Thursday, August 15, 2013

Court Permanently Enjoins Oklahoma's Anti-Sharia Constitutional Amendment

District Judge Vicki Miles-LaGrange (W.D.Okl.) today permanently enjoined the Oklahoma state constitutional amendment that would forbid Oklahoma courts from considering Sharia law, international law, or "the legal precepts of other nations or cultures."  The court ruled that the amendment violated the Establishment Clause.  The ACLU posted its press release here.

The permanent injunction comes in round two of the litigation.  In the earlier first round, the Tenth Circuit affirmed the district court's temporary injunction against the amendment.

Judge Miles-LaGrange adopted the Tenth Circuit's reasoning in concluding that the amendment violates the Establishment Clause.  In particular, Judge Miles-LaGrange held that strict scrutiny applied under Larson v. Valente (1982) because the amendment discriminates among religions, and that Oklahoma couldn't provide a compelling government interest in enacting the provision.  Quoting the Tenth Circuit:

[Defendants] do not identify any actual problem the challenged amendment seeks to solve.  Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.

Op. at 7.

Judge Miles-LaGrange also held that the anti-Sharia portion of the amendment couldn't be severed, because, she said, the whole purpose in adopting the provision was to forbid the use of Sharia law, and the amendment wouldn't have passed without the anti-Sharia provision.

This ruling is surely not the end of the case.  But given the Tenth Circuit's earlier ruling, the result will almost surely be the same on appeal.

SDS

August 15, 2013 in Cases and Case Materials, Establishment Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 14, 2013

Sixth Circuit: "Begging" Protected by First Amendment

In its opinion today in Speet v. Schuette, the Sixth Circuit, affirming the district court, held that Michigan's so-called "anti-begging" statute is unconstitutional.  The Michigan statute, Mich. Comp. Laws § 750.167(1)(h), defines a "disorderly person," as a "person found begging in a public place."

480px-August_Heinrich_Mansfeld_Die_milde_GabeThe court notes that "Attorney General Schuette argues that the anti-begging statute does not reach any conduct or speech that the First Amendment protects."  The court rejected this contention and stated that "begging, by its very definition, encapsulates the solicitation for alms."  And while the court agreed that the United States Supreme has never squarely ruled that an individual soliciting for alms is engaged in expression,in an interesting twist of the usual analogizing, the Sixth Circuit noted that the Court  "has held—repeatedly—that the First Amendment protects charitable solicitation performed by organizations."  The court engages in extensive discussion of precedent as well as cases in other circuits including the Fourth Circuit in Clatterback which we discussed here. The Sixth Circuit found that there was indeed protected expression in "begging" sufficient to invoke the First Amendment.

It then turned to the question of whether the statute was "overbroad."  Although it recognized that "overbreadth" was "strong medicine," it determined it was warranted:

Instead of a few instances of alleged unconstitutional applications, we have hundreds. The Grand Rapids Police Department produced four hundred nine incident reports related to its enforcement of the anti-begging statute. Thirty-eight percent of the people that the police stopped were holding signs requesting help, containing messages like “Homeless and Hungry: Need Work,” “Homeless Please Help God Bless,” “Lost My Job Need Help,” and “Homeless and Hungry Vet.” The other sixty-two percent of the stops (two hundred fifty-five instances) involved people verbally soliciting charity. In forty- three percent of the cases, the police immediately arrested the people who were begging. In two hundred eleven cases, people convicted of begging were sentenced directly to jail time. The record in this case bolsters our “judicial prediction” that “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”

It further determined that it could not "read the statute to limit its constitutional effect," : instead, the "statute simply bans an entire category of activity that the First Amendment protects."  While Michigan could regulate "begging," it may not simply prohibit it by its criminal laws.

Although relatively brief at 17 pages, this is a well-reasoned opinion in conformance with the weight of authority and First Amendment doctrine. 

