New York City firm now known as Debevoise & Plimpton.  When I arrived at the firm in 1970, the leader of the firm, Francis T.P. Plimpton, was just completing his two year stint as President of the New York City Bar Association, then known as the Association of the Bar of the City of New York.  Although that organization was founded in 1870 for the specific purpose of seeking the removal of corrupt judges beholden to the man called “Boss” Tweed, by the middle of the twentieth century the Association had become a somewhat stuffy “Establishment” enclave, widely perceived (though perhaps unfairly) as subservient to the narrow interests of big-firm corporate lawyers.  On paper, Plimpton was more of the same.  Educated at Exeter, Amherst, and Harvard Law School, Plimpton could literally trace his Massachusetts forebears back to 1630.  And his chief fame as a lawyer consisted of being a highly skilled draftsman of corporate debentures – whatever the heck that is.

    But once Plimpton became President of the New York City Bar Association, the real Francis Plimpton emerged: a man of principle and courage, who, more than any other single person, opened that Bar Association to racial and gender diversity, to concern with pro bono representation and public service, and to a focus on broad societal issues.  As Sheldon Oliensis, another prominent lawyer of that time, stated, “He [Plimpton] thought that there was no issue on which the Association could not be heard.”  In a period when much of the legal establishment was reacting negatively to what it perceived as the lawless excesses of the ‘60s, Plimpton not only embraced a very broad view of the role of the lawyer in society, but also saw that role as one of promoting change and progress.

  • April 15, 2015
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    Most would agree that the Toxic Substances Control Act (TSCA) is one of our least effective federal environmental laws.  It is a welcome development, then, that Congress has begun seriously to consider legislation to reform this statute.  However, a prominent TSCA reform bill now circulating in Congress – the Frank R. Lautenberg Chemical Safety for the 21st Century Act, sponsored by Tom Udall and David Vitter – may stymie meaningful federal regulation of chemicals while preempting the state laws that have stepped into the breach opened by the failure of TSCA.  This would leave us even worse off than we are today.

    It is common ground among experts in the law of toxic substances control that a major reason for the failure of TSCA is the paralyzing effect of a 1991 federal court decision – Corrosion Proof Fittings v. EPA – invalidating the Environmental Protection Agency’s ban on asbestos.  There, the court piled on stifling analytical requirements as prerequisites for regulatory action on toxic chemicals and applied strikingly strict scrutiny to EPA's evaluation of the costs and benefits of banning asbestos.  So large does this decision loom in the failed history of TSCA that any law aiming to reform TSCA will almost certainly be viewed with close attention to how the law purports to change the features of TSCA that spelled doom for EPA's ban on asbestos in Corrosion Proof Fittings.

    Here is the rub: In two significant respects, the Udall-Vitter bill does not change the features of TSCA that undid EPA’s asbestos ban.  The bill retains the same overall formulation of the safety standard to be achieved (protection against “unreasonable risks”) and the same standard for judicial review (“substantial evidence”) that together brought down the ban on asbestos.  To retain these features of TSCA even though they proved so damaging in the litigation over asbestos is to signal that the Udall-Vitter formula for TSCA reform is not so reformative after all.

    For the safety standard, the Udall-Vitter bill pairs a standard of "no unreasonable risk of harm to health or the environment" with an instruction to EPA not to consider "cost or other nonrisk factors" in determining whether a risk is “unreasonable.”  For many years, courts have interpreted “unreasonable,” when used in health, safety and environmental statutes, to permit a balancing of costs and benefits.  It is thus confusing to pair the term “unreasonable risk” with an injunction not to consider costs and other factors besides risk.  Yet the Udall-Vitter bill does not provide further clarity; it nowhere defines “unreasonable risk.”

    Legal confusion has consequences.  When a statute is ambiguous, courts will defer to an agency's reasonable interpretation of that statute.  The juxtaposition of language signaling a desire for cost-benefit balancing and language signaling a hostility to such balancing may be unclear enough to allow the EPA ultimately to exercise its discretion to choose which approach – cost-benefit balancing or no cost-benefit balancing – to adopt.  Whatever EPA's present inclinations in this regard might be, there is no guarantee they will remain fixed in future administrations.

  • April 8, 2015
    Guest Post

    by Nashwa Gewaily, Fellow at the ACLU of Massachusetts.

    On the evening of March 27, an apparent shootout left a police officer critically wounded and a man dead on the streets of Boston’s Roxbury neighborhood. As word of the incident spread, divergent narratives emerged and questions abounded across social media and news sites. In the aftermath, the Boston Police Department and its commissioner were widely praised in traditional media outlets for quickly sharing with select community figures an unbiased account of what had transpired: video footage from a nearby business that captured critical moments of the encounter.

    In the wake of a number of high-profile fatal police encounters, followed by community outrage and mass demonstrations, one could easily anticipate the heavy cloud of tension over Boston had nothing been produced to clear the air.  This incident is one of tragic many that reveal the benefits of capturing police encounters on video.

    Yet, it comes at a time when states are scrambling to make it much more difficult for police incident footage – specifically, police encounters recorded by body-worn cameras – to see the light of day. Citing privacy concerns, legislators in at least 15 states have introduced bills that would exempt from public records law or otherwise limit the disclosure of police-civilian encounter footage obtained from body cameras.  While there is certainly an obvious need to protect the privacy of anyone videotaped by police, the over breadth of many of the proposed rules only serve to undermine the transparency that is sorely needed to bring accountability to police departments.

  • April 7, 2015
    Guest Post

    by Mark S. Kende, James Madison Chair Professor of Law and Director of the Drake University Constitutional Law Center, and Bryan Ingram, Notes Editor of the Drake Law Review

    In 2009, the Texas Department of Motor Vehicles Board (DMVB) rejected a controversial license plate design proposed by the Sons of Confederate Veterans (SCV), a Texas non-profit group.  The plate features a confederate battle flag surrounded by the words “Sons of Confederate Veterans 1896,” a faint confederate flag design in the background, an outline of the state in the upper-right-hand corner, the words “Texas” at the top of the plate, and the words “Sons of Confederate Veterans” at the bottom. 

    The DMVB’s action triggered a First Amendment battle between the state and the SCV, which is presently before the Supreme Court.  After the recent oral arguments, many believe the issue will hinge on whether the design constitutes government or private speech.  The question of whether such a plate contains racist hate speech is also relevant.  Most foreign nations ban racist hate speech.  The U.S. Supreme Court, however, has said racist hate speech is protected.  Some have called this American free speech exceptionalism, but the SCV says they are just committed to preserving the history and legacy of confederate veterans.