Tuesday, May 20, 2014

Waldman's Biography of the Second Amendment

Michael Waldman, writing over at Politico, tells the story of how the NRA rewrote the Second Amendment, not through the Article V process, but through persistent and carefully calculated political action and legal argument. Over time, the NRA's position worked its way into the consciousness of politicians and judges and lawyers and ordinary people, until Heller seemed to many (and obviously most on the Court) like an inevitability.  That process--and not raw legal argument, not some new and significant historical find, and certainly not a constitutional amendment--is how we got the individual right to keep and carry guns, according to Waldman.

Waldman, the president of the Brennan Center for Justice at NYU, writes on the occasion of the release of his latest book, The Second Amendment: A Biography.

Waldman's piece in Politico is as much about the political process of constitutional change as it is about the Second Amendment.  In that way, it's a how-to for anyone interested in influencing the direction of constitutional law outside the amendment process, and a healthy reminder that a well organized movement can still influence the direction of American constitutional law:

So how does legal change happen in America?  We've seen some remarkably successful drives in recent years--think of the push for marriage equality, or to undo campaign finance laws.  Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine.  The National Rifle Association's long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering.  The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government.  By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.

May 20, 2014 in Fundamental Rights, Interpretation, News, Scholarship, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Sunday, May 18, 2014

Court Temporarily Stops Force-Feeding at Guantanamo

Judge Gladys Kessler (D.D.C.) on Friday temporarily enjoined the government from force-feeding Abu Wa'el Dhiab, a hunger-striking Guantanamo detainee.  Judge Kessler's order also requires the government to produce medical records and videotapes of Dhiab's "forcible cell extractions" for the purpose of "enteral feedings."  Judge Kessler will preside over a status conference on May 21 to work some of this out.

This isn't the first time Judge Kessler ruled on the case.  In her earlier ruling, on July 10, 2013, she held that 28 U.S.C. Sec. 2241(e)(2) deprived the court of jurisdiction to hear a claim over a Guantanamo detainee's conditions of confinement.  She was also highly critical of force feedings in that ruling, however, and telegraphed her likely ruling on the merits, should it ever come to the merits.

It did come to the merits after the D.C. Circuit ruled that Guantanamo detainees could challenge the conditions of their confinement under 28 U.S.C. 2241(e)(2).  After that ruling, Dhiab's case came back to Judge Kessler, leading to Friday's ruling.

Judge Kessler's ruling is only temporary.  But if this ruling and her prior ruling (in the first round) are any indication, she's almost certain to rule against the practice. 

May 18, 2014 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Frontline's United States of Secrets

Frontline airs the first of its two-part series United States of Secrets tonight.  The documentary examines NSA secret surveillance programs developed in the wake of the 9/11 attacks.  There's a clip at the link above, and another here, Inside the NSA the Day After 9/11.

 

May 13, 2014 in Fourth Amendment, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2014

Court in Schuette: Michigan Can Ban Affirmative Action

The Court's opinion in Schuette v. BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary),  clearly upheld Michigan's Proposal 2, enacted as Article I §26 of the Michigan Constitution barring affirmative action in state universities and subdivisions. The plurality opinion for the Court was authored by Justice Kennedy, and joined by Chief Justice Roberts and Justice Alito.  Chief Justice Roberts also authored a brief concurring opinion. Justice Scalia's concurring opinion was joined by Justice Thomas.  Justice Breyer also wrote a concurring opinion.  Justice Sotomayor's impassioned dissent was joined by Justice Ginsburg.  Justice Kagan was recused.

Affirmative_Action_March_in_WashingtonThe state constitutional amendment was a reaction to the Court's opinion in Grutter v. Bollinger (2003), upholding the University of Michigan Law School's use of diversity in admissions.  But since Grutter, the Court has been decidely less friendly to affirmative action, as in  Fisher v. University of Texas.

Recall that the en banc Sixth Circuit majority had relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).  At oral arguments, the Justices had seemed hostile to that theory.

Justice Kennedy's plurality opinion for the Court carefully rehearses the cases, but it is probably his rhetoric that is most noteworthy:

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.

As for Justice Scalia's opinion, it admits that the "relentless logic of Hunter and Seattle would point to a similar conclusion in this case" as the Sixth Circuit understood.  However,  both Hunter and Seattle should be overruled.  Justice Breyer, concurring, would distinguish Hunter and Seattle because Schuette  "does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another."

It is Justice Sotomayor's dissent, joined by Justice Ginsburg, that displays the most heft.  At more than 50 pages and almost as lengthy as all the other opinions combined, Sotomayor's opinion is an extended discussion of equal protection doctrine and theory, as well as the function of judicial review.  In her last section, she also addresses the "substantive policy" of affirmative action and the difference it makes.

