• Tag Archives due process
  • Red Flag Laws: Life-Saving or Authoritarian?

    Red Flag Laws: Life-Saving or Authoritarian?

    Red Flag laws have spurred quite a bit of controversy. This legislative movement seeks to create a process to remove firearms from the homes of people who are rumored to be dangerous to themselves or others. The proponents of such laws cite this as a possible way to help combat mass shootings and suicides. However, the truth is far more damning.


    The 5th & 14th Amendments of the U.S. Constitution mandate that no one shall be “deprived of life, liberty or property without due process of law.” Although this should be clear to anyone with a basic comprehension of English, it’s often ignored by judges and politicians. Depriving people of a constitutional right before a trial and without charges tramples on the notion of innocent until proven guilty and severely erodes the core values of justice.


    Proponents of red flag laws argue due process is respected by allowing the deprived to appeal to the courts to reinstate their rights. However, this backward process would imply that the second amendment is a privilege, not a right. Furthermore, state agents finding cause for a warrant and subsequently seizing private property while denying access to a constitutional right seem to be a perfect setup for a kangaroo court system. There is a serious risk that citizens found guilty of nothing and charged with no crime will be paying expensive fees to petition the courts to restore what should be their constitutionally guaranteed rights. Such concerns aren’t just wild superstitions. Our nation’s history of the corrupt process of civil asset forfeiture gives ample reason to believe the aforementioned outcome is more likely than not.


    If the open assault on our rights and criminal justice system wasn’t reason enough to reject red flag laws, one should note the paternalistic tone of the advocates. Proponents are selling these bills as a way to reduce suicides. But let’s take a step back and think about the core of this argument. We have authority figures claiming they need the means to deny you of your constitutional rights in order to protect you from yourself. This disturbingly authoritarian doublespeak implies that some of our elected officials believe that people can’t be trusted with their rights. This clear attempt to coax ordinary citizens into surrendering their rights should be rejected as the degradation of free society that it is.


    Americans should also pay very close attention to states that have implemented these laws. In places like Maryland and Florida, success isn’t measured in lives saved. Intuitively, it’s impossible to determine how many lives were saved or if lives were ever truly at risk; thus the only practical measure of success for such a law is the number of guns seized and people denied their rights. Americans should resist the trend of assumed guilt and demand elected officials end this assault on our constitutional rights.


    [Image Credit: U.S. Air Force Photo/Tech. Sgt. Thomas Dow]

    This post Red Flag Laws: Life-Saving or Authoritarian? was originally published on Intellectual Takeout by Raheem Williams.

  • The ACLU Is Quietly Abandoning Civil Liberties

    Since 1920, the American Civil Liberties Union (ACLU) has generally upheld its mission to “defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.”

    Of all the protections guaranteed in the Constitution, the right to due process is among the most sacred. It is this right that protects each of us from being held legally accountable should we be arbitrarily accused of a crime.

    The ACLU has been a consistent advocate for our civil liberties for nearly 100 years, including the right to due process and, thus, the presumption of innocence. But recent statements made by the organization have many concerned that its consistent track record may soon be coming to an end.

    Just weeks ago, the Department of Education released its new set of proposed guidelines, instructing schools on how to comply with Title IX of the of the Education Amendments Act of 1972. Title IX has received a lot of attention in the #Metoo era, as it informs colleges and universities how to deal with accusations of sexual assault. It states:

    No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

    While the text itself is rather straightforward, campuses are generally given guidelines that help them enforce the language in Title IX. The last time the guidelines were changed was in 2011 when the Obama Administration lowered the evidentiary standard that was to be used in legal proceedings regarding sexual assault allegations.

    In an advisory notice now known as the “Dear Colleague” letter, the standard was lowered to a “preponderance of evidence,” which is the counterpart to “beyond a reasonable doubt.” Where the latter stipulates that there can be no other reasonable explanation than to assume the guilt of the accused, the former sets a much looser standard.

    To prove someone’s guilt through a preponderance of evidence, the accuser must convince a judge or jury that there is a greater than 50 percent chance that their claims are true. From a legal perspective, this sets a much lower bar for convicting people accused of crimes and misconduct.

    The Obama-era guidelines also instructed campuses to prohibit any cross-examinations of the accuser in order to avoid causing any further trauma. However, while this gave stronger protections to the accuser, it downplayed the importance of due process for the accused—who stand to lose a great deal even if the allegations turn out to be false.

    Under the Department of Education’s new proposed guidelines, the preponderance of evidence standard can still be used. But if the new proposed guidelines are adopted, campuses are also free to use the stricter standard of “clear and convincing evidence,” which is one step below beyond a reasonable doubt. Clear and convincing proof means that the evidence provided by the accuser has a higher probability of being true than it does of being false. The new rules would also mandate that the accuser be subject to cross-examination.

    As The New York Times reports:

    Under the new rules, schools would be required to hold live hearings and would no longer rely on a so-called single-investigator model. Accusers and students accused of sexual assault must be allowed to cross-examine each other through an adviser or lawyer. The rules require that the live hearings be conducted by a neutral decision maker and conducted with a presumption of innocence. Both parties would have equal access to all the evidence that school investigators use to determine facts of the case, and a chance to appeal decisions.

