By John M. Rogitz

There has been an increasing focus on the videotaping of abuses of police power lately.  In fact, this week Drudge linked to the Cato Institute’s new YouTube video called “Cops: On Camera”.  In case you missed it, the Cato Institute produced a mostly thoughtful eight minute video on why official police action should be recorded at all times.

While I agree that police should be held accountable for their actions, the Cato Institute has oversimplified and merged two complex issues into one.

Cato’s video first examines the advantages of recording SWAT teams during raids on people’s homes.  Then, without making any distinction, they apply the same reasoning to the recording of routine police business in public places, referencing many specific instances where police have abused their power on the law of public recordings to prevent the release of incriminating evidence against them.

Just to recap the law on recording actions and conversations:  Two-party consent laws, such as the ones currently being abused in Maryland and California, are by far the minority viewpoint. Only one-party consent is required in most states.  That means that if you want to record your what you’re doing, you can lawfully do so regardless of whether the other person knows it’s being recorded.

Even in those few states that require two-party consent, the people involved must have had a “reasonable expectation of privacy” before they can invoke their legal right to consent.  Such an expectation does not exist in public places.

That is the root of the distinction missed by the Cato Institute.  Orchestrated police raids into a private home are markedly different than recording routine police work in public places, such as on a Maryland highway or at the Preakness Stakes.  There’s certainly no reasonable expectation of privacy at one of the biggest horse races of the year, but one could argue that there such an expectation inside a home.

Okay, I understand that government intrusion into one’s home does change things a bit.  But the two are so unrelated that I don’t think an analogy should have been made by the Cato Institute anyway.

I can understand why police would not want their actions recorded during a highly technical, potentially violent raid on a drug lord’s house.  Not that I necessarily support that position, but I understand why they feel that way.  Things can understandably go wrong during armed domestic confrontations.  The adrenaline is pumping, bullets are flying, everyone is yelling and confusion reigns.

Thus, mistakes can happen.  But that doesn’t mean everyone should lose their job over it.  SWAT teams should have a different standard applied to them than off-duty, plain-clothes police officers who draw firearms on motorcyclists in a way that would make even the most casual observer think they were witnessing a carjacking.  That is the important distinction missed by the lawyers in the Cato Institute’s video.

While I generally agree that it is lawful for police to be recorded while carrying out their official duties, Cato Institute’s argument could have been stronger if they hadn’t treated those two completely different situations as being the same.  Either way, I hope we can all agree that abuse of these two-party consent laws by the police need to stop.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

I’ll give Time writer Adam Cohen credit, he brought national attention to something that had escaped the MSM’s attention for two weeks. The 9th Circuit Court of Appeals handed down a ruling on August 12 essentially affirming the government’s ability to come on to your property a night, affix a GPS device to your vehicle and then track you without any sort of warrant.

Cohen’s write-up published by Time earlier this week has now led to a backlash against the 9th Circuit for allowing law enforcement to circumvent the Fourth Amendment. Thanks, Adam. I’m glad some one was paying attention.

The facts of the case at the heart of the controversy are as follows: Police snuck onto a suspected marijuana grower’s property in the middle of the night and attached a GPS tracking device to the underside of his car. Law enforcement then proceeded to track the suspect’s every move while building a case against him.

The 9th Circuit’s holding that the police did not need a warrant in that situation has two important legal implications. First, the police can enter the “curtilage” of your home without your permission because you have no reasonable expectation of privacy in the areas immediately surrounding your house. That is, unless you can afford to enclose your driveway and yard with a fence or barrier to give you that reasonable expectation. More on that caveat later.

Second, police can track you via GPS without a warrant because you have no reasonable expectation of privacy in activities outside your home because you are conducting those activities in public places. That shocks the conscience a bit too, doesn’t it? Another win for Big Brother.

Well, don’t worry dear readers. There’s disagreement among the Federal circuit courts on this issue. When that happens, the chance that the U.S. Supreme Court will review the issue goes way up. Another plus for those of us who value our Constitutional rights is that the 9th Circuit has the highest Supreme Court turnover rate of any of the circuits.

