Friday, April 11, 2014
The Eleventh Circuit ruled this week in Brown v. U.S. that a magistrate judge lacked authority to enter final judgment on a criminal defendant's motion to vacate his sentence.
The case revisits, but then dodges, the issue whether a magistrate's ruling on a motion under 28 U.S.C. 2255 violates Article III.
The court said that the Magistrate Act, 28 U.S.C. 636(c), which authorizes magistrates, with the consent of the parties, to enter a final judgment on any "civil matter," did not authorize a magistrate to enter a final judgment on a Section 2255 motion to vacate a sentence. While the court recognized a Section 2255 motion was a civil matter, it said that Section 2255 wasn't a "civil matter" for purposes of Section 636(c).
Why? According to the court, because to so conclude could result in a violation of Article III.
The court recognized that Section 636(c) is constitutional on its own--that is, that magistrates are constitutional in "civil matters." But it said that special problems with a magistrate ruling on a Section 2255 motion made Section 636(c) constitutionally suspect. In particular, when a magistrate enters a final judgment on a Section 2255 motion, that magistrate sits "in a quasi-appellate capacity, with the power to vacate the judgment the district court entered in the case." "It is axiomatic that non-Article III judges [magistrates] may not revise or overturn Article III judgments." Moreover, if a magistrate were to enter a final judgment on a Section 2255 motion, there's no procedure for district court review. Yet, "the authority of a district court to review the magistrate judge's decision, even if neither party invokes such authority, is essential to ensuring that Article III values are protected."
These problems aren't new. The Fifth Circuit recognized them, too, and in 2001 in U.S. v. Johnston ruled that a delegation of Section 2255 motions to a magistrate violated Article III. (Prof. Ira Robbins (AU/WCL) helpfully explains all this in this 2002 article in the Federal Courts Law Review. Both the article and Brown contain nice histories of magistrates in the Article III courts.)
But the Eleventh Circuit followed a different tack. Instead of ruling that the constitutional problems with this kind of delegation resulted in a violation of Article III, it avoided the constitutional question by ruling (stretching and straining) that Section 2255 motions aren't "civil matters" for the purpose of Section 636(c) delegations to magistrates, and therefore as a matter of statutory construction the magistrate lacked authority to enter a final judgment on the Section 2255 motion.
For Brown, all this means that the magistrate's final judgment on his Section 2255 motion is invalid, and that he'll have to start over and have an Article III judge, not a magistrate, rule on his motion.
The Third Circuit ruled yesterday in U.S. v. Cooper that the delegation to the Attorney General in the Sex Offender Registration and Notification Act, or SORNA, to determine whether SORNA applied to pre-Act offenders did not run afoul of the nondelegation doctrine.
The ruling aligns the Third Circuit with the eight other circuits that have addressed the question.
Cooper was convicted in Oklahoma state court on three counts of rape and was paroled in January 2006. Congress passed SORNA in July 2006. Cooper was charged with failing to register in 2012.
Cooper argued that SORNA's delegation to the AG to determine whether the Act applied to pre-Act offenders was an unconstitutional delegation. SORNA says that "[t]he [AG] shall have the authority to specify the appliability of the requirements of this chapter to sex offenders convicted before the enactment of this chapter or its implementation . . . ."
Cooper's argument picked up on a suggestion by Justice Scalia, dissenting a couple years ago in Reynolds v. U.S. That case held that SORNA did not require pre-Act offenders to register before the AG validly specified that its registration requirements applied to them. Justice Scalia wrote that the delegation "sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable." We posted on the case and Justice Scalia's concern here.
But the Third Circuit rejected Cooper's claim. The court wrote that SORNA gave the AG sufficient guidance to pass the intelligible principle test:
In enacting SORNA, Congress laid out the general policy, the public agency to apply this policy, and the boundaries of the delegated authority. This is all that is required under the modern nondelegation jurisprudence.
The court also rejected Cooper's invitation to craft a new nondelegation test--a more rigorous "meaningfully constrains" standard--"[u]ntil the Supreme Court gives us clear guidance . . . ."
The D.C. Circuit ruled today in Communities for a Better Environment v. EPA that a group of environmental organizations lacked standing to sue the EPA for its failure to regulate carbon monoxide based on its impact on "public welfare" under the Clearn Air Act. In short, the court ruled that the plaintiffs couldn't demonstrate that the EPA's failure to issue secondary standards for carbon monoxide caused the effects of global warming that the plaintiffs complained about.
The ruling contrasts with Massachusetts v. EPA, where the Supreme Court ruled that a state had standing to challenge the EPA's denial of a petition asking the EPA to regulate carbon dioxide. The Court said that the state sufficiently demonstrated that it stood to suffer harms resulting from global warming (like loss of coastline from rising sea levels) if the EPA did not regulate carbon dioxide.
This case involved a different kind of regulation and a different air pollutant, but the same core theory of standing. The Clean Air Act directs the EPA to set secondary standards for one of six air pollutants (including carbon monoxide) at a level "requisite to protect the public welfare." The "public welfare" includes welfare of animals, the environment, and climate, among other things. (The Act also requires the EPA to set primary standards for the six air pollutants at a level "requisite to protect the public health," that is, human health.) The EPA decided in 2011 not to issue secondary standards for carbon monoxide, because the Agency determined that secondary standards for carbon monoxide were not needed to protect the public welfare--that standards for carbon monoxide wouldn't protect animals, the environment, or climate. The EPA issue primary standards for carbon monoxide, however.
The plaintiffs sued, challenging (1) the EPA's primary standards for cabon monoxide and (2) the EPA's decision not to set secondary standards.
In response to the government's motion to dismiss on the second claim, the plaintiffs argued that they had standing under Massachusetts v. EPA. The court disagreed, saying that the plaintiffs didn't demonstrate the connection between the EPA's decision not to set standards and the harm they alleged. The court explained:
But even assuming for the sake of argument that Massachusetts v. EPA grants standing for plaintiffs other than States, petitioners here have failed to establish the causation element of standing. Petitioners claim that EPA's decision not to set a secondary standard for carbon monoxide will worsen global warming and in turn displace birds that one of petitioners' members observes for recreational purposes. But petitioners have not presented a sufficient showing that carbon monoxide emissions in the United States--at the level allowed by EPA--will worsen global warming as compared to what would happen if EPA set the secondary standards in accordance with the law as petitioners see it. Moreover, citing and analyzing many scientific studies, EPA explained that carbon monoxide's effects on climate change involve "significant uncertainties."
The court also rejected the plaintiffs' claims against the primary standards on the merits.
Thursday, April 10, 2014
Derek Muller (Pepperdine) argues over at Jurist.org that the Tenth Circuit dramatically overreached in its recent ruling in Kerr v. Hickenlooper. Recall that the court ruled in that case that a group of state legislator had standing to challenge under the Guaranty Clause the state's Taxpayer Bill of Rights, or TABOR, which requires a popular vote before the legislature can raise taxes, and that the case did not raise a political question. We posted here.
