Author Archives: Sarah Baker

Rand Paul Is Not a Perfect Libertarian, But He Comes Closer Than the Rest

In a post over at Reason’s Hit & Run, Jacob Sullum is asking “Can Rand Paul’s Positions on Abortion and Gay Marriage Be Defended on Libertarian Grounds?” Sullum concludes that yes, they can be, “but you have to try pretty hard.”

The correct answer as to both is no.

First, with respect to abortion, Rand Paul believes that from the point of conception, human life is entitled to state protection. Sullum concludes that this position “can be defended on libertarian grounds” once one “accept[s] the premise that a fetus is a person with a right to life.”

Rand Paul is correct (and Sullum is right to implicitly recognize) that abortion is not self-evidently beyond the purview of government. To the contrary, conflicts between rights-bearing individuals are quintessentially within that purview.

Government is the repository of collective force, the monopolistic holder of the privilege to enforce conformance to the collective will. According to most libertarians, that power is legitimately wielded to protect individual liberty, such as through the punishment and prevention of crimes like assault, battery, murder, rape, robbery, etc.

As an aside, from what I understand, even most anarchists endorse some sort of protocol for dealing with violence. One of my disagreements with anarchists is that I have never found anything semantically useful about calling those protocols anything other than “government.”

In any case, Paul and Sullum are therefore further correct that, if one accepts the unborn have rights, abortion is an issue that falls well within the purview of the state—because it involves a conflict between individual rights most of us readily acknowledge (the right to control one’s body versus the right to continue living).

As far as I know, however, nothing in libertarian doctrine answers the underlying, fundamental question of whether and when the unborn become rights-bearing. Only philosophy can tell us what attributes entitle a living entity to rights, and only medical science can tell us when the unborn develop those attributes.

I therefore disagree with Sullum in this very narrow respect: It would be better to say there is nothing inherently unlibertarian about Paul’s position on abortion than to say that libertarianism provides a basis for defending that position. Perhaps I am being pedantic. Perhaps it is an issue purely of semantics.

But it is one that matters to libertarians and non-libertarians alike.

Paul has some treacherous political terrain to navigate if he hopes to win both the GOP primary and a general election. If he wants the libertarian base to cross that terrain with him, he will probably need to articulate his positions with that level of finesse.

As a final note on the abortion issue, since non-libertarians often ask how we come down on this, I will go ahead and state my own position for the record. My own personal criteria for recognizing a living being’s entitlement to rights include some combination of the following: the ability to prefer existence over non-existence, the potential for high level sentience and the capacity to experience pain. I do not support interfering with a woman’s bodily autonomy from the moment of conception. I agree with Rand Paul, however, that fetuses become rights-bearing before the end of pregnancy and even before the end of the first trimester.

Second, on the issue of gay marriage, Sullum quotes Paul as lamenting that:

Ultimately, we could have fixed this a long time ago if we just allowed contracts between adults. We didn’t have to call it marriage, which offends myself and a lot of people…

From a libertarian perspective, there is no “we” here. There is no group properly endowed with the power to decide for everyone else what relationships get to be called “marriages.” It is for individuals to decide whether their relationship constitutes a “marriage,” and it is for other individuals to decide whether they agree with that characterization.

The issue is increasingly a litmus test precisely because it is so revealing of a candidate’s feelings about the relationship between individuals and government. It will be hard to sell a message of small government and liberty while simultaneously insisting that government should be so deeply involved in our lives as to define relationships and dictate how words are to be used.

In the past, Paul has indicated that he supports leaving it to the states to decide whether to recognize gay marriage. That position might solve Paul’s political problems as a federal candidate. But it is not inherently libertarian. Libertarians are, generally speaking, concerned with defining and limiting the exercise of force. That concern is not limited to federal government exercises of force.

Without more, Paul’s reliance on federalism requires libertarians to accept the following compromise: that while Paul believes state governments can interfere with private marriage, since he is not running for state office, we ought not worry overmuch about it. The argument is not without its merits. But it is also not libertarian.

On the other hand, Paul’s comments last year that “I don’t really think the government needs to be too involved with” marriage were decidedly libertarian in nature. Perhaps that is even his true position, and his more recent remarks have been more about rallying another wing of the GOP base. Whether he can get past the primary without clarifying remains to be seen.

