Category Archives: Law

South Mountain Creamery owner will get the rest of his money back

Good news in the Randy Sowers case, written about often in this space. [Institute for Justice, Edward Ericson, Jr./Baltimore City Paper, Jacob Sullum, earlier, more on forfeiture] [cross-posted from Overlawyered;

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Gov. Hogan signs forfeiture reform

Gov. Larry Hogan yesterday signed an important package of reforms to forfeiture law in Maryland. Applause to all who helped make this happen, including Sen. Michael Hough, Rob Peccola and Lee McGrath of the Institute for Justice, and Gov. Hogan.

P.S. Some coverage of a January press event in which I participated at the Capitol, calling attention to the case for asset forfeiture reform in Maryland: Frederick News-Post, Maryland ReporterWBAL.

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LEOBR reform not going well this session

Supposed reforms to Maryland’s notorious Law Enforcement Officers Bill of Rights (LEOBR) law could leave police unions with even more power than now [Washington Times, Washington Post] ACLU of Maryland report on how the law, along with the Baltimore police union contract, serve as obstacles to officer accountability [press, more] Last year, the filing of charges in the Freddie Gray case “enraged the police rank and file, who pulled back” from arrests and engagement with lethal consequences for the Baltimore crime rate; but was the work-to-rule really based on a well-founded fear of being prosecuted over good police practice? [Richard Oppel/New York Times, NYT “Room for Debate” and more, Alex Tabarrok/Marginal Revolution]

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Should Maryland give felons on probation and parole a right to vote?

The Maryland legislature will soon decide, perhaps by a margin of a single vote, whether to override Gov. Larry Hogan’s veto and extend voting rights to some classes of felons on parole or probation. A few thoughts:

  • The proposed change would replace a reasonably bright-line, understandable rule on felons and voting (finish your sentence first) with a mishmash new standard that would spread confusion among voters and elections boards and is based on no coherent rationale. Clear rules of predictable and understandable application are desirable for their own sake and especially important in voting, an area in which confusion and disagreement about legality bring special dangers. That’s one reason the editorial advisory board of the Daily Record, the newspaper of the Maryland legal profession, says Gov. Hogan’s veto should stand and that there are other, better ways to pursue the goal of reintegration for offenders.
  • Proponents offer what they claim is evidence that restoring a right to vote earlier promotes rehabilitation of offenders. It is very difficult to separate correlation from causation on this, however. Yes, well-rehabilitated offenders are more likely to vote, but that does not mean that the second caused the first.
  • Proponents also argue that earlier recovery of voting privileges is needed to combat stigma. A couple of thoughts on that: First, all criminalization necessarily stigmatizes unless the public stops believing that criminality ordinarily relates to guilt, in which case we are in very big trouble for other reasons. Second, parole/probation involves continued deprivation of a comprehensive bundle of civil rights, many of which would otherwise be of constitutional standing, such as travel, association, firearms access, and so forth. Of these, I suspect losses in areas like travel and association are far more stigmatizing than loss of a voting right because they often must be explained to others (“sorry, I can’t come to your wedding because…”). With voting, we have a secret ballot and a system set up so as generally to protect people from “You didn’t vote last week and I need to know why” social pressure.

Both sides bring ideological preconceptions to this dispute. But of all the ways in which one might address Maryland’s genuine problems of over-criminalization and over-incarceration, it seems especially a token of ideological faith to have settled on this one as a key priority.

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Correcting the record: Question 6 and religious liberty protections

At Red Maryland (page archive), Brian Griffiths writes the following:

Something that should have been obvious from the get go but 2012’s Question 6, which was supported by Maryland Democrats and current Republican Senate candidate Chrys Kefalas, contained not a single provision protecting the religious liberties of any Marylanders.

To begin with a parenthetical issue, invoking Chrys Kefalas seems a little gratuitous, since Question 6 was supported not only by a majority of Maryland voters but by a number of elected Republicans like now-Howard County executive Allan Kittleman (and opposed by some elected Democrats). What is not gratuitous, but simply wrong, is Griffiths’ assertion about the bill’s contents, even as he links its synopsis, which even at a glance shows the contrary:

Altering a provision of law to establish that only a marriage between two individuals who are not otherwise prohibited from marrying is valid in the State; prohibiting an official of a religious order or body authorized to perform a marriage ceremony from being required to solemnize or officiate at a marriage or religious rite of a marriage in violation of the constitutional right to free exercise of religion; making the Act contingent on the resolution of litigation under specified circumstances; etc.