Regardless, I take issue with the tone of Mr. Cohen’s article. He praises one conservative while backhandedly disparaging the rest of us. Cohen applauds the author of the 9th Circuit’s dissenting opinion, which defends the Constitution against the usurping majority, but still finds it appropriate to debase conservative Chief Judge Alex Kozinski’s overall conservative philosophy.

Chief Judge Kozinski wrote a scathing dissent of the unconstitutional precedent set by the 9th Circuit’s majority. Judge Kozinski explained that the court’s decision implicates an inherent “cultural elitism” because judges can afford home security and fences to protect their driveways and create a reasonable expectation of privacy while the poor have no remedy to prevent police intrusion. Yet Cohen condescendingly wrote that Judge Kozinski “came across as a raging liberal” because Kozinski lamented the lack of diversity amongst judges, thereby implicitly suggesting that conservatives do not value diversity.

Apparently only liberals are allowed to fight for the little man. How biased and culturally elite is that?

Mr. Cohen proves that liberals are capable of offensive, belittling elitism too. Since the 9th Circuit’s liberal majority were the ones losing perspective, maybe Mr. Cohen should have been even more critical of those sharing his political philosophy and less critical of Judge Kozinski.

You ultimately did well, Adam Cohen…as unwittingly as it may have been. You exposed a bogus decision by the 9th Circuit, as well as your own intellectual sloppiness as a writer and the left’s general inability to recognize personal hypocrisy. Congrats.

COPYRIGHT 2010 JOHN M. ROGITZ

The Left, in its insensate perpetual rage over the culture wars, might find less spittle on its lips if it laid down, took an aspirin, and reflected as to what the real issue is.

Take abortion, which was never about a woman’s right to choose what to do with her body as an abstract proposition.  That was how the issue was framed by the Left, using the typical leftist tactic of changing the subject when the subject becomes incontrovertibly inconvenient to its libertine instincts.  A “woman’s right to choose” – who could refuse? – was borne out of desperation to avoid the question, when does a human life take on the dignity, the personhood that legally and morally estops others from taking its life? Because to consider the question meant having to consider the evidence, such as the remarkable humanity that emerges from a sonogram of an infant barely eight weeks old. And having considered the evidence, the implication of the choice crowd – that personhood depended upon the subjective decisions of individual mothers and, thus, was but a relative quality of humanity that depended not on the person in question but on the diktat of some other – would have been exposed for the logical absurdity it is.  It is for this reason that the Supreme Court’s usurpation of the issue, cloaked in the benighted sophistry of trimesters, did not end the battle but instead  ransformed it into a wound that has been festering for three decades now in the body politic.

The clock chimes, the world turns, a new issue emerges, but the cognitive dissonance of the Left remains.  Gay marriage is not about gay rights.  As a practical matter gays already have full civil rights accorded by both the state and by the private companies for which they work.  Indeed, gays enjoy heightened legal protection against discrimination relative to heterosexuals.

No, gay marriage is the pernicious endpoint of a continuum.  First, gays asked for tolerance, and society readily agreed. Live and let live.  Then, gays insisted on accepting homosexuality as a normal lifestyle.  Recalling that even the Greeks in their day recognized the strangeness, one might say queerness, of such uncritical acceptance (see Plato’s Symposium, for instance, and the casual observation of their near-contemporary, Paul, that the Greeks had received the consequences of their conduct in their own bodies), Americans reluctantly grew reluctant to continue the journey, although not so reluctant to actively push back against extreme homosexualism.

