Tuesday, December 18, 2012
The First Amendment right to record public police interactions with "smartphones" is the basis of a complaint filed yesterday in Charles v. City of New York. The facts as alleged by plaintiff Hadiyah Charles are not dissimilar to those in Glik v. Cunniffe in which the First Circuit in 2011 found a First and Fourth Amendment violation and denied qualified immunity to the officers involved. (Compare the Seventh Circuit decision earlier this year).
The recitation of facts in Charles' complaint link her actions to the controversial "stop and frisk" policy of the NYPD that she sought to record. Her allegations also include failure to train law enforcement officers to abide by the department's Patrol Guide as well as the First Amendment. Ms. Charles was arrested, held for some time, her phone searched, released with a charge of disorderly conduct that was ultimately dismissed. The complaint also contains allegations that police officers derided Ms. Charles for being a "street lawyer." Ms. Charles is not an attorney, but an HIV activist who has been recognized as a "Champion of Change" by the White House.
A report in Gothamist has more details.
And for those who plan on replicating Ms. Charles' activities, NYCLU has an "app" for that: “Stop and Frisk Watch” includes the ability to record, provide information, and transmit it to the NYCLU.
[image: screenshot from NYCLU video via].
Thursday, December 6, 2012
Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.
Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs. The introduction of Coombs starts at 22:40. Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing. He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client. Interestingly absent is any discussion of Manning's sexuality.
This is definitey worth a listen!RR
Monday, December 3, 2012
Judge Thomas Johnston (WDWV) ruled in U.S. v. Mark that the federal ban on body armor possession by a convicted felon did not violate the Second Amendment or Due Process Clause, and that Congress did not exceed its authority in enacting the ban under the Commerce Clause.
Mark brought his challenge after he was charged and convicted of possession of body armor by a felon under 18 U.S.C. Secs. 931 and 921(a)(35). Federal marshalls found the body armor, along with a cache of weapons, in a protective sweep of his home after his arrest.
Judge Johnston ruled that the statutes did not violate the Second Amendment, because there was no indication that the Framers intended to protect body armor in the Second Amendment, and there was no case law on body armor providing any additional guidance. He wrote that the statutes were not unconstitutionally vague under due process in defining "body armor," because Section 931 gives a definition "that is readily understandable to the ordinary person." Op. at 19. And he held that the jurisdictional element in Section 931 was indistinguishable from the jurisdictional element in 18 U.S.C. Sec. 922(g)(1), the statute penalizing possession of firearms by convicted felons and upheld by the Fourth Circuit--on the basis of its jurisdictional element.
Judge Johnston also ruled the marshalls' search, a protective sweep of the home after arrest, didn't violate the Fourth Amendment.
December 3, 2012 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Due Process (Substantive), Fourth Amendment, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 20, 2012
In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al. We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.
Recall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters. Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover the proceedings, meant signing the 13-page Media Ground Rules document:
Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word includes and sets no upper limit on what Protected Information might be.
The geographical restraints also limit reportial opportunities:
For the most part, News Media Representatives are confined to a few acres of Guantánamo, an area known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.
And then there is the trial itself, with the imposition of a 40 second sound delay.
This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.
Friday, November 2, 2012
Professor Cassandra Robertson (pictured left) argues that we might be forgiven for thinking that there is a constitutional right to appeal, the practice is so ubiquitous and well-established in procedural rules. But in her article, The Right to Appeal, forthcoming in the North Carolina Law Review, and available in draft on ssrn, Robertson reminds us that "appellate review is not constitutionally guaranteed; in some jurisdictions, the losing litigant may be forced to go without any review of the trial court’s verdict at all," illustrating her conclusion with a civil and a criminal case, both from West Virginia.
It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position.
Even if the cases in which there is no access to direct appeal are "few in number," she argues that constitutional due process should protect the "unusual or rare case in which justice is denied."
Robertson's argument skillfully combines doctrinal, practical, and constitutional considerations. The "expressive power of constitutional recognition," she writes, would be especially helpful for marginalized groups and outlier cases (for example, in juvenile cases).
For law profs who teach both constitutional law and procedure courses, this is definitely a must-read.
Thursday, October 25, 2012
The current controversy in the UK over voting by persons who are presently incarcerated and the imminent US election again raise questions regarding the general US policy of disenfranchisement by persons convicted of felonies (even if not incarcerated), a topic we've previously addressed here and here.