The stark division among the Justices is clear.  Sotomayor writes that "race matters."  Scalia reiterates that the constitution is "color-blind."  Roberts implies that racial "preferences do more harm than good."  And Kennedy invokes a First Amendment right to debate race:

Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. . . . The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. . . . It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

Given this passage, perhaps it is not surprisingly that Justice Kennedy does not cite Romer v. Evans - - - which he authored in 1996 - - - in today's plurality opinion in Schuette.  In Romer v. Evans, Kennedy had this to say about Colorado's Amendment 2, which prohibited the enactment of anti-discrimination laws on the basis of sexual orientation:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

[image via]

April 22, 2014 in Affirmative Action, Equal Protection, First Amendment, Fundamental Rights, Opinion Analysis, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

The Constitutionality of Anti-LGBT Discrimination Laws: US and UK Comparisons Continued

Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?" 

The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer.  The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today. 

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King Henry VIII, an important figure
in the "Church of England"

Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights,"  posting her written remarks on the UK Supreme Court site.  Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws?  Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without."  She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself: 

Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.

This leads her to proclaim:

If you go into the market place you cannot pick and choose which laws you will obey and which you will not.

This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.

Another difference: The arguments before the UK Supreme Court are televised live.

April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Eleventh Circuit Invalidates Florida's Attempt to Remove Voters from Rolls

The Eleventh Circuit's opinion in Arcia v. Florida Secretary of State, Detzner concludes that Florida's program to remove "suspected non-citizens" from the voter rolls in 2012 violated Section 8(c)(2)(A) of the National Voter Registration Act (the 90 Day Provision) which requires states to “complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A).

While the case rests on an issue of statutory application, it raises two constitutional concerns.

800px-Ferdinand_de_Soto_Florida_map
Ferdinand DeSoto's Map of "Florida"

First, there are Article III concerns of standing and mootness, with the Secretary of State arguing the court should not exercise jurisdiction over the matter.  The standing argument as to the individual plaintiffs focused on the lack of "injury in fact," but the court found that they were directly injured when they were wrongly identified as noncitizens, even though they were not ultimately prevented from voting.  Additionally, they had standing to challenge Florida's second attempt to remove voters by showing "imminent injury."   The standing argument as to the organization plaintiffs  -- Florida Immigration Coalition, Inc., The National Congress for Puerto Rican Rights, and 1199SEIU United Healthcare Workers East - - - was resolved by the court's conclusion applying both a diversion-of-resources theory and an associational standing theory.

The court likewise rejected the mootness argument.  Although the 2012 election had certainly passed, the court found that the situation fit squarely within the “capable of repetition, yet evading review” exception to the mootness doctrine.  It reasoned that the challenged action fit both prongs of the test: the action in its duration was too short to be fully litigated prior to cessation or expiration; and there is a reasonable expectation that the same complaining party will be subject to the same action again.

The other constitutional aspect of the case involved the interpretation of the federal statute's 90 day provision itself:

We reject Secretary Detzner’s attempts to have us decide today whether both the General Removal Provision and the 90 Day Provision allow for removals of non-citizens. Certainly an interpretation of the General Removal Provision that prevents Florida from removing non-citizens would raise constitutional concerns regarding Congress’s power to determine the qualifications of eligible voters in federal elections. Cf. Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___, 133 S. Ct. 2247, 2257 (2013) (“Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”). We are not convinced, however, that the Secretary’s perceived need for an equitable exception in the General Removal Provision also requires us to find the same exception in the 90 Day Provision. None of the parties before us have argued that we would reach an unconstitutional result in this case if we found that the 90 Day Provision prohibits systematic removals of non-citizens. Constitutional concerns would only arise in a later case which squarely presents the question of whether the General Removal Provision bars removal of non- citizens altogether. And before we ever get that case, Congress could change the language of the General Removal Provision to assuage any constitutional concerns. With this in mind, we will confine our ruling to apply to the plain meaning of the 90 Day Provision and decline Secretary Detzner’s invitation to go further.

The panel opinion, written by Judge Beverly Martin, was not unanimous.  While Judge Adalberto Martin joined the opinion, Judge Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by designation, wrote a very brief dissent, simply citing the two federal district court cases on the issue.

April 2, 2014 in Courts and Judging, Fifteenth Amendment, Fundamental Rights, Interpretation, Mootness, Opinion Analysis, Race, Standing | Permalink | Comments (0) | TrackBack (0)

Sunday, March 23, 2014

Force-Feeding As Torture at Guantanamo

Jon B. Eisenberg, counsel, along with Reprieve US, for Shaker Aamer and Emad Hassan, Guantanamo detainees, writes over at Jurist.org that force-feeding detainees at Guantanamo is akin to the medieval form of torture called "pumping," or the water cure.  Eisenberg makes the case that force-feeding is not "reasonably related to legitimate penological interests," the standard under Turner v. Safley, because the government force-feeds prematurely, long before detainees are at risk of death or great bodily harm.  He writes that there are "obvious, easy alternatives," and that force-feeding is an "exaggerated response."

Recall that the D.C. Circuit ruled earlier this year that federal courts could hear Aamer's habeas claim--a claim not for release, but rather against his conditions of confinement.  This was a huge victory for Guantanamo detainees: it was the first time the court said that they could bring a habeas claim challenging their conditions of confinement. 

But the court also ruled that Aamer was not likely to succeed on the merits of his claim.  Eisenberg explains why that was wrong.