As a final note, sophisticated social conservatives will argue that state maintenance of traditional marriage does not constitute an exercise of force, but merely an expression of what relationships the majority choose to recognize as “married” within the meaning of the law. The distinction is worthy of recognition and merits debate. However, states use force to collect taxpayer money to run their marriage licensing programs, and most libertarians intuitively support some version of “equal protection” doctrine.

In summary, to answer Sullum’s question, Paul’s position on when life becomes entitled to state protection is neither supported by nor contradicted by libertarian doctrine. If he thinks state legislatures can define marriage for individuals, however, Paul is far afield from basic libertarian tenets.

Does that mean I won’t vote for him?

No. I fully intend to vote for Rand Paul in the GOP primary. If he actually gets the nomination—and I hope he does—I may vote for him in the general as well. For one thing, I suspect that his true position on gay marriage is largely libertarian. Even if I am wrong about that, Rand Paul is still leagues more libertarian than any candidate the two major parties has run in my adult life.

I have never been lucky enough to be offered a candidate who both satisfies my politics and has a chance of winning. His imperfections notwithstanding, it would be nice if Rand Paul could change that.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Walter Scott Shooting Is Reminder of Why We Must Defend Our Right to Record

A police officer in North Charleston, South Carolina has been charged with murder in connection with the shooting death of an unarmed motorist named Walter Scott.

Patrolman Michael Slager initially claimed that following a traffic stop for a broken headlight, motorist Walter Scott tried to take Slager’s taser. The two struggled, Slager feared for his life, and shot Scott as the two fought over the taser.

Then an absolutely devastating video emerged. The video shows Slager shoot the unarmed Scott eight times in the back as Scott tries to fee. After the shooting, Slager handcuffs the dying man, leaves him lying facedown without medical attention, and retrieves an object to drop near the body.

After the video emerged, Slager, a five-year veteran with the force, was taken into custody, charged with murder and denied bond at his initial hearing. He was fired from his position with the force. The attorney who went on record with Slager’s story about the shooting occurring during a struggle over the taser is no longer representing him.

Query:

How do you think it would have played out without the video?

All over the country, our right to record is under constant assault from police who treat citizens recording them as law-breaking obstructionists. Walter Scott’s death is a stark and heartbreaking reminder of why we must vigorously defend the right to record.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Are “Safe Spaces” the New “Coloreds Only?”

Earlier this month, two white students at Ryerson University in Canada were dismissed from a meeting of the Racialized Students’ Collective, a university group funded through the Ryerson Students’ Union. The university’s student newspaper, The Ryersonian, reported the RSU coordinator confirmed the students were excluded for being white. Last week Aeman Ansari, a fourth year journalism student at the school posted a blog entry on HuffPo Canada defending the decision.

Ansari ably and convincingly defends her belief that safe spaces are important. Ansari’s defense falls short for failing to explain why taxpayers, the university, and other students should fund them as exclusionary campus events.

Specifically, Ansari opines that:

[T]he point to note is not that two white students were asked to leave the event, but rather that this was a safe space …

…This group and these sort of events allow people of colour to lay bare their experiences and to collectively combat this societal ailment. These spaces are rare places in the world not controlled by individuals who have power, who have privilege.

…The presence of any kind of privilege puts unnecessary pressure on the people of colour to defend any anger or frustrations they have, to fear the outcome of sharing their stories. The attendees are trying to move forward by supporting each other and they should not have to defend themselves, they should not fear the consequences of raising their voices.

Let us get out of the way that I dislike people who cannot deal with opposition, who will only defend their opinions to friendly crowds, or who must banish dissent to feel validated.

I prefer feisty tanglers to special snowflakes.

It is neither here nor there. Special snowflakes are entitled to their preferences too, and everyone deserves an occasional session in the echo chamber. I agree with Ansari that safe spaces are important.

Where I disagree with Ansari is her implicit insistence that other students and Canadian taxpayers pay for them as exclusionary campus events. She never gets around to explaining or defending this aspect of her position.

The fact is “safe spaces” already exist.