Ruvi Ziegler's 2011 article, Legal Outlier, Again? US Felon Suffrage: Comparative and International Human Rights Perspectives, 29 Boston University International Law Journal 197, available on ssrn, situates the US practices and doctrine within international human rights and comparative constitutional law perspectives.
Ziegler concludes that defending the "rights of convicts is hardly a popular task. However,defending their right to vote means, inter alia, defending the substantivedemocratic legitimacy of criminal law, which labels certain community members as convicts by proscribing their acts and which sanctions the imposition of punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed."
This is worth a read for any scholar or student pondering the relationship between the fundamental right to vote and punishment.
Friday, October 5, 2012
Being argued today in the Third Circuit is George v. TSA, a case seemingly about Arabic language flash cards as a rationale for airport detention by the TSA and Philadelphia police officers with obvious First Amendment implications.
The government has appealed from the denial of its motion to dismiss.
Plaintiff Nick George is represented by the ACLU, and the organization not only has an informative case page with documents, but an effective video:
[image of flash cards for sale at Amazon via]
Thursday, September 27, 2012
Arising from the now infamous video (below) of a UC-Davis officer seeming to casually pepper spray students as they sat on campus during a protest, the University of California has wisely settled a lawsuit alleging constitutional violations filed by the ACLU. The UC Davis suit is one of a number of complaints challenging police practices during Occupy and Occupy-type actions last year.
As reported by the LA Times, the approved settlement includes:
$30,000 to each of the 21 students and alumni who were pepper-sprayed;
$250,000 attorneys' fees;
set aside of $100,000 to pay up to $20,000 to any other individuals who were pepper-sprayed;
written formal apology by UC Davis Chancellor Linda Katehi to each of the students and alumni who were pepper-sprayed or arrested.
The ACLU Northern California reports additional terms, including compensation to ACLU of $20,000 for work with the university to develop "new policies on student demonstrations, crowd management, and use of force to prevent anything like the November 18 pepper spray incident from ever happening again" and to "protect free speech and free expression on campus." Additionally, the University promised to "assist students whose academic performance was adversely affected by the incident in applying for academic records adjustment."
Of course, the video was an important aspect of the case and settlement, even as controversies about constitutional rights to record police officers continues (our latest post is here).
Additionally, the 190 page report of a Task Force appointed by the university was strongly condemnatory of the incident. The Task Force was chaired by ConLawProf Emeritus Cruz Reynoso (pictured above) and included ConLawProf Alan Brownstein, who was nominated by the Academic Senate, and Law Student William McKenna, who nominated by the Law Students Association), , service on such a Task Force was a time-consuming endeavor and one that too often goes under-appreciated, so kudos to Brownstein and McKenna.
The University's actions in creating a Task Force also merits recognition, although one wonders whether such a Task Force would have been created absent the video and the attention it generated.
Wednesday, September 19, 2012
In a one page Order, Judge Susan Bolton has dissolved the preliminary injunction she issued regarding Section 2(B) of S.B. 1070, the so-called "show me your papers" provision.
This was inevitable given her opinion earlier this month ruling that it would be premature to declare the provision unconstitutional, resting her conclusion - - - perhaps erroneously as we discussed - - - on the United States Supreme Court's opinion in Arizona v. United States last June.
Thursday, September 6, 2012
Judge Bolton Declines Pre-Enforcement Injunction Against Arizona's SB1070's "show your papers" Provision
Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, including the controversial "show me your papers" provision, section 2(b), has issued a new order and opinion in del Sol v. Whiting, refusing to enjoin section 2(b) in light of the Supreme Court's decision in Arizona v. United States last June.
Recall that the Court held several sections of SB1070 preempted by federal law (thus essentially affirming Judge Bolton's initial decision, as affirmed by the Ninth Circuit), but found that Section 2(b) could be read to avoid the concerns of conflict. While section 2(b) requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully, the Court provided several instances where 2(b) might be compatible with federal law and thus refused a pre-enforcement injunction.
Thus, on the preemption challenge, Judge Bolton's opinion is squarely within the dictates of Arizona v. United States.
However, the challengers also raised Equal Protection and Fourth Amendment challenges. Bolton's opinion subsumes these into the preemption challenge based on the Supremacy Clause. She quotes the Court in Arizona v. US as stating that its "opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” adding emphasis. Yet it is unclear how the Court's opinion could possibly foreclose the "other constitutional challenges" even pre-enforcement given that the issue before the Court was solely preemption (a limitation Justice Roberts stressed at the start of the oral arguments).
