Saturday, December 22, 2012

No Aid, Establishment of Religion in Lease to Boy Scouts

A three-judge panel of the Ninth Circuit ruled this week in Barnes-Wallace v. City of San Diego that the City's lease to the Boy Scouts for property to use for youth recreational programs did not violate the California Constitution's No Aid Clause and the state and federal establishment clauses.  The plaintiffs said that the Boy Scouts prohibit atheists, agnostics, and gays and lesbians from being members or volunteers and require members to affirm a belief in God, and that a City lease to the organization on favorable terms therefore violated state and federal constitutional prohibitions on government aid to religion.  The ruling almost certainly ends this long-running case in favor of the City.

California's No Aid Clause prohibits the City from "mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose . . . ."  Cal. Const. art. XVI Sec. 5.  The state Supreme Court has read into the Clause four requirements: (1) the government program must serve the public interest and provide no more than an incidental benefit to religion; (2) the program must be available to both secular and sectarian institutions on an equal basis; (3) the program must prohibit use of public funds for "religious projects"; and (4) the program must not impose any financial burden on the government.

The Ninth Circuit said the lease satisfied the four-part test.  It said that the lease was for the Boy Scouts to run youth recreational activities, not for any religious purpose; that the City leased property to scores of secular organizations; that no City funds went to "religious projects"; and that the leases weren't a financial burden on the government.  (The court said that even the favorable leases netted out to the City's benefit, because the Boy Scouts substantially improved and managed the leased property.)

The court said that both the California and federal establishment clauses turned on the Lemon test, and that the City's lease satisfied it.  The court held that the purpose of the lease was secular (to provide facilities and services for youth activities); that a reasonable observer could not conclude that the City was engaged in religious indocrination, or was defining aid recipients by reference to religion; and that the City wasn't involved at all in the management of the leased properties.

SDS

December 22, 2012 in Cases and Case Materials, Comparative Constitutionalism, Establishment Clause, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Enjoins California's Law Prohibiting Sexual Orientation Conversion Therapy

In a one page order yesterday, the Ninth Circuit issued an injunction pending appeal in Pickup v. Brown, enjoining California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18.

SB1172, slated to become effective January 1, had been enjoined earlier this month by Senior District Judge William Shubb in Welch v. Brown.  In this appeal, David Pickup, "a licensed Marriage and Family Therapist whose practice is almost exclusively devoted to counseling clients, including minors, who have unwanted same-sex attractions," and the other plaintiffs, including NARTH, the National Association for Research and Therapy of Homosexuality, argued in their emergency motion (with extensive attachments) that the district judge's denial of a preliminary injunction created an intra-district conflict given Judge Shubb's preliminary injunction as to the plaintiffs in that case.

Thus, SB 1172 is clearly enjoined throughout California and the First Amendment arguments will be heard by the Ninth Circuit in 2013.

RR

December 22, 2012 in Family, First Amendment, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, December 21, 2012

Daily Read: Winkler on the Black Panthers and the Second Amendment

ConLawProf Adam Winkler's book Gun Fight: The Battle Over the Right to Bear Arms in America published in 2011 has understandably receiving renewed attention.

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One of the more interesting arguments Winkler makes is that the Black Panthers were the true pioneers of modern pro-gun advocacy, at a time when the National Rifle Association championed gun regulation. 

Winkler's article for The Atlantic, The Secret History of Guns, also published last year and adapted from the book, is definitely worth a (re)read.

RR

December 21, 2012 in Current Affairs, History, Scholarship, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2012

D.C. Circuit: NLRB Ruling Against Newspaper Violates First Amendment

A three-judge panel of the D.C. Circuit ruled this week in Ampersand Publishing, LLC v. NLRB that the National Labor Relations Board violated free speech when it ruled that the Santa-Barbara News-Press newspaper (published by Ampersand) violated the NLRA for sanctioning employees for the alleged bias in their articles.

The ruling is a reminder that free speech belongs to the publisher, not the reporters, when a publisher and its employees clash in employment disputes over the content of the publication.