They are called “private property.” Private homes, leased apartments, backyards, and private event venues can all be used to host exclusionary events. In addition, private conversations take place every day in bars, restaurants, coffee shops, conference rooms, sidewalks and parks.

That there are insufficient opportunities for people to have private conversations seems false on its face. If certain students want to get together to talk about their experiences only with a carefully selected crowd, there is no shortage of opportunities or “spaces” to do just that.

The issue is why they want to use student and taxpayer funds to do it on campus. Ansari never explains that.

Private, exclusionary discussions and events should be conducted privately. Forcing other people to pay for and host them is a new form of bullying—a new incarnation of an old segregation.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Most Police Abuse Committed by a Handful of Officers

Jonathan Turley at Res Ipsa Loquitur has posted an interesting snippet about a study concluding that the majority of police abuse incidents are committed by a small group of officers:

… A relatively small number of officers are responsible for over half of police abuse claims. We have seen similar results in studies of malpractice cases of doctors. Yet, this small group of officers not only tarnish the reputations of all officers but cost massive amounts of money. …

Law professor Craig Futterman, who runs the University of Chicago’s Civil Rights and Police Accountability Project, has done some interesting work in this area. His study of the Chicago Police Department found the same officers fueling these costs. It suggests that a better job of self-policing could result in substantial savings for police departments and more importantly greater protection for citizens.

UCLA law professor Joanna Schwartz has found similar results.

In the wake of the shooting of two police officers in Ferguson, Missouri, and the executions of two officers in New York City in December, it is unquestionably important to keep this in mind. I generally think most of us in the reform movement already know it.

The problem is that we lack confidence in police efforts to police their own. As Turley notes:

…Most cities still resist keeping records that would help identify such officers and track patterns. This would seem to offer obvious areas of reform for departments. We have certainly seen anecdotally that officers involved in controversies often seem to have checkered histories of prior lawsuits or serious complaints. The problem is the political will to implement the academic findings.

The lengths departments are willing to go to remain ignorant of the bad apples in their barrels are reflected in the costs passed on to taxpayers. Chicago paid a half a billion dollars over a ten year period. New York City paid that amount over a five year period. A single division in Los Angeles cost the city $125 million.

Yet Lou Reiter a former Los Angeles deputy police chief who trains police departments on “liability management,” says departments rarely ask themselves what they could have done differently to avoid those costs. Instead they blame the courts or the public for not understanding the difficulties inherent in the job.

Many do not keep records or make an effort to run the numbers to identify the “relative handful of officers” who account for half of all complaints:

While New York City pays the Police Department’s skyrocketing legal bills, the department makes almost no effort to learn from lawsuits brought against it and its officers. The department does not track which officers were named, what claims were alleged or what payouts were made in the thousands of suits brought every year.

What’s more, officers’ personnel files contain no record of the allegations and results of lawsuits filed against them. Neither the Police Department’s Internal Affairs Bureau nor the Civilian Complaint Review Board investigates allegations made in lawsuits, and police officials review only the litigation files of the few dozen cases each year that result in payments of $250,000 or more.

The majority of police officers are innocent of abuse.

But when good men do nothing, evil triumphs.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Chicago Police Using Domestic “Black Site,” The Guardian Reports

Chicago’s police department is running an “off-the-books interrogation compound” that attorneys liken it to the domestic equivalent of a CIA black site, according to a chilling report from the Guardian’s Spencer Ackerman.

Suspects, like the trio of potheads who wanted to attack Obama’s re-election campaign headquarters with a slingshot and marbles in protest of the NATO summit, are taken to “Homan Square.” But no one is ever booked inside it walls. No public, searchable record of their time there is generated. Neither their families nor their attorneys are informed of their whereabouts. Lawyers attempting to gain access are turned away, even if their clients are in custody inside.

At Homan Square they don’t process paperwork about your arrest. You’re just gone. No one knows.

At some point they have to do the paperwork and prosecute you. After they get your confession, you wind up back in the paperwork.

Suspects allege being beaten, kept in chain link cages, and shackled for extended periods while held inside Homan for as long 24 hours, without access to a lawyer, before being transferred precincts for booking or simply released.