Against this backdrop came gay marriage, which is more than an insistence on the full acceptance of its normality.  What is now demanded is the sanctification of homosexuality through the very institution through which heterosexual sex is sanctified.  Homosexuality may be borne of an innate proclivity, just as pyromania and kleptomania are, although the science on this is anything but settled.  Regardless, homosexuality is defined by the act, not the urge.  A celibate priest may have urges but he is defined by the act of his celibacy; a pyromaniac who controls his urges is not regarded as a pyromaniac.  And so a homosexual, regardless of the impetus of his sexuality, is defined by the way he engages in sex, a way which has from time immemorial been regarded as deviant.  It is not unreasoning bigotry or religious fundamentalism that works against gay marriage.  It is the concept itself, the demand that buggery not simply be tolerated, or even accepted – but that it be sanctified, from which society innately, inherently, recoils.

By John M. Rogitz

Congress did something by virtually unanimous consent last week.  Can’t you just feel the mid-term love?

The Fair Sentencing Act of 2010 received unanimous approval by the Senate in March while only requiring an informal voice vote in the House last week.  The Act itself makes some significant changes to our current Federal drug laws.

First, it decreases the sentencing disparities between powder cocaine possession and crack cocaine possession.  Second, it dramatically increases the penalties for drug traffickers under new “aggravating factor” guidelines for things such as bribing government officials and maintaining drug manufacturing houses.  The Fair Sentencing Act also eliminates the five-year mandatory minimum for first-time offenders convicted of possessing crack cocaine.

In regards to the sentencing disparities, the coke-to-crack weight ratio for equivalent prison sentences will be reduced from 100:1 to 18:1.  In other words, possessing eighteen ounces of powder cocaine will carry roughly the same prison sentence as possessing one ounce of crack cocaine.  Thus, crack still carries heavier penalties under the new law but is no longer wildly out of proportion to its powder counterpart.

As far as I can tell, almost everyone is in agreement that eliminating the far more severe penalties for crack cocaine possession has been long overdue.  Moreover, the vast majority of Federal crack convictions occur against African Americans, leading some to conclude that the crafters of our previous Federal drug laws were racist.

While it is impossible to tell whether some members of Congress have had racist intentions in the past, it is indeed correct that there is a disproportionate crack conviction rate for African Americans.  According to the Telegraph, about 80 percent of all those convicted of crack offenses are black.

Whether you’re a libertarian or not, that is not a good statistic.  What’s the difference anyway?  Both drugs are cocaine-based.  To me they just seem to be different physical forms of the same drug.  Sure there may be some differing side effects on the human body, but saying that one is worse than the other is like saying light beer is better for your health.

In a statement issued by the White House, Drug Control Policy Director Gil Kerlikowske said there was no scientific basis for the difference in sentencing.  “By promoting laws and policies that treat all Americans equally, and by working to amend or end those that do not, we can only increase public confidence in the criminal justice system and help create a safer and healthier nation for us all,” Kerlikowske said.

Because everyone appears to be in violent agreement that we should reduce the sentencing differences between the two forms of cocaine, I only have a few observations aside from the Fair Sentencing Act having the intended effect of reducing the disproportionate impact on African Americans.

For one, this marks one of the few instances where President Obama will actually fulfill a campaign promise.  That may sound cynical, but it’s true.  He’s expected to sign the bill in to law later this week.

Second, it appears that the Act will reduce some of the costs associated with managing our vastly overcrowded Federal prison population.  Reducing costs?  Undoubtedly an unintended effect for our 111^th Congress.  Even so, some reduction in both spending and our prison populations is long overdue.

I’m sure there are some “tough-on-crime” social conservatives out there who will find a way to disagree with the Fair Sentencing Act, but it’s hard to argue that it doesn’t further justice and fairness in our Federal courts.  So there you have it, ladies and gentlemen.  Despite the heated debates on health care and Wall Street reform, Congress has finally found some common ground.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

Another circus has begun in the Senate, as has been customary for all modern Supreme Court nominees. With the Kagan hearings now underway, it’s important to understand exactly how judicial ethics will impact her responses.

As we saw last year with Justice Sotomayor, Senators get very frustrated when a nominee does not directly answer their questions. They like to pepper nominees with questions about how the nominee would rule on this issue or that issue, even though many of the Senators are lawyers who know judicial ethics prevent the nominee from answering.

