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An analysis released two years ago by two professors reviewed the effect that freedom of information laws, or “open records” laws, had on corruption. Utah’s version of this law is called the Government Records Access and Management Act (GRAMA), and the study’s authors conclude that laws such as this have “two offsetting effects: reducing corruption levels and increasing the probability that corrupt acts are detected.” This type of transparency has the effect, according to the study, of “reducing the rate at which [government officials] commit corrupt acts by about forty percent.”

These types of laws allow citizens to discover illegal, unethical, or controversial acts after they have been committed, following a paper trail to discover spending, correspondence, or other information that can help bring problems to light and potentially punish the government official. However, another type of government transparency is important, and it helps deter abuse of power before it happens.

The city of Rialto, California, outfitted each of its 70 police officers with cameras beginning in 2012, becoming a leader in the law enforcement community in the use of body cameras by officers. A study of Rialto’s law enforcement practices before and after the implementation of these recording devices produced an astounding result: public complaints against officers dropped by 88%, and the use of force by officers fell by 60%.

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“You never want a serious crisis to go to waste, it’s an opportunity to do things you could not do before.”—Rahm Emanuel

Following Rahm’s rule for expanding government power, 216 years ago today, the US Congress, controlled by the Federalist party, and on the ninth anniversary of the start of the French Revolution, passed An Act for the Punishment of Certain Crimes against the United Statesalso known as the “Sedition Act.” The law made it unlawful to “combine or conspire together to oppose any measure of the government of the United States.” It also restricted speech that was critical of the federal government in the name of protecting national security. While the Federalists were concerned about the threat of revolution in the United States following the example in France and the possibility of war with France following the diplomatic snafu of the XYZ affair, most historians agree that a driving force behind the act was to suppress Democratic-Republican party opposition to the Federalist-controlled government. Such an act would have been unthinkable ten years earlier but on the backdrop of political turmoil and dubious national security claims, Federalists were able to expand central authority to neuter opposition.

Many Democratic-Republicans supported France during the revolution and some sympathized with the sentiments of the revolutionaries. They also opposed the Federalist policies that led to high levels of national debt, a standing national army, government-subsidized monopolies, and the recent levying of the first national tax in the form of the whiskey tax of 1791. In 1791 the national debt stood at $1.84 billion in 2009 dollars and accounted for 38% of GDP at the time—the highest relative debt level the country would see until the Great Depression. Frustration at economic policies was exacerbated by Treasury Secretary Alexander Hamilton’s central planning ideas for the subsidization of the manufacturing industry. Opposition to federal power only increased at the thought of a federal force of 12,950 troops raised by President Washington to quell the Whisky Rebellion. It was on this backdrop that political opposition to the Federalists was at a fever pitch.

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“It is well to be up before daybreak, for such habits contribute to health, wealth, and wisdom.” –Aristotle

Perhaps it was this Aristotelian proverb that led Congress to pass the Standard Time Act of 1918 establishing both a standard time and the practice of clock shifting known as Daylight Saving Time (DST)—or perhaps it was the industrial war effort of World War I instead. Either way, the clock shifting practice has been controversial over the years as it was repealed, vetoed, over-ridden, reinstated temporarily during World War II, observed in select localities, mandated nationwide, extended in duration by months for a brief period, and finally, most recently, extended in duration permanently by a few weeks.

Currently, observance of standard time and Daylight Saving Time is governed by the Uniform Time Act of 1966 as amended by the 2005 Energy Policy Act which extended the saving period by a few weeks starting in 2007. Under the act, individual states are permitted to exempt themselves by state law as have Alaska and Arizona.

Recently, Utah lawmakers passed HB 197 which directed the Governor’s Office of Economic Development (GOED) to conduct a public meeting to gather comments and input on the impact of exempting Utah from daylight saving. The meeting was hosted in the Clarke Planetarium in Salt Lake City where a demonstration of various sun movements could be simulated. GOED has created a website to gather votes and opinions on the issue. Thus far, it seems those individuals most ardently opposed to DST have volunteered their opinions (68%) while many unaware of the issue may not have chimed in yet. Whether you favor or oppose government mandated clock shifting, GOED wants to hear from you.

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“The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” –Thomas Jefferson to Abigail Adams, 1804

In Thomas Jefferson’s analysis a Supreme Court that can decide the constitutionality of laws for all other branches renders it a “despotic branch.” Certainly many would agree that the Supreme Court has become far more powerful than envisioned by the framers who sought a balance of power between co-equal branches. As the Court acts to overturn congressional and presidential action, many lament that the only seeming check on the court is the selection of the justices themselves. However, the recent Hobby Lobby case pulls back the curtain on a significant area of congressional power that can limit court action.

In the recent Supreme Court case of Burwell v. Hobby Lobby, the Court decided in a 5-4 decision that Hobby Lobby’s religious freedom in deciding not to cover certain birth control treatments through its employee health care plans is protected under the 1993 Religious Freedom Restoration Act (RFRA). Congress passed RFRA in order to reverse a previous court decision in the 1990 case of Employment Division v. Smith. In the Smith case the Court declined to acknowledge Native American ritual use of peyote as protected under the Free Exercise Clause of the First Amendment.  The decision seriously narrowed the “compelling interest” doctrine where the Court previously placed a high burden on government regulations that threaten religious practices. In response, Congress—in a nearly unanimous vote—passed RFRA to statutorily require that strict scrutiny be used by the Court in assessing government action that burdens a person’s exercise of religion. That statute played a key role in the Court’s decision for the Hobby Lobby case as justices acknowledged that RFRA protects against substantial government burdens on the free exercise of religion by closely held for-profit corporations.