Muller says that court's conclusions on both standing and political question are out of step with longstanding Supreme Court jurisprudence and, if upheld, would result in "extraordinary consequences":
It would create many more opportunities for individual legislators in each state--and perhaps those in both houses of Congress--to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands. Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves--which has been a large part of most states' governance for the past hundred years. Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves--effectively ushering in a power shift away from the people--and their ability to enact policy objectives via popular vote--and towards the federal court system.
The Tenth Circuit remanded the case, and the district court is preparing for trial. We'll surely see this one again.
Wednesday, April 9, 2014
Jessica Mason Pieklo writes over at RH Reality Check about the pair of challenges to the Affordable Care Act set for oral argument next month (on May 8) in the D.C. Circuit. One of those cases challenges the government's accommodation to the so-called contraception mandate for religious nonprofits--the same issue in the Little Sisters case and, more recently, Notre Dame's case at the Seventh Circuit. (Those rulings were on injunctions against the accommodation pending appeal. Recall that the Supreme Court issued an order in the Little Sisters case, allowing the organization simply to write a letter to the HHS Secretary stating its religious objection to the contraception mandate, pending appeal on the merits to the Tenth Circuit. In contrast, the Seventh Circuit denied Notre Dame's request for an injunction pending appeal. The difference between the two cases: Notre Dame had already complied with the government's accommodation (and the court couldn't undo its compliance), whereas Little Sisters had not.)
The other case, Sissel v. HHS, is less well known. It challenges the universal coverage provision, or the so-called individual mandate. Plaintiffs in the case argue that as a tax (recall the Court's ruling in the ACA case) the provision had to originate in the House of Representatives under the Origination Clause. But it originated in the Senate. Plaintiffs say it's therefore invalid.
Pieklo writes that President Obama's recent appointees will have an impact on the court, and on these cases. That's because the panel that will hear arguments in these cases next month includes Judge Nina Pillard and Judge Robert Wilkins, the recent Obama appointees that were held up in the Senate but then confirmed after Senate Democrats used the nuclear option and disallowed a filibuster of federal court nominees (except Supreme Court nominees). Judge Rogers is also on the panel.
Saturday, April 5, 2014
Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan. Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.
We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser. Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.
The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism. Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).
Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir. Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing). All three were U.S. citizens.
Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others). The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.
Judge Collyer ruled that special factors counseled against a Bivens remedy. Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:
In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.
Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military. The need to hesitate before implying a Bivens claim is particularly clear. Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces. It is the Executive's position that AQAP is affiliated with al-Qa'ida.
. . .
Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.
. . .
Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen. Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.
Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.
The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense. Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case. The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.
Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy. She wrote that without these facts, the court "would have denied the motion to dismiss."
April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Friday, April 4, 2014
In an order today, the District of Columbia Circuit Court that American Meat Institute v. United States Dep't of Agriculture will be heard en banc.
Recall that in its opinion last week, a panel of the DC Circuit upheld a requirement mandating the labeling of meat by country of origin. Resolving the First Amendment challenge involves a construction of Zauderer v. Office of Disciplinary Counsel (1985), and the panel itself suggested that the "full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information."
Here's the issue as the court's order for simultaneous supplemental briefs phrases it:
Whether, under the First Amendment, judicial review of mandatory disclosure of "purely factual and uncontroversial" commercial information, compelled for reasons other than preventing deception, can properly proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), or whether such compelled disclosure is subject to review under Central Hudson Gas & Electric v. PSC of New York, 447 U.S. 56 (1980).
The briefs are due April 21.
Wednesday, April 2, 2014
A sharply divided Supreme Court today in McCutcheon v. FEC struck the aggregate federal campaign contribution limits. The five-justice majority ruled that the limits violated the First Amendment.
Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito. Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.
Recall that aggregate limits restrict the total amount of money an individual can contribute to all candidates, PACs, and parties. Base limits, which were not at issue in the case, restrict the amount an individual can contribute to an individual candidate. (The Court said that base limits are still constitutional, as are disclosure requirements.)
The majority said that under aggregate limits
A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance--clear First Amendment harms that the dissent never acknowledges.
It also said that aggregate limits do not control quid pro quo corruption or the appearance of corruption--the reasons that the Court has upheld individual limits.
The Court said that the government had other ways to advance its anti-circumvention interest--the interest in preventing a single donor from circumventing base limits by giving to multiple recipients with the expectation that they funnel the contributions to one candidate.
The ruling deals another major blow, after Citizens United, to efforts to restrict the amount of money in politics.
Friday, March 28, 2014
A three-judge panel heard oral arguments this week in one of several cases challenging federal subsidies to health-insurance purchasers on a federal exchange. We posted on those cases here. In short, the plain language of the ACA appears to authorize subsidies for health-insurance purchasers on state exchanges, but not on a federal exchange. This means that individuals who live in a state that declines to establish a state exchange--and instead relies upon a federal exchange--could not get a federal subsidy. So the IRS issued a rule providing subsidies to individuals who purchase on a federal exchange (as well as a state exchange).
That rule is what's at issue in these cases. The plaintiffs argue that the IRS rule (granting subsidies to purchasers on federal exchanges) is inconsistent with the ACA (which, they say, authorizes subsidies only to purchasers on state exchanges). Jason Millman over at the WaPo's Wonkblog explains the significance:
The subsidy question is central to the future survival of the law. Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.
About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage. Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage. That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."
The D.C. Circuit is the first appellate court to hear arguments in these challenges. Some accounts said that the panel seemed split, or even leaning toward the plaintiffs, with Judge Raymond Randolph seeming to lean toward the plaintiffs, Judge Harry Edwards seeming to lean toward the government, and Judge Thomas Griffin seeming to be the panel's swing vote. The WSJ covered the arguments here; WaPo's Wonkblog coverd them here; and Bloomberg covered them here.
Sunday, March 23, 2014
Jon B. Eisenberg, counsel, along with Reprieve US, for Shaker Aamer and Emad Hassan, Guantanamo detainees, writes over at Jurist.org that force-feeding detainees at Guantanamo is akin to the medieval form of torture called "pumping," or the water cure. Eisenberg makes the case that force-feeding is not "reasonably related to legitimate penological interests," the standard under Turner v. Safley, because the government force-feeds prematurely, long before detainees are at risk of death or great bodily harm. He writes that there are "obvious, easy alternatives," and that force-feeding is an "exaggerated response."
Recall that the D.C. Circuit ruled earlier this year that federal courts could hear Aamer's habeas claim--a claim not for release, but rather against his conditions of confinement. This was a huge victory for Guantanamo detainees: it was the first time the court said that they could bring a habeas claim challenging their conditions of confinement.
But the court also ruled that Aamer was not likely to succeed on the merits of his claim. Eisenberg explains why that was wrong.
The government hasn't said whether it'll appeal the Aamer ruling. In the meantime, Eisenberg and Reprieve US are going forward with another claim against force-feeding, Hassan's.