“They just disappear,” said Anthony Hill, a criminal defense attorney, “until they show up at a district for charging or are just released back out on the street.”

Brian Jacob Church, one of the NATO Three, was picked up for suspected terrorist plotting in connection with protests against the NATO summit. He was taken to Homan Square, handcuffed to a bench for 17 hours, and interrogated without being read his Miranda rights. Anticipating he might be arrested in connection with the protests, Church had scrawled an attorney’s phone number on his arm, and explicitly demanded an opportunity to call that lawyer. That request was denied.

“I had essentially figured, ‘All right, well, they disappeared us and so we’re probably never going to see the light of day again,’” Church said.

Since the raid that resulted in Church’s arrest was well publicized, a team of attorneys was simultaneously searching for him to offer their services. Through 12 hours of active searching, he and his co-defendants could not be located. No booking record existed. Attorneys ultimately complained to Mayor Rahm Emanuel. Only then did they learn about Homan Square, and only hours later were Church and his co-defendants taken for booking at a police precinct.

Richard Brzeczek, Chicago’s police superintendent from 1980 to 1983, who also said he had no first-hand knowledge of abuses at Homan Square, said it was “never justified” to deny access to attorneys.

“Homan Square should be on the same list as every other facility where you can call central booking and say: ‘Can you tell me if this person is in custody and where,’” Brzeczek said.

“If you’re going to be doing this, then you have to include Homan Square on the list of facilities that prisoners are taken into and a record made. It can’t be an exempt facility.”

The NATO Three were ultimately found guilty of lesser charges (possessing an incendiary device and “mob action”), but acquitted of terrorism related offenses.

[D]efense attorneys, bolstered by undercover police recordings that prosecutors played in court, argued that the three were “goofs” who talked big and were goaded on by two undercover police officers.

[T]hey were frequently drunk, high and unable to complete simple tasks, once missing out on a protest because Church had to wait for his pot dealer.

One of the undercover officers told an apologetic Church that he needed to make a to-do list in the morning before smoking pot.

Church also said he wanted to attack four police stations but didn’t want to Google the locations of two of them. Chase advocated attacking Obama’s re-election campaign headquarters with a slingshot and marbles.

Church declined when Nadia Chikko, one of the undercover officers, asked Church if he wanted to try out one of the Molotovs they’d built with four empty beer bottles, some gasoline and a cut-up bandana from Mehmet Uygun, the other undercover officer.

“I’m too (expletive) cold to be going anywhere. I want to wrap up in my blanket and sleep,” he said.

A lawyer named Eliza Solowiej told The Guardian that she had represented a man who had already been entered into Chicago’s central booking station, and she had personally observed him in a police station without any injuries. Thereafter, someone changed his name in the system and had him moved to Homan Square without any record of the transfer. After his time in Homan Square, he was then taken to a hospital to be treated for head injuries he had incurred sometime in the interim.

Another lawyer reported taking a call from a worried mother. She believed her 15-year-old son had been arrested, but she was having trouble finding where he was being held. After “12, maybe 13” hours, the 15-year-old was released without charges.

A 44-year-old detainee named John Hubbard died in an interview room at Homan, allegedly of heroin overdose. But The Intercept’s Juan Thompson says there are no official records or even a coroner’s report confirming that cause of death. Nor are there records that explain why he was detained in the first place.

Chicago police at first did not respond to The Guardian’s questions about the facility. Once the story was initially published, the department issued a statement insisting there was nothing untoward taking place at Homan, that records are generated for arrests, and that if “lawyers have a client detained at Homan Squire, just like any other facility, they are allowed to speak to and visit them.”

As noted by The Guardian, the statement does not address how long into an arrest or detention those records are generated, or whether they are made available to the public, such as family members looking for relatives who have been picked up and attorneys searching for their clients. The department did not respond to The Guardian’s request for clarification on that issue.

[A] retired Washington DC homicide detective, James Trainum, could not think of another circumstance nationwide where police held people incommunicado for extended periods.

“I’ve never known any kind of organized, secret place where they go and just hold somebody before booking for hours and hours and hours. That scares the hell out of me that that even exists or might exist,” said Trainum, who now studies national policing issues, to include interrogations, for the Innocence Project and the Constitution Project.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.
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