Bolton's opinion states that she "will not ignore the clear direction in the Arizona opinion that subsection 2(B) cannot be challenged further on its face before the law takes effect," but certainly the Court could not give direction, clear or otherwise, regarding issues that were not before it.
September 6, 2012 in Courts and Judging, Criminal Procedure, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 29, 2012
Ninth Circuit Grants Petition for Writ of Habeas Corpus of Death Row Inmate on Equal Protection and Due Process Grounds
In a divided opinion in Ayala v. Wong, the Ninth Circuit today granted a petition for a writ of habeas corpus based on equal protection and due process grounds.
As the opinion describes, during the
selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his counsel were excluded. The trial judge then accepted the prosecution’s justifications for its strikes without disclosing them to the defense or permitting it to respond.
The failure to disclose the prosecution's rationales and allow defense counsel to demonstrate they were pretextual violates the process the Court mandated in Batson. In Alaya's case, this was compounded by what the opinion labels "the state’s later loss of a large portion of the record." This portion included juror information and the court concluded that because "the state’s loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process."
In a dissenting opinion as lengthy as the majority, Judge Consuelo M. Callahan accuses the majority of not honoring the procedural obstacles to Alaya's claim, of making unwarranted suppositions, and of opening the floodgates. She writes:
In essence, the majority holds that because the record does not affirmatively negate the existence of a possible racial bias, the existence of such a bias may be assumed. Under this approach all Batson challenges in federal habeas petitions must be granted because no one can disprove a negative.
Yet the converse would also be true, of course. If Alaya's petition were not granted, it would allow judges to deny all litigants, including criminal defendants, the ability to refute the proffered race-neutral explanation, and to absolutely insulate a Batson claim from appellate review.
[image: The Jury by John Morgan, 1861, via]
Saturday, June 16, 2012
What's the difference between the Fourteenth Amendment's Equal Protection Clause and the Sixth Amendment's Fair Cross- Section protection?
In a word: "intent."
But in other words: "not much," at least according to most courts.
Nina W. Chernoff (pictured right) tackles this issue in Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, available on SSRN and forthcoming in Hastings Law Journal. She demonstrates the consistent mistake courts make by not honoring the doctrinal distinction between equal protection (requiring intent) and fair cross-section (not requiring intent) when considering impartial jury claims. The cost of this mistake is a high one paid by criminal defendants.
Consider this: a computer error excludes every African-American from the jury pool. If there was no human intent, then there is no equal protection violation. But the criminal defendant would nevertheless be denied the posibility of a jury drawn from a fair-cross section of the community. Chernoff discusses similar cases and shows how courts conflation of equal protection and fair cross-section doctrine denies defendants relief in such situations.
This article should be of special interest to ConLawProfs who teach Criminal Procedure. But it's worth reading for anyone interested in the limits of current equal protection doctrine. The article is further discussed as my selection for the Jotwell Equality section; it's the best article I've read on constitutional equality in the last year.
Monday, June 4, 2012
As in oral arguments, the Court's opinion today in Reichele v. Howards puts the First Amendment in the "back seat." In the front seat is the doctrine of qualified immunity, specifically the requirement that any claimed violation be a matter of clearly settled law.
As the relatively brief opinion for a unanimous Court, authored by Justice Clarence Thomas (pictured below) explains:
We granted certiorari on two questions: whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Howards’ arrest so held. If the answer to either question is “no,” then the agents are entitled to qualified immunity. We elect to address only the second question. We conclude that, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment.
Recall the rather unique facts:
Howards' arrest was by Secret Service agents at a mall in Colorado where then-VP Dick Cheney was appearing. Howards was taking his son to a piano recital at the mall and on his cell phone. Apparently, no fan of the VP, Howards stated into his cell phone, "I'm going to ask him [the Vice President] how many kids he's killed today."
This was overheard by the Secret Service agents and attracted their attention. Moreover, Mr. Howards did make good on his stated intentions: After dropping off his son at the recital:
Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his "policies in Iraq are disgusting." The Vice President responded, "Thank you." As he departed, Mr. Howards touched the Vice President's right shoulder . . .
Interestingly, Mr. Howards was not arrested then, but quite a while later when agent Reichele and Howards had an "interview" which escalated, with the agent becoming angry. The agent arrested Howards for assault on the Vice-President, based on the touching of the shoulder, which Howards had "lied" about saying he hadn't touched the VP.