Thursday, March 20, 2014
The Minnesota Supreme Court yesterday reversed a conviction for advising or encouraging another in committing suicide, ruling that the conviction violated the First Amendment. At the same time, the court remanded the case to determine whether the defendant "assisted" suicides in violation of Minnesota law.
The case, Minnesota v. Melchert-Dinkel, involved the defendant's prosecution and conviction for violation of Minnesota Stat. Sec. 609.215, which makes it illegal to "intentionally advise, encourage, or assist another in taking the other's own life." Melchert-Dinkel, posing as a depressed and suicidal young female nurse, responded to posts on web-sites related to suicide and encouraged two individuals, one in England and one in Canada, to take their own lives. Melchert-Dinkel gained the trust of the victims and then urged them each to hang themselves, falsely claiming that he (as she) would also commit suicide.
Melchert-Dinkel was charged with violating Minnesota's ban on advising or encouraging suicide. The trial court convicted him, specifically finding that he "intentionally advised and encouraged" both victims to take their own lives, and concluded that Melchert-Dinkel's speech was not protected by the First Amendment.
The Minnesota Supreme Court disagreed. The state high court said that the ban swept too broadly to meet strict scrutiny. In particular, "advise" and "encourage" could include "speech that is more tangential to the act of suicide and the State's compelling interest in preserving life," even "general discussions of suicide with specific individuals or groups."
The court rejected the state's argument that Melchert-Dinkel's speech was unprotected because it was "integral to criminal conduct." The court noted that suicide is no longer illegal in Minnesota, Canada, or the UK. With no underlying criminal conduct, the speech couldn't be integral to it.
The court also rejected the state's argument that Melchert-Dinkel's speech was unprotected incitement. That's because there was no underlying lawless action, imminent or not.
Finally, the court rejected the state's argument that Melchert-Dinkel's speech was unprotected "deceit, fraud, and lies." The court (citing Alvarez) said that there was no such exception to the First Amendment.
At the same time, the court ruled that the portion of the statute that banned "assisting" another in taking his or her own life survived. The court remanded the case to the trial court to determine whether Melchert-Dinkel's actions constituted "assisting" in the suicides.
Wednesday, March 19, 2014
Judge Eric Melgren (D. Kansas) today ordered the federal Election Assistance Commission to add language to state-specific instructions on the federal voter registration form for Arizona and Kansas that would require voter registration applicants to show proof of citizenship.
Arizona and Kansas previously announced that they would adopt a two-tier registration system, one for state elections and one for federal elections, in response to the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc. Recall that in that case the Court ruled that the National Voter Registration Act, which requires states to "accept and use" a uniform federal form to register voters for federal elections, preempted an Arizona law that required state officials to reject any application for registration that wasn't accompanied by proof of citizenship. The NVRA federal form simply required applicants to aver, under penalty of perjury, that they satisfy state requirements for voter registration. The Court said that Arizona impermissibly required more.
Arizona and Kansas announced, in response to Inter Tribal Council, that they'd simply adopt a two-tiered system. That is, they'd continue to "accept and use" the federal form (without additional proof of citizenship) for registration for federal elections, and they'd use their own state form (with an additional requirement for documentary proof of citizenship) for state elections.
That seemed inefficient (among other things), to say the least.
Now, Judge Melgren's ruling, if upheld, might mean that Arizona and Kansas would ditch their efforts to create the two-tiered system, because they'd get what they want on the federal form--proof of each applicant's citizenship.
The ruling, if upheld, also invites other states to follow suit and get their own state-specific instructions on the NVRA federal form that would require additional documentary proof of citizenship. This could create hassles for registration through the federal form, even though a primary goal of that form was to make registration simpler. If many states did this, they could undermine the ease of registration that the NVRA was designed to promote.
The case, Kobach v. USEAC, grew out of Arizona's and Kansas's requests to the EAC to include state-specific instructions on the federal voter registration form that would require voter registration applicants in those states to show proof of citizenship. The states' requests came on the heels of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc.
The Court said that the NVRA preempted Arizona's proof-of-citizenship requirement, but it also said that a state could ask the EAC to add a proof-of-citizenship requirement on the state-specific instructions that accompany the NVRA federal form.
That's exactly what Kansas and Arizona did. The EAC declined, and the states sued, arguing that the EAC's decision violated the Administrative Procedures Act, among other things.
Judge Melgren agreed. He ruled that the adding the state-specific instructions on the NVRA federal form (to provide proof of citizenship) could be harmonized with the NVRA (and that the NVRA didn't preempt state law on this point):
But the NVRA does not include a similar clear and manifest prohibition against a state requiring documentary proof of citizenship. In fact, the NVRA does not address documentary proof of citizenship at all, neither allowing it nor prohibiting it. Therefore, the Court must find that the NVRA is silent on the subject. Because Congress has not addressed the same subject as the state law, there is no basis to determine that the NVRA has preempted Arizona or Kansas law on the subject of documentary proof of citizenship.
Moreover, Judge Melgren said that not allowing Kansas's and Arizona's requested instructions would raise serious constitutional questions--that is, whether the NVRA intrudes too much on state authority to set the qualifications of voters for state and federal elections under the Elections Clause. Judge Melgren wrote that requiring the EAC to include the requested state-specific instructions would avoid this question.
Wednesday, March 12, 2014
The Florida Supreme Court last week ruled that the state bar can deny a law license to undocumented immigrants. The ruling means that FSU law school graduate Jose Godinez-Samperio, and other undocumented immigrants, cannot be admitted to the Florida bar--at least for now.
At the same time, concurring justices called on the state legislature to change Florida law to allow admission of certain unauthorized aliens, following California's recent lead. See In re Garcia.
The question came to the court by way of a certified question of the Florida Board of Bar Examiners on the application of Gordinez-Samperio. Gordinez-Samperio came to the U.S. when he was nine years old with his parents, who overstayed their visas. He learned English, became an Eagle Scout, was valedictorian of his high school graduating class, and attended New College of FSU. But he's undocumented.
The court cited federal law that states that aliens are not "eligible for any State . . . public benefit," including "any . . . professional license," unless they are "qualified alien[s]," nonimmigrant aliens, or aliens who are "paroled" into the United States for less than one year. Federal law also allows states to override this provision, but only "through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility."
The court said that there was no such state law.
It also rejected the argument that applicants who have been granted status under the deferred action program, DACA, announced by President Obama in June 2012, were not exempt from the bar on state professional licenses. The court, quoting DACA, said that DACA is "an act of prosecutorial discretion . . . [and] [d]eferred action does not provide an individual with lawful status."
Gordinez-Samperio and other undocumented immigrants can still get bar membership, if the state legislature allows for it--as California did in the Garcia case.
