Crime & Federalism

What do you do if the police want to question you?  You call a criminal defense attorney, of course.  Or, at least, get your "Bust Card" today.

Judge Posner's latest post at Prof. Leit'ers blog reminded me of an old post:

      The Fallacy of Freedom vs. Safety

Whenever I discuss civil liberties with almost anyone, the following exchange is bound to occur:
Me:  I dislike X-law because it takes away my right to-Y.
Them:  Well, you have to balance freedom and safety. 
I have always been bothered by the freedom-safety dichotomy. Benjamin Franklin's retort that the person who would surrender freedom for perceived safety deserves neither did not lessen my anguish. My mind rebelled against the dichotomy, though I could not explain why - until now.

When we say that one must balance freedom and safety, we presuppose that surrendering civil rights makes us safer. In other words, giving more power - power in the form of not having rights restrain governmental action - to the government will lead to safety. Now, I have seen state action that turned my stomach. I have worked on cases where mentally ill people were entrapped into taking actions the criminality of which they did not appreciate. I worked on a Section 1983 action where a social worker threatened to take custody away from a mother if she refused to cooperate with an unjust prosecution against her husband. But no matter how many examples of government misconduct I cite, people continually rely on the freedom-safety dichotomy.

Ultimately, though, the freedom vs. safety debate arises only in the criminal context. We all believe that when persons suspected of crimes have less rights, we are safer. But almost all of us are enraged when Congress or the states regulate speech or deny us the right to vote. Almost none would argue that you have to balance the freedom of speech or right to vote with safety, even though bad ideas can corrupt a nation. Bad political leaders can ruin our economy and start wars. We will stack more dead bodies under a wicked President than we would by putting a gun in the hand of any mugger. But no one argues that we need to restrain freedom of speech or the right to vote in the name of safety.

Indeed, about half of us would balk at a Congress seeking to take away gun rights or deny a woman access to abortion clinics. To an opponent of gun control (which includes many people antagonistic to basic criminal rights), it is an unsatisfactory answer to tell them we must balance the freedom to own guns with the need to remain safe from unlawful uses of guns. Gun owners say, "But the Constitution protects our right to keep and bear arms!"

If I told a woman we must balance her freedom to have an abortion with the need for safety - since abortion teaches us to devalue personal responsibility - she would say, "I have the right to control my body!" And so, people who support gun control or oppose abortion do not use the freedom-safety dichotomy. Why is that?

I believe that underlying this bias against the Fourth, Fifth, and Sixth Amendments (Criminal Defense Clauses) is the belief that none of us will ever be charged with a crime. That is why most of us do not care about the rights of persons charged with crimes. Because, frankly, it will never happen to me. But when a criminal prosecution happens, the defendant changes his tune.

I have worked on many criminal cases for the defense. No one - not even the staunchest law and order person - was willing to give up her rights. Indeed, I would blissfully listen while these people - who never in their lives cared about the rights of our other clients - lectured me on the Constitution. [My boss would with joy collect the large fees paid for the protection and vindication of these rights.] Suddenly, they cared. Even George W. Bush, whose would so willingly deny the right to counsel to others, retained a first-class lawyer when his toes were in warm water.

I conclude that the freedom vs. safety dichotomy is fallacious since it presupposes the premise that more power in the hands of government leads to more safety. However, even if we falsify this smuggled premise, the balancing test applied is still accpetable for most people since even a complete repealing of the Criminal Defense Clauses would not harm them. Unjust prosecutions happen, but most people will never be mugged by the state.

Disavowing the rights of criminal defendants on the ground that these rights so important to them will never be relevant to you, is immoral. Those who would allow the government to unconstitutionally abrogate the rights the rights of others but jealously guard their own deserve neither freedom nor safety.