Writing for a unanimous Court, Thomas concluded that the “clearly established” standard was not satisfied: "This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause." Thomas stressed that the right that must be established is not a general First Amendment one "to be free from retaliation for one’s speech," but the "more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause." Thomas then delved into the Tenth Circuit precedent, concluding that such a right was not established as a matter of circuit law, although there was certainly some "uncertainty" generated by Hartman v. Moore, 547 U. S. 250 (2006).
Concurring, Justice Ginsburg, joined by Justice Breyer, distinguished Hartman v. Moore as involving retaliatory prosecution rather than simply arrest. Yet Ginsburg's concurring opinion also relied on her interpretation of the facts:
Nevertheless, I concur in the Court’s judgment. Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard. If rational, that assessment should not expose them to claims for civil damages.
While Reichele v. Howards is a unanimous opinion, it refuses to do what we often expect unanimous opinions to do: clarify the law. By addressing only the second question - - - whether the law was settled or not - - - and not addressing the substantive question, the law remains unsettled.
Nevertheless, the clear import of the case is deference to law enforcement, including (or especially) Secret Service agents, against civil damages even if their actions may seem "retaliatory."
Thursday, May 24, 2012
The Supreme Court ruled 6-3 today that retrying a defendant on charges on which the jury agreed that defendant was not guilty did not violate double jeopardy in an acquittal-first jurisdiction, where the jury deadlocked on lesser-included charges, and where the judge declared a mistrial.
The ruling, together with earlier Supreme Court cases, means that when a jury agrees that a defendant is not guilty of a greater offense, but when it deadlocks on a lesser-included offense, in an acquittal-first jurisdiction, the state can retry the defendant for the greater offense; but when a jury agrees that a defendant is not guilty of a greater offense, but when it convicts on a lesser offense, the state may not retry the defendant.
The case, Blueford v. Arkansas, arose out of the state's attempt to bring a second case against Alex Blueford for the death of his girlfriend's one-year-old child. The state first charged Blueford with capital murder and the lesser offenses of first-degree murder, manslaughter, and negligent homicide. The trial judge instructed the jury to consider the offenses as follows:
If you have a reasonable doubt of the defendant's guilt on the charge of capital murder, you will consider the charge of murder in the first degree. . . . If you have a reasonable doubt of the defendant's guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter. . . . If you have a reasonable doubt of the defendant's guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.
The court gave the jury a set of verdict forms, one for each charged offense and one to acquit. Acquittal was all or nothing: the jury could not acquit on some charges but not others.
The jury reported, in open court, that it was unanimous against guilt on the capital and first-degree murder charges, but that it was deadlocked on manslaughter and had not voted on negligent homicide. The judge sent the jury back for more deliberation, but the jury was still unable to reach a verdict. The judge declared a mistrial.
The state sought to retry Blueford. Blueford moved to dismiss the capital and first-degree murder charges as violating the Double Jeopardy Clause.
Chief Justice Roberts wrote for the Court that the retrial did not violate double jeopardy. He said that the jury didn't acquit Blueford of the capital and first-degree murder charges--"[t]he foreperson's report was not a final resolution of anything"--and may well have reconsidered its initial unanimous agreement when the judge sent the case back for further deliberation. "The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses." The Court also rejected Blueford's argument that the judge's mistrial declaration was premature, without sufficient effort to get the jury to come to a verdict.
Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan. Justice Sotomayor viewed the jury's report on its agreement on the capital and first-degree murder charges as sufficiently final to trigger double jeopardy. She also argued for a rule under the Double Jeopardy Clause that a judge in an acquittal-first jurisdiction must grant a partial verdict on the defendant's request: "If a State wants the benefits of requiring a jury to acquit before compromising, it should not be permitted to deprive a defendant of the corresponding benefits of having been acquitted."
Tuesday, May 8, 2012
The Seventh Circuit in ACLU v Alvarez has instructed the district court to enjoin Illinois broad "eavesdropping statute" from being applied to a "police accountability" recording program in Chicago.
Illinois has one of the most severe wiretapping statutes under which, as the Seventh Circuit noted, might allow "silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment."