Friday, March 7, 2014
In an opinion today Foreign Intelligence Surveillance Court Judge Reggie Walton denied the Government's motion to amend a previous order requiring "telephony metadata produced in response to the Court’s orders be destroyed within ﬁve years." The Government argued that it should be allowed to retain data beyond five years because destruction of the metadata “could be inconsistent with the Government’s preservation obligations in connection with civil litigation pending against it.”
In denying the motion without prejudice, the judge reasoned that FISA’s minimization requirements are not superseded by the common-law duty to preserve evidence. The Government's presumed "fear that the judges presiding over the six pending civil matters may sanction the government at some point in the future for destroying BR [telephony] metadata that is more than ﬁve years old," was, the judge stated, "far-fetched." The judge's dismissal was without prejudice to a subsequent motion "providing additional facts or legal analysis, or seeking a modiﬁed amendment to the existing minimization procedures."
Taking the motion to dismiss at face value, it seems that the Government was actually worried that it might be sanctioned in civil trials if it destroyed evidence after five years and wanted a ruling from the court.
A more nefarious interpretation would be that the Government used the excuse of civil trials to attempt to extend the time it could keep telephony metadata, but was thwarted by the court.
And an even more nefarious interpretation would be that the Government wanted the "cover" of a court opinion to destroy telephony metadata that might be beneficial to plaintiffs in pending civil matters.
And an even more nefarious interpretation? There are sure to be more speculations.
Tuesday, March 4, 2014
In its opinion in Wilkins v. Daniels, a panel of the Sixth Circuit affirmed the district judge and affirmed the constitutionality of the Ohio Dangerous Wild Animals and Restricted Snakes Act, which became effective January 1, 2014. The Act prohibits possession of dangerous wild animals - - - including tigers, lions, bears, alligators, and pythons 12 feet or longer - - - without a permit. The permit requirements include the implantation of a microchip under the animal's skin. The Act includes an exemption for individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA).
The exemption in the Act's scheme and the "chipping" requirement give rise to the constitutional challenges.
First, and perhaps most creatively, the challengers argued that the exemption for "individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA)" constituted compelled speech prohibited by the First Amendment. This compelled speech argument had two "distinct but interrelated" parts: a compelled association claim because the Act "forces" them to join either the AZA or ZAA and a compelled speech claim because the Act requires them to "subsidize the speech of their purely private political and ideological rivals,” the AZA or ZAA.
The panel briefly and accurately set out the doctrine and classic First Amendment cases, but the court's analysis is digestable to its conclusion that there was no compulsion, by association or subsidy: "There are fifteen ways appellants can comply with the Act: the permitting requirement and fourteen exemptions." As the panel concluded, "[m]ere unwillingness to conform their conduct to the permitting requirements or the other thirteen exemptions does not mean that the Act compels appellants to join the AZA or ZAA."
Second, the challengers argued that microchipping requirement violated the Takings Clause. The panel found the challenge not ripe because there was no pursuit of state compensation. But, on the merits, the panel found that there was not a taking, stressing the physical taking (rather than the regulatory taking) aspect that seemed to be the central argument. The court analogized to other types of "property," accepting the State's argument that if the Act’s microchipping requirement to be ruled a taking, “laws requiring license plates on cars, warning labels on packaging, lighting on boats, handrails in apartment buildings, and ramps leading to restaurants” would be suspect.
The court rejected these constitutional challenges that, while innovative, seemed to have little support in the doctrine. The arguments also had little political appeal - - - the court notes in its opinion that the Ohio Act was prompted by an incident in which "an Ohio man released over fifty exotic animals before committing suicide."
Monday, March 3, 2014
The Supreme Court will hear oral arguments tomorrow, Tuesday, in Plumhoff v. Rickard, the case testing the scope of qualified immunity for police officers who were sued for damages arising out of a police chase. Here's a portion of my preview of the oral arguments, from the ABA Preview of United States Supreme Court Cases, with permission:
Around midnight on July 18, 2004, Officer Joseph Forthman of the West Memphis police force stopped a Honda Accord driven by Donald Rickard after noticing that the car had a broken headlight. Rickard had one passenger, Kelly Allen, who sat in the front passenger seat.
Officer Forthman asked Rickard for his license and registration; he also asked about a large indentation in the windshield “roughly the size of a head or a basketball.” Allen told Officer Frothman that the indentation resulted from the car hitting a curb. Officer Forthman then asked Rickard if he had been drinking alcohol and twice ordered him out of the vehicle.
Rickard did not comply with Officer Forthman’s instruction. Instead, he sped away on Highway I-40 toward the Arkansas-Tennessee border. Officer Forthman reported over his radio that a “runner” fled a traffic stop; he got back in his vehicle and proceeded to pursue Rickard. Officer Forthman was quickly joined by fellow West Memphis Officer Vance Plumhoff, who became the lead officer in the pursuit. Other West Memphis Officers Jimmy Evans, Lance Ellis, Troy Galtelli, and John Gardner, each in separate vehicles, also joined the pursuit.
The ensuing high-speed chase lasted nearly five minutes. Many of the details were captured by video cameras mounted on three of the police vehicles; many of the statements by officers came over the radio, or were recorded, or both.
During the chase, Rickard swerved in and out of traffic and rammed at least one other vehicle. Officer Plumhoff stated that “he just rammed me,” “he is trying to ram another car,” and “[w]e do have aggravated assault charges on him.”
Rickard led the officers over the Mississippi River from Arkansas into Memphis, Tennessee, where he exited the highway onto Alabama Avenue. As he made a quick turn onto Danny Thomas Boulevard, his car hit a police vehicle and spun around in a parking lot. Rickard then collided head-on with Officer Plumhoff’s vehicle. (It is not clear whether this was intentional).
Some of the officers exited their vehicles and surrounded Rickard’s car. Rickard backed up. Officer Evans hit the butt of his gun against the window of Rickard’s vehicle. As other officers approached, Rickard spun his wheels and moved slightly forward into Officer Gardner’s vehicle.
Officer Plumhoff approached Rickard’s vehicle close to the passenger side and fired three shots at Rickard. Rickard reversed his vehicle in a 180-degree arc onto Jackson Avenue, forcing an officer to step aside to avoid being hit. Rickard began to drive away from the officers. Officer Gardner then fired ten shots into Rickard’s vehicle, first from the passenger side and then from the rear as the vehicle moved further away. Officer Galtelli also fired two shots into the vehicle.
Rickard lost control of the vehicle and crashed into a building. Rickard died from multiple gunshot wounds; Allen died from the combined effect of a single gunshot wound to the head and the crash.
Rickard’s survivors brought a civil rights lawsuit in federal district court against the six officers involved in the chase. They alleged, among other things, that the officers violated the Fourth Amendment. The officers moved for summary judgment or dismissal arguing that they were entitled to qualified immunity. The district court denied qualified immunity, and the United States Court of Appeals for the Sixth Circuit affirmed. This appeal followed.
Qualified immunity shields government officials performing discretionary functions from suits for alleged constitutional violations, unless their actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). The doctrine is designed to give government officials some breathing room to do their jobs by limiting the threat of liability, and to ensure that capable individuals are not deterred from entering government service for fear of liability.
