Wednesday, January 9, 2013
In her 200 plus page opinion in Ligon v. City of New York, federal district judge Shira A. Scheindlin enjoined "stop and frisk" practices of the NYPD in the Bronx. The stop and frisk practices by law enforcement have been increasingly controversial, including arrests of persons attempting to document the practice.
The problem in Lignon is a relatively simple one. The standard for stop and frisk is reasonable suspicion, established by Terry v. Ohio (1968). In the Bronx, there was a practice of Terry stops on the basis of reasonable suspicion of trespass outside buildings in the Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was formerly known in the Bronx as Operation Clean Halls. Seemingly, the building, rather than any activity by people, gave rise to the "suspicion" and many people were subject to a Terry stop and frisk outside their own residences.
The judge concluded
while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.
The judge made it clear that she was
not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily enrolled private buildings. My ruling today is directed squarely at a category of stops lacking reasonable suspicion.
Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.
But she did rule that the "NYPD is ordered immediately to cease performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass." Judge Scheindlin also ordered consolidation of the hearing on some other remedies with the remedies hearing in Floyd v. City of New York, a stop and frisk challenge involving the entire city and not only the borough of the Bronx.
[image from protest against stop and frisk via]
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].
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)
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]
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 15, 2012
A three-judge panel of the Sixth Circuit ruled in U.S. v. Skinner that a defendant did not have a reasonable expectation of privacy in GPS data coming from a cell phone that showed his location, and therefore the government did not violate the Fourth Amendment in using that data to track him and locate him.
The case involved a drug-runner's use of a pay-as-you-go cell phone that was equipped with GPS technology. The DEA identified the phone number for the phone and obtained an order from a federal magistrate authorizing the phone company to release subscriber information, cell site information, GPS real-time location, and ping data. DEA agents then pinged the number and determined the location of the defendant. They tracked him for a couple days and arrested him at a motorhome with over 1,100 pounds of marijuana.
The Sixth Circuit ruled that the defendant had no reasonable expectation of privacy in the GPS data coming from the phone and therefore that the DEA did not violate the Fourth Amendment in using the data to track the defendant and locate him. The court explained:
There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car's paint.
Op. at 7.
The court distinguished U.S. v. Jones--the OT11 case holding that the placement by law enforcement of a GPS tracking device on the defendant's car violated the Fourth Amendment--saying that this case involved no trespass by police. Instead, the court aligned the case with U.S. v. Knotts, which held that placement by law enforcement of a beeper in a five-gallon drum of chloroform, with the consent of a chemical company, in order to track the movements of the defendant did not violate the Fourth Amendment because "[t]he governmental surveillance conducted by means of the beeper . . . amounted principally to the following of an automobile on public streets and highways. . . . A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."
The court rejected Skinner's argument that the DEA agents never established visual surveillance of his movements, didn't know his identity, and didn't know the make or model of the vehicle he was driving. It said that Skinner's movements could have been observed by any member of the public--and that he therefore had no reasonable expectation of privacy--even if they weren't actually observed by DEA agents.
Thursday, August 2, 2012
Affirming the district judge's grant of summary judgment in favor of the city, the Second Circuit's opinion today in Marcavage v. City of New York rejects the claim of two participants at the 2004 Republican National Convention protests that their First and Fourth Amendment rights were violated.
The controversy involves an often-called "free speech zone" used by law enforcement to designate areas for protest. As the Second Circuit opinion explains, the "NYPD implemented a three-zone system" outside of Madison Square Garden where the convention was held: "a demonstration area, a frozen area (with no pedestrian traffic), and a no-demonstration area." The plaintiffs were "standing in the no-demonstration zone between 32nd and 33rd Streets, holding anti-abortion signs--one sign was four by six feet, the other was three by five." When told to move into the demonstration zone, the protesters objected that this was not within the sight and sound of the Convention attendees and "they did not want to be in the demonstration zone lumped with other demonstrators." According to the Second Circuit, the protesters were "ordered to leave 17 times by three different police officers before they were informed that they were blocking traffic and placed under arrest." They were both charged with disorderly conduct; one with resisting arrest; and all charges were ultimately dismissed.