    Historically, the ACLU has promoted legal protections that require the state to prove beyond a reasonable doubt that an accused person is guilty of a crime. But when it comes to accusing someone of sexual assault on campus, the ACLU appears poised to abandon this principle.

    Shortly after the new guidelines were revealed, the ACLU tweeted:

    Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices. The proposed rule would make schools less safe for survivors of sexual assault and harassment when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence. We will continue to support survivors.

    The tweet was later backed up with a blog post from the organization in which it avoided using the term “due process” and instead claimed to be defending “fair process”:

    The ACLU is equally committed to ensuring students can learn in environments free from sexual harassment and violence and to guaranteeing fair process for both respondents and complainants.

    Investigative journalist Glenn Greenwald, a staunch civil liberties advocate, lambasted the ACLU for its tweet and suggested it might be time to look to other organizations to aid individuals in upholding cherished civil liberties.

    He tweeted:

    What has happened to ACLU is one of the saddest developments of the Trump era. But there are already groups – such as @TheFIREorg- emerging to replace it as an actual civil liberties group which defends rights regardless of partisan outcomes.

    Journalist, lawyer, and former president of FIRE, David French, commentedon the new guidelines, saying:

    “Not only will these rules restore basic due process and fairness to college tribunals, but they also—given how basic the changes are—highlight just how ridiculous university kangaroo courts have become.”

    French added:

    “The old-school ACLU knew there was no contradiction between defending due process and ‘supporting survivors.’ Indeed, it was through healthy processes that we not only determined whether a person had been victimized, but also prevented the accused from becoming a ‘survivor’ of a profound injustice.”

    Another problem, as Naomi Schaefer Riley writes in National Review, is that campus “kangaroo courts” were never supposed to deal with matters as serious as sexual assault in the first place. They were established in the 1960s and 70s to adjudicate more trivial matters such as student plagiarism and honor code violations. As such, these disciplinary panels are ill-equipped to deal with something as severe as sexual assault allegations.

    Unfortunately, this is not the first time the ACLU has backed away from upholding constitutional principles.

    Failing to give the ACLU credit for its phenomenal work in protecting individual rights over the years would be unfair. Yet there’s no denying the organization is deviating from its core mission.

    While the ACLU has typically been unwavering in its support for the First Amendment rights to free speech, recent comments made by the ACLU have led many to wonder if this may soon change, as well.

    In regards to First Amendment protections, the organization states:

    …the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.

    However, they have also stated that they reserve the right to deny taking cases if “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

    This summer, a leaked internal memo revealed that the organization had adopted the belief that hate speech did not qualify as free speech. The memo read, “Speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.”

    The ACLU later discounted the language used in the memo in a blog post rededicating itself to the issue of free speech. However, given its unwillingness to defend the right to due process, there are reasons to be concerned with the direction in which the organization is heading.

    And this is to say nothing of a part of the Bill of Rights that the organization has ignored entirely: the Second Amendment. By choosing to interpret the Second Amendment as a “collective right,” the ACLU has fallen woefully short when it comes to protecting each individual’s right to bear arms.

    Allegations of sexual assault and misconduct should most certainly be taken seriously. But not at the expense of the accused or the civil liberties that protect all Americans.

    The American legal system was founded on the premise that all accused individuals are innocent until they are proven guilty in a court of law. It is this maxim that sets our legal system apart from so many others. By removing this safeguard, we do a grave disservice to the pursuit of justice, even when it applies to those accused of the most heinous of crimes.

    Source: The ACLU Is Quietly Abandoning Civil Liberties – Foundation for Economic Education

  • “Stop and Frisk” and “No Fly, No Buy” Both Violate Gun Rights and Due Process

    “Stop and Frisk” and “No Fly, No Buy” Both Violate Gun Rights and Due Process

    Despite a rancorous campaign season, there is at least one belief that Donald Trump and Hillary Clinton share: Americans have far too much liberty when it comes to firearms and due process.

    Between Sec. Clinton’s resurrection of the failed proposal to ban people on terror watchlists from buying guns and Mr. Trump’s advocacy for a nationwide “stop and frisk” anti-gun campaign, gun rights and due process took a beating last night.

    No Fly, No Buy

    Hillary Clinton:

    [W]e finally need to pass a prohibition on anyone who’s on the terrorist watch list from being able to buy a gun in our country. If you’re too dangerous to fly, you are too dangerous to buy a gun.

    Donald Trump:

    First of all, I agree, and a lot of people even within my own party want to give certain rights to people on watch lists and no- fly lists. I agree with you. When a person is on a watch list or a no-fly list, and I have the endorsement of the NRA, which I’m very proud of.

    Preventing people on the terror watchlists from buying guns has some intuitive appeal, and “our opponents want terrorists to buy guns” is a whopper of a sound bite. But any cursory examination of the watchlisting process reveals the deficiency in this proposal. 