RR
[image via]

August 14, 2013 in First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 13, 2013

Robson's Dressing Constitutionally

ConLawProf's own Ruthann Robson (CUNY) just published her fascinating new book Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes (Cambridge, also available at amazon.com).  NPR's All Things Considered has a segment here; the Feminist Law Professors blog covered it here; and Robson's SSRN page for the Introduction and Table of Contents is here.

Dressing Constitutionally

We'll post an interview with Robson soon.  In the meantime, take a look at Robson's book blog, dressingconstitutionally.com.  And here's the abstract from SSRN:

The intertwining of our clothes and our Constitution raise fundamental questions of Robson hierarchy, sexuality, and democracy.  From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices.  In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations.  Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality.  At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies.  Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade.  The regulation of what we wear -- or don't -- is ubiquitous.

SDS

August 13, 2013 in Books, Gender, News, Scholarship, Sexuality, Weblogs | Permalink | Comments (0) | TrackBack (0)

Daily Read: Bennett Capers on Stop and Frisk

Law prof I. Bennett Capers (pictured right) has a terrific op-ed in The New York Times today about Floyd v. City of New York, the "stop and frisk" opinion we discussed yesterday.

Bennett_capersCapers starts off with a personal perspective, analyzes the problem and opinion in accessible terms, and then most interestingly concludes:

That still leaves the question, “What now?” Mayor Bloomberg is sure to appeal Judge Scheindlin’s decision, both in the court of appeals and the court of public opinion. But that’s not the only option.

He could actually welcome Judge Scheindlin’s decision to appoint an independent monitor to supervise reform. Mr. Bloomberg already claims crime reduction as part of his legacy. It’s not too late for him to claim that and more: that he reduced crime and finally did so in a way that was fair, egalitarian and not racially discriminatory. And it’s certainly not too late for his successor.

New Yorkers will know that the identity of Mayor Bloomberg's sucessor will be determined at the conclusion of this contentious election period, in which (in)equality is shaping up to be a central issue.  But Capers' piece is definitely worth a read no matter where one lives.

RR

August 13, 2013 in Criminal Procedure, Current Affairs, Equal Protection, Fourteenth Amendment, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, August 12, 2013

Federal District Judge Shira Scheindlin Finds NYCPD's Stop and Frisk Policies Violate Equal Protection

In a 198 page opinion today, accompanied by a 39 page order and opinion as to remedies, United States District Judge Shira Scheindlin has found the New York City Police Department's stop and frisk policies unconstitutional.  (Recall Judge Scheindlin enjoined the NYPD's stop and frisk practices in the Bronx earlier this year).

459px-NYPDNYCUnitedStatesofAmericaIn the closely watched case of Floyd v. City of New York, Judge Scheidlin's opinion is an exhaustively thorough discussion of the trial and at times reads more like a persuasive article than an opinion: it  begins with epigraphs, has a table of contents, and has 783 footnotes.  It also - - - helpfully - - - has an "Executive Summary" of about 10 pages.  Here is an excerpt:

Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.” “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” 

The Fourth Amendment protects all individuals against unreasonable searches or seizures. . . . 

The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.” 

The following facts, discussed in greater detail below, are uncontested: 

  • Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.

  • The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.

  • 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.

  • 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.

  • 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.

  • In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.

  • In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.

  • In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.

Near the end of the opinion, Judge Scheindlin astutely expresses the problem that has complicated relations between Fourth Amendment and Equal Protection arguments, as we recently discussed about racial profiling in Arizona.  She solves the problem firmly on the side of Equal Protection:

The City and the NYPD’s highest officials also continue to endorse the unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion.  This position is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference. As I have emphasized throughout this section, the Constitution “prohibits selective enforcement of the law based on considerations such as race.”  Thus, plaintiffs’ racial discrimination claim does not depend on proof that stops of blacks and Hispanics are suspicionless. A police department that has a practice of targeting blacks and Hispanics for pedestrian stops cannot defend itself by showing that all the stopped pedestrians were displaying suspicious behavior. Indeed, the targeting of certain races within the universe of suspicious individuals is especially insidious, because it will increase the likelihood of further enforcement actions against members of those races as compared to other races, which will then increase their representation in crime statistics. Given the NYPD’s policy of basing stops on crime data, these races may then be subjected to even more stops and enforcement, resulting in a self-perpetuating cycle.