Relying upon Ward v. Rock Against Racism, 491 U.S. 781, 790-91 (1989), the panel analyzed whether plaintiffs were engaged in First Amendment protected activity in a traditional public forum, and if the restriction on speech was unrelated to content. The panel easily found that the first two prongs were satisfied, and noted that the plaintiffs conceded that the restraint on their expressive activity was content-neutral. Thus, the restriction needed to be narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.
The panel emphasized the security concerns, invoking terrorism, and finding that NYC had significant, if not compelling, interests. Further, while the NYPD could have made different judgments: "“narrowly tailored”does not mean the “least restrictive or least intrusive means" and "simply because there is some imaginable alternative that might be less burdensome on speech" does not render the restriction invalid." As for the alternative channels, the panel described it as "a demonstration zone spanning the width of Eighth Avenue, starting at the southwest corner of the Garden, one avenue from the primary entrance to the Garden. The zone was equipped with a stage and sound amplification equipment, which all the protesters (including Plaintiffs) were free to use." This zone need not be within the "sight and sound" of the intended audience, as a constitutional matter.
On the Fourth Amendment claim, the panel interestingly relied on an audio recording made by the plaintiffs themselves:
that recording dooms their assertion . . . . even viewed in the light most favorable to Plaintiffs, the audio recording shows indisputably that they were neither courteous nor compliant. Plaintiffs were hostile and non-compliant; in effect, they courted arrest.
With this, the panel found no need to extensively discuss the district judge's grant of summary judgment on the Fourth Amendment issue.
The Second Circuit's opinion is yet another one upholding free-speech zones for political protest, certainly to be a law enforcement practice yet again in the upcoming national political conventions.
Wednesday, July 18, 2012
The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program. The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.
The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place. Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions. (Judge Bates didn't rule on the government's state secrets claim.)
The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).
All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.
The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.
We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts). We still don't have a complete legal justification from the government for the targeted killing program.
July 18, 2012 in Cases and Case Materials, Due Process (Substantive), Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 17, 2012
A divided three-judge panel of the Ninth Circuit ruled today in Patel v. City of Los Angeles that an LA ordinance allowing police officers to inspect hotel records containing guest information, without a warrant, did not violate the Fourth Amendment on its face.
The ruling means that the ordinance stays on the books. But the court was careful not to rule out a later as-applied challenge.
The majority looked to both the reasonable-expectation-of-privacy test and the common-law trespassory test. As to reasonable expectation of privacy, the majority ruled that hotel owners do not have a categorical expectation of privacy in the guest information that they are required to obtain and retain--although it held open the possibility that an owner might have such an expectation in an as-applied challenge. The court said that it already held that hotel guests themselves do not have a reasoanble expectation of privacy in this information; it's not a huge leap, it said, to imagine that owners, as a class, do not have a reasoanble expectation of privacy in this information.
As to the common-law trespassory test, the court ruled that the limited intrusion into paper (and not property) is reasonable and therefore does not violate the Fourth Amendment. The court explained that "reasonableness" remains the standard for the Fourth Amendment, even after the Supreme Court did not discuss it in applying the common-law trespassory test in United States v. Jones--because the Court said in that case that the government ""forfeited" the argument that that attachment and use of the GPS device was reasonable by failing to make that argument to the court of appeals." Op. at 8202. (Jones was the case this Term that held that the government's warrantless attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle's movements, was a search and violated the Fourth Amendment. The Court did not address the government's alternative argument that the search was reasonable, because the government failed to raise it below.)
Judge Pregerson dissented, arguing that a warrantless search must meet an exception to the warrant requirement. Here, there was none.
Sunday, June 10, 2012
Over a dissent and reversing the district judge, a DC Circuit panel held unconstitutional the random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service in its opinion in National Federation of Federal Employees-IAM v. Vilsack.
The majority described the random drug testing policy as “a solution in search of a problem” and thus concluded that the “designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the ‘closely guarded category’ of constitutionally permissible suspicionless searches” permissible under the Fourth Amendment.