The government hasn't said whether it'll appeal the Aamer ruling.  In the meantime, Eisenberg and Reprieve US are going forward with another claim against force-feeding, Hassan's.

March 23, 2014 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2014

Minnesota Supreme Court Reverses Conviction for Advising or Encouraging Suicide

The Minnesota Supreme Court yesterday reversed a conviction for advising or encouraging another in committing suicide, ruling that the conviction violated the First Amendment.  At the same time, the court remanded the case to determine whether the defendant "assisted" suicides in violation of Minnesota law.

The case, Minnesota v. Melchert-Dinkel, involved the defendant's prosecution and conviction for violation of Minnesota Stat. Sec. 609.215, which makes it illegal to "intentionally advise[], encourage[], or assist[] another in taking the other's own life."  Melchert-Dinkel, posing as a depressed and suicidal young female nurse, responded to posts on web-sites related to suicide and encouraged two individuals, one in England and one in Canada, to take their own lives.  Melchert-Dinkel gained the trust of the victims and then urged them each to hang themselves, falsely claiming that he (as she) would also commit suicide.

Melchert-Dinkel was charged with violating Minnesota's ban on advising or encouraging suicide.  The trial court convicted him, specifically finding that he "intentionally advised and encouraged" both victims to take their own lives, and concluded that Melchert-Dinkel's speech was not protected by the First Amendment.

The Minnesota Supreme Court disagreed.  The state high court said that the ban swept too broadly to meet strict scrutiny.  In particular, "advise" and "encourage" could include "speech that is more tangential to the act of suicide and the State's compelling interest in preserving life," even "general discussions of suicide with specific individuals or groups."

The court rejected the state's argument that Melchert-Dinkel's speech was unprotected because it was "integral to criminal conduct."  The court noted that suicide is no longer illegal in Minnesota, Canada, or the UK.  With no underlying criminal conduct, the speech couldn't be integral to it.

The court also rejected the state's argument that Melchert-Dinkel's speech was unprotected incitement.  That's because there was no underlying lawless action, imminent or not.

Finally, the court rejected the state's argument that Melchert-Dinkel's speech was unprotected "deceit, fraud, and lies."  The court (citing Alvarez) said that there was no such exception to the First Amendment.

At the same time, the court ruled that the portion of the statute that banned "assisting" another in taking his or her own life survived.  The court remanded the case to the trial court to determine whether Melchert-Dinkel's actions constituted "assisting" in the suicides.

March 20, 2014 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Justice Scalia's Dissents and the Post Windsor Same-Sex Marriage Cases

There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment: 

De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey  from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky; 
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.

Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.

In "Justice Scalia’s Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.

 

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"A petard, from a seventeenth century manuscript of military designs" via

 

 

March 3, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, State Constitutional Law, Supreme Court (US), Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)

Court to Determine Scope of Immunity in Police Chase

The Supreme Court will hear oral arguments tomorrow, Tuesday, in Plumhoff v. Rickard, the case testing the scope of qualified immunity for police officers who were sued for damages arising out of a police chase.  Here's a portion of my preview of the oral arguments, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

 Around midnight on July 18, 2004, Officer Joseph Forthman of the West Memphis police force stopped a Honda Accord driven by Donald Rickard after noticing that the car had a broken headlight. Rickard had one passenger, Kelly Allen, who sat in the front passenger seat.

 Officer Forthman asked Rickard for his license and registration; he also asked about a large indentation in the windshield “roughly the size of a head or a basketball.” Allen told Officer Frothman that the indentation resulted from the car hitting a curb. Officer Forthman then asked Rickard if he had been drinking alcohol and twice ordered him out of the vehicle.

Rickard did not comply with Officer Forthman’s instruction. Instead, he sped away on Highway I-40 toward the Arkansas-Tennessee border. Officer Forthman reported over his radio that a “runner” fled a traffic stop; he got back in his vehicle and proceeded to pursue Rickard. Officer Forthman was quickly joined by fellow West Memphis Officer Vance Plumhoff, who became the lead officer in the pursuit. Other West Memphis Officers Jimmy Evans, Lance Ellis, Troy Galtelli, and John Gardner, each in separate vehicles, also joined the pursuit.

The ensuing high-speed chase lasted nearly five minutes. Many of the details were captured by video cameras mounted on three of the police vehicles; many of the statements by officers came over the radio, or were recorded, or both.

During the chase, Rickard swerved in and out of traffic and rammed at least one other vehicle. Officer Plumhoff stated that “he just rammed me,” “he is trying to ram another car,” and “[w]e do have aggravated assault charges on him.”

Rickard led the officers over the Mississippi River from Arkansas into Memphis, Tennessee, where he exited the highway onto Alabama Avenue. As he made a quick turn onto Danny Thomas Boulevard, his car hit a police vehicle and spun around in a parking lot. Rickard then collided head-on with Officer Plumhoff’s vehicle. (It is not clear whether this was intentional).