A plaintiff can defeat a claim of qualified immunity by pleading and ultimately proving that (1) the defendant-official violated a statutory or constitutional right and (2) the right was “clearly established” at the time of the challenged conduct. In determining whether a right was “clearly established,” a court must first define the right at the appropriate level of specificity. (That is, the court must define the right at a particularized level, not a general one, because at a general enough level every right is “clearly established.”) Once the court defines the right, the court must ask whether a reasonable official would have known that his or her behavior violates that right.
In arguing over the application of these rules, the parties rely principally on two cases. In the first, more recent one, Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court held that a police officer did not violate the Fourth Amendment when he rammed a fleeing vehicle from behind in order to stop a chase. The officer’s maneuver caused the suspect to lose control of the fleeing vehicle and crash, resulting in serious injuries to the suspect. But the Court held that the officer’s action was objectively reasonably in light of the grave danger that the fleeing driver posed to both the police and bystanders. The Court ruled that the officer did not violate the Fourth Amendment, and that the officer was entitled to qualified immunity from suit.
In the second, earlier case, Tennessee v. Garner, 471 U.S. 1 (1985), the Court held that a state statute that authorized police to use deadly force to stop an apparently unarmed, non-dangerous suspect who was fleeing on foot violated the Fourth Amendment. But the Court went on to say that “it is not constitutionally unreasonable” for an officer to use deadly force to prevent a suspect that poses a threat of serious physical harm, either to the officer or to others, from escaping.
The parties frame their arguments against this background.
The officers argue first that the Sixth Circuit erred in applying the second prong of the qualified immunity test. In particular, they claim that the Sixth Circuit concluded only “that the officers’ conduct was reasonable as a matter of law”—a conclusion that either conflated the two prongs of the test, or ignored the second prong entirely. In either event, they say, the lower court never discussed whether their use of force violated clearly established law at the time of the incident, in July 2004. Indeed, the officers contend that the Sixth Circuit only compared their conduct in 2004 to the facts of Scott v. Harris, a case that came down in 2007. They say that they could not have known about Scott v. Harris when they acted, and that therefore the court misused that case to determine whether the law was clearly established and that their actions were unreasonable at the time.
The officers argue next (on the second prong) that the law in 2004 did not clearly establish that their use of deadly force was objectively unreasonable in violation of the Fourth Amendment. They say that the Supreme Court ruled in December 2004, just five months after the incident here, that there was no clear answer to the question whether it is acceptable “to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.” Brosseau v. Haugen, 543 U.S. 194 (2004). The officers claim that the threat posed by Rickard was even greater than the threat posed by the fleeing felon in Brosseau, so, if anything, their use of deadly force was more justified. They also contend that neither the law in the Sixth Circuit (where the shootings occurred) nor the law in the Eighth Circuit (where the officers worked) clearly established that their actions were unconstitutional at the time. On the contrary, they claim, the law in those circuits in July 2004 gave the officers “every reason to believe their conduct was objectively reasonable.”
Finally, the officers argue (on the first prong) that their use of deadly force was an objectively reasonable response to Rickard’s behavior. They contend that the facts here are similar to the facts in Scott v. Harris. They say that their force was objectively reasonable and warranted by Tennessee v. Garner (stating that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”). And they claim that their use of deadly force to terminate a high-speed chase served the public policy goal, recognized by the Supreme Court, in avoiding threats to innocent bystanders.
The federal government, weighing in on the side of the officers, makes substantially similar arguments. In particular, the government puts this fine point on its critique of the Sixth Circuit’s ruling: “The words ‘clearly established’ do not appear in its opinion, and the court did not undertake the basic inquiries required by this Court’s decisions: defining the right at the appropriate level of specificity, canvassing pertinent authority, and ultimately determining whether a reasonable official would have understood clearly that her conduct violated the Constitution at the time it occurred.” Like the officers, the government argues that the Sixth Circuit erred in its analysis. If the Court should reach the question whether the officers are entitled to qualified immunity, the government also says that they are, because the right was not clearly established at the time of the incident. (The government says that “[f]ramed at the appropriate level of specificity, the question here is whether in 2004 it was clearly established that the police may not use deadly force to prevent a misdemeanant and his passenger from resuming a dangerous, high-speed chase on public thoroughfares after the driver had recklessly operated the vehicle both during the chase and in a close-quarters encounter with police.”) The government urges the Court not to rule on the first prong, the constitutional question, because it is unnecessary, “novel,” and “highly factbound.”
Rickard’s survivors, called “Rickard” here, argue first that the Sixth Circuit lacked appellate jurisdiction over the case. In particular, Rickard says that the officers’ appeal to the Sixth Circuit was grounded primarily in their dispute with the district court’s factual conclusions. Rickard claims that this kind of ruling—“a determination that genuine issues of fact create disputes which preclude the defense of qualified immunity”—does not give rise to appellate jurisdiction.
Next, Rickard argues that additional facts, or “factual disputes,” in the case show that the officers were not entitled to qualified immunity. In short, Rickard takes issue with the officers’ characterization of nearly every significant event, from Rickard’s car-rammings to the context of the officers’ final shots at Rickard’s car. Rickard says that the police videos and the officers’ testimonies undermine the officers’ versions of these events, and that he did not pose the kind of serious threat to the officers that they claim. As a result, Rickard says that their use of deadly force violated the Fourth Amendment as it was clearly established at the time.
Third, Rickard argues (on the first prong) that the Sixth Circuit properly held that the officers’ use of force was not objectively reasonable. Rickard claims again that the facts are disputed, and that viewed correctly they show that Rickard did not pose a threat to the officers that warranted their use of deadly force. Rickard also contends that the Court should not create a blanket rule authorizing police officers to shoot a suspect in a vehicular chase in order to prevent the suspect’s escape. Rickard says that such a rule would extend Scott v. Harris, which involved only car-ramming by the police, not shooting. Rickard also says that such a rule would “bootstrap” an otherwise non-dangerous situation (presumably, the original misdemeanor stop) into a violent felony (the high-speed chase) for the purpose of determining a suspect’s threat to the police. Rickard says that this situation was not as dangerous as the officers have claimed, and that their use of deadly force—“15 total shots at a vehicle containing an unarmed man and woman, the majority of them as the car went past and away from the police”—was excessive.
Finally, Rickard argues (on the second prong) that the officers violated clearly established Fourth Amendment law. Rickard claims that Garner established that it was “constitutionally unreasonable to shoot an unarmed, nondangerous fleeing suspect dead in order to prevent his escape.” Rickard says that under Garner the officers’ use of deadly force in this case was unreasonable. Rickard contends that it does not matter that Garner is not precisely on point: contrary to the officers’ position, the Supreme Court has never required a case exactly on point to determine whether the law is clearly established.