The panel reasoned that "where the government asserts 'special needs' for intruding on Fourth Amendment rights, as here, the specific context matters" and in demonstrating that the governmental interests are “important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy,” the government must provide a foundation for the "determination that the requirement of individualized suspicion is impractical in the Forest Service Job Corps Center context."
While the usual employees subject to random drug testing are those involved in high security or safety positions, the US Department of Agriculture in 1996 designated all Forest Service Job Corps staff positions for random drug testing. There were, however, various objections and drug testing only occurred on the basis of individualized suspicion. It was not until 2010 that the Forest Service informed the Union, during collective bargaining, "that all Job Corps Center staff would be subject to the random testing program." (emphasis in original). Interestingly, the government argued that because the policy had first been advanced (even if not implemented) in 1996, the employees no longer had any expectation of privacy in not being subject to random drug tests.
The panel rejected this argument and also found the Secretary of Agriculture's rationales supporting special needs too speculative. Quoting from the government's brief that the government has a “legitimate interest in deterring drug use that might affect work performance, that employees who use drugs off the job risk performance-impairing addiction, that off-duty drug users may buy [or sell] drugs at work,” the panel found these interests insufficient to justify a Fourth Amendment intrusion absent more specifics.
The government argued that because the Job Corps Civilian Conservation Centers employees supervised students, this essentially constituted a special need. The dissenting judge found this contention persuasive. However, as the majority noted, in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) - - - upholding random drug testing of student athletes in the context of a documented drug abuse issue - - - "the Supreme Court did not imply that protection of this interest would justify random drug testing of the teachers and other staff at the schools — to the contrary, it 'caution[ed] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.' "
In short, without some sort of documented problem, or some particular special need such as security or safety, a random drug testing policy of federal employees does not satisfy the Fourth Amendment.
Thursday, May 24, 2012
The November 15, 2011 police "eviction" of members of Occupy Wall Street from Zucotti Park prompted quick legal action resulting in a TRO, and today, months later, a complaint in federal court raising constitutional and state law challenges to the confiscation of the materials in the OWS library.
In their complaint in Occupy Wall Street v. City of New York, the plaintiffs allege that city officials seized 3,600 books, only 1,003 of which were returned, and 201 of those very damaged. The constitutional claims include a violation of the Fourth Amendment, a violation of procedural due process, and a violation of the First Amendment. The plaintiffs also allege these violations occurred because of a lack of supervision and training, a claim that has become more and more difficult to sustain. The plaintiffs also make parallel claims under the pertinent New York state constitution, as well as common law claims of conversion and replevin.
[image: OWS Zucotti Library via]
Monday, April 30, 2012
The complaint filed today in the Southern District of New York in Berg v. Kelly (as NYC Police Commissioner), also naming as defendants a number of NYC Police Officers, claims violations of the First, Fourth, and Fourteenth Amendments for actions of the NYPD during an Occupy Wall Street (OWS) protest on November 30, 2011. The alleged facts are thet the NYPD detained the plaintiffs "for nearly two hours inside an interlocking metal barricade" and prohibited them from exiting the pen, although it allowed "tourists and journalists to leave."
The real gravamen of the complaint, however, is that the NYPD violated its settlement in Stauber v. The City of New York, and the NYPD Patrol Guide provisions that the NYPD agreed to inserts in its manuals as a result of that settlement. One such provision is alleged to be:
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph.
Under this language, the facts alleged are certainly in violation, leaving the First, Fourth, and Fourteenth Amendment arguments ancillary. Also compare the European Court of Human Rights opinion from last month that found no violation by British law enforcement's practice of kettling during a demonstration.
[image: NYPD & Occupy Wall Street demonstration in September 2011 via]
Thursday, April 26, 2012
Judge Ursula Ungaro of the Southern District of Florida has permanently enjoined the Executive of Order of controversial Florida Governor Rick Scott (pictured in caricature at right) requiring drug testing of all prospective state employees and random testing of all state employees in her opinion in AFSCME v. Scott.