Some of the officers exited their vehicles and surrounded Rickard’s car. Rickard backed up. Officer Evans hit the butt of his gun against the window of Rickard’s vehicle. As other officers approached, Rickard spun his wheels and moved slightly forward into Officer Gardner’s vehicle.

Officer Plumhoff approached Rickard’s vehicle close to the passenger side and fired three shots at Rickard. Rickard reversed his vehicle in a 180-degree arc onto Jackson Avenue, forcing an officer to step aside to avoid being hit. Rickard began to drive away from the officers. Officer Gardner then fired ten shots into Rickard’s vehicle, first from the passenger side and then from the rear as the vehicle moved further away. Officer Galtelli also fired two shots into the vehicle.

Rickard lost control of the vehicle and crashed into a building. Rickard died from multiple gunshot wounds; Allen died from the combined effect of a single gunshot wound to the head and the crash.

Rickard’s survivors brought a civil rights lawsuit in federal district court against the six officers involved in the chase. They alleged, among other things, that the officers violated the Fourth Amendment. The officers moved for summary judgment or dismissal arguing that they were entitled to qualified immunity. The district court denied qualified immunity, and the United States Court of Appeals for the Sixth Circuit affirmed. This appeal followed.

CASE ANALYSIS

Qualified immunity shields government officials performing discretionary functions from suits for alleged constitutional violations, unless their actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). The doctrine is designed to give government officials some breathing room to do their jobs by limiting the threat of liability, and to ensure that capable individuals are not deterred from entering government service for fear of liability.

A plaintiff can defeat a claim of qualified immunity by pleading and ultimately proving that (1) the defendant-official violated a statutory or constitutional right and (2) the right was “clearly established” at the time of the challenged conduct. In determining whether a right was “clearly established,” a court must first define the right at the appropriate level of specificity. (That is, the court must define the right at a particularized level, not a general one, because at a general enough level every right is “clearly established.”) Once the court defines the right, the court must ask whether a reasonable official would have known that his or her behavior violates that right.

In arguing over the application of these rules, the parties rely principally on two cases. In the first, more recent one, Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court held that a police officer did not violate the Fourth Amendment when he rammed a fleeing vehicle from behind in order to stop a chase. The officer’s maneuver caused the suspect to lose control of the fleeing vehicle and crash, resulting in serious injuries to the suspect. But the Court held that the officer’s action was objectively reasonably in light of the grave danger that the fleeing driver posed to both the police and bystanders. The Court ruled that the officer did not violate the Fourth Amendment, and that the officer was entitled to qualified immunity from suit.

In the second, earlier case, Tennessee v. Garner, 471 U.S. 1 (1985), the Court held that a state statute that authorized police to use deadly force to stop an apparently unarmed, non-dangerous suspect who was fleeing on foot violated the Fourth Amendment. But the Court went on to say that “it is not constitutionally unreasonable” for an officer to use deadly force to prevent a suspect that poses a threat of serious physical harm, either to the officer or to others, from escaping.

The parties frame their arguments against this background.

The officers argue first that the Sixth Circuit erred in applying the second prong of the qualified immunity test. In particular, they claim that the Sixth Circuit concluded only “that the officers’ conduct was reasonable as a matter of law”—a conclusion that either conflated the two prongs of the test, or ignored the second prong entirely. In either event, they say, the lower court never discussed whether their use of force violated clearly established law at the time of the incident, in July 2004. Indeed, the officers contend that the Sixth Circuit only compared their conduct in 2004 to the facts of Scott v. Harris, a case that came down in 2007. They say that they could not have known about Scott v. Harris when they acted, and that therefore the court misused that case to determine whether the law was clearly established and that their actions were unreasonable at the time.

The officers argue next (on the second prong) that the law in 2004 did not clearly establish that their use of deadly force was objectively unreasonable in violation of the Fourth Amendment. They say that the Supreme Court ruled in December 2004, just five months after the incident here, that there was no clear answer to the question whether it is acceptable “to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.” Brosseau v. Haugen, 543 U.S. 194 (2004). The officers claim that the threat posed by Rickard was even greater than the threat posed by the fleeing felon in Brosseau, so, if anything, their use of deadly force was more justified. They also contend that neither the law in the Sixth Circuit (where the shootings occurred) nor the law in the Eighth Circuit (where the officers worked) clearly established that their actions were unconstitutional at the time. On the contrary, they claim, the law in those circuits in July 2004 gave the officers “every reason to believe their conduct was objectively reasonable.”

Finally, the officers argue (on the first prong) that their use of deadly force was an objectively reasonable response to Rickard’s behavior. They contend that the facts here are similar to the facts in Scott v. Harris. They say that their force was objectively reasonable and warranted by Tennessee v. Garner (stating that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”). And they claim that their use of deadly force to terminate a high-speed chase served the public policy goal, recognized by the Supreme Court, in avoiding threats to innocent bystanders.