United States v. Afshari, No. 02-50355 (9th Cir., Nov. 20, 2004)

    The Mujahedin-e Khalq (“MEK") has participated or incited terrorism against the United States.  MEK was responsible for the American embassy hostage crisis of 1979.  MEK members have also engaged in joint terrorist actions with Saddam Hussein. 
    Yet the defendants here gave the MEK money.  Because money flowing to MEK might be used to kill Americans (and, indeed, money given to MEK was used to support Saddam Hussein), giving money to MEK is a felony. 
    However, before MEK was designed a "foreign terrorist organization," it received several lawyers of due process.  As the panel noted: 
8 U.S.C. § 1189(a)(1) sets out a carefully articulated scheme for designating foreign terrorist organizations. To make the designation, the Secretary has to make specific findings that 'the organization is a foreign organization'; that 'the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title)'; and that 'the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States.' 
    Moreover, "[t]he Secretary also must furnish the congressional leadership advance notification of the designation and the factual basis for it, which Congress can reject,"  id at  § 1189(a)(2)(A)(i), and which is then “published in the Federal Register.”  § 1189(a)(2)(A)(ii).  Then the allegedly foreign terrorist organization gets judicial review.
    The D.C. Circuit has jurisdiction to overturn the Secretary's finding on many grounds, id. at § 1189(b)(3)(A), including that the designation is  “contrary to constitutional right, power, privilege, or immunity.”  Id. at § 1189(b)(3)(B).
    The designation expires in two years (unless Congress overrides it sooner, § 1189(a)(5), (6)), after which the process begins anew.  Id. at § 1189(a)(4)(B).
    Even though the defendants learned “after participating in a conference call with an MEK leader … that the State Department had designated the MEK as a foreign terrorist organization,” they gave MEK hundreds of thousands of dollars.  Accordingly, there were charged under 18 U.S.C. § 2339B(a)(1), which makes it illegal to provide “material support to designated foreign terrorist organizations.”
    The defendants (and the ACLU) were upset because they could not give money to an organization that wanted to kill Americans and thus they brought two challenges against the law.      First, "[t]he defendants’ central argument is that § 2339B denies them their constitutional rights because it prohibits them from collaterally attacking the designation of a foreign terrorist organization."  Id. at *17103-04.  In other words, they want to relitigate each designation in every federal circuit. 
    Like a person who fails to appear in court for trumped-up charges, a person who disobeys a court order, and a felon who uses a firearm before his predicate conviction is expunged, these supporters of terrorist argue that “due process prohibits a prosecution under § 2339B when the predicate designation was obtained in an unconstitutional manner or is otherwise erroneous.”  Id.
    The panel quickly disposed of this argument.  Supreme Court precedent is clear: If you disagree with a judicial or legislative finding, clear it up before you do something that, but for the predicate finding, would be legal.  That is, if you have a felony, don't purchase a firearm until you successfully strike the felony from your record.  If you disagree with an injunction, don't violate the order: Have a higher court dissolve it.  You can't later say, “Well, the conviction was invalid, or the judge should not have granted the injunction.”  Just as the government followed procedures before designating the MEK a foreign terrorist organization, so too should the defendants have followed procedures before giving MEK money.
    Their second argument was “(1) they have a First Amendment right to contribute to organizations that are not terrorist; (2) the statutory scheme denies them the opportunity to challenge the ‘foreign terrorist organization’ designation; therefore (3) it deprives them of their First Amendment right to make such contributions."  Id. at *17107.
    The panel reached the right result, stating that since Congress can regulate contributions to legitimate candidates for office, so too can it regulate expenditures to agencies designed as terrorist.  Id. at *17108 (“[Since contribution limits are constitutional] [a] fortiori, contribution of money to organizations that engage in terrorism, as well as expressing a political agenda with speech, can be restricted by Congress.”).  See also id. (“It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated as a terrorist organization.”)
    Here's the guts of the defendant's theory.  If someone is charged under one of BCRA's provisions preventing certain corporate contributions or expenditures, the company can argue that since its a media organization, its exempt.  Thus, the company can litigate it as part of its defense that BCRA doesn't cover it.  Here, the defendant's want to litigate that MTK is not a terrorist organization as part of its defense strategy.
    The Ninth Circuit denied the defendants that opportunity since MTK challenged its being designated as a terrorist organization thrice.  Since "the MEK protected its interests vigorously," the defendant's could not re-open its being designated a terrorist organization.  Id. at *17112.
    Although this decision has received a lot of negative press, it's yet another good one fom the Ninth Circuit.