The case arose out of a long-running dispute between Ampersand Publishing and employees of its Santa-Barbara News-Press over the content and viewpoint of the newspaper.  The publisher took measures to correct what it viewed as a slant in newspaper reporting.  Employees balked, arguing that the publisher was tilting stories the other way.  Employees protested, repeatedly demanding that the publisher "restore journalism ethics" to the paper, and eventually demanded that the publisher recognize a union. 

The publisher fired nine union-supporting employees--two for allegedly biased reporting, one for refusing to fire allegedly biased reporters, and six for publicly protesting the paper.  The publisher also cancelled a union-supporter's column and gave four others lower evaluations than they received in the past.

The union filed a complaint against the publisher, and an ALJ found, and the NLRB affirmed, that each of these acts violated the NLRA.

The D.C. Circuit vacated that ruling, holding that it violated the publisher's free speech.  "Where enforcement of the [NLRA] would interfere with a newspaper publisher's 'absolute discretion to determine the contents of [its] newspaper[],' the statute must yield."  Op. at 8, quoting Passaic Daily News v. NLRB, 736 F.2d 1543, 1557-58 (D.C. Cir. 1984).  "The First Amendment affords a publisher--not a reporter--absolute authority to shape a newspaper's content."  Op. at 8.

The court said that employees couldn't get around this by claiming that the publisher punished them for their pro-union activities (and not only their allegedly biased stories).  For one, the court said that all their protests referenced the publisher's content- and viewpoint-based decisions (the publisher's protected by free speech), not its anti-union actions (not protected by free speech).  For another, the employees can't sidestep the First Amendment's protection of the publisher's decisions simply by adding an allegation that the publisher violated the NLRA.  "Here, of course, the First Amendment wholly favors protection of the employer's interest in editorial control, the main issue in dispute; it is hard to imagine that employees can prevail over that simply by adding 'a few verses' of wage demands."  Op. at 13, referencing Judge Friendly's opinion in U.S. v. A Motion Picture Film Entitled "I Am Curious-Yellow," 404 F.2d 196, 201 (2d Cir. 1968).

SDS

December 20, 2012 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

NiqabAt issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

Cj4096_Balfour-250The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Abella250Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

December 20, 2012 in Comparative Constitutionalism, Criminal Procedure, Free Exercise Clause, Gender, Opinion Analysis, Religion, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Daily Read: William Ford on the Law and Science of Violent Video Games

The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."

Mortal kombatAny mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.

In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.

Ford-williamProfessor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation.  In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts."   He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists.  Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence."  Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.

Ford's arguments about the social science literature, however, are exceedingly well-taken.  In sum, it is inconclusive at best.  Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:

The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.

Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games.  This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.

RR
[image: Mortal Kombat via]

 

December 20, 2012 in Current Affairs, First Amendment, Games, Scholarship, Second Amendment, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 19, 2012

D.C. Circuit Orders Halts ACA Contraception Challenges, but Keeps Eye on Government

A three-judge panel of the D.C. Circuit yesterday ordered challenges to the Affordable Care Act's requirement that covered employers offer group health insurance plans that provide certain forms of contraception, without cost sharing, in abeyance.  The ruling in Wheaton College v. Sebelius means that these challenges will not go forward in the D.C. Circuit, until and unless the government goes back on its promise to write new regulations that exempt religious employers, and that they are unlikely to go forward elsewhere.

Recall that these cases involve religious employers' objections to the ACA's contraception requirement under the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.  Lower courts dismissed the cases, however, on the government's commitment to write new regulations that would exempt religious employers.  

We covered the most recent case, with links to others, here.

The D.C. Circuit's Order puts an exclamation point after these earlier lower-court rulings.  The Order refers to the government's prior commitments to write new regs, but also to its specific commitment at oral argument to never enforce the contraception rule against Wheaton College or those similarly situated.  The court said: "We take the government at its word and will hold it to it."

Still, the court didn't dismiss the cases.  Instead, it ordered them held in abeyance, "subject to regular status reports to be filed by the government with this court every 60 days from the date of this order."  Thus the Order puts the burden on the government to continue to move forward in writing new regs.

SDS

December 19, 2012 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

In Memoriam: Robert Bork

Conservative - - - and controversial - - - jurist and unsuccessful Supreme Court nominee Robert Bork has died as reported in the New York Times.

