We Meant Well

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the U.S. Constitution (emphasis added)

"We Meant Well" is not just the title of Peter Van Buren's excellent book about the futile and wasteful attempt of the U.S. to rebuild Iraq after invading it. It's also the universal plea of all those who, despite good intentions, really made a mess of things somehow.

This week, Pew Research released the results of a poll about freedom of speech. For the first time ever, they asked whether respondents believed government should be able to prevent people from saying things offensive to minority groups. Two-thirds said no. Twenty-eight percent said yes.

If you're a proponent of free speech, or, rather, opposed to the government criminalizing speech, the results should be reassuring to you. It seems there is little support for a crackdown by police and other state actors on offensive utterances. America isn't England, after all. We have a tradition of allowing people, by right, to say pretty much anything they want to say no matter how borish or offensive it might be, with few exceptions.

But digging deeper into the poll results reveals something peculiar. "Millennials," those wily scamps aged 18-34, support so-called "hate speech" laws more than anyone else. Forty percent are OK with government restrictions on speech offensive to minority groups. Nobody else comes close. Both Gen X (my generation) and Boomers (my parents) manage less than thirty percent support for such a proposition. It may or may not shock you that the "Silent Generation" (my grandparents) aren't keen on laws against racist commentary at all - eighty percent say no.

The racial breakdown is also not especially surprising. Non-whites support anti-racist speech laws at a rate fifteen points higher than whites. So the two biggest contingents of support come from young people and people of color.

If you run in academic circles or pay attention to the various anti-racist protest movements around the country, you might be inclined to believe that the vast army of non-white PC fascists on college campuses is the force behind this sentiment. But the poll shows that support for hate speech laws declines as college education increases. Granted, there are a LOT more college graduates both older and whiter than the current crop of college protesters fighting for "safe spaces" and racial justice across America's quadrangles, but it still suggests that most support comes from those who haven't graduated high school - though the rank of high school graduates now includes more Millennials than it excludes due to age alone.

No matter which demographic breakdown seems more illuminating, it is important to point out the problems with the underlying premise of outlawing "statements that are offensive to minority groups." How does one determine what is "offensive?" I'm not trying to be obtuse here. There are certain racist things that pretty much everybody can understand to be offensive by their very nature. But if we're going to criminalize certain speech (or, as the poll describes it, let the government "prevent" it), we'll need to define it some way. Who gets to define it?

The answer, of course, is legislators. Leaving aside for a moment the fact that most legislators at all levels across our country are white men, we couldn't outlaw offensive speech unless we had a law defining what counts as offensive. Do we let the police arrest only those who use the "N-word?" Or do we let them arrest someone for saying anything up to and including vaguely troublesome dog whistles like "you people?" Where is the line drawn?

Let's create a hypothetical rule to answer that question. Let's outlaw any explicitly racist slur. The "N-word," of course, but also "Chink," "Wetback," "Negro," and the like. If you use one of those words, in any context, the police can arrest you and you can be charged with a misdemeanor. Also, we'll outlaw any terms or statements that are critical of an entire race as a whole. Anyone who says "black people are animals," or "Hispanics are lazy criminals" or anything broadly nasty such as that can also be arrested and charged. 

This rule is passed by a legislature of some sort. Let's call them Congress a decade from now. We've had a couple of elections and we'll presume that a Democratic wave has recaptured both houses. In an effort to appease the liberal base and move the country closer to racial justice, Congress passes the Hate Speech Act that outlaws racist slurs like what we've identified above.

Things go smoothly for a few years. Racist jerks are being arrested and charged and the incidents of public hate speech are on the decline. The law is an effective deterrent for nasty racist commentary. But something else is still happening. Black men are still being killed by police officers at a disproportionate rate. Protesters and angry commentators are still saying and posting things very critical to police forces all over the country.

Then Congress shifts back to the GOP. And, seizing the power of the Hate Speech Act, they amend it to include anything critical of police officers. They call it the Blue Lives Matter Act. Soon, protesters opposed to police brutality get arrested and charged for hate speech by the dozens, and are easily convicted. The law, after all, paints with a wide brush because hate speech can come in varying forms. And why should only racial minorities be protected? Why not police officers, our heroes and protectors?

