Conflicts between the federal government and the states: who wins?

My good friend Joshua Marpet asked me on Facebook to compare the following two situations: 

Medical Marijuana is legal to states, but federally illegal. On the other hand, he cited an article where a state Representative in Texas was attempting to pass a state law which would seek to criminalize the public recording of police, or otherwise exempt only a defined set of news media from such criminalization.

These two issues are both related and different. Let's tackle the marijuana issue. Marijuana is a Schedule I drug under the Controlled Substances Act; and its manufacture, importation, possession, use and distribution is illegal by federal law. That some states have legalized marijuana for medical uses (or for recreational uses) does not change this fact. This is a Supremacy Clause issue. That clause reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

What this means is that when federal and state laws conflict, the federal law wins.  So the federal government could go into every state that has legalized marijuana in any way, and shut down their operations. People who otherwise would be permitted to use marijuana by their states could still be subject to federal criminal penalties for those uses.  Such actions would be fully consistent with the Supremacy Clause and the Constitution. The only difference here is that the federal government has largely chosen to acquiesce to the states on this issue (probably as a result of growing public acceptance). But this doesn't prevent the federal government from changing its mind regarding the enforcement of federal laws in the future. Another administration less tolerant of state marijuana laws could, consistent with the Supremacy Clause and the Constitution, enforce federal law in states that have otherwise legalized marijuana.

A good example of a proposed law that would likely fail on Supremacy Clause grounds (and for other reasons, such as separation of powers) is a proposed Utah law to cut off water to the new NSA facility in Bluffdale, Utah. Proposed laws like these, and others under the category of nullification (a long-ago discredited doctrine), simply don't pass muster.

The second issue involves whether a state can proscribe (or prohibit) conduct which is presumably legal under federal law. A short aside: the cited article suggests that criminalizing the recording of police "could be considered an act of defiance to mountains of legal precedent set forth by the Supreme Court of the United States." To be sure, the Supreme Court has never ruled on the specific issue of whether citizens have a legal right to film the police. The case that the article cites is Glik v. Cunniffe, which is a First Circuit case. The holding in this case only applies to the First Circuit; but for the purposes of this post, let's assume that indeed, the Supreme Court had affirmed the Glik decision.

In the area of individual rights, the federal government (or more precisely, the federal courts) set the minimum standard as to what is permitted. The states can provide more protection to individual rights, but not less; so long as those rights do not infringe on any federal constitutional rights. Here are two examples. First, in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that DUI checkpoints were reasonable under the Fourth Amendment. Nonetheless, a number of states have found such checkpoints to violate the state constitutions or have otherwise outlawed them. Here, the states are providing more protection to individual rights of its citizens than the federal government, and as a result, this is permissible. Second, the Supreme Court has held that people generally do not have freedom of speech in private shopping centers; but on the other hand, California's constitution provides greater protection to speech than the First Amendment. So in California, people can exercise free speech even in a privately-owned shopping center. This too is permissible.

The proposed legislation in the cited article appears to do expressly the opposite: it purports to provide less protection to individual rights than is already permitted by federal law (again, assuming that Glik had been affirmed by the Supreme Court). When states attempt to restrict the rights of its people more than the federal government does, this rules afoul of--you guessed it--the Supremacy Clause. Even now--when there is no Supreme Court ruling affirming the right of people to film the police--I suspect a state law like the one proposed above would violate the First Amendment.

I hope this adequately answers the question!

Not in my backyard, Maryland edition

Heroin is certainly not unique to Maryland. But Baltimore is widely regarded as the "Heroin Capital" of the United States. Estimates from the federal government and the Baltimore Department of Health suggest that Baltimore is home to 48,000-60,000 addicts; or nearly a tenth of the city's population. And this epidemic has spilled into Baltimore's suburbs, too. Heroin's link to Baltimore also spawned a popular, but ultimately disturbing website that chronicles anecdotal evidence of heroin users in and around the city. When it comes to heroin, The Wire was not too far from the mark.

Maryland Governor Larry Hogan has highlighted the state's heroin epidemic several times since the election in November, and made it a priority in his state of the state address on Wednesday. Anne Arundel County Executive Steve Schuh has done the same.

The most effective treatment for heroin addiction is methadone. The staple of a heroin-addicted community is the methadone clinic. It should not be surprising, then, that fighting the heroin problem means putting these clinics in the communities where heroin is a problem.

Recent plans to open a methadone clinic on Hogs Neck Road in Pasadena in Anne Arundel County came to a screeching halt in the face of massive opposition from the community. Sadly, some went way too far in opposing the clinic by making death threats against the owner.

I suspect if you surveyed the people who oppose the clinic, many people would believe that the clinic's customers are from Baltimore City or somewhere else, and that the clinic is bringing drug addicts into their neighborhoods. But in reality, the addicts already live in those neighborhoods. The heroin problem will not go away because communities oppose methadone clinics in their neighborhoods. But the heroin addicts who live in those neighborhoods will have to go father to get treatment. Behind the facade, our otherwise-picturesque communities are dotted with halfway houses, group homes, parolees, probationers, and sex offenders. We cannot ignore the problem by pretending it doesn't exist in our supposedly-idyllic neighborhoods. It's here and we need to confront it.

On the legalization of drugs

My colleagues and I had an interesting discussion this morning regarding the legalization of drugs.  This is something that I have never supported, despite having become significantly more libertarian over the past few years.

However, it seems that we have lost this war, at least at far as marijuana.  I'm not going to fight or argue over studies regarding harmful effects, or possible medical uses, or its potential as a gateway drug. There's lot of science out there and lots of FUD, too.  But when you put it all together, it seems to me that marijuana isn't really anymore harmful than other substances we use and tolerate, like alcohol.  It might be less harmful.  A number of states have legalized medicinal uses; other jurisdictions look the other way.