The Equal Protection Clause’s prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites. Individuals of all races engage in suspicious behavior and break the law. Equal protection guarantees that similarly situated individuals of these races will be held to account equally.

 This important, scholarly, and thorough opinion is sure to set a standard of judicial craft.  It is also sure to be appealed by the City of New York.

RR

August 12, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Sunday, August 11, 2013

Sixth Circuit Says Emergency Manager Law May Violate State Constitution

The Sixth Circuit on Friday ruled in City of Pontiac Retired Employees Association v. Schimmel that the Michigan state legislature may have violated the state constitution in approving the state's emergency manager law for immediate effect.  The court remanded the case to the district court for consideration of that claim.  If the district court holds that the law violates the state constitution, and if that ruling is upheld on appeal, the actions of the emergency manager for the City of Pontiac will be void.

The 2-1 ruling is notable insofar as a federal appeals court took it upon itself to rule on a state constitutional claim not raised by the parties, relating to state legislative procedure--all to avoid the plaintiffs' federal constitutional claims.  The next steps in the case, the remand to the district court and the appeal that will surely follow, will be important because those rulings could put in jeopardy any action by any state emergency manager under a state law giving emergency managers broad powers.

The case arose after the Michigan state legislature approved Public Act 4, authorizing an emergency manager to temporarily reject, modify, or terminate existing collective bargaining agreements.  Pursuant to this power, the City of Pontiac's emergency manager, Louis Schimmel, modified the collective bargaining agreements and severance benefits, including pension benefits, of Pontiac's retired employees.  The employees sued, arguing Schimmel and Pontiac violated their federal constitutional rights, including rights under the Contracts Clause, the Due Process Clause, and the Bankruptcy Clause.  They did not raise state law claims.

Still, there may have been state law problems with Schimmel's actions.  First, the legislature approved Public Act 4 for immediate effect with less than a 2/3 vote, despite a state constitutional provision that requires a 2/3 vote for immediate effect.  (Without a 2/3 vote, a legislative act takes effect 90 days after the end of the legislative session in which it was passed.)  If the legislature enacted Public Act 4 in violation of the state constitution, Schimmel's actions pursuant to it are void.

Next, even if the state legislature complied with the state constitution, Public Act 4 may still be invalid.  That's because Michigan voters rejected Public Act 4 in a citizen-initiated referendum in 2012.  The legislature later enacted a law substantially similar to Public Act 4, but insulated from a voter referendum under the state constitution because it contains an appropriation provision.  All this means that the emergency manager authority under Public Act 4 and its successor is questionable.

But the parties didn't raise or argue these state law issues.  Instead, the Sixth Circuit did.

The Sixth Circuit dodged the plaintiffs' federal constitutional arguments (in the name of constitutional avoidance) and ruled that the lower court should consider the state law claims.  In particular, the Sixth Circuit said that the state legislature's practice, across political parties, of approving laws for immediate effect even when they don't get the constitutionally required 2/3 vote may raise constitutional problems:

Apparently, a two-thirds vote occurs whenever the presiding officer says it occurs--irrespective of the actual vote.  This authority is unchecked and often results in passing motions for immediate effect that could not receive the constitutionally required two-thirds vote.  Apparently, the Michigan Legislature believes the Michigan Constitution can be ignored.

There's a state intermediate appellate court ruling that seems to say that this kind of action doesn't violate the state constitution.  But there's no determinate state supreme court ruling on the issue.

For now, the case goes back to the district court for consideration of the state law issues raised by the Sixth Circuit.  

SDS

August 11, 2013 in Comparative Constitutionalism, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)