Such is the danger of criminalizing speech. There is no doubt that racist rhetoric is poisonous to our civil discourse and traumatic to those who are targets of it. Freedom of speech or not, good citizens should not be lobbing hateful comments at each other. Racist slurs and insults reinforce societal inequalities that must be combated and torn down somehow.

But we must resist the urge to "do something" about it if doing something restricts the freedom of expression we enjoy as a right under our Constitution. Not because hateful rhetoric is OK or racists should not be scorned or shunned, but because criminalization of anything increases the power of the police state and gives more power to those who would abuse it. The vague notion that something is "offensive" to someone can be manipulated to benefit the privileged against the oppressed, even if the initial intent was noble.

In 1798, in the wake of the French Revolution, President John Adams signed into law the Sedition Act, making it a crime to criticize the national government. Many people (mostly members of Thomas Jefferson's Democratic-Republican Party) were fined and arrested and imprisoned under the law. Though obviously unconstitutional (the First Amendment expressly prohibits Congress from abridging the freedoms of speech and the press), the Supreme Court of 1798 was not the same as it is now. There was no way to have such a law declared unconstitutional. Only after Jefferson became president and the Democratic-Republicans took office was the Sedition Act allowed to expire.

More than a century later, Congress amended the Espionage Act of 1917 to outlaw "disloyal, profane, scurrilous, or abusive language" aimed at the U.S. government during World War I. The amendment was known as the Sedition Act of 1918 and was not repealed until 1920, two years after the war ended. It was even upheld as constitutional in the case of Abrams v. United States, 250 U.S. 616 (1919). Violation of the law carried a jail sentence as long as twenty years. The most famous person convicted under the law was Eugene Debs, the socialist labor union organizer and critic of the U.S. government (he spoke out against conscription).

The Sedition Act and its later incarnation as an amendment to the Espionage Act, though draped in the nobility of national security and unity, were tools for those in power to consolidate their control and dominance. And that is the risk posed by any restriction on speech. The people in power need only tweak the definition of what speech is criminalized, then aim the coercive power of the police toward their preferred targets. Perhaps that's not scary if you're the one in power and not the current target of the restriction. But political power can be transitory in this country and your tight hold on government could vanish overnight.

Racist speech is reprehensible and indefensible. Yet criminalizing it would only expand the power of the privileged (who fill the seats of government) and the police (who physically assert their will). Pass a hate speech law against racism today, tomorrow it could easily prohibit the critical speech that fuels effective protest movements against government overreach and police abuse.

As the police batons come cracking down on the heads of outspoken troublemakers merely for uttering the wrong words and they find themselves convicted under laws they once supported, surely some will think to themselves, "but we meant well."

Abating the Condition

From a June 29, 1916 article in the Louisville newspaper the Courier-Journal:

Chief Lindsey Determines To Spare No Effort To Abate Practice Here.
Police Corp. John Sullivan has been detailed by the Chief of Police Lindsey to investigate the extent of miscegenation in Louisville. Yesterday afternoon two cases were brought to the attention of the police, which reflected a condition that Chief of Police Lindsey declared he was going to spare no effort to abate.
Complaints coming to Desk Sergt. Krakel that a white woman was in the house of a negro at 1204 Carpet alley caused Lieut. Moriarity and Corp. Sullivan to go to that address yesterday afternoon. There they found the room of Harry Jenkins, colored, 34 years old. In the room, they allege, they found a woman who these officers, Chief Lindsey, Jailer Foster and the jail matrons say is white, but who insists that she is a negro. Jenkins and the woman, who gave her name as Alice Shumaker, were arrested on charges of disorderly conduct.
At the jail the woman was slated as white, but beside her name was written, "claims she is colored." The woman is 30 years old and good looking. She said she had been married and lived in Shippingport, but was separated from her husband. A blood test will be made at the jail to determine whether or not she is a negro.

PDF available here.