Prisons and jails are full of drug users and abusers.  Some of them from simple non-violent possession or use of marijuana.  I'm not so sure that this is a good idea anymore, or that this is a very efficient use of our increasingly limited resources.

Legalization of marijuana would create an industry that could be regulated and taxed, providing a potentially lucrative source of revenue for governments.

According to a number of studies, marijuana is less dangerous (physical harm to the user, addictive potential of the drug, the drug's overall impact on society) than alcohol or tobacco.  I'm sure the drug warriors can find opposing studies, but this just seems like common sense to me.

I have been a long time supporter of the war on drugs, and I think we should continue against hardcore drugs, and especially when violence is involved.  Drugs like meth, crack and heroin are dangerous and I think the government has every reason to prohibit their use. But simple, non-violent possession and use of marijuana? Perhaps it's time we give up the ship on this one.

I am curious to hear what those of you think who continue to support the war on drugs against marijuana. What are the costs, what are the benefits? Does the latter really outweigh the former?

Problems and limitations to the exclusionary rule

Consider the following situation:

A police officer notices a car driving 43 MPH in a 25 MPH zone.  He stops the car and tickets the driver.  He then searches the car, and finds a bag of marijuana and a "pot pipe" underneath the driver's seat.  The driver is arrested and charged with possession of a controlled substance.

Now consider a similar situation:

The same officer returns on his shift and soon again, notices yet another car driving 43 MPH in a 25 MPH zone.  He stops the car and tickets the driver.  He then searches the car, but does not find any additional evidence.  The police officer sends the driver on his way.

Now, what is the difference?  We'll answer that eventually, but let's first look at the results of each situation.  The first situation actually occurred, and was the subject of a Supreme Court case called Knowles v. Iowa.  The Court found that:

[t]he search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment. Neither of the two historical exceptions for the "search incident to arrest" exception, see Robinson, supra, at 234, is sufficient to justify the search in the present case. First, the threat to officer safety from issuing a traffic citation is a good deal less than in the case of a custodial arrest. While concern for safety during a routine traffic stop may justify the "minimal" additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. Second, the need to discover and preserve evidence does not exist in a traffic stop, for once Knowles was stopped for speeding and issued a citation, all evidence necessary to prosecute that offense had been obtained. Iowa's argument that a "search incident to citation" is justified because a suspect may try to hide evidence of his identity or of other crimes is unpersuasive. An officer may arrest a driver if he is not satisfied with the identification furnished, and the possibility that an officer would stumble onto evidence of an unrelated offense seems remote. Pp. 3-6.

The Supreme Court reversed the decision of the Iowa Supreme Court (which had upheld the search).  The case was sent back to the trial court, who re-opened the case and eventually dismissed the case against Knowles.  Why?  Because the drug evidence would then be suppressed on account of the exclusionary rule, which holds that illegally obtained evidence is (usually) inadmissible at court.  Now Knowles has been through a lot!  But without the only evidence of the crime, he goes free.

And a quick review of court records shows that Patrick Knowles was not exactly a model citizen, having convictions for multiple counts of domestic abuse, unauthorized possession of weapons, and probation violations.

(Note: It's difficult to find any further details, but I'm not sure why the Iowa courts didn't allow the evidence to be admissible under the good faith exception to the exclusionary rule established in United States v. Leon in 1984, since the officer was acting in accordance with established state law.)

Now let's return to the second situation.  This is a hypothetical based on the first one, but given the circumstances, is just as likely (or perhaps even more likely) to occur.  As the Supreme Court noted, a "search incident to citation" was lawful in Iowa at the time.  So it seems likely that many such searches occurred at the time.

If the search was illegal in the first situation, it seems obvious that it should also be illegal in the second situation.  However, in the first situation, Knowles has a remedy--the judicially-created exclusionary rule (see Weeks v. United States and Mapp v. Ohio).  What is the remedy for the second driver?

He could file suit against the officer, but because the officer was in performance of his official duties, and acting within already established Iowa law, the officer is likely to enjoy some form of immunity from prosecution; and even if he was prosecuted, the search was not illegal at the time (meaning the officer acted in good faith), nor was the officer acting with any malice.  So in reality, the second driver has no remedy.

By its name and definition, the exclusionary rule only protects those suspected of criminal behavior--it has no effect on, and is no remedy for innocent victims of illegal searches.  A criminal like Knowles is allowed to go free, yet the unnamed drivers who were also stopped but had no contraband have no legal recourse.  Theoretically, the exclusionary rule it is also meant as a disincentive to police and prosecutors--"if your searches aren't legal, we'll throw out the evidence"--but there are already now additional limitations on the exclusionary rule.  So it's difficult to see if the deterrent factor truly exists in all but the most obvious situations.

Baltimore Police Disband Drug Unit

Depressing news from WBAL Baltimore:

WBAL-TV 11 News has confirmed that the Baltimore City Police Department has disbanded one of its drug units.

The unit, based in northwest Baltimore, was disbanded because the department is investigating allegations of misconduct on the part of several officers, 11 News learned Wednesday.

11 News was told that one supervisor and one officer were suspended.

At this point, officials said no charges have been filed against the officers.

The department called the allegations a 'personnel matter' and said Internal Affairs is investigating.

Police spokesman Anthony Guglielmi said the unit was made up of six patrol officers and detectives who did drug enforcement in northwest Baltimore.

Officials said a sergeant and an officer are accused of using a stolen private citizen's license plate on an unmarked police car while doing official police business.

You would have think that the problems were pretty serious for a drug unit to be disbanded; it's a shame too, because these units are specifically focused on the drug problem in one area of the city.  In particular, the article notes that there were six shootings in the Northwestern District over the past weekend.