Scott's fondness for drug-testing has not fared well in the federal courts. His previous efforts to have all public entitlement recipients drug-tested was similarly enjoined as unconstitutional last year. In this opinion, Judge Ungaro distinguishes the drug-testing policies that were upheld under the Fourth Amendment as being tailored to address a specific, serious problem. "In contrast, the rationale for the Governor’s policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace." Judge Urango stated that his "explanation of the EO’s concern with public safety offers a particularly telling example of the speculative nature of the public interest behind the testing policy," quoting from the brief that:
Even a desk-bound clerk may become violent with other employees or the public, may present a danger when driving in a car in the workplace parking lot, or may exercise impaired judgment when encountering any of the myriad hazards that exist in the workplace environment (from stacks of heavy boxes, to high staircases, to files in high shelves, to wet floors, to elevators and escalators.)
For Judge Ungaro, "the Governor’s safety rationale for the EO essentially relies on the Governor's common sense belief that because illegal drug use exists in the general population, it must also exist among state employees." Common sense as articulated by the state's governor is not weighed heavily in evaluating a drug-testing program, unsupported by any individualized suspicion, that is "judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."
The judge also rejected the Governor's analogy to financial disclosure statements by government employees: "the Governor’s reasoning is hardly transparent and frankly obscure."
Before reaching the substantive Fourth Amendment claim, the judge carefully considered the standing of AFSCME, a union, to bring the action. Governor Scott argued that the union did not suffer an "injury in fact" because only the individuals who actually have a Fourth Amendment right are injured, not an association. However, the judge found convincing the union's argument that it would have to devote considerable energy to representing individual union members selected for testing and will have to devote similar energies to engage in collective bargaining on the issue, deflecting its energies from other issues. Moreover, the judge found the union had associational standing to assert the rights of its members. As to new hires, who are not union members, the judge found that the new hires could be union members by the time of the testing, and that new hires included union members who were applying for transfers or promotions.
This well-crafted opinion is certainly a blow to Governor Scott's controversial and somewhat breezy approach to law. Rather than appeal to the Eleventh Circuit, perhaps Scott will attempt a more carefully crafted Executive Order.
[image: Caricature of Governor Rick Scott by DonkeyHotey via]
Thursday, April 19, 2012
The inimitable Linda Greenhouse has a provocative column entitled "Women's Work" which takes up the continuing relevance of gender politics - - - and a gender divide - - - on the Supreme Court. Her subject is the Court's 5-4 opinion last month in Coleman v. Court of Appeals of Maryland.
Coleman's consitutional issue involved the Eleventh Amendment, which may at first blush seem an odd grounding for gender equality, until one recalls cases such as Nevada Department of Human Resources v. Hibbs (2003). As Greenhouse reminds us, Rehnquist's opinion for the majority in Hibbs was rather suprising. Not only did it reverse the Court's trend to "diss Congress" (as Ruth Colker and James Brudney so evocatively phrased it in their terrific 2001 article), but also construed Congressional intent in the Family Medical Leave Act (FMLA) as addressing “the pervasive sex-role stereotype that caring for family members is women’s work.”
Greenhouse states she'd "love to know" how Rehnquist would have decided Coleman, involving the self-care provision of FMLA. She criticizes Kennedy's opinion for the Court as ignoring the legislative history that Ginsburg so meticulously discussed in the dissent and that was central to Hibbs. (Of course, one might also recall that Kennedy also dissented in Hibbs).
And, while we are used to thinking about a "liberal" v. "conservative" split on the Court, Greenhouse highlights another split: "the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority."
One of those five men in the majority is Alito, who one might recall, replaced Justice O'Connor. O'Connor joined the majority in Hibbs, so perhaps it is reasonable to believe that she would have joined Ginsburg's view regarding the importance of sex-role stereotyping in the FMLA, extended to the self-care provision.
But one might also recall that before Justice Alito, there was nominee Harriet Miers. One wonders how she might have voted.
[image: WWII government poster via]
April 19, 2012 in Courts and Judging, Current Affairs, Disability, Eleventh Amendment, Family, Federalism, Fourth Amendment, Gender, Recent Cases, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, April 2, 2012
In a much-anticipated opinion today, the United States Supreme Court in Florence v. Board of Chosen Freeholders of County of Burlington (NJ), upheld the authority of jail authorities to strip search a person accused of a minor crime.