On both prongs, Rickard emphasizes that the State of Tennessee indicted Officers Plumhoff, Gardner, and Galtelli for reckless homicide in the death of Allen. Rickard claims that the indictment underscores their excessive use of force.
The questions presented give the Court several ways to resolve the case. The first question presented would allow the Court to determine only whether the Sixth Circuit erred in its qualified immunity analysis, to correct that error (or not), and to remand the case (or not) for further proceedings. In particular, this case gives the Court an opportunity to clarify the second prong (when a right is “clearly established” at the time of an officer’s action) in the wake of the Sixth Circuit’s somewhat confusing approach. (As the officers and the government argue, the Sixth Circuit seems to address only the first prong. If it addresses the second prong, its approach seems incomplete.) As the government explains, this approach, “defin[es] the right at the appropriate level of specificity, canvass[es] pertinent authority, and ultimately determin[es] whether a reasonable official would have understood clearly that her conduct violated the Constitution at the time it occurred.” If the Court only answers the first Question Presented, this is as far as the Court needs to go. If so, the Court would likely remand the case for a proper qualified immunity analysis. (The Court could simply affirm the Sixth Circuit on this first issue, but that seems unlikely, given the Sixth Circuit’s somewhat confusing and apparently incomplete analysis.)
If the Court reaches the second question presented, it could determine for itself whether the officers are entitled to qualified immunity. If the Court reaches this question, then it could decide that the officers are immune on the second prong alone (as the officers and the government urge) or on the second or first prong (thus ruling on the merits of the Fourth Amendment—something that the government urges against). The officers probably have the better of this case, given the state of the law in 2004 (on the second prong) and the state of the law now (on the first). But the Court could conclude that the officers are not entitled to qualified immunity, because Rickard can establish both prongs.
The potential wildcard in the case is the facts. If the Court rules on the second question presented, qualified immunity (and not just on the first question presented, whether the Sixth Circuit erred), at least part of its analysis will almost certainly turn on the facts. It is unusual for the Court to review the facts of a case, but here the Court can only judge the reasonableness of the officers’ actions by taking a look at the facts for itself. (For example, the Court’s review of the videotapes in Scott v. Harris was key to its ruling there, creating what Justice Scalia (for the majority) called “a wrinkle” in the case.) We do not know how the justices will interpret the facts, but we do know that the facts are likely to come into play if the Court gets to the second question presented. And we know that this case seems to be factually similar to Scott, although Rickard vigorously contests that. (Scott was a ruling on the Fourth Amendment itself, the first prong of the qualified immunity test, so the facts were central to the Court’s ruling. But the facts are probably important on the second prong, too.)
Finally, if the Court reaches the second question presented, the case may build on Scott. In particular, it may say whether the officer’s reasonable action in Scott (ramming his car into the suspect’s car to stop a chase) extends to firing shots to stop a chase. But while Scott seems highly relevant, remember that because it came after the officers’ actions here, it will likely only play a central role if the Court rules on the first prong of the qualified immunity test, the underlying Fourth Amendment question.
Sunday, March 2, 2014
Catherine Fisk and Erwin Chemerinsky (both of Cal Irvine) published an American Constitution Society Issue Brief last week that boldly sets out the implications of Harris v. Quinn, on public employee fair-share fees, and blows a hole (or three) in the Court's First Amendment jurisprudence as it continues its attacks on unions. We posted on Harris here and here; we posted on Knox most recently here.
The Brief, titled Unequal Treatment? The Speech and Association Rights of Employees: Implications of Knox and Harris, pulls no punches in setting out the implications of those cases, starting with the doctrinal time-bombs that Justice Alito planted in Knox, which fed the petitioners' arguments in Harris:
In colloquial terms, the petitioners in Harris seek to have the Supreme Court declare that, as a matter of the First Amendment, all government employment must be on a "right-to-work" basis.
The petitioners' argument in Harris went beyond simply the payment of the employees' fair share of the cost of contract negotiation and administration. They argued that bargaining on behalf of employees is petitioning the government and "political in nature" even when it addresses wages, and it violates the First Amendment to require dissenting employees to support the union's bargaining. As the Justices recognized at oral argument, the logical extension of the petitioners' argument is that the First Amendment invalidates any statute allowing employees to bargain collectively on the basis of exclusive representation.
Fisk and Chemerinsky also carefully describe how the Court's approach in Knox, and the petitioners' arguments in Harris, cut against the Court's approaches to compelled speech, associational rights, and speech of government employees in other areas.
The conclusion: The implications are serious, and Court's approach to fair share union fees is just the opposite of its approach in other cases, suggesting that the Court is just baldly beating up on unions.
Friday, February 28, 2014
Judge John D. Bates (D.D.C.) yesterday dismissed a case brought by Citizens for Responsibility and Ethics in Washington, or CREW, challenging the IRS rule that allows donors to certain political organizations to remain under the radar.
The ruling means that CREW's effort in this court to get the IRS to rewrite its rule on 501(c)(4) organizations fails, and that unless and until the IRS rewrites its rule, 501(c)(4) organizations can continue engaging up to 49% of their activity in political spending while keeping their donors hidden from public view.
The case, Citizens for Responsibility and Ethics in Washington v. IRS, challenged the IRS rule implementing Section 501(c)(4) of the tax code. That provision grants a tax exemption for organizations "not organized for profit but operated exclusively for the promotion of social welfare." (Emphasis added.) But the IRS rule implementing that provision applies to organizations that are "primarily engaged in promoting in some way the common good and general welfare of the people of the community. An organization embraced within this section is one which is operated primarily for the purpose of bringing about civic betterments and social improvements."
In short: The statutory "operated exclusively" became a regulatory "primarily engaged," giving 501(c)(4)s considerably more latitude to engage in electioneering.
That matters, because 501(c)(4) status allows organizations to spend money in politics while at the same time shielding the names of donors. Some 501(c)(4)s have taken the position, based on the IRS rule, that they qualify for tax exemption if they engage 49% of less in political donations. That's a lot of political donations--and a lot of shielding of donors--especially when the statute requires them to be "operated exclusively" for social welfare purposes.
So CREW sued, arguing that the IRS regulation let 501(c)(4)s get away with way more political spending, and shielding, than the Internal Revenue Code allowed.
But Judge Bates dismissed the case for lack of standing. He ruled that CREW could not establish informational injury, because its injury--lack of information on donors--was hypohetical and speculative. In particular, Judge Bates wrote that it wasn't the IRS regulation that prevented CREW from getting information on donors, but instead the organizations' decision on how to organize. In other words, if the IRS rewrote its regulation to conform to the Internal Revenue Code, 501(c)(4)s might drop their tax-exempt status or reorganize under another tax-exempt provision to maintain donor confidentiality; but they wouldn't necessarily reorganize as 527s (which would require donor disclosure). Judge Bates wrote that this also prevented CREW from showing causation and redressability.