    First and foremost, there is a vast chasm between “terrorist” and “person on a terror watchlist,” and due process exists precisely to prevent that chasm from swallowing our liberty whole. 

    The process is intentionally overbroad, and designed to sweep up people the government knows it cannot act against.

    People, predominantly members of our Arab, South Asian, and Muslim communities, are added to the terror watchlists without so much as a notice. They aren’t entitled to a hearing, they aren’t allowed to see the evidence against them, they aren’t allowed to challenge witnesses or question the government agent responsible for nominating them to the list. Even if a watchlisted individual manages to clear his/her name, it can still take years to be removed from the list. The process is so rife with errors that people such as the late Senator Ted Kennedy and sitting Congressman John Lewis (D-GA) have ended up on the list. I’ve previously written about this issue here and here.

    In the eyes of No Fly, No Buy advocates, the lack of process protections is a feature, not a bug. “Due process is what’s killing us,” lamented Senator Joe Manchin (D-WV) while advocating for the policy. Senator Chuck Schumer (D-NY) insisted that requiring probable cause before people lost their gun rights would defeat the entire purpose, as “if the FBI had [enough] evidence [to establish probable cause] they would have arrested the person to begin with.”

    In other words, the process is intentionally overbroad, and designed to sweep up people the government knows it cannot act against.

    Ironically, it was Sec. Clinton herself who last night lamented that Americans are perhaps too quick to “jump to conclusions about people.” Jumping to conclusions about people without so much as a charge or trial is exactly what “No Fly, No Buy” requires.

    The proposal is so deficient that even organizations such as the ACLU, not known for its zealous defense of gun rights, have gotten involved. Just last week I spoke on Capitol Hill about the dangers of No Fly, No Buy, alongside Chris Anders of the ACLU and Congresswoman Debbie Dingell (D-MI) at an event hosted by the Arab American Institute.

    As the broad coalition of opponents emphasizes, No Fly, No Buy is a fundamentally deficient, discriminatory, and unconstutional policy. That it still enjoys the support of Sec. Clinton and Mr. Trump is cause for concern.

    Nationwide Stop and Frisk

    Donald Trump, who received the endorsement of the National Rifle Association, further positioned himself as a due process and gun rights antagonist by repeating his earlier call for the imposition of a nationwide stop and frisk program, with an eye toward confiscating firearms.

    Contrary to Mr. Trump’s denials, stop and frisk was indeed ruled unconstitutional by at least one federal court. That ruling is correct. Stop and frisk, as practiced in cities like New York and Chicago, refers to police detentions and searches of people with virtually no individual suspicion of wrongdoing. Advocates of the program insist that the Supreme Court’s ruling in Terry v. Ohio, allowing frisks where the police can articulate reasonable suspicion of criminal behavior, supports the practice, but that’s a far cry from the standard the NYPD used for years.

    Police routinely cited “suspicious” behaviors such as “fidgeting,” “changing direction,” “looking over his shoulder,” and “furtive movements” to justify stops and searches of innocent New Yorkers. And the brunt of this policy was disproportionately borne by people of color (roughly half of the stops targeted black citizens, and roughly a third targeted Hispanic citizens, despite the fact that stops of white people were more likely to produce contraband).

    Last night’s debate was a frightening spectacle for Americans concerned about the right to bear arms, the right to be free of unreasonable searches, or the right to due process.

    Mr. Trump insisted last night that only “bad people” would risk having their guns taken or being harassed under a nationwide enactment of the program, but the numbers tell a different tale. Under stop and frisk, New Yorkers were stopped hundreds of thousands of times each year. Before the program was reformed in 2013, between 85% and 90% of those hundreds of thousands of stops uncovered no wrongdoing at all. In other words, the vast majority of people who were detained and searched by the government were not “bad people,” they were innocent New Yorkers going about their day. 

    Innocent gun owners should not have to fear random, suspicionless searches when they walk down the street. In addition to the constitutional violation, the potential for unjustified interactions to needlessly escalate into violence should be on everyone’s mind as we continue to grapple with the role of police in society.

    Mr. Trump also played loose with the crime data regarding the efficacy of the program. As the NYPD itself points out, the decline in crime Mr. Trump attributed to stop and frisk actually began before the program was implemented, and continued after the program ended.

    Neither suspicion-free searches of citizens nor process-free no-gun lists are viable solutions to what Sec. Clinton referred to as the “gun epidemic” in America, and both policies promise to violate the rights of thousands of innocent Americans.

    In short, last night’s debate was a frightening spectacle for Americans concerned about the right to bear arms, the right to be free of unreasonable searches, or the right to due process.

    Reprinted from Cato.

    Adam Bates

    Adam Bates

    Adam Bates is a policy analyst with Cato’s Project on Criminal Justice. His research interests include constitutional law, the War on Drugs, the War on Terror, police militarization, and overcriminalization.

    Bates received a BA in Political Science from the University of Miami, where he also walked onto the Miami Hurricanes football team, and both an M.A. in Middle Eastern Studies and a J.D. from the University of Michigan. He is a member of the Oklahoma bar.

    This article was originally published on FEE.org. Read the original article.