Slouching-towards-gomorrah-robert-h-bork-cover-art
Bork's views on privacy, including when his own was arguably violated during his nomination process, and his views on civil liberties, including when he was was a law professor, marked him as conservative.  But perhaps he will be best remembered for the anti-Bork forces that prevented his nomination to the highest court.

He discusses his nomination process and general theories of constitutional law in his book, The Tempting of America, and updated some of these views in his later book Slouching Towards Gomorrah: Modern Liberalism and American Decline.

RR

December 19, 2012 in Courts and Judging, News, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Daily Read: Claire Potter's "Teachers Are Not Soldiers"

If the often touted solution to unacceptable speech is "more speech" in the First Amendment context, perhaps there is a parallel Second Amendment solution, as in "more guns."  Indeed, one repeated suggestion to prevent school shootings is to arm teachers with sufficient fire power.

Cpotter01Claire Potter (pictured) contemplates this suggestion in her popular Chronicle of Higher Education column "Tenured Radical."  Her latest post "Teachers are not Soldiers," highlights the ethical and moral rationales for not allowing violence to escalate into our schools and universities.

But Potter also has a compelling and deeply pragmatic argument. She relates an incident when a student was killed on campus and she and her colleague suspected that perhaps "Jack," a student who had been acting unbalanced, was the perpetrator:

Imagine if, because of our uncertainty about what was wrong with Jack or what it meant, we had greeted our innocent student — already laboring under great emotional strain — with a couple of handguns in the face. Imagine, worse, if there had been a second, inadvertent, killing that day because we misread his fear, anger or confusion as aggression. Veteran police officers, well trained as they are, make this mistake with far too great a frequency in the city I now live in. Historically, and in our current wars, so do soldiers. 

Potter's post is worth reading in full, especially if you can't precisely articulate the reasons you don't want to carry an automatic weapon with you to class in addition to your casebook, notebook, powerpoint notes, flash drive, keys, and class attendance list. 

RR

December 19, 2012 in Current Affairs, First Amendment, Second Amendment, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2012

Sixth Circuit: No First Amendment Right for University Employee's Op-Ed

In its opinion yesterday in Dixon v. University of Toledo, the Sixth Circuit addressed what it labeled a "narrow inquiry," articulating the issue as "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is protected speech under the First Amendment.

The panel held that it was not.

Dixon was the "interim Associate Vice President for Human Resources at the University of Toledo"  when she wrote and published what the Sixth Circuit opinion describes as "an op-ed column in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay-rights movements."  Crystal Dixon's op-ed, Gay rights and wrongs: another perspective, published in the Toledo Free Press in 2008 (available here), did not identify her position although it did address some university policies.  It also approvingly discussed the ex-gay movement, quoted Biblical passages, and provided comparative economic data for gay men and lesbians - - - none of which the Sixth Circuit mentioned, but probably contributed to the University's decision to terminate her due to the "public position" she took that "in direct contradiction to University policies and procedures as well as the Core Values of the Strategic Plan which is mission critical."

479px-The_University_of_Toledo.svgThe Sixth Circuit affirmed the district judge's grant of summary judgment to the university. 

There was no question that the speech was on a matter of public concern, but a question whether her speech was protected under the Pickering balancing test, Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  The Sixth Circuit precedent included a presumption that “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.”

In its relatively brief opinion, the Sixth Circuit panel had little difficulty agreeing with the district judge that Dixon had substantial discretionary authority in her position and that her public statements conflicted with the university position's to extend civil rights protections to LGBT students and employees.

Dixon also raised an equal protection argument that other employees who made pro-LGBT statements and in one case attributing anti-LGBT sentiments to "religious bigotry" were not similarly terminated.  The court held that Dixon did not demonstrate that these employees were "similarly situated."

Indeed, it seems that the case turns on Dixon's highly placed position in Human Resources.

