If you missed the discussion about red light and surveillance cameras that the Show-Me Institute hosted on June 9, you can now watch the video online. Both Saint Louis city Alderman Antonio French, who represents the 21st ward, and Missouri Sen. Jim Lembke, who represents part of south Saint Louis city and south Saint Louis County, answered questions from our crack intern moderator Martha King and attendees:

Policing by Camera, a panel Q&A – Show-Me Institute
from Show-Me Institute on Vimeo.

French has spent nearly a year trying to get surveillance cameras installed in some of the high-crime areas of his ward. He maintains that the cameras will help police officers identify criminals, while deterring crime.

Lembke has argued against the use of red light cameras. The cameras, he says, violate due process because the owner of a car seen running a red light is presumed guilty — even if the camera cannot identify the driver.

If you are interested in how our local elected officials view the trade-offs between liberty and security, I encourage you to watch this video. Both the moderator and the public asked probing questions, which Lembke and French answered thoughtfully.

I hope that we can host similar, engaging discussions in the future. You can check back on this blog, join our email list, or become a fan of the Show-Me Institute to get updates about future events.

On Wednesday next week, the Show-Me Institute and the Saint Louis chapter of Liberty on the Rocks will co-host a discussion of the use of cameras in public places as a law enforcement tool. During the past few months, red light cameras and surveillance cameras have been in the news, and we’re excited to have Sen. Jim Lembke and Alderman Antonio French, both of whom have taken strong stances on these issues, speaking at this event!

The discussion will begin at 7:00 p.m. on Wednesday, June 9,
at the Show-Me Institute Office at 4512 W. Pine.
Please RSVP either by email, to info@showmeinstitute.org,
or by phone at (314) 454-0647,
or by commenting on this blog post.

Sen. Lembke, who represents part of the city of Saint Louis and Saint Louis County, has spoken out against the use of red light cameras, on the grounds that they entail the presumption of guilt. As he said in a Post-Dispatch article, “[the use of red light cameras] takes liberty away in that there’s no other crime that I know of on the books where I as a citizen am guilty until I prove my innocence.”

Alderman French, who represents the 21st ward, has been campaigning hard to have surveillance cameras set up near high-crime areas in his ward. In the Riverfront Times blog, French explained that the crime is coming from a small group of people, and that surveillance cameras might deter that activity. From the RFT:

“It’s the same group of bad guys doing bad things,” French says. “We’ll advertise the hell out if it, that there’s cameras. One of reason people do things is because they think that can get away with it. If they know somebody is watching it’s very likely they’ll go somewhere else to do drug activity and violence.”

One of the most interesting aspects about the use of both red light and surveillance cameras is that the cameras will likely soon be able to identify, without a doubt, the individual committing a crime. At that point, although camera surveillance seems to be a particularly un-American activity, is there any constitutional argument against it? Do cameras really infringe upon our liberties if they are placed in public places where any police officer could also be placed?

French and Lembke will have the opportunity to answer these questions, and others, on June 9. If you are free, please drop by. The discussion will be informal; it our hope that attendees can ask the elected officials questions directly, and be part of an engaging conversation about the trade-offs between liberty and security.

Liberty on the Rocks is a nonpartisan, nonprofit, social organization that seeks to unite individuals, regardless of political affiliation, who desire liberty. With the goal of facilitating networks, friendships, and intelligent conversation, Liberty on the Rocks seeks to initiate the energy and dialogue necessary to move America from the grassroots up, toward the constitutional principles of freedom used to found this nation.

According to the Columbia Missourian, an internal investigation into the SWAT raid of Jonathan Whitworth’s home (which I have also covered here, here, here, and here) has cleared all the officers involved of any wrongdoing. Given my vociferous criticism of using SWAT tactics to serve search and arrest warrants for nonviolent crimes, you probably expect me to decry this decision as a miscarriage, but you would be wrong. From everything I know of the case, the officers did not violate any policies or statutes, whether federal, state, or local — but that’s precisely the problem. We need stricter rules for SWAT raids because under the rules in place at the time, there was nothing technically wrong with the raid.