The majority of the panel phrased the question as "whether the First Amendment prevents Illinois prosecutors from enforcing the eaves- dropping statute against people who openly record police officers performing their official duties in public." The American Civil Liberties Union of Illinois (“ACLU”) challenged the statute as applied to the organization’s Chicago-area “police accountability program,” which "includes a plan to openly make audio- visual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders."
The majority reasoned that the
the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content- neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free- speech and free-press guarantees.
The majority supported this conclusion in a lengthy and closely argued analysis, peppered with scholarly citations as well as cases. It noted that the "First Circuit agrees," citing and discussing Glik v. Cunniffe.
Posner's dissent was predictable given his stance during the oral arguments in which he expressed disdain for a "civil rights" group ever having anything useful to say regarding police practices. He highlighted the procedural posture of the case (a preliminary injunction) and the presumed constitutionality of statutes unless a judge has a "gut feeling" regarding the statute. On the substance, he stressed the privacy interests of the persons engaged with police officers.
[Chicago Police Officers on horeseback near "El" via]
Monday, May 7, 2012
Two Indybay photojournalists are seeking dismissal of charges against them including conspiracy to commit vandalism/trespass in conjunction with an Occupy event in an otherwise vacant building in Santa Cruz last November.
According to the motion to dismiss filed by the defendants, Bradley Stuart Allen and Alex Darocy, were singled out. They aver that they were only in the building a short time and only some of the persons in the building for the four night occupation were prosecuted. Indeed, they argue that during "the four days, at least one member of the Santa Cruz City Council entered the building, but she was not among those charged with any crimes" and likewise a "photographer from the Santa Cruz Sentinel, (the County’s principal newspaper) also entered and took photographs, but he has not been charged." They therefore argue that the charges are selective prosecution in violation of the Equal Protection and Due Process Clauses.
The ACLU of Northern California has filed an amicus brief in support of the motion to dismiss on the grounds of the First Amendment. The ACLU memo focuses on "vicarious liability" and finds especially problematical statements offered by the State at the preliminary hearing such as the defendants “were there to publicize the protest for the group. The photographs they took, the articles they posted... The defendants served as the public information officers for the occupiers ....”
The ACLU memo argues that the defendants are entitled to First Amendment protections: "the constitutional protections for the press extend beyond the institutional press to anyone who would gather information about matters of public interest and disseminate it to the public, citing both Citizens United v. Federal Election Com'n, and the recent First Circuit case of Glik v. Cunniffe. Moreover, "the Occupy movement, and the actions of November 30, are clearly newsworthy; indeed, advocacy for social and political change lies 'at the core of the First Amendment.'"
At the heart of the ACLU's argument is the contention that "had they published photos that portrayed the Occupiers in a bad light the government could not be making these arguments and, accordingly, would likely not be prosecuting them." Thus, the ACLU argues that it is the "content and viewpoint of their reporting" that has resulted in the prosecution.
The ACLU's First Amendment argument of viewpoint/content discrimination under the First Amendment is parallel to the Defendant's argument of selective prosecution violative of the Equal Protection and Due Process Clauses.
The hearing is set for May 8.
Sunday, January 22, 2012
The City of Albuquerque issued an "Administrative Instruction" banning registered sex offenders from "all public libraries" and further that "Library staff shall send a letter to every sex offender who has a library card and inform them they are no longer allowed in our libraries." In its opinion in Doe v. City of Albuquerque, the Tenth Circuit affirmed the district judge's grant of a summary judgment in Doe's favor on the First Amendment claims.
Much of the 44 page opinion is devoted to standards: for summary judgment, for appellate review, and for facial constitutional challenges. The applicable First Amendment standard is from Ward v. Rock Against Racism, 491 U.S. 781 (1989): “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Yet is the interaction of these standards, and the procedural posture of the case, that leads the Tenth Circuit to affirm the district court's finding that the library policy is unconstitutional.
It seems that the City argued there was “no burden upon the City to prove anything,” so it did not submit any evidence as to the Ward factors in opposing Doe’s summary judgment motion," and continued to advance that same argument on appeal. Thus, the Tenth Circuit found that there was no satisfaction of the narrowly tailored prong or the ample alternative channels for communication prong under Ward.
The Tenth Circuit panel's conclusion stresses the narrowness of its holding and seems to encourage the City to "try again":
Our conclusion that the district court’s grant of summary judgment must be affirmed does not reflect a pronouncement on the ultimate legality or merit of the City’s ban. We are sympathetic to the City’s desire to ensure that its public libraries provide a safe, welcoming environment for its patrons, especially children. We therefore are especially mindful of concerns that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment.