The simple fact is that, whether you’re a “conservative” judge or a “liberal” judge, you are forbidden from commenting on possible legal matters that may come before the Court in the future. Judges are supposed to remain impartial and apply the law to the particular set of facts in any given case.

It is precisely because most legal controversies are highly fact specific that potential justices are forbidden from answering general questions. Kagan should not have to feel external pressure to rule one way or another in the future because she interpreted the Constitution to generally mean X, Y, and Z at her confirmation hearings.

The whole FDA thing from yesterday’s session is a prime example. Kagan said it would be ridiculous for the government to make a law requiring you to eat three fruits and three vegetables per day. What more do you want from her?

But no, Senator Coburn wanted her to interpret the Commerce Clause against that hypothetical law, completely absent any fact-pattern for a particular individual bringing suit. Yet the same conservative Senators that get frustrated with her inability to answer questions like that still want her to, as they repeatedly assert, “only apply the law to the facts.” You can’t have it both ways, guys.

Now this is not to trivialize the Senate hearings. Each nominee for such a distinguished and important position should be vetted. Indeed, the Framers intended that. But these hearings were never meant to include the political grandstanding that now defines them.

In actuality, the Framers wanted a president’s nominee to be approved in most circumstances.  As Hamilton says in Federalist Paper 76:

“It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination…the necessity of their [the Senate’s] concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity” [Emphasis added].

Elections have consequences.  As Federalist Paper 76 points out, the president should be allowed his choice if the individual is qualified.  The Senate confirmation was simply included in the Constitution to prevent unqualified nominees from taking the bench.

However, disagreeing with Kagan’s judicial philosophy does not make her unqualified. Making sure a candidate is qualified, as the Framers intended it, did not mean putting a nominee through weeks of rigorous confirmation hearings. It meant preventing Harriet Miers from becoming a Supreme Court Justice.

Do not interpret my position to mean that I am in favor of Kagan or her judicial activist philosophy. I’d much rather have another Justice Scalia or Justice Thomas. But McCain did not win the election and Kagan is indeed a bright and qualified individual.

Moreover, do not think I am laying blame wholly at the feet of Republicans for creating this circus. Both parties are to blame for what the Senate confirmation hearings have become. But the problem is that what they’ve become is exactly what the Framers did not want to happen.

In the context of why the Senate itself should not have the exclusive authority to nominate and confirm judicial appointments, Hamilton observed in Federalist Paper 76 that:

“Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice [of the assembly]…will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight.”

The Framers were indeed concerned with the type of political bargaining and grandstanding that too often consumes the legislature. The Senate confirmation hearings are yet another example of how our Federal government continues to transform into precisely what the Framers tried to prevent.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

Yesterday, FoxNews reported on two instances where Maryland state police used a two-party consent statute to suppress evidence of their thuggish behavior.  One took place at the Preakness Stakes when the police made a man turn off a camera as they forcefully subdued a woman.  The second incident resulted in criminal charges against a motorcyclist who posted a YouTube video of his traffic stop on a Maryland highway.

This is the same state and statute used by Acorn to sue Hannah Giles and James O’Keefe for their undercover reporting.  Strangely, the ACLU has only now come out against the abuse of two-party consent laws.  I bet Hannah and James wish the ACLU cared about all civil liberties and not just the selective, self-serving ones that further their liberal causes.  They definitely could have used the free legal defense work.

If you have not seen the video posted by the motorcyclist yet, you can watch it here.  The man, who was being stopped for traffic violations, had a gun drawn on him by a plain-clothes police officer even though the video clearly shows a squad car in the background.  Little did the off-duty officer know that the biker had a helmet-cam.

The Maryland motorcycle incident has memorialized yet another cop stepping over the line.  Why would the officer decide to pull his gun instead of his badge, especially with a uniformed officer already on the scene?  That seems more than a bit excessive for a traffic stop, even if the biker was driving very recklessly.