While proponents of the Affordable Care Act’s mandates on employer coverage are outraged at the thought that Congress cannot micromanage the employee benefit decisions of private employers on account of religious beliefs, they should remember that it was also Congress who decided to protect religious liberty long before it sought to micromanage employer sponsored health care plans. The important distinction here is that the latter is a protection against government power while the former is an expansion of it.

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Today, July 2, is the anniversary of America’s independence. Though the 4th has been (wrongly) given the distinction, it was on this date in 1776 that the Second Continental Congress voted to approve independence from Britain.

If you haven’t done so lately, consider reading the Declaration of Independence with family or friends and discuss some of its key statements. It’s important we move beyond a superficial celebration and make more meaningful our honoring of what transpired on that fateful day.

Many who read the document skip the middle section, in which the document’s signers listed the “repeated injuries and usurpations” which they alleged were an attempt to establish an “absolute tyranny” over them. “To prove this,” they wrote, “let facts be submitted to a candid world.” And then proceeded the list of 18 grievances for which secession was deemed justified.

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The previous legislative session, which concluded in March, produced 484 bills that were signed into law. Many of these were detrimental to individual liberty, private property, and free enterprise. But several were very important, such as the three that go into effect today—each of which were either kickstarted by or originated from Libertas Institute.

Last August, we featured an interview with Jennifer May, a conservative Mormon mother of a son with a severe form of epilepsy known as Dravet syndrome. Jennifer expressed a desire to obtain medical cannabis for her child to try, as no other treatment was working. Our interview brought significant and immediate media attention to the May family, and others like them. The spotlight on their suffering led to their successful lobbying effort, resulting in House Bill 105, now dubbed “Charlee’s Law.” This law allows them to legally possess and use the extract of the cannabis plant for medicinal purposes, in hopes of reducing, and potentially eliminating, the severe seizures their children suffer.

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The following op-ed, co-authored with ACLU Utah and the Utah Association of Criminal Defense Laywers, was published in the Salt Lake Tribune.


The actions of law enforcement officers during their recent search of former Utah Attorney General Mark Shurtleff’s home have once again raised questions about the proper role of force in executing search warrants. Tremendous public discourse also followed the search of Matthew David Stewart’s home in January 2012 that resulted in the death of a police officer. These events are an opportunity for Utahns to rethink policies on the routine use of force by police, especially in light of recent research showing that more force leads to less safety.

Shurtleff understandably complained when law enforcement officers entered his home and allegedly pointed weapons at his 17-year old daughter, who was not threatening them. While Shurtleff’s complaints come a little late in light of his previous views and policies on the police use of force when he was Utah’s “top cop,” we should still listen. It remains to be seen whether authorities violated the Constitution in their actions at Shurtleff’s home. Their actions, however, were in line with current law enforcement policies and practices, under which officers serving search warrants employ extremely forceful tactics at homes, such as breaking down doors, setting off “flash bang” grenades, displaying weapons and commanding occupants to submit to authority. These tactics are not only used in emergency situations, like hostage taking. In fact, they are more typically used during investigations of nonviolent crimes, such as drug offenses (and apparently, official misconduct). Such policies and practices are not unique to Utah. The ACLU recently released a report, “War Comes Home: The Excessive Militarization of American Police,” that documents this increased use of force across the United States.

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In a unanimous opinion announced earlier today, the U.S. Supreme Court ruled that police officers must obtain a warrant to search a cell phone that is seized incident to an arrest.

The case stemmed from the 2009 arrest of David Riley in California on a traffic stop that found loaded firearms in his car. The officers subsequently seized Riley’s cell phone and searched through his messages, contacts, videos, and photos. Tipped off by information they found in that search, the officers charged Riley with an unrelated shooting that took place several weeks earlier.

Riley attempted to suppress the evidence officers had found on his phone, arguing a violation of his Fourth Amendment rights. The trial court disagreed, as did the appellate court, claiming that the “search incident to arrest” doctrine—used historically to ensure that a person did not have any weapons or contraband on them while in the custody of police—permitted officers to conduct a search of a seized cell phone, even if that search is conducted later and at a different location than the arrest.

Today’s ruling by the U.S. Supreme Court overturns this argument. Chief Justice John G. Roberts Jr., writing for the unanimous court, stated:

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After over a year of investigation, surveying law enforcement agencies in 26 states, the ACLU has now released its report on police militarization. “Neighborhoods are not war zones,” the report reads, “and our police officers should not be treating us like wartime enemies.” Data obtained from open records requests for the years 2011-12 covers over 800 SWAT deployments in the report.

Noting that at least 62% of SWAT deployments from their data deal with drug searches, ACLU says that the use of “heavily armed SWAT teams” to search people’s homes for drugs “means that law enforcement agencies across the country are using this hyper-aggressive form of domestic policing to fight a war that has waning public support and has harmed, much more than helped, communities.”

While the report focuses on the equipment used by officers and the alleged crimes that lead them to use it, it also discusses how police militarization is about “culture.”

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Monday, June 23, 2014 | No comments

Fourth Amendment Forum Report

Last week was our first Fourth Amendment Forum — a new, annual event we’ll be holding going forward along with ACLU Utah and the Utah Association of Criminal Defense Lawyers. The purpose of this event is to discuss new laws and court rulings affecting 4th amendment issues, and more broadly, the balance between law enforcement and civil liberties.

Panelists for this year’s forum included Attorney General Sean Reyes, his chief of staff and general counsel Parker Douglas, Salt Lake County District Attorney Sim Gill, Utah County Sheriff Jim Tracy (and president of the Utah Sheriffs Association), Chris Gebhardt (a two-time SWAT team leader), and Kara Dansky, a staff attorney with ACLU national focused on police militarization issues. Below is the video:

Our photographer also captured a variety of fun pictures of the event. Click here to view the album.

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