The Sudden (and Curious) Allure of the Traditional Grand Jury

In the wake of the announcement that a Missouri grand jury had declined to indict police officer Darren Wilson for the brutal killing of teenager Michael Brown, many have criticized the actions of the local prosecutor and the procedure the grand jury followed. And for good reason.

As the saying goes, a grand jury would indict a ham sandwich if a prosecutor wanted them to. Grand juries hand down indictments almost every time they're given the chance. After all, their primary role is just to determine if there is probable cause to suspect a crime has been committed by the accused. They are not required to conclude ultimate guilt. They're just a way station on the route to a public trial.

Making the rounds is a passage from a 1992 Supreme Court case which clearly states the traditional role of the grand jury:

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

United States v. Williams, 504 U.S. 36, 51-52 (1992).

Indeed, the procedure followed by the grand jury in case of Darren Wilson is highly unusual, if for no other reason than the inclusion of extensive testimony by the accused himself. Normally only the prosecutor or a couple of witnesses in favor of indictment will be presented. Government attorneys are not even obligated to produce evidence suggesting the suspect's innocence if they possess it (like they would be in an actual trial).

If you think the Missouri grand jury got it wrong and should have indicted Wilson for the murder of Michael Brown, United States v. Williams gives you a lot of rhetorical ammo. But the full context of the case and the scope of its holding goes beyond just one incident of police homicide. It applies to all criminal defendants in all criminal cases where a grand jury is called to consider an indictment. A more extensive discussion of Williams is useful.

The Underlying Case

In 1988, a federal grand jury indicted investor John Williams for making numerous false statements overstating the value of assets owned by four Oklahoma banks.

After his arraignment, Williams moved the trial court to disclose all exculpatory evidence from the grand jury transcript. Exculpatory evidence is evidence which suggests a suspect is not guilty of the accused crime. The court granted Williams' motion. After reviewing the grand jury record, he moved for the court to dismiss his indictment, arguing that the prosecutor was obligated to present "substantial exculpatory evidence" to the jury but failed to do so.

The trial court eventually dismissed the indictment. The government prosecutors appealed, but the Tenth Circuit Court of Appeals affirmed the lower court's ruling, holding that the government had "substantially influenced" the grand jury to indict or otherwise raised doubt that the grand jury's decision was "free from such substantial influence." United States v. Williams, 899 F.2d 898, 903 (10th Cir. 1990).

The government appealed to the Supreme Court, which accepted the case.

The Supreme Court Ruling

The issue considered by the Court was "whether a district court may dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury substantial exculpatory evidence in its possession." Williams, 504 U.S. at 37.

The Williams opinion, written by Justice Antonin Scalia and joined by four of his colleagues, extensively explores the history of grand jury procedure in the United States. The grand jury is not actually a part of the judicial branch of government - "it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people." Id. at 47.

This separation from the normal judicial apparatus defines the grand jury's unique function:

Unlike [a] court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not. It need not identify the offender it suspects, or even the precise nature of the offense it is investigating. The grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses, and deliberates in total secrecy.

Id. at 48 (internal quotations and citations omitted).

As the Court clearly explains, a grand jury does not operate under the rules to which trial courts are bound. For that reason, it also provides far fewer protections to criminal defendants, who, in every other aspect of the criminal justice system, receive significant due process protections under the Fifth, Sixth, and Fourteenth Amendments to the Constitution.

For example, in a criminal trial, the government may not use against a defendant evidence that was seized in violation of the Fourth Amendment. This is called the "exclusionary rule." But that rule doesn't apply to a grand jury. Similarly, grand juries may also consider hearsay testimony.

On the other hand, while illegally obtained evidence and second-hand testimony may be admitted, the grand jury is under no obligation to consider the suspect's side of the story. The reason is because "the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side." Id. at 51 (internal citation omitted).

The rules governing grand juries are so lax that indictments cannot be challenged after they are handed down on the basis that the evidence considered by the grand jury was insufficient or incompetent. "[T]he mere fact that evidence itself is unreliable is not sufficient to require a dismissal of the indictment, and . . .a challenge to the reliability or competence of the evidence presented to the grand jury will not be heard." Id. at 54 (internal quotations omitted).