As Radley Balko puts it, “this wasn’t a ‘botched raid.’ It was a routine raid. The police got the correct house. They found the guy they were after. They arrested him. No one was killed. Most of these raids don’t turn up huge stashes of drugs or weapons. Most result in misdemeanor charges.”

There is some reason to hope that — in Columbia, at least — using SWAT teams for nonviolent crimes will become the exception rather than the rule. Columbia Police Chief Ken Burton concedes that the department has “utilized SWAT routinely in circumstances and situations where we should not,” and promises that new reforms should cause the number of SWAT raids to “plummet.” Those reforms should be strengthened and expanded statewide to help ensure that SWAT teams are used for the intended purposes and not to shock and awe nonviolent people.

Rand Paul, the newly designated Republican candidate for one of Kentucky’s seats in the U.S. Senate, has taken a lot of flack over the past couple of days as a result of his views on the landmark Civil Rights Act of 1964. MSNBC’s Rachel Maddow spent roughly 15 minutes of interview time with Mr. Paul trying to get him to directly express his belief that the government should not prohibit private business owners from engaging in racial discrimination. Rather than offer a soundbite that would allow political opponents to caricature him as a closet racist or opponent of civil rights, Paul first emphasized all that he found admirable and beneficial about the Civil Rights Act, then tried to express the difference between discrimination as a governmental policy, which he believes to be both abhorrent and unconstitutional, and discrimination as a private choice, which he believes to be both abhorrent and unwise, but beyond the proper authority of government to prohibit.

It’s true that a strict libertarian or free-market perspective might prevent the government from interfering when individuals choose to act in a discriminatory fashion. This may make people uncomfortable. But, as Mr. Paul pointed out, the very idea of freedom requires us to tolerate certain decisions that we might find distasteful, in order to ensure that we have the liberty to make decisions that others might find distasteful. For example: Our nation prizes freedom of expression so much that our constitutions deny governments the authority to restrict or punish speech, even if the ideas expressed are almost universally regarded as offensive. Respect for this form of freedom is so ingrained in our culture that its wisdom is only rarely challenged. Mr. Paul was trying to help Ms. Maddow understand that, similarly, if one believes in individual liberty then one must necessarily be prepared to tolerate the fact that some individuals will use that liberty in ways that others might find offensive.

The proper question, I believe, is how best to deal with those situations when they present themselves. Where speech is concerned, if someone says something offensive, the ideal solution for those offended would be either not to listen to that speaker or to respond with their own speech. Likewise, the best response to discriminatory business establishments would have been for others to boycott the offending establishments and/or to open non-discriminatory establishments of their own. The same principle can be applied to businesses that refuse to hire or promote qualified minority or female applicants. These discriminatory decisions create an opportunity for competing businesses to hire those same applicants — which, presumably, will allow them to offer higher-quality services than the discriminatory employer. The effect might not be immediate, but eventually it will become plain that discrimination is both foolish and costly.

It is also vitally important to remember that governmental power is a double-edged sword. A power that can be used in ways of which you approve can also be used in ways that you find repugnant. The problem of segregation/desegregation is a useful example, because the governmental action at issue represented flip sides of the same freedom-denying coin. In much of the Jim Crow South, segregation was not optional. Those allowed to vote — almost exclusively white people, many of whom had an interest in maintaining a privileged status in society — elected representatives who decided that individual business owners were not permitted to offer a desegregated environment. Thus, all people were forced to live with governmentally enforced segregation. After the Civil Rights reforms were enacted, individual business owners were not permitted to offer a segregated environment — all people were forced to live with governmentally enforced desegregation. At all times, individual citizens had only a limited ability to make these choices for themselves.

In a libertarian or free-market paradigm, the government would not have the authority to dictate these matters to individual in either direction. The government’s sole responsibility would be to ensure that those who sought actively to harm others would be brought to justice and, if necessary, their victims compensated for any demonstrable, quantifiable injuries suffered. Those who believed strongly in the importance of segregation would be permitted to live out their choice — but would also be forced to suffer the disadvantages that would flow from their choice. Those who favored integration would realize a unique competitive advantage that, eventually, would reveal the wisdom of that approach.