Judge Bates also ruled that CREW did not have standing based on programmatic injury--the injury to its ability to collect donor information and fulfill its watchdog mission. That's because CREW's injury isn't "fairly traceable" to the IRS decision not to rewrite its rule--there are other intervening causes of CREW's injury.
Thursday, February 27, 2014
The Supreme Court will hear oral arguments on Monday in Hall v. Florida, the case testing whether Florida's method of determining mental retardation solely by reference to an IQ number (at or below 70) violates the Court's ruling in Atkins that states may not impose the death penalty on the mentally retarded. Here's a portion of my preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:
Freddie Lee Hall was tried and convicted for the 1978 murder of Karol Hurst. He was sentenced to death. (Hall’s co-defendant, Mack Ruffin, also convicted of murder in a separate trial, was sentenced to life in prison.) Hall’s conviction and sentence were upheld on direct appeal by the Florida Supreme Court.
Hall later filed a motion in the Florida courts to vacate his sentence based on mitigating evidence of his mental retardation and the brutal abuse he suffered as a child. (Hall filed this motion after the Supreme Court ruled in 1987 in Hitchcock v. Dugger, 481 U.S. 393, that capital defendants must be permitted to present non-statutory mitigating evidence in the penalty phase of a capital trial.) The Florida Supreme Court vacated Hall’s death sentence and remanded for a new sentencing proceeding.
At the resentencing hearing in December 1990, Hall presented uncontroverted evidence of his mental retardation. Hall’s family members testified to his childhood mental disabilities, including difficulties understanding, thinking, and communicating. His school records indicated that his teachers repeatedly identified him as “mentally retarded.” Hall’s former attorneys testified that because of his mental disabilities and problems with communications, Hall could not even assist with his own defense. And evidence from clinicians concluded that Hall was “extremely impaired psychiatrically, neurologically and intellectually,” that he showed signs of “serious brain impairment,” and that he “is probably incapable of even the most . . . basic living skills which incorporate math and reading.” One test, the Wechsler Adult Intelligence Scale—Revised, or “WAIS-R,” administered by a graduate student, put Hall’s IQ at 80. Another test, the Revised Beta Examination, scored Hall at 60 (the lowest possible score), in the range of mental retardation. (Earlier tests, a Beta Test and a Kent Test, put Hall’s IQ at 76 and 79, respectively. But these tests are not considered as reliable as the Wechsler test. Indeed, Florida does not permit the use of the Kent or Beta tests to determine mental retardation at sentencing in capital cases.) Based on this last test and other evaluations, one doctor concluded that Hall was “mentally retarded” and that the mental retardation was “longstanding.”
The trial court nevertheless again condemned Hall to death, and the Florida Supreme Court affirmed. He later sought postconviction relief. This was denied, and the Florida Supreme Court affirmed.
In 2001, Florida enacted a statute, § 921.137, that prohibited the execution of persons with mental retardation. The law defined mental retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” The law further defined “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the [relevant Florida] rules.”
The next year, the Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the “mentally retarded should be categorically excluded from execution.” The Court explained that the “diminished capacities” of persons with mental retardation “to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others” undermined the traditional justifications for the death penalty and made it more likely that persons with mental retardation would be wrongfully convicted and executed.
In 2004, Hall filed a claim under Florida Rule of Criminal Procedure 3.203, which established a process for Atkins claims, arguing that his death sentence violated Atkins. A hearing was held on Hall’s motion in 2009. Hall presented evidence similar to that in his previous case. In particular, Dr. Greg Pritchard testified that he administered the Wechsler Adult Intelligence Scale-III, or “WAIS-III,” on which Hall scored 71. Dr. Pritchard also considered the results of a WAIS-IV test administered by Dr. Joseph Sesta in 2008, on which Hall scored 72, and a WAIS-III test administered by Dr. Bill Mosman in 2001, on which Hall scored 69. The trial court excluded Dr. Mosman’s report, however, because Dr. Mosman died, and Hall’s attorney was unable to provide the state with the raw data underlying the report. Dr. Harry Krop testified that Hall’s IQ was 73 on the WAIS-R.
The trial court denied Hall’s motion on the ground that Hall was unable to demonstrate “an I.Q. score of 70 or lower.” The trial court set that particular threshold because the Florida Supreme Court interpreted § 921.127 two years earlier, in Cherry v. State, 959 So.2d 702 (Fla. 2007), to mean that only persons with an IQ of 70 or under qualified as mentally retarded. (The condemned prisoner in Cherry had an IQ of 72. The Florida Supreme Court denied relief.) The Florida Supreme Court, relying on its holding in Cherry, affirmed. This appeal followed.
The Supreme Court ruled in Atkins that a state violates the Eighth Amendment’s ban on cruel and unusual punishment when it executes a mentally retarded person. But the case did not define mental retardation. As a result, states have developed their own approaches to defining mental retardation. Florida’s approach, under the state Supreme Court ruling in Cherry, defines mental retardation rigidly, as an IQ test score of 70 or below.
The parties in this case argue whether Florida’s approach violates Atkins. More particularly, they argue whether executing a person, like Hall, who has IQ test scores above 70 but nevertheless has severe and well documented deficiencies in his intellectual functioning and adaptive behavior, violates the Supreme Court’s prohibition on executing the mentally retarded.
Hall argues first that Atkins forbids the execution of persons meeting the clinical definition of mental retardation. According to Hall, that definition does not set a rigid cutoff; instead, it incorporates three prongs: (1) “significantly subaverage” intellectual functioning; (2) limitations in adaptive functioning; and (3) onset before age 18. Hall says that the Court in Atkins recognized this, because it cited two clinical sources that contained definitions that incorporated these three prongs, and because it repeatedly described IQ, again citing these and other clinical sources, as only a rough measure of mental retardation. (Hall, and the Court, refer to the definitions of mental retardation promulgated by the American Association on Mental Retardation, or the AAMR, now the American Association on Intellectual and Developmental Disabilities, or the AAIDD, and the American Psychiatric Association, or APA.) Hall contends that Florida’s rigid cutoff for mental retardation impermissibly redefines the clinical definition of mental retardation under Atkins. (Hall notes that the plain language of § 921.137 can be squared with Atkins. It is the Florida Supreme Court’s rigid interpretation of § 921.137 that violates Atkins.)
Next, Hall argues that Florida’s rigid approach does not comport with the commonly accepted clinical definition of mental retardation. In particular, Hall claims that Florida’s rigid approach fails to take into account the standard error of measurement, or SEM. As Hall explains, “in Florida, an obtained IQ test score of 71—notwithstanding that it is clinically indistinguishable from a score of 70, in light of the inherent measurement error in the test—bars a defendant from presenting any evidence of limitations in adaptive functioning.” This is so, even though that evidence may be compelling, and even though psychiatrists may have diagnosed the defendant as having mental retardation. Hall points (again) to the nearly identical definitions promulgated by the AAIDD and the APA, both of which account for measurement error within a range of plus- or minus-five points. Hall says that an obtained IQ score plus or minus one SEM yields a confidence interval equating to a 66 percent probability that a person’s true IQ test score falls within that range. (If a person’s score is 70, with a SEM of 2.5 points, there is about a two-thirds chance that the person’s actual IQ is between 67.5 and 72.5.) He claims that the definitions promulgated by the AAIDD and the APA both account for the SEM and the resulting confidence interval. He says that they also look to guidelines on intellectual functioning and adaptive behavior, in addition to IQ scores, and require clinical judgment to determine mental retardation. Hall contends that both the AAIDD and the APA reject a specific cutoff score as the measure for mental retardation.