The federal government, weighing in on the side of the officers, makes substantially similar arguments. In particular, the government puts this fine point on its critique of the Sixth Circuit’s ruling: “The words ‘clearly established’ do not appear in its opinion, and the court did not undertake the basic inquiries required by this Court’s decisions: defining the right at the appropriate level of specificity, canvassing pertinent authority, and ultimately determining whether a reasonable official would have understood clearly that her conduct violated the Constitution at the time it occurred.” Like the officers, the government argues that the Sixth Circuit erred in its analysis. If the Court should reach the question whether the officers are entitled to qualified immunity, the government also says that they are, because the right was not clearly established at the time of the incident. (The government says that “[f]ramed at the appropriate level of specificity, the question here is whether in 2004 it was clearly established that the police may not use deadly force to prevent a misdemeanant and his passenger from resuming a dangerous, high-speed chase on public thoroughfares after the driver had recklessly operated the vehicle both during the chase and in a close-quarters encounter with police.”) The government urges the Court not to rule on the first prong, the constitutional question, because it is unnecessary, “novel,” and “highly factbound.”

Rickard’s survivors, called “Rickard” here, argue first that the Sixth Circuit lacked appellate jurisdiction over the case. In particular, Rickard says that the officers’ appeal to the Sixth Circuit was grounded primarily in their dispute with the district court’s factual conclusions. Rickard claims that this kind of ruling—“a determination that genuine issues of fact create disputes which preclude the defense of qualified immunity”—does not give rise to appellate jurisdiction.

Next, Rickard argues that additional facts, or “factual disputes,” in the case show that the officers were not entitled to qualified immunity. In short, Rickard takes issue with the officers’ characterization of nearly every significant event, from Rickard’s car-rammings to the context of the officers’ final shots at Rickard’s car. Rickard says that the police videos and the officers’ testimonies undermine the officers’ versions of these events, and that he did not pose the kind of serious threat to the officers that they claim. As a result, Rickard says that their use of deadly force violated the Fourth Amendment as it was clearly established at the time.

Third, Rickard argues (on the first prong) that the Sixth Circuit properly held that the officers’ use of force was not objectively reasonable. Rickard claims again that the facts are disputed, and that viewed correctly they show that Rickard did not pose a threat to the officers that warranted their use of deadly force. Rickard also contends that the Court should not create a blanket rule authorizing police officers to shoot a suspect in a vehicular chase in order to prevent the suspect’s escape. Rickard says that such a rule would extend Scott v. Harris, which involved only car-ramming by the police, not shooting. Rickard also says that such a rule would “bootstrap” an otherwise non-dangerous situation (presumably, the original misdemeanor stop) into a violent felony (the high-speed chase) for the purpose of determining a suspect’s threat to the police. Rickard says that this situation was not as dangerous as the officers have claimed, and that their use of deadly force—“15 total shots at a vehicle containing an unarmed man and woman, the majority of them as the car went past and away from the police”—was excessive.

Finally, Rickard argues (on the second prong) that the officers violated clearly established Fourth Amendment law. Rickard claims that Garner established that it was “constitutionally unreasonable to shoot an unarmed, nondangerous fleeing suspect dead in order to prevent his escape.” Rickard says that under Garner the officers’ use of deadly force in this case was unreasonable. Rickard contends that it does not matter that Garner is not precisely on point: contrary to the officers’ position, the Supreme Court has never required a case exactly on point to determine whether the law is clearly established.

On both prongs, Rickard emphasizes that the State of Tennessee indicted Officers Plumhoff, Gardner, and Galtelli for reckless homicide in the death of Allen. Rickard claims that the indictment underscores their excessive use of force.

SIGNIFICANCE

The questions presented give the Court several ways to resolve the case. The first question presented would allow the Court to determine only whether the Sixth Circuit erred in its qualified immunity analysis, to correct that error (or not), and to remand the case (or not) for further proceedings. In particular, this case gives the Court an opportunity to clarify the second prong (when a right is “clearly established” at the time of an officer’s action) in the wake of the Sixth Circuit’s somewhat confusing approach. (As the officers and the government argue, the Sixth Circuit seems to address only the first prong. If it addresses the second prong, its approach seems incomplete.) As the government explains, this approach, “defin[es] the right at the appropriate level of specificity, canvass[es] pertinent authority, and ultimately determin[es] whether a reasonable official would have understood clearly that her conduct violated the Constitution at the time it occurred.” If the Court only answers the first Question Presented, this is as far as the Court needs to go. If so, the Court would likely remand the case for a proper qualified immunity analysis. (The Court could simply affirm the Sixth Circuit on this first issue, but that seems unlikely, given the Sixth Circuit’s somewhat confusing and apparently incomplete analysis.)

If the Court reaches the second question presented, it could determine for itself whether the officers are entitled to qualified immunity. If the Court reaches this question, then it could decide that the officers are immune on the second prong alone (as the officers and the government urge) or on the second or first prong (thus ruling on the merits of the Fourth Amendment—something that the government urges against). The officers probably have the better of this case, given the state of the law in 2004 (on the second prong) and the state of the law now (on the first). But the Court could conclude that the officers are not entitled to qualified immunity, because Rickard can establish both prongs.