To sum up, governmental control over the decisions that individuals may make for themselves presents a seductive shortcut for those who believe that the world ought to be ordered in some particular way. But not only does it represent a denial of individual liberty, a government vested with the power to dictate decisions made by its citizens can very easily turn against those who had hoped to use it to pursue their vision of a “good” society. As George Washington once warned: “Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master.”

A commenter on this Show-Me Daily post about SWAT raids wondered how much worse military raids in Afghanistan might be compared to SWAT raids in this country. An Army officer writing to Radley Balko suggests that it is actually easier to obtain permission for a SWAT raid in America than a military raid in a war zone like Afghanistan, and that SWAT teams here use more aggressive tactics:

I am a US Army officer, currently serving in Afghanistan. My first thought on reading this story is this: Most American police SWAT teams probably have fewer restrictions on conducting forced entry raids than do US forces in Afghanistan.

For our troops over here to conduct any kind of forced entry, day or night, they have to meet one of two conditions: have a bad guy (or guys) inside actively shooting at them; or obtain permission from a 2-star general, who must be convinced by available intelligence (evidence) that the person or persons they’re after is present at the location, and that it’s too dangerous to try less coercive methods. The general can be pretty tough to convince, too. (I’m a staff liason, and one of my jobs is to present these briefings to obtain the required permission.)

Generally, our troops, including the special ops guys, use what we call “cordon and knock”: they set up a perimeter around the target location to keep people from moving in or out,and then announce their presence and give the target an opportunity to surrender. In the majority of cases, even if the perimeter is established at night, the call out or knock on the gate doesn’t happen until after the sun comes up.

Oh, and all of the bad guys we’re going after are closely tied to killing and maiming people.

What might be amazing to American cops is that the vast majority of our targets surrender when called out.

I don’t have a clear picture of the resources available to most police departments, but even so, I don’t see any reason why they can’t use similar methods.

I can’t personally vouch for anything this officer claims about Army protocol, but if what he claims is true, it’s very disturbing.

As many fans of the Show-Me Institute will already know, I have spent a lot of time during the past six months discussing the questionable constitutionality of Congress’ attempt to punish individual citizens who choose not to purchase government-approved health insurance policies. In fact, I’ll be discussing this issue tomorrow morning between 10:15 and 10:45 on Sarah Steelman’s radio show on KWTO 560-AM in Springfield. You can also listen in online.

Early in this year’s legislative session, members of the General Assembly asked me to offer testimony on the Health Care Freedom Act, which was proposed as a constitutional amendment that would recognize the fundamental right of citizens of Missouri to decide for themselves how they will pay for their health care, and that no government could rightfully interfere with that decision. In my testimony, I pointed out that if courts decided that nothing in the U.S. Constitution prevented the government from mandating the purchase of government-approved insurance policies, a constitutional amendment of the sort contemplated in the Health Care Freedom Act could offer a legal “Hail Mary” — a last line of defense that might prevent further congressional intrusion into citizens’ lives.

Despite overwhelming support in both the House and Senate, the Missouri General Assembly did not agree to let citizens vote on this constitutional amendment. Instead, the legislature placed the original bill’s language into House Bill 1764, which would allow voters an August referendum on adopting a new statute. Many of the legislators and citizen groups who had worked to pass the original bill are now hailing the passage of HB 1764, implying that if the people vote to adopt this statute, it will have the same effect as the proposed constitutional amendment might have. Unfortunately, this is simply not true. Missouri voters may well use this referendum as a political statement through which they can express their opinions about the federal health care reform law, but the text that might have been legally useful as a constitutional amendment will have zero legal effect as a statute.

The text that will be presented at the referendum states, in part: “No law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” A court called upon to evaluate whether this provision would be effective against any federal enforcement of the health insurance mandate will first point out that because the language makes no reference to any particular government, it must be assumed to apply only to law- or rule-making subdivisions of the state of Missouri. Not only is it virtually unheard of (and generally futile) for a state statute to attempt to bind the federal government or one of its agencies, the plain text of the bill says nothing to suggest that is its purpose. A court looking at this provision as a statute will almost certainly end its analysis there.