The case involved a claim for damages by Albert Florence, an African-American man stopped for a traffic infraction who was then taken to jail because of a years-old failure to appear charge. Upon his detention at two different jails, Mr. Florence was stripped searched at each. More explanation from Florence and his attorney is in the video below:
Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference.
Two of the five justices in the majority - - - Alito and Roberts - - - wrote separate concurring opinions that stressed the limits of the Court's opinion. Alito phrased it thusly:
I join the opinion of the Court but emphasize the limits of today’s holding. The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by correctionsofficers. To perform the searches, officers may direct the arrestees to disrobe, shower, and submit to a visual inspection. As part of the inspection, the arrestees may be required to manipulate their bodies.
Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many, but there are reasonable grounds for strip searching arrestees before they are admitted to the general population of a jail.
He later added that:
It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.
Justice Breyer, dissenting and joined by Ginsburg, Sotomayor, and Kagan, provides numerous examples of problematical, humiliating, and unnecessary strip searches, noting that the majority failed to discuss specifics. Instead, Breyer writes, the "majority is left with the word of prison officials in support of its contrary proposition. And though that word is important, it cannot be sufficient."
But if the Court's single word is "deference," then of course the jail officials word is almost always sufficient.
Wednesday, March 21, 2012
Reichle v. Howards: First Amendment Retaliatory Arrest, The Secret Service, and Oral Arguments in the United States Supreme Court
During oral arguments in the Supreme Court today, the First Amendment took a definite back seat. The case is Reichle v. Howards, on certiorari from the Tenth Circuit, and involved Howard's arrest by Secret Service agents at a mall in Colorado where then-VP Dick Cheney was appearing. Howard 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 has "lied" about saying he hadn't touched the VP.
No charges against Howards were brought, but Howards filed a Bivens action against the agents for violating his First, as well as his Fourth, Amendment rights. The agents claimed qualified immunity. While the district judge had denied qualified immunity to all agents, the Tenth Circuit held that only two agents, including Reichele, were not entitled to qualified immunity.
During the oral argument, the Fourth and First Amendment arguments were understandably intertwined, but the First Amendment was most often deemed irrelevant.
As Sean Gallagher, arguing for the Secret Service agents stated:
Virtually everyone that a Secret Service agent encounters when he is protecting the President or the Vice President can allege that they are engaged in free speech. So for Secret Service agents in particular, they -- they can legitimately evaluate what someone is saying in order to determine a particular threat level.
During the argument on behalf of Howards by David Lane, Justice Sotomayor stated:
You do understand that this case is inviting the questions the Chief Justice asked, which, and which has -- Justice Breyer and some of us are concerned about, which is what your adversary has described as First Amendment voicing is going to be a part of many, many arrests.
Near the end of his argument, Lane made a plea for the First Amendment to be recognized:
The issue simply is can we sacrifice the First Amendment. You know, does a litterbug lose their right to have First Amendment free speech?
Does a jaywalker lose their right to have First Amendment free speech because probable cause exists to believe they've committed some offense? And you'll have officers ostensibly enforcing litter laws and jaywalking laws and blocking the sidewalk laws, and the First Amendment is essentially evaded.
100 years of jurisprudence, courageous jurisprudence, many times by this Court, goes by the boards because somebody is a litterbug. I -- I just don't see that as the solution to this problem. And I also don't see that the Secret Service needs some enhanced protection from this Court when this has never been and is not now any kind of a serious problem.
The status quo is not healthy. It has worked for decades and it should continue to work. And if these agents get tagged in this case, maybe they deserved to get tagged in this case, because the First Amendment is extremely important. And I don't denigrate the -- the job of law enforcement or -- or these agents in any way. . . . .
The Justices, however, seemed more than willing to defer to the Secret Service agents, who have recently had the scope of their protective responsibilities widened by Congress.
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)
Thursday, December 15, 2011
Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.
In his Presidential Proclamation last week, Obama stated:
On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.
Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.
Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.
Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."
The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights. Instead, they concerned Congress itself:
Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The latter became the 27th Amendment, ratified more than two centuries later in 1992.
- Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
- Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
- Amendment 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Amendment 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
- Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
- Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
[image from National Archives via]
December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | 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.