RR

December 18, 2012 in Equal Protection, First Amendment, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Complaint Against NYPD Alleging Right to Record Police Officers

The First Amendment right to record public police interactions with "smartphones" is the basis of a complaint filed yesterday in Charles v. City of New York.  The facts as alleged by plaintiff Hadiyah Charles are not dissimilar to those in Glik v. Cunniffe in which the First Circuit in 2011 found a First and Fourth Amendment violation and denied qualified immunity to the officers involved. (Compare the Seventh Circuit decision earlier this year).

NYCLUappThe recitation of facts in Charles' complaint link her actions to the controversial "stop and frisk" policy of the NYPD that she sought to record.  Her allegations also include failure to train law enforcement officers to abide by the department's Patrol Guide as well as the First Amendment.  Ms. Charles was arrested, held for some time, her phone searched, released with a charge of disorderly conduct that was ultimately dismissed.  The complaint also contains allegations that police officers derided Ms. Charles for being a "street lawyer." Ms. Charles is not an attorney, but an HIV activist who has been recognized as a "Champion of Change" by the White House.

A report in Gothamist has more details. 

And for those who plan on replicating Ms. Charles' activities, NYCLU has an "app" for that: “Stop and Frisk Watch” includes the ability to record, provide information, and transmit it to the NYCLU. 

RR
[image: screenshot from NYCLU video via].

December 18, 2012 in Criminal Procedure, First Amendment, Fourth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: William S. Burroughs and the Second Amendment

Literaryoutlaw"Beat Generation" afficionados and American Literature majors know William S. Burroughs' Naked Lunch; ConLawProfs may recall the First Amendment implications including the eventual decree by Massachusetts' highest court that the book was not obscene, Attorney General v. A Book Named “Naked Lunch,” 218 N.E.2d 571 (Mass. 1965).

Many also know the broad outlines of William Burrough's life, including his drug addiction and his fatal shooting of his wife.  For those less well-acquainted, Ted Morgan's biography, Literary Outlaw: The Life and Times of William S. Burroughs is an interesting read.  Morgan discusses the various versions of Burroughs' killing of his wife in Mexico by shooting her in the head.  The usual version (and Burroughs' own) features a small social gathering, drinking alcohol, and Burroughs' suggestion that his wife put a glass on her head and he shoot it off "William Tell" style.  He missed and she was dead.  He eventually fled back to the United States and was convicted in Mexico in absentia.  Morgan quotes Burroughs as haunted by the killing and "often" saying his life was an "evil river" and that he was possessed by an "evil spirit."

Given his biography, Burroughs makes a rather odd spokesperson for Second Amendment rights.  Yet, as both Dan Filler over at Faculty Lounge and Brian Leiter quoting Jason Walta note, a December 14 op-ed in USA Today in favor of expansive Second Amendment rights begins with a quote from William S. Burroughs: " "After a shooting spree," author William Burroughs once said, "they always want to take the guns away from the people who didn't do it." "

RR

December 18, 2012 in Books, Current Affairs, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, December 17, 2012

Government Moves to Dismiss Targeted Killings Case

The government late last week moved to dismiss Al-Aulaqi v. Panetta, the case for civil damages brought by family members of those killed in the government's targeted killing of Anwar al-Aulaqi.  We covered the complaint here; the ACLU, which represents the plaintiffs, has a case page here.

The government's motion isn't a surprise.  It raises all the expected separation-of-powers arguments, plus a couple others.  As the motion notes, the tide of recent circuit rulings is behind it--at least insofar as several circuits have dismissed similar torture cases against high-level government officials because they raised "special factors" under a Bivens analysis.  That seems the likely result here, too.

This excerpt from the introduction pretty well summarizes the government's position:

But courts have recognized that the political branches, with few exceptions, have both the responsibility for--and the oversight of--the defense of the Nation and the conduct of armed conflict abroad.  The Judiciary rarely interferes in such arenas.  In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive.  They further ask this Court to create a novel damages remedy, despite the fact that--based on Plaintiffs' own complaint--their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns.  Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities.  Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary--and particularly the D.C. Circuit--have taken in the past and should leave the issues raised by this case to the political branches.

Memo at 1.

More particularly, the government argues that the political question doctrine bars the court from hearing this case; that "special factors" counsel against a judicial remedy under Bivens; and that the defendants enjoy qualified immunity.