Hall says that Florida’s rigid approach is inconsistent with these commonly accepted clinical definitions. Moreover, he contends that other death-penalty states have rejected Florida’s rigid approach, and that Florida is in a small minority of states that have adopted a rigid cutoff without consideration of the SEM. He claims that Florida’s rigid approach will result in an unacceptable risk of executions of individuals who are mentally retarded.
Finally, Hall argues that there is no genuine dispute that under accepted clinical standards, he is mentally retarded. Hall says that all of his scores, save his score of 80, an outlier, are in the 95 percent confidence interval for a “true” score of 70, or two standard deviations below the mean IQ score. He contends that while those scores alone are insufficient to yield a diagnosis of mental retardation, they would prompt any competent clinician to investigate his adaptive behavior. And based upon that investigation—through all the evidence of his poor intellectual functioning and adaptive behavior submitted at earlier hearings—Hall says that he is mentally retarded.
The state argues first that Atkins left states substantial leeway in enforcing the ban on executing the mentally retarded. The state says that Atkins did not prescribe any particular diagnostic criteria or definition of mental retardation and, in particular, did not hold that states must apply the AAMR or APA definitions. Indeed, the state claims that Atkins relied on a national consensus against executing the mentally retarded that included Florida’s § 921.137 and other states with varied definitions of mental retardation. In other words, the state says that Atkins recognized a national consensus against executing the mentally retarded, but not a national consensus around a definition of mental retardation. Florida claims that the Court in Atkins relied on its own judgment about the mentally retarded and why they cannot be executed, not on a particular medical definition of mental retardation; instead, it left that to the states.
The state argues next that the Court should not eliminate the states’ roles in enforcing Atkins. The state claims that the Court has traditionally deferred to the states in defining mental conditions for the purposes of criminal law. Moreover, the state says that deference is particularly appropriate here, where diagnostic criteria for mental retardation (including criteria for evaluating intellectual functioning, adaptive functioning, and even the age of onset) have changed so much over time and are constantly evolving. In particular, the state points to the changing ways that authorities have relied on IQ. Given these differences, the state says that a person could be labeled mentally retarded under one definition but not under another. The state claims that it would be particularly inappropriate for the Court to force the states to agree with any one particular authority under these circumstances. The state also suggests that the APA, the AAIDD, and similar groups seek to limit the application of the death penalty. According to the state, if the Court requires states to adhere to (evolving) clinical criteria developed by these groups, then these groups “would have unavoidable incentives to adopt even more expansive definitions of mental retardation” in order to serve their political purpose, to limit the application of the death penalty.
Third, the state argues that its approach is appropriate under Atkins. The state says that its definition generally conforms to the clinical definitions. It claims that its approach requires a finding on all three prongs (intellectual functioning, adaptive functioning, and age-of-onset), and that its IQ threshold is a long-settled way of determining mental retardation. It contends that consideration of the SEM is appropriate for some purposes (like education, or determining eligibility for services), but not here, where Hall introduced numerous and varying test scores that fell above 70. The state says that a defendant can still introduce other mitigating evidence that satisfies some non-statutory definitions of mental retardation.
The state contends that there is no national consensus on how to use the SEM, or how to consider clinical criteria. Still, it says that its approach is consistent with other states. It claims that Hall’s approach would undermine its important interests in finality (because Hall’s approach would necessarily lead to subsequent challenges based on constantly evolving clinical definitions) and an objective determination of mental retardation.
Finally, the state argues that Hall is not mentally retarded. The state says that Hall’s crime—involving a multi-step plan that was cold, calculated, and premeditated—shows that he was not mentally retarded when he committed the crime. It also says that Hall’s medical evidence (including the results of his IQ tests) fail to show that his mental state was attributable to mental retardation. Instead, it says, Hall’s evidence suggests that his mental state was attributable to his difficult childhood, abusive mother, and poverty.
According to an amicus brief filed by nine other states in support of Florida, ten states use “an obtained IQ test score above 70 [as] a conclusive, bright-line cutoff (without using the SEM) in evaluating the intellectual function prong of mental retardation.” Two other states have adopted bright-line cutoffs above 75. A number of other states either do not use a rigid cutoff, or allow application of the SEM in evaluating IQ scores. A number of other states have not firmly determined their approaches. (Thirty-two states in all still have the death penalty, according to deathpenaltyinfo.org. The amicus brief for Arizona and eight other states contains an appendix with a summary of state laws and rulings on determining mental retardation and another appendix with each state’s burden of proof.)
As a result, Hall potentially directly affects ten, or maybe twelve, states—those with rigid cutoffs for determining mental retardation. If the Court rules for Hall, those states will have to adjust their determination criteria to take into account the SEM, and possibly other factors. (The Question Presented asks only whether a state must consider the SEM. Still, there is nothing preventing the Court from saying more about the definition of mental retardation. It seems unlikely that the Court will prescribe a particular comprehensive definition or approach, though. Instead, if it rules for Hall, it will likely continue to give the states substantial room to craft their own definitions, within the broad boundaries of its ruling.)
On the other hand, if the Court rules for Florida, those states may obviously retain their rigid definitions. In that case, there is a possibility, although it seems quite slim, that other states that currently consider the SEM or other factors may simplify their own definitions and follow Florida’s approach.
Pro Publica has a concise list of state-by-state changes to voting laws since the Supreme Court's ruling last summer in Shelby County. The page includes an interactive map that shows how previously covered jurisdictions have taken advantage of their lack of coverage to impose tighter voting requirements.
Recall that the Supreme Court ruled last summer in Shelby County that Section 4 of the Voting Rights Act, the coverage formula for the preclearance provision (in Section 5), exceeded congressional authority. Chief Justice Roberts wrote that "things had changed" since Congress enacted the VRA in 1965, but that the preclearance coverage formula hadn't kept pace. Moreover, he wrote that a coverage formula that treats states differently, as Sections 4 and 5 did, violated a newly minted principle of equal state sovereignty.
In the immediate wake of the ruling, previously covered jurisdictions like Texas and North Carolina moved swiftly to enact more restrictive voting requirements that were previously denied preclearance--bold, in-your-face moves that illustrated the impact of the Court's ruling. Since that time, more jurisdictions, many of them previously covered jurisdictions, have similarly tightened voting requirements in ways that will likely have disparate impacts on poor and racial minority communities.