However, even if the court infers that the General Assembly intended to prevent the enforcement of certain federal laws, the statute will fail. In order for the Health Care Freedom Act to have any hope of being effective, it would have to give citizens the basis to argue that health care freedom is a fundamental right beyond any government’s rightful authority to transgress. If the citizen could make that argument, there would be a very slight chance that the U.S. Supreme Court might consider such a fundamental right sufficient to prevent the government from punishing those who chose not to abide by the individual insurance mandate. A statute, however, is not the mechanism by with citizens establish fundamental rights or liberties — they put those in their constitutions, where they are insulated from repeal or avoidance by future legislation. Thus, even if HB 1764 had purported to establish a fundamental right or liberty, courts would have been unlikely to take them seriously. It just so happens that HB 1764 does not even make such an effort, further diminishing any legal usefulness it otherwise might have had.

To be clear, I do not mean to suggest that proponents of the Health Care Freedom Act are intentionally misleading people as to the likely effect of HB 1764. But Missouri’s citizens deserve to know that the bill and the upcoming referendum it authorizes can only be considered a political statement. Even if the people adopt this statute at the August referendum, their rights and liberties will be no more secure than if the bill had been defeated.

Today’s Kansas City Star has a good summary of charter amendments being proposed in Jackson County. Charter counties like Jackson — there are only four of them in Missouri — go through this charter review process once each decade. I was pleasantly underwhelmed by the proposals, because I don’t think Jackson County’s government needs major charter changes.

It appears that they won’t be considering any changes to the partial at-large voting on their county council, which is unique among Missouri’s charter counties. There has been a good deal of work done on the question of at-large versus district representation. Public choice economics has provided some evidence that at-large voting leads to lower spending levels. The theory is simple enough: Officials elected at large have less of an incentive to engage in district-specific spending (think congressional “pork” writ local), because all of their constituents both benefit from and pay for all of the same things. My “Government in Missouri” study for the Show-Me Institute addresses this idea in detail on pages 25 and 26, and provides endnote citations to major public choice studies on the subject, for anyone who is interested enough to do further research. (This is usually the part of my government talks where people start to fall asleep.) When I compared the suburbs in St. Louis County that have at-large voting to those with the more common district voting found in city elections, I found limited evidence that the at-large cities spent less. I say “limited” because the differences were not huge, and the sample size was very small — but it’s all in the study.

The portion of the charter proposals that will generate a good deal of attention is the pay raise for local legislators. The charter committee report recommends:

• Set new pay levels for elected county officials, including boosting current legislators’ salaries by more than 10 percent to $28,916 annually. Legislators also would be guaranteed raises based on the local consumer price index.

I see nothing wrong with raising salaries to $28 K per year for nine council officials serving in a county of 650,000 people. There is nothing out of line with that. I do, however, disagree with the proposal to raise it automatically each year, according to the consumer price index. Raising your pay is one of the tough votes that elected officials have to make. Usually, moderate raises that are implemented rarely enough will be supported by the public, as I expect this one will be. However, it should still require a vote, rather than being turned over to a commission or a computer.

One of the hot topics in Missouri policy debate over the past several days has been Senate Bill 844, the legislature’s current attempt at ethics reform. Patrick Tuohey over at the Missouri Record just published a column I wrote assessing the constitutional questions raised by the bill that passed the House of Representatives last week. You’ll have to read the column to get the details, but suffice it to say that the bill merits some of the criticism that various media outlets have leveled against it.

It is no secret that I believe Congress has no constitutional authority to mandate that citizens purchase a product they do not want. But people who are eager to see this portion of the federal health care reform law struck down would be very wise to put the brakes on the current wave of litigation.

You see, it is a bedrock principle of American law that federal courts cannot offer “advisory opinions.” In order for a federal court to resolve a legal issue, the person or organization presenting that issue to the court must demonstrate that they have suffered, are suffering, or are in immediate danger of suffering some injury. If the complainant can’t show how they are being harmed, the court rules that there is no current “case or controversy” existing between the parties and the case gets thrown out.

In the weeks since Congress adopted the new health care reform law, state officials all over the country have been trumpeting their intent to challenge the law’s constitutionality. Attorneys general, governors, and lieutenant governors in 15 (or more) states have already joined or have pledged to join federal lawsuits intended to strike down the individual health insurance mandate. But there are two big, big problems.