The potential wildcard in the case is the facts. If the Court rules on the second question presented, qualified immunity (and not just on the first question presented, whether the Sixth Circuit erred), at least part of its analysis will almost certainly turn on the facts. It is unusual for the Court to review the facts of a case, but here the Court can only judge the reasonableness of the officers’ actions by taking a look at the facts for itself. (For example, the Court’s review of the videotapes in Scott v. Harris was key to its ruling there, creating what Justice Scalia (for the majority) called “a wrinkle” in the case.) We do not know how the justices will interpret the facts, but we do know that the facts are likely to come into play if the Court gets to the second question presented. And we know that this case seems to be factually similar to Scott, although Rickard vigorously contests that. (Scott was a ruling on the Fourth Amendment itself, the first prong of the qualified immunity test, so the facts were central to the Court’s ruling. But the facts are probably important on the second prong, too.)

Finally, if the Court reaches the second question presented, the case may build on Scott. In particular, it may say whether the officer’s reasonable action in Scott (ramming his car into the suspect’s car to stop a chase) extends to firing shots to stop a chase. But while Scott seems highly relevant, remember that because it came after the officers’ actions here, it will likely only play a central role if the Court rules on the first prong of the qualified immunity test, the underlying Fourth Amendment question.

 

March 3, 2014 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Sunday, March 2, 2014

Fisk and Chemerinsky on the First Amendment and Union Fair Share

Catherine Fisk and Erwin Chemerinsky (both of Cal Irvine) published an American Constitution Society Issue Brief last week that boldly sets out the implications of Harris v. Quinn, on public employee fair-share fees, and blows a hole (or three) in the Court's First Amendment jurisprudence as it continues its attacks on unions.  We posted on Harris here and here; we posted on Knox most recently here.

The Brief, titled Unequal Treatment? The Speech and Association Rights of Employees: Implications of Knox and Harris, pulls no punches in setting out the implications of those cases, starting with the doctrinal time-bombs that Justice Alito planted in Knox, which fed the petitioners' arguments in Harris:

In colloquial terms, the petitioners in Harris seek to have the Supreme Court declare that, as a matter of the First Amendment, all government employment must be on a "right-to-work" basis.

The petitioners' argument in Harris went beyond simply the payment of the employees' fair share of the cost of contract negotiation and administration.  They argued that bargaining on behalf of employees is petitioning the government and "political in nature" even when it addresses wages, and it violates the First Amendment to require dissenting employees to support the union's bargaining.  As the Justices recognized at oral argument, the logical extension of the petitioners' argument is that the First Amendment invalidates any statute allowing employees to bargain collectively on the basis of exclusive representation.

Fisk and Chemerinsky also carefully describe how the Court's approach in Knox, and the petitioners' arguments in Harris, cut against the Court's approaches to compelled speech, associational rights, and speech of government employees in other areas. 

The conclusion: The implications are serious, and Court's approach to fair share union fees is just the opposite of its approach in other cases, suggesting that the Court is just baldly beating up on unions.

March 2, 2014 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (1) | TrackBack (0)

Friday, February 28, 2014

Watchdog Organization Can't Challenge IRS Rule Granting Nonprofit Status to Political Orgs

Judge John D. Bates (D.D.C.) yesterday dismissed a case brought by Citizens for Responsibility and Ethics in Washington, or CREW, challenging the IRS rule that allows donors to certain political organizations to remain under the radar. 

The ruling means that CREW's effort in this court to get the IRS to rewrite its rule on 501(c)(4) organizations fails, and that unless and until the IRS rewrites its rule, 501(c)(4) organizations can continue engaging up to 49% of their activity in political spending while keeping their donors hidden from public view.

The case, Citizens for Responsibility and Ethics in Washington v. IRS, challenged the IRS rule implementing Section 501(c)(4) of the tax code.  That provision grants a tax exemption for organizations "not organized for profit but operated exclusively for the promotion of social welfare."  (Emphasis added.)  But the IRS rule implementing that provision applies to organizations that are "primarily engaged in promoting in some way the common good and general welfare of the people of the community.  An organization embraced within this section is one which is operated primarily for the purpose of bringing about civic betterments and social improvements."

In short: The statutory "operated exclusively" became a regulatory "primarily engaged," giving 501(c)(4)s considerably more latitude to engage in electioneering.

That matters, because 501(c)(4) status allows organizations to spend money in politics while at the same time shielding the names of donors.  Some 501(c)(4)s have taken the position, based on the IRS rule, that they qualify for tax exemption if they engage 49% of less in political donations.  That's a lot of political donations--and a lot of shielding of donors--especially when the statute requires them to be "operated exclusively" for social welfare purposes.

So CREW sued, arguing that the IRS regulation let 501(c)(4)s get away with way more political spending, and shielding, than the Internal Revenue Code allowed.

But Judge Bates dismissed the case for lack of standing.  He ruled that CREW could not establish informational injury, because its injury--lack of information on donors--was hypohetical and speculative.  In particular, Judge Bates wrote that it wasn't the IRS regulation that prevented CREW from getting information on donors, but instead the organizations' decision on how to organize.  In other words, if the IRS rewrote its regulation to conform to the Internal Revenue Code, 501(c)(4)s might drop their tax-exempt status or reorganize under another tax-exempt provision to maintain donor confidentiality; but they wouldn't necessarily reorganize as 527s (which would require donor disclosure).  Judge Bates wrote that this also prevented CREW from showing causation and redressability.