Ultimately, the Court in Williams ruled that prosecutors are not obligated to present exculpatory evidence during the grand jury procedure. They may present only one side of the story - their belief that the suspect has committed a crime - and the grand jury may decide to indict in reliance upon that alone.

The Implications of the Grand Jury Tradition

It should dawn on you by now that the traditional grand jury proceeding is extraordinarily biased in favor of the government. Suspects facing a motivated prosecutor rarely have any chance to avoid indictment. And the stats prove it - indictments are handed down so often that grand juries are effectively just rubber stamps for prosecutor prerogatives.

But what happens if a prosecutor seeks an indictment for nefarious reasons? Perhaps a prosecutor has a grudge, or engages in extensive misconduct. Even if an unfairly accused suspect is ultimately exonerated at trial, they still must endure numerous negative effects of a criminal accusation: lost time, expensive legal fees, embarrassment, injury to reputation, and even jail time if the charges are severe enough for a judge to deny bail. Innocent suspects may even be convicted and endure long prison sentences or worse.

There are few safeguards, at the grand jury stage of the proceedings, to prevent that kind of harm to innocent people. That's why Justice Scalia's history lesson in United States v. Williams must be approached with some apprehension. It is true that Darren Wilson received special treatment from a grand jury of a sort almost never extended to anyone else facing potential indictment. But that kind of special treatment could easily protect legitimately innocent people from being indicted when they otherwise would be under the prevailing tradition of the grand jury system.

Which would we prefer? Even if you believe Wilson should be charged with a crime for killing Michael Brown, is a lax grand jury system highly vulnerable to prosecutorial misconduct and abuse really preferable to something more thorough and protective of constitutional rights?

Maybe only the end result matters when it comes to public opinion. How many people would happily quote Justice Scalia if an obviously innocent person had been indicted instead? It's a question worth considering, because that's a far more common outcome than the deference given to Darren Wilson.

Gun Laws Implicate More Than Just the Second Amendment

Today, the Ninth Circuit Court of Appeals ruled on the constitutionality of several San Francisco firearm regulations, which are part of that city's Firearms and Weapons Violence Prevention Ordinance. Writing for a unanimous three-judge panel, Judge Sandra Ikuta upheld the constitutionality of the rules, violations of which are misdemeanors and carry fines of as much as $1000 and jail incarceration as long as six months.

One of the regulations prohibits the sale of certain types of ammunition (such as hollow point bullets), but the prohibition I want to talk about today deals with in-home storage of privately owned firearms. As the court says:

San Francisco Police Code section 4512 provides that "[n]o person shall keep a handgun within a residence owned or controlled by that person unless" (1) "the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice," or (2) "[t]he handgun is carried on the person of an individual over the age of 18." ...Violations of section 4512 are punishable by a fine of up to $1,000 and up to six months in prison.

Six individual plaintiffs along with the National Rifle Association and the San Francisco Veteran Police Officers Association sued the city and county governments of San Francisco, alleging that the above regulation violates the Second Amendment. The Second Amendment, as you may know, somewhat confusingly states:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

To say that the wording of this Amendment has been subject to much debate would be to comically understate history. What matters for the purpose of this post is that the Ninth Circuit applied the analysis used by the U.S. Supreme Court in the case of District of Columbia v. Heller, 544 U.S. 570 (2008), a ruling which defeated very strict gun laws in Washington, D.C. Though the Supreme Court in Heller determined that a D.C. law (which mandated "firearms in the home be rendered and kept inoperable at all times") was a violation of the Second Amendment, the Ninth Circuit ruled that the very similar San Francisco regulation is not.

The purpose of this post is not to second-guess the Ninth Circuit's application of Heller or its ruling, though that can certainly be done. The purpose of this post is to consider exactly how gun regulations like San Francisco's are enforced, and what their true effect really is. Rather than consider the restriction on in-home storage under the language of the Second Amendment, we should consider it under the language of the Fourth Amendment. That Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

With that language in mind, consider for a moment how the San Francisco regulation is enforced. How, exactly, are violators exposed? The regulation specifically dictates proper in-home storage of firearms, not their public display, use, or transport. While all laws serve at least the theoretical purpose of encouraging and incentivizing safe (or "good") behavior simply by existing, they can only be effective at that purpose when they can be enforced sufficiently to deter unsafe behavior through punishment of violations.