First, the individual mandate is not scheduled to go into effect until 2014. In other words, no one will be required to comply with the mandate for another four years. And, until someone is bound by this requirement, it will be virtually impossible to persuade a court that anyone has been sufficiently harmed by this law to create the “case or controversy” necessary for the court to address the merits of the claim. The second problem is that federal courts do not generally allow one person to assert a claim based on injury suffered by someone else (although there are a few limited exceptions to this rule). Although these state officials could file lawsuits on their own behalves, if they did not have compliant health insurance policies, it is much tougher for them to suggest persuasively that these officials have any basis for asserting the rights of individual citizens, independent of any private citizen asserting a claim against the federal law. The state officials’ claims might have a bit more substance in states that have passed a statute or constitutional amendment limiting governmental authority to interfere with citizens’ decisions regarding health insurance, but it is still a tenuous legal position unless the state is intervening on behalf of a private citizen’s lawsuit.

So, in all likelihood, these impassioned crusades to knock down the health insurance mandate will prove to be utterly worthless until the targeted provision actually takes effect. And, in the meantime, those in support of the mandate will point to the failure of these lawsuits as proof of both the mandate’s constitutionality and the general wrongheadedness of those who oppose the mandate. My advice to these well-intentioned officials is to withdraw their lawsuits for the time being, and for the next four years focus instead on addressing the mandate through the legislative process. If the mandate remains in place after the elections of 2010 and 2012 pass by, then will be the appropriate time to take this issue to the courts.

The Patient Protection and Affordable Care Act was signed into law by President Barack Obama last week, but that won’t stop opponents from continuing to try to shoot it down, or at least shoot holes in it. If you have ever tried to read the provisions of the bill, you know that it is excessively lengthy and wordy, requiring patience and a certain level of commitment to read through in its entirety. Bill sponsors claim the legislation will ensure health care coverage for the 32 million Americans currently living without it, and provide more affordable access to health care. The most central provision, however, is that Americans will be required to purchase health insurance policies.

The signing of the bill has not ended the debate. In fact, it may only be the beginning. House Republicans have already begun fighting the bill, and some have suggested that the Supreme Court may overturn the bill because it violates constitutional provisions. Dave Roland, a Show-Me Institute policy analyst, has written about the potential legal pitfalls that may be faced by the requirement to purchase health insurance.

More information about the final provisions of the bill will undoubtedly become available to the public in the coming days, so that we may better grasp what exactly the bill entails. However, it may well be shot down before it is scheduled to take effect in 2014. We have three years to really understand the changes this legislation will bring.

As Harvard economics professor Jeffrey Miron pointed out at his Obamanomics lecture last week, such intense conflict could be a good thing for the American people. This butting of heads can lead to gridlock, which can help prevent either side from getting everything it wants. Taking into consideration all of the debate and conflict initiated by the bill so far, it may look completely different by the time 2014 rolls around.

Tomorrow (Tuesday), I’ll be a special guest for the Legal Roundtable segment on Don Marsh’s “St. Louis On The Air” radio show. The show will run from 11:00 a.m. to 12:00 noon on 90.7 KWMU — with live streaming over the Internet available here.

Our primary topic will be the constitutional issue swirling around the new federal health care reform law and Missouri’s Health Care Freedom Act, which would prohibit punishment for individual citizens who decline to purchase a product they may not want.

The Riverfront Times blog points out that a judge in the local U.S. District Court has determined that St. Louis city may choose which messages it permits citizens to express. In a case that we’ve previously discussed here, Jim Roos sued the city when officials demanded that he remove a mural on one of his buildings calling for an end to eminent domain abuse. Roos pointed out that the city’s laws would have permitted the mural if only he had chosen to communicate a different idea (such as displaying a flag, some other approved symbol, or “Go, Cardinals!”), and that the First Amendment does not allow government to make content-based distinctions in deciding when and where citizens can express themselves — especially when that expression is related to issues of political importance.

The court ruled today that the government does, in fact, get to choose which messages citizens can communicate. In the words of Michael Bindas, one of the attorneys from the Institute for Justice representing Roos in his lawsuit, “The court’s decision gets it precisely backwards.” Fortunately, IJ and Roos intend to keep fighting, and the Eighth Circuit Court of Appeals will have the chance to correct the lower court’s mistake.