Judge Bates also ruled that CREW did not have standing based on programmatic injury--the injury to its ability to collect donor information and fulfill its watchdog mission.  That's because CREW's injury isn't "fairly traceable" to the IRS decision not to rewrite its rule--there are other intervening causes of CREW's injury.

February 28, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

How Can States Measure Mental Retardation when Imposing the Death Penalty?

The Supreme Court will hear oral arguments on Monday in Hall v. Florida, the case testing whether Florida's method of determining mental retardation solely by reference to an IQ number (at or below 70) violates the Court's ruling in Atkins that states may not impose the death penalty on the mentally retarded.  Here's a portion of my preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

Freddie Lee Hall was tried and convicted for the 1978 murder of Karol Hurst. He was sentenced to death. (Hall’s co-defendant, Mack Ruffin, also convicted of murder in a separate trial, was sentenced to life in prison.) Hall’s conviction and sentence were upheld on direct appeal by the Florida Supreme Court.

Hall later filed a motion in the Florida courts to vacate his sentence based on mitigating evidence of his mental retardation and the brutal abuse he suffered as a child. (Hall filed this motion after the Supreme Court ruled in 1987 in Hitchcock v. Dugger, 481 U.S. 393, that capital defendants must be permitted to present non-statutory mitigating evidence in the penalty phase of a capital trial.) The Florida Supreme Court vacated Hall’s death sentence and remanded for a new sentencing proceeding.

At the resentencing hearing in December 1990, Hall presented uncontroverted evidence of his mental retardation. Hall’s family members testified to his childhood mental disabilities, including difficulties understanding, thinking, and communicating. His school records indicated that his teachers repeatedly identified him as “mentally retarded.” Hall’s former attorneys testified that because of his mental disabilities and problems with communications, Hall could not even assist with his own defense. And evidence from clinicians concluded that Hall was “extremely impaired psychiatrically, neurologically and intellectually,” that he showed signs of “serious brain impairment,” and that he “is probably incapable of even the most . . . basic living skills which incorporate math and reading.” One test, the Wechsler Adult Intelligence Scale—Revised, or “WAIS-R,” administered by a graduate student, put Hall’s IQ at 80. Another test, the Revised Beta Examination, scored Hall at 60 (the lowest possible score), in the range of mental retardation. (Earlier tests, a Beta Test and a Kent Test, put Hall’s IQ at 76 and 79, respectively. But these tests are not considered as reliable as the Wechsler test. Indeed, Florida does not permit the use of the Kent or Beta tests to determine mental retardation at sentencing in capital cases.) Based on this last test and other evaluations, one doctor concluded that Hall was “mentally retarded” and that the mental retardation was “longstanding.”

The trial court nevertheless again condemned Hall to death, and the Florida Supreme Court affirmed. He later sought postconviction relief. This was denied, and the Florida Supreme Court affirmed.

In 2001, Florida enacted a statute, § 921.137, that prohibited the execution of persons with mental retardation. The law defined mental retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” The law further defined “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the [relevant Florida] rules.”

The next year, the Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the “mentally retarded should be categorically excluded from execution.” The Court explained that the “diminished capacities” of persons with mental retardation “to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others” undermined the traditional justifications for the death penalty and made it more likely that persons with mental retardation would be wrongfully convicted and executed.

In 2004, Hall filed a claim under Florida Rule of Criminal Procedure 3.203, which established a process for Atkins claims, arguing that his death sentence violated Atkins. A hearing was held on Hall’s motion in 2009. Hall presented evidence similar to that in his previous case. In particular, Dr. Greg Pritchard testified that he administered the Wechsler Adult Intelligence Scale-III, or “WAIS-III,” on which Hall scored 71. Dr. Pritchard also considered the results of a WAIS-IV test administered by Dr. Joseph Sesta in 2008, on which Hall scored 72, and a WAIS-III test administered by Dr. Bill Mosman in 2001, on which Hall scored 69. The trial court excluded Dr. Mosman’s report, however, because Dr. Mosman died, and Hall’s attorney was unable to provide the state with the raw data underlying the report. Dr. Harry Krop testified that Hall’s IQ was 73 on the WAIS-R.

The trial court denied Hall’s motion on the ground that Hall was unable to demonstrate “an I.Q. score of 70 or lower.” The trial court set that particular threshold because the Florida Supreme Court interpreted § 921.127 two years earlier, in Cherry v. State, 959 So.2d 702 (Fla. 2007), to mean that only persons with an IQ of 70 or under qualified as mentally retarded. (The condemned prisoner in Cherry had an IQ of 72. The Florida Supreme Court denied relief.)  The Florida Supreme Court, relying on its holding in Cherry, affirmed. This appeal followed.