So, how is the San Francisco regulation enforced? How do local police officers know that someone is not storing their privately owned handgun in the proper way inside their home? The only way for police to expose violators is through searches of people's homes. And the only way those police can lawfully conduct such searches (under the Fourth Amendment) is by having probable cause to suspect some other type of criminal behavior. After all, there is no public behavior by the owner of the handgun (other than perhaps self-reporting to a sidewalk cop) that would expose the precise method of that person's in-home handgun storage.

Let's consider a hypothetical. Bob is a drug dealer. He sells drugs in hand-to-hand exchanges on street corners. He stores drugs in his home. One day, the police observe Bob acting in a way that strongly suggests he is selling drugs, and then the police arrest one of his customers, who rats on Bob. With that information in hand, the police obtain a search warrant for Bob's home, suspecting (reasonably) that he stores his drug supply there. The police execute the search warrant by raiding Bob's house, discover his drug supply, and the rest is a matter of criminal court procedure.

But what if Bob is just a gun owner who keeps his handgun inside his home when he isn't transporting it to a shooting range for target practice? How do the police gain enough information from his public behavior to reasonably suspect his in-home storage method is insufficient under the regulation? Unless a reliable informant rats on him, the police would never gain the kind of information sufficient to search his home simply because he doesn't store his handgun properly. Nothing Bob could do in public would provide that kind of information.

So if someone in San Francisco is to be charged with the crime of improper handgun storage, the police have to find out about it incidentally. They have to be in the home for some other reason. Let's revisit Bob the Drug Dealer for a moment: the police raid his home looking for drugs, and not only do they find a kilo of cocaine, but they also find two loaded handguns without locks sitting on his dining room table. Even if those guns are legally owned, their open, loaded display in the home would be a violation under San Francisco regulations. So now Bob can be charged not only with federal or state drug crimes (the actual reason the police were searching his home), but also with two counts of violating the local handgun storage regulation, which could tack on $2000 in fines and a year in the local jail.

While the purpose of the San Francisco regulation may be the promotion of gun safety, the effect is cumulatively punitive. It just tacks on additional criminal penalties to people most likely already in trouble for something else. For law-abiding citizens, even those willing to follow San Francisco's gun regulations, it imposes restrictions on their in-home behavior for which the state would have no reasonable purpose to monitor or interfere with under the Fourth Amendment. Again, we're talking actual effects of the law, not the purpose of the law, which may or may not be noble.

San Francisco's gun regulations may indeed be constitutional under the Second Amendment (though the Supreme Court may have the final say). Those regulations may also be smart policy in a country with massive gun ownership and a sizable amount of gun violence. And the Fourth Amendment restricts government action, not the language of its laws, so a facial challenge to these regulations under that Amendment would likely be futile. But these regulations, which control strictly in-home behavior and require police searches to expose violators, should at least be viewed by both proponents and opponents through an additional constitutional lens.


A fellow attorney raised a good point in response to this post: what about situations in which the prohibited storage of Bob's handgun results in actual harm to someone? Suppose Bob leaves his handgun loaded and on the dining room table, where his ten year-old son and a friend discover it. Bob's son then picks up the gun and accidentally shoots his friend, who dies. Is a gun regulation like San Francisco's a good way (or the only way) to ensure Bob is punished for his failure to safely store his gun?

Again, it is my contention that such a regulation is cumulative because such a situation already subjects Bob to criminal penalties. Bob could be found guilty of criminally negligent homicide (a form of "manslaughter" in many jurisdictions). Generally speaking, criminally negligent homicide is a reckless oversight that results in the death of another person. Bob could certainly be found guilty of such a crime if he left a loaded handgun within the reach of a young child. That would be the case with or without the additional San Francisco regulation, which strictly prohibits behavior that is not, without some other action, harmful to anyone else. Similarly, the police would have reason to gain entry to Bob's home because of the shooting, not because of any failure to properly store the handgun.

A post more fully exploring this topic can be found here.