Friday, August 29, 2014

Ferguson and Spokeo

Rejecting the notion, floated by some so-called "progressives" and members of the Congressional Black Caucus that we need a Police Czar to prevent what happened to Michael Brown.  Or maybe what happened afterwards.  You know, to make the police friendly (just as the [war on] Drug Czar did such a fine job making the drug war genial and the Homeland Security Czar made TSA screenings warm and fuzzy and the Russian Czar made A FUCKING REVOLUTION), Scott Greenfield suggests that we already have the tools in place to reign in the police war on the citizenry.
But there is nothing sought for which there isn’t someone already responsible. The DoJ has an office of civil rights. The DoD doles out surplus military equipment under its 1033 program. You’ve got people paid to lead the police, oversee the police, fix the police, stop the police, then you can shake a stick at. And it’s amounted to a group of overarmed, undercaring, people with the power to subjugate upon command. So the answer is let’s add another layer with a cool Russian title?
Is there something progressive about the men and women we elected to national office, sometimes referred to as members of Congress, getting a free pass on their responsibilities? Or perhaps a Chief Executive who might use the fiat of his office to satisfy the needs of the citizenry. If only he had an Attorney General (which, If it makes people feel better, could be renamed to Attorney Czar) who was charged with seeing that the Constitution was honored by all who hoped to receive a government pension some day?
There is nothing here, nothing called for, that can’t be accomplished by the people already in place. They have the power and authority to control law enforcement. 
Don't hold your breath.

It is, after all, those elected officials (and the ones appointed by them and confirmed by them) who enthusiastically created this mess.  it is they who enthusiastically promoted the movement from 

Oops.  Sorry.  Meant this

Of course, there are also the courts.  They, as Scott added, are the backup.
And to the extent some slimy bastards sneak through, we then have judges to fix their wagon.
Well, not so much.  As Erwin Chemerinsky pointed out in a Times Op Ed the other day, various sorts of Court-created immunity protect government and cops from being sued.  You have to make them pay, but the courts insist that we can't allow that.  Oh, sure we have the right not to have our rights violated. But nobody gives a rat's ass about that.

What some people do care about is a broader effort to shut the courthouse doors to people who've been wronged.  What makes it easy, and what purportedly justifies it, is how the Supremes have dealt with the provision of Article III of the Constitution (specifically, the first paragraph of Section 2 of Article III) that sets out the jurisdiction of the federal courts.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Which brings me to Spokeo.  That's Spokeo v. Robins, a case that the Supremes have been asked to hear this year.  

Spokeo asks the question of whether Congress has the authority to give people the right to go into federal courts and sue because their rights have been violated.  Technically the issue is much narrower than that, but the broad brush is suitable here.

This is the problem.  The Court has long held that those "Cases, in Law and Equity" coming from the Constitution, laws, and treaties, are only ones where somebody has suffered a specific and personal concrete injury.  Out some money, you can sue.  Be physically harmed, you can sue.  Just be pissed because your constitutional rights are being violated but not in any personal, concrete way - you haven't lost anything except a bit of your guaranteed freedom?  Nope.  Sorry.  The courts won't fix that.

As the Supremes said, back in 1979 (citation omitted, Rehnquist and Stewart dissented from the Court's decision, but pretty clearly not from what I'm quoting), explaining what that limitation to cases meant
In no event, however, may Congress abrogate the Art. III minima: A plaintiff must always have suffered "a distinct and palpable injury to himself" that is likely to be redressed if the requested relief is granted.
Why, if we actually said the courts were there to protect rights generally, to hold the government accountable for violating the Constitution?  It would surely be the end of the Republic.

Or not.

So Congress passed the Fair Credit Reporting Act and said that credit reporting agencies could be sued for willfully getting the information they reported wrong even if the person whose info was misreported hadn't suffered any actual harm from it.  (I'm oversimplifying like crazy.  Live with it.)  Spokeo said that Robins was better educated than he was, had more experience than he does, is married though he is not, and was better off financially than he is.  Robins sued for what he called a willful violation of the Act's requirements.  (Spokeo denies that it violated the Act, but that's irrelevant here.)  Ultimately, the 9th District said Robins could sue because he had an "injury in law" even if not an "injury in fact," and Congress said in the Fair Credit Reporting Act that an injury in law was enough.

Sorry for the arcana, but there was no other way.

So the question the Court can now answer if it's so inclined (the Court is set to consider whether actually to hear Spokeo at it's "long conference" on September 29) is whether there are circumstances when you can sue even if you haven't been hurt except that some right has been violated.  If the Court says yes (and I'm not putting good money on that), it's not only a victory for Robins and many other litigants, it's also a crack in the machinery that keeps the courthouse doors locked.

And once the doors are open even a little bit, then we can try to drive the trucks through.

The rules for closing the courthouse to people like Robins are supposedly based on the actual language of the Constitution.  The rules that say that cops are mostly immune to suit, that prosecutors are absolutely immune, that government is mostly immune, those rules have no grounding in the Constitution at all.  They were made up because the Divine Right of Kings and besides, if prosecutors and cops can be sued for riding roughshod over the innocent and guilty alike, they might exercise restraint - and then where would we be.

None of that would do much to hold Ferguson or Officer Wilson liable for what happened to Michael Brown.  And it doesn't directly address
But it'd be a start.

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