The government also argues that the plaintiffs failed to plead that they had capacity to sue as representatives of the killed.  Under Federal Rule of Civil Procedure 17(b), the plaintiffs can act as representatives of an estate only if the law of the jurisdiction where the court sits allows.  Here, the government says that they didn't comply with the requirements of D.C. law.

Finally the government claims that the plaintiffs' bill of attainder claim fails, because the Bill of Attainder Clause doesn't apply to executive actions (it only applies to bills).

Circuits that have ruled on government actor liability for torture have announced the courts closed for this kind of case.  If this recent history is any guide, this case, too, will have a hard time getting off the ground.

SDS

December 17, 2012 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Daily Read: Carl Bogus on Second Amendment Constitutional Scholarship

With renewed attention on the Second Amendment and guns after Friday's horrific events,  a provocative (re)read is Carl T. Bogus' 2000 article, The History And Politics of Second Amendment Scholarship: A Primer, published in a Symposium on the Second Amendment in Volume 76 of Chicago-Kent Law Review, and available on the Second Amendment Foundation website here

Bogus_C2Professor Bogus (pictured) who has written widely on the Second Amendment discusses the involvement of the legal scholarly community with Second Amendment issues and organizations. Writing years before the Court's 5-4 decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), Bogus traces the move from the "collective right" model (stressing the militia aspect) of the Second Amendment that was universal until 1960, including the efforts of organizations to fund work friendly to the individual right interpretation of the Second Amendment, which became known as the "Standard Model."

Bogus stops short of arguing scholars were improperly influenced, but argues that the influences are worth considering, writing:

One last note before concluding. I have written about the campaign to develop a large body of literature supporting the individual right position and to create a perception that this view constitutes a standard model of scholarship (a perception this Symposium is likely to end). I have observed that some writers have connections to gun rights organizations, and even that some received grants in connection with their writings. I do not, however, contend that anyone was paid or improperly influenced to advocate a position that he or she does not genuinely hold. On the contrary, I am convinced that individuals identified in this Article believe - - - many passionately - - - in what they have written. And I believe everyone, regardless of political affiliation or belief, is entitled to have his or her work judged on its merits.

Why then discuss the history and politics of Second Amendment scholarship? Why not focus entirely on the merits? The history and politics of Second Amendment scholarship, including to some extent the political affiliations and agendas of the participants, is relevant because so-called standard modelers made it relevant. They have made much of both the size of the individual right literature and the prominence of certain scholars endorsing that position.  It is important, therefore, to understand the history and politics that have helped bring these about.

Although more than a decade old, Carl Bogus article is certainly worth a (re)read by constitutional scholars.

RR

December 17, 2012 in Profiles in Con Law Teaching, Scholarship, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Sunday, December 16, 2012

Justice Ginsburg Keeps NDAA's Indefinite Detention in Place Pending Appeal

Justice Ginsburg on Friday declined to reinstate a permanent injunction against the government's detention authority in the National Defense Authorization Act.  The ruling means that the NDAA's authorization for detention stays on the books pending appeal of the case, Hedges v. Obama, to the Second Circuit.

We covered the district court case and ruling here.

Recall that the plaintiffs in Hedges, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 of the NDAA violated the First Amendment.  That Section provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Force of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

We covered the NDAA here.

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons" based on their communications with certain individuals overseas.

Judge Katherine B. Forrest (SDNY) agreed and issued a permenant injunction this past September.  But the Second Circuit stayed that injunction in October and ordered expedited review.

On Friday, Justice Ginsburg denied the plaintiffs' request to vacate the Second Circuit stay.  She cited her own previous denial of an application to vacate a stay in Doe v. Gonzales, a case challenging the FBI's authority to collect electronic communications for use in anti-terrorism investigations under the PATRIOT Act.  Just like Judge Forrest here, the district court in Doe ruled that portion of the PATRIOT Act unconstitutional; and just like the Second Circuit here, the Second Circuit stayed that ruling and ordered an expedited appeal.

Thus it's a mistake to read Justice Ginsburg's denial as a ruling on the merits.  Instead, she appears to be letting the case run its course at the Second Circuit.  She said as much, writing, "Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."

SDS

December 16, 2012 in Association, Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)