Although we hold these concerns, as an appellate court we are constrained by the record. And this record shows that in response to a motion for summary judgment, the City provided no evidence as to two dispositive Ward factors as to which it had the burden on summary judgment. While we are perplexed by the City’s strategic decision here, it binds our hands in this case.
We note that our decision does not signal the death knell of the City’s efforts, if it wishes to pursue them, to restrict access of registered sex offenders to the City’s public libraries. We can imagine such an effort succeeding through a revised ordinance where it is shown that the restriction satisfies the three-prong time, place and manner Ward test.
Yet it may not be as easy to satisfy a rigorous application of the Ward test as the Tenth Circuit implies, at least if the narrowly tailored and alternative means of communication prongs are taken seriously.
Wednesday, December 21, 2011
Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times. As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances.
The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.
A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails. In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant. During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail. The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments. The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor. As a press release from Mendiola-Martinez's attorneys summarizes the law:
The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.
The immunity of Joe Arpaio will surely be raised by his attorneys. The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests. The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here. Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:
24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.
38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.
"You come to court without briefs?" Kozinski chides, waving some papers in the air.
GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.
40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.
This could be a useful bit for ConLawProfs mentoring or judging moot court teams.
In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings. The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies. This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997. In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."
The December 15 letter specifically focuses on Arpaio's role:
Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.
There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]
December 21, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Gender, Medical Decisions, News, Oral Argument Analysis, Privacy, Race, Reproductive Rights, Speech, Teaching Tips | Permalink | Comments (1) | TrackBack (0)
Monday, November 21, 2011
Given the widely circulated police activities to control protest, including the pepper spraying of students at UC-Davis, as well as other incidents, damage lawsuits against law enforcement will most likely increase.
The complaint in Carpenter v. City of New York, filed in the Southern District of New York today, alleges violations of the Fourth Amendment resulting from false arrest and excessive force.
The specific incident was October 15, 2011: an occupy event of a CitiBank in New York City. Heather Carpenter, a CitiBank account holder, and her fiance', Julio Jose Jimenez-Artunduaga, were caught up in the arrests. The complaint does allege that Carpenter was there to withdraw her money in protest, but also that she left the bank building after doing so, and that Jimenez-Artunduaga was outside the building. However, the complaint alleges that the pair were forced back into the bank, and then arrested for trespassing. (The charges were dropped).
The events were captured on video and photographs, including the photograph of Jimenez-Artunduaga's bloody hand, attached to the complaint as an exhibit.
The complaint includes claims for relief against the city, both for policies and on a theory of supervisory liability. For example, paragraph 87 alleges:
Upon information and belief, Defendant CITY OF NEW YORK planned and implemented a policy, practice, custom and usage of controlling the OWS protests and those who
attended the bank protests, that was designed to and did preempt lawful activities by ordering and effecting indiscriminate mass arrests, illegally arresting protestors, including bank customers, and needlessly detaining them for excessively long periods. Upon information and belief, the CITY OF NEW YORK consciously disregarded the illegality and unconstitutionality of said arrests and detentions in order to facilitate and promote the CITY OF NEW YORK's desired reputation as corporate friendly and pro-bank.
Wednesday, November 9, 2011
Yesterday's oral argument at the United States Supreme Court in Smith v. Cain posed - - - as SCOTUSBlog Lyle Denniston phrased it - - - a "heavy burden" for a lawyer from that "oft-criticized office" of the New Orleans District Attorney's Office "to mount any defense of its prosecution."
Yet criticism or not, it is important to recall that last year's 5-4 decision in Connick v. Thompson about prosecutorial misconduct, again on Brady violation, set aside a civil damages verdict for a person who was wrongly convicted and spent the last 18 years incarcerated of which 14 years were on death row.
Rejecting the jury verdict and the Fifth Circuit, Justice Thomas writing for the majority stated that Connick's office had no need to provide training of its prosecutors in complying with the constitutional requirements of Brady: "all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority of jurisdictions must do both," and most jurisdictions "require attorneys to satisfy continuing-education requirements."
The vigorous dissent in Connick v. Thompson was echoed in some of the questions from the bench in the Smith v. Cain argument. Smith is seeking to have his criminal conviction reversed; perhaps he will be more successful than Mr. Thompson whose $14 million damage award was reversed.