So, what exactly is a “two-party consent” statute?  Well, although they are referred to as “two-party” laws, that term actually refers to any law requiring the consent of every party to a conversation before it can be recorded.  That seems reasonable at first glance, but there are two problems with what Acorn and the Maryland police have been doing.

First, two-party consent laws are by far the minority viewpoint on recording conversations.  One-party consent is all that is required in most states.  That means that if you want to record your conversation, you can lawfully do so regardless of whether the other person knows what you’re doing.  Only a handful of states, including California, have passed these two-party laws.

Ironically enough, those two-party laws were designed to protect the Fourth Amendment rights of citizens and prevent abuses of police power.  They were never meant to be used as an evidence shield to protect police when exercising their authority in an unreasonable manner.  They were also never meant to shield publicly funded organizations from criminal prosecution for importing underage prostitutes.  Why can’t the ACLU get on board with both of those causes?

Second, every two-party consent law requires a “reasonable expectation of privacy” for the law to apply.  More often than not, that means the conversation must occur in a private place.  That is why Acorn’s suit against Giles and O’Keefe was just political grandstanding that had absolutely no merit.

Just like a crowded Acorn waiting room, there’s no reasonable expectation of privacy on a public road.  Moreover, Maryland police officers already routinely record their traffic stops.  I can’t wait to hear the private-place argument the Maryland DA will make against this biker without somehow admitting that the police already habitually violate the same law.

Here in California, you don’t even have to stop for the police unless they are complying with certain requirements that make it apparent they are official law enforcement personnel.  That plain-clothes officer in the video could have just as easily been a car-jacker, especially considering the high violent crime rates in Maryland.

Just like the Acorn suit, the charge filed against the motorcyclist based on the two-party statute completely lacks merit.  It seems that conservatives have finally found some common ground with the ACLU.  That would happen more often if the ACLU was not so transparently inconsistently and political.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

If you’re heading to the polling booth today, your vote may dramatically alter every subsequent California primary election.  Sounds a bit melodramatic for a June election, doesn’t it?  Well in one respect, it’s not.

Proposition 14 is on today’s ballot.  If passed, this measure will change the way we hold our primaries to determine who makes it on to the November ballot.  Astoundingly, the supporters of Prop 14 believe that limiting the general election to two candidates will be good for democracy.  Yup, if Proposition 14 passes, voters will have only two options for partisan offices in November.

I guess that would good for democracy, only in the sense that limiting the competition will somehow end the corruption and frivolousness up in Sacramento.  Makes perfect sense to me.  So much for independents like myself being able to send a message by voting for a third party.

As I said, Proposition 14 would limit the general election field to two candidates.  No write-ins.  More than likely, no third parties.  Nada.  Choice A and Choice B.  That’s all you get.

I always thought primaries were more for the parties themselves to sort out who they want as their candidate.  Proposition 14 will basically make it the first-round of the playoffs for everyone.

Despite the significance of Prop 14, the polling stations are expecting a low turn out today.  Truth be told, I’m not even sure many Americans know that today is primary day.  But after today, that class of voters could be robbed of the opportunity to vote for who they think should be in office in the general election.  How upset do you think independent Joe-Six-Pack will be when he realizes he has to limit his choice to either Bush’s guys or Obama’s guys?

The response by Prop 14′s supporters (at least those who wrote that asinine argument found in the Voter Information Guide) is that it’s possible to have two Democrats, two Republicans, or no Democrats or Republicans at all on the November ballot.  The top two primary vote getters will be the only ones on the ballot, regardless of party affiliation.

Possible? Sure. Probable? Absolutely not.

Considering the big-money backing of the two major parties, I don’t see that as a realistic scenario.  Proposition 14 will more than likely exclude third parties and independents from the general election. 

I can’t imagine that the Tea-Partiers who are hoping to send a message to Republicans are very happy right now.  Despite the magnitude of the movement, they still cannot match the money Republicans have at their disposal.  As long as a moderate Republican can beat the Tea Party candidate in the primary, they won’t have to listen to that sect of the voting population come November.