Emphasis added. And that was only one of a series of religious- and conscience-protecting provisions in Sections II, III, and IV. The bill’s full text, linked from the history/synopsis page, summarizes these additional provisions in its prefatory description of purposes:

…establishing that certain religious entities have exclusive control over their own theological doctrine, policy teachings, or beliefs regarding who may marry within that faith; prohibiting certain officials from being subject to any fine or penalty for failing or refusing to join individuals in marriage; prohibiting certain religious entities from being required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual under certain circumstances; providing that a certain refusal by a certain religious entity or an individual employed by a certain religious entity may not create a civil claim or cause of action or result in any State action to penalize, withhold benefits from, or discriminate against such entities or individuals; prohibiting certain fraternal benefit societies from being required to admit an individual as a member or provide insurance benefits to an individual under certain circumstances; providing that a certain refusal by a certain fraternal benefit society may not create a civil claim or cause of action or constitute the basis for the withholding of governmental benefits or services from the fraternal benefit society; …

Hat tip for noticing this error to David Lublin at Seventh State. Lublin’s point of view on some of the other issues involved differs from my own, but I agree on one point: Red Maryland owes Kefalas in particular an apology. And while we’re at it, after this and the recent episode involving CD-6 candidate Amie Hoeber, would anyone regard Red Maryland as a suitably impartial sponsor for a debate between Kefalas and other Republican Senate candidates?

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Who Maryland law protects — and who it doesn’t

“Internal records related to a police officer’s misconduct cannot be disclosed to the public and are exempt from the Maryland Public Information Act, the Court of Appeals ruled Thursday.” The ruling applies whether or not charges of misconduct are found to be true: the court found the law “does not differentiate between ‘sustained’ and ‘unsustained’ complaints” [Mark Puente, Baltimore Sun]

The law is there to protect misbehaving public employees. Don’t you wish it were there to protect you?

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The Ehrlich record on clemencies

For handy reference, here’s a Washington Post 2012 write-up and a short post at Pardon Power. From the latter:

[Bob] Ehrlich, who became Maryland’s first Republican governor in 36 years when he was elected in 2002, made clemency requests a priority of his administration from 2003 to 2007. Ehrlich assigned five lawyers in his office to consider clemency cases, with two of them fully devoted to them. He met with them once a month to consider cases.

In his four-year term “Ehrlich granted 227 pardons and 21 commutations.” This was a much faster pace than Democratic predecessor Parris Glendening, and even more so than successor Martin O’Malley, who after six and a half years in office had 105 pardons and three commutations.

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Next year, will Maryland reform LEOBR?

Maryland’s forty-year-old Law Enforcement Officers’ Bill of Rights [LEOBR or LEOBOR], which served as a model for the enactment of similar measures in other states, closely restrains the rights of public agencies to discipline law enforcement officers for suspected misconduct; for example, it effectively gives police officers a right to refuse to answer questions on the record for as long as ten days after an incident. In the Annapolis legislative term just ended, the Baltimore city administration of Mayor Stephanie Rawlings-Blake, in alliance with the American Civil Liberties Union of Maryland and some other groups, sought to reform the state’s LEOBR. The effort, however, failed to get out of committee, for reasons discussed by P. Kenneth Burns at WYPR; for one thing, some legislators said they were not persuaded that the law was causing problems beyond the city of Baltimore. Moreover, police unions, whose political clout got LEOBR passed in the first place, remain a powerful lobby in Annapolis, especially among Republican lawmakers, whose ranks include police union officials.

The death of Freddie Gray in police custody may change that equation in the future. It has called attention to the long history of police abuse in Baltimore, and Rawlings-Blake has cited the LEOBR specifically as a law that makes it more difficult to investigate episodes like this.

I’ve got a new post at Cato pointing out that the problems with LEOBR go back a long way, and resemble in many ways the problems with teacher tenure; Radley Balko has more.

For defenses of the law, check out labor official Jimmy Dulay, Center Maryland; Ron DeLord. Back in 2000, claims of inconsistency with LEOBR, legally accurate or not, torpedoed proposals for a citizen review board in Frederick.

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An Eastern Shore no-knock raid, and its aftermath

Radley Balko on the aftermath of a Cambridge, Md. “no-knock” police raid gone very wrong: “if the Fourth Amendment is due to the Founders’ offense at British soldiers forcibly entering homes in daylight hours after knocking and announcing to search for contraband, it seems safe to say that the Founders would be appalled by the fact that today, dozens of times each day, heavily armed government officials break into homes, often at night, without first knocking and announcing, in order to conduct searches for contraband.” More: Adam Bates, Cato. [cross-posted from Overlawyered]

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Maryland False Claims Act whizzes through Senate

We miss Sen. David Brinkley, who stopped this bad legislation last year. Now it’s moving forward as expected, promoted by left-wing Sen. Jamie Raskin, who’s trying to become my Congressman here in CD-8. [Maryland Reporter]

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