Today a unanimous three-judge panel of the Eight Circuit handed down an interesting (though short) opinion in United States v. Ghane, No. 04-1769 (8th Cir., Dec. 20, 2004).  Applying the Sell test, the panel held that the state may not involuntarily medicate a defendant where there is only a 10% chance that medicating him will render him competent to stand trial.  That is, a 10% chance of success is not "substantially likely to render the defendant competent to stand trial."

In Sell v. United States, 539 U.S. 166 (2003), the Court held that a defendant who is not compentent to stand trial can be involuntarily medicated if four factors are met.

First, a court must find that important governmental interests are at stake. *** Second, the court must conclude that involuntary medication will significantly further those concomitant state interests.  It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial.  ***  Third, the court must conclude that involuntary medication is necessary to further those interests.  ***  Fourth, the court must conclude that administration of the drugs is medically appropriate, i.e.,  in the patient’s best medical interest in light of his medical condition.

Id. at 180-182.  Here, the court said that involuntarily medicating Ghane failed the second ("substantially likely") prong of the Sell test.  Ghane, at *4 ("A five to ten percent chance of restored competence cannot be considered substantially likely under any circumstances.")

The defendant lives at home with his mother, but he has his own room.  Police go to the defendant's home, place him in handcuffs, and put him in the back seat of a police car.  The police then ask the defendant's mother for permission to search his room.  The mother consents and police find inculpatory evidence.  Is the search constitutional?

A unanimous three-judge panel said, "Yes."  In United States v. Jones, No. 01-1215 (2d Cir., Oct. 5, 2004), Judge Cardamone, joined by Judges Newman and Katzmann, wrote:

The defendant concedes that his mother had permission to access his room, and had actually entered it a number of times to clean it. Further, it is uncontested that there was no lock on his bedroom door, which was a room located within his mother's bedroom. That proof demonstrates that she had access and permission to enter, and could indeed enter at any time. Under the law of this Circuit, this evidence is sufficient to show that the mother had actual authority to consent to the search of her son's bedroom. See Koch v. Town of Brattleboro, 287 F.3d 162, 167 (2d Cir. 2002).

Once a person gives authority, to be shared in common, with another over certain premises, any hope that a search of those premises based on that other person's consent will be found a Fourth Amendment violation is slim at best. The reason for this conclusion is because the Supreme Court made clear that common authority rests on the notion that any co-inhabitant can permit inspection in his/her own right and others, including defendant, have assumed the risk that such permission to search might occur. Matlock, 415 U.S. at 171 n.7. Accordingly, the defendant's decision to permit his mother joint access to his bedroom limits his reasonable expectation of privacy in that room, and to that extent also limits his Fourth Amendment protection in the effects seized there. See id.

Moreover, the case law does not support Lewis' claim that the officers should have asked his permission to search since he was outside of the apartment in handcuffs in a police car at the time of the search. Supreme Court and Second Circuit law establishes that in situations where the defendant is present -- and even in situations where the defendant has already refused consent -- the officers may nevertheless rely on consent from a third party who has the requisite authority to give it. See, e.g., Matlock, 415 U.S. at 166, 171 (warrantless search may be justified based on the consent of a third party with proper authority even when the arrested defendant was on the scene and available to give consent); United States v. Davis, 967 F.2d 84, 86-88 (2d Cir. 1992) (third-party consent justified a search and seizure despite fact that defendant was in the custody of police in squad car outside and was never asked to consent); see also United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir. 1977) (holding that since Matlock did not rely on the defendant's absence in order to justify third-party consent, but instead relied on an assumption of risk analysis, it was not constitutionally significant that defendant refused to consent to the search before the officers requested and were given third-party consent). In consequence, the search of Lewis' bedroom while he was present outside does not violate his Fourth Amendment rights.

Slip opinion at 11-13 (emphasis added).