Oh by the way, there’s one more kicker: Candidates may choose to conceal their party affiliation under Prop 14.  If the measure passes, candidates can basically mislead voters because the proposed law says the words “No Party Preference” will be inserted in place of the candidate’s political party if that candidate so chooses.

Now how’s that for accountability.  Does any one really think Barbara Boxer has no party preference?  When’s the last time she went rogue on any Senate vote?

So if you were thinking of passing on today’s primary election because of work, school, your kid’s baseball practice, or whatever…DO NOT.  The measure will turn our election process upside down.  At the risk of sounding like a paid-for advertisement, vote no on Proposition 14.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

Following up in more detail on John Eastman’s article, the U.S. Supreme Court decided on Monday to uphold a law allowing the Federal government to civilly commit sexual predators after their criminal sentence ends.  The focus on sexual predators in our media has been extremely high, and justifiably so.

Chelsea King’s family is pushing hard for Chelsea’s Law to be enacted here in California.  It goes to an Assembly committee next week and could be passed by both houses in the near future.  Law after law is being passed to strengthen society’s defense against these monsters.  But we have to ask ourselves, how far are we really willing to go?

Please don’t mistake my question for insensitivity toward the victims of such unthinkable crimes.  If it were up to me, John Gardner would be fast-tracked to the gas chamber.

But as any good libertarian will tell you, we cannot legislate ourselves away from all of society’s ills.  Then again, any good social conservative will tell you that we have to crack down on these predators. Both are right, but there needs to be a balance somewhere between the two.  I would like to take a moment to explain the Supreme Court’s decision on Monday in U.S. v. Comstock.

Besides his work as host of the television show America’s Most Wanted, John Walsh also helped convince Congress to pass the Adam Walsh Child Protection and Safety Act.  As I said, the portion of the Walsh Act causing controversy is a section allowing the civil commitment of Federal prisoners beyond their criminal sentence if they are deemed too sexually violent to reenter society.  Moreover, they may be committed even if their original conviction had nothing to do with sexual violence.

The Walsh Act does entitle those prisoners to a hearing, but it lacks many of the constitutionally required elements of a full criminal trial.  The hearing only needs to show that the prisoner poses an ongoing threat to society using the “clear and convincing” standard, a far less stringent standard than the “reasonable doubt” standard required to impose a criminal sentence.

It’s hard to argue against Congress’ intent on this one.  We really do not want these guys roaming the streets.  Even so, our Constitution does not permit Congress to fix everything they may want to fix.  As far as criminal law goes, the Feds wield a much more limited power than the states.

The Walsh Act was passed under the Congressional authority of the “Necessary and Proper” clause of the U.S. Constitution.  That clause limits Congress to enact only “necessary and proper” laws which enforce and support the enumerated powers granted to them.

The Court’s majority held on Monday that the Walsh Act could stand even though it has no direct connection to any power granted to Congress.  Basically, the Court held that laws which may be many steps removed from an enumerated power are still constitutional as long as they are minimally connected to the power.

You can imagine how problematic this precedent may become.  Congress already thinks they can regulate everything under the sun.  Now the High Court is telling Pelosi and crew to just give the Court a reason, any reason at all, why a law is connected to an enumerated power and it has a good chance of being upheld.

Though I like to resist lengthy quotes, Justice Thomas’ dissent to the Court’s ruling is too cogent to resist. As he explains, “The Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority; the Clause plainly requires a showing that every federal statute ‘carries into Execution’ one or more of the Federal Government’s enumerated powers.”

The Walsh Act thus, “permits the term of federal civil commitment to continue beyond the date on which a convicted prisoner’s sentence expires…The statute therefore authorizes federal custody over a person at a time when the Government would lack jurisdiction to detain him for violating a criminal law that executes an enumerated power…Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States.”

As Justice Thomas summed up, “The Court endorses the precise abuse of power Article I [of the U.S. Constitution] is designed to prevent.”  Despite the nobleness of the cause, does that sound like a path we really want our Federal government to go down?

COPYRIGHT 2010 JOHN M. ROGITZ