CASE ANALYSIS

The Supreme Court ruled in Atkins that a state violates the Eighth Amendment’s ban on cruel and unusual punishment when it executes a mentally retarded person. But the case did not define mental retardation. As a result, states have developed their own approaches to defining mental retardation. Florida’s approach, under the state Supreme Court ruling in Cherry, defines mental retardation rigidly, as an IQ test score of 70 or below.

The parties in this case argue whether Florida’s approach violates Atkins. More particularly, they argue whether executing a person, like Hall, who has IQ test scores above 70 but nevertheless has severe and well documented deficiencies in his intellectual functioning and adaptive behavior, violates the Supreme Court’s prohibition on executing the mentally retarded.

Hall argues first that Atkins forbids the execution of persons meeting the clinical definition of mental retardation. According to Hall, that definition does not set a rigid cutoff; instead, it incorporates three prongs: (1) “significantly subaverage” intellectual functioning; (2) limitations in adaptive functioning; and (3) onset before age 18. Hall says that the Court in Atkins recognized this, because it cited two clinical sources that contained definitions that incorporated these three prongs, and because it repeatedly described IQ, again citing these and other clinical sources, as only a rough measure of mental retardation. (Hall, and the Court, refer to the definitions of mental retardation promulgated by the American Association on Mental Retardation, or the AAMR, now the American Association on Intellectual and Developmental Disabilities, or the AAIDD, and the American Psychiatric Association, or APA.) Hall contends that Florida’s rigid cutoff for mental retardation impermissibly redefines the clinical definition of mental retardation under Atkins. (Hall notes that the plain language of § 921.137 can be squared with Atkins. It is the Florida Supreme Court’s rigid interpretation of § 921.137 that violates Atkins.)

Next, Hall argues that Florida’s rigid approach does not comport with the commonly accepted clinical definition of mental retardation. In particular, Hall claims that Florida’s rigid approach fails to take into account the standard error of measurement, or SEM. As Hall explains, “in Florida, an obtained IQ test score of 71—notwithstanding that it is clinically indistinguishable from a score of 70, in light of the inherent measurement error in the test—bars a defendant from presenting any evidence of limitations in adaptive functioning.” This is so, even though that evidence may be compelling, and even though psychiatrists may have diagnosed the defendant as having mental retardation. Hall points (again) to the nearly identical definitions promulgated by the AAIDD and the APA, both of which account for measurement error within a range of plus- or minus-five points. Hall says that an obtained IQ score plus or minus one SEM yields a confidence interval equating to a 66 percent probability that a person’s true IQ test score falls within that range. (If a person’s score is 70, with a SEM of 2.5 points, there is about a two-thirds chance that the person’s actual IQ is between 67.5 and 72.5.) He claims that the definitions promulgated by the AAIDD and the APA both account for the SEM and the resulting confidence interval. He says that they also look to guidelines on intellectual functioning and adaptive behavior, in addition to IQ scores, and require clinical judgment to determine mental retardation. Hall contends that both the AAIDD and the APA reject a specific cutoff score as the measure for mental retardation.

Hall says that Florida’s rigid approach is inconsistent with these commonly accepted clinical definitions. Moreover, he contends that other death-penalty states have rejected Florida’s rigid approach, and that Florida is in a small minority of states that have adopted a rigid cutoff without consideration of the SEM. He claims that Florida’s rigid approach will result in an unacceptable risk of executions of individuals who are mentally retarded.

Finally, Hall argues that there is no genuine dispute that under accepted clinical standards, he is mentally retarded. Hall says that all of his scores, save his score of 80, an outlier, are in the 95 percent confidence interval for a “true” score of 70, or two standard deviations below the mean IQ score. He contends that while those scores alone are insufficient to yield a diagnosis of mental retardation, they would prompt any competent clinician to investigate his adaptive behavior. And based upon that investigation—through all the evidence of his poor intellectual functioning and adaptive behavior submitted at earlier hearings—Hall says that he is mentally retarded.

The state argues first that Atkins left states substantial leeway in enforcing the ban on executing the mentally retarded. The state says that Atkins did not prescribe any particular diagnostic criteria or definition of mental retardation and, in particular, did not hold that states must apply the AAMR or APA definitions. Indeed, the state claims that Atkins relied on a national consensus against executing the mentally retarded that included Florida’s § 921.137 and other states with varied definitions of mental retardation. In other words, the state says that Atkins recognized a national consensus against executing the mentally retarded, but not a national consensus around a definition of mental retardation. Florida claims that the Court in Atkins relied on its own judgment about the mentally retarded and why they cannot be executed, not on a particular medical definition of mental retardation; instead, it left that to the states.

The state argues next that the Court should not eliminate the states’ roles in enforcing Atkins. The state claims that the Court has traditionally deferred to the states in defining mental conditions for the purposes of criminal law. Moreover, the state says that deference is particularly appropriate here, where diagnostic criteria for mental retardation (including criteria for evaluating intellectual functioning, adaptive functioning, and even the age of onset) have changed so much over time and are constantly evolving. In particular, the state points to the changing ways that authorities have relied on IQ. Given these differences, the state says that a person could be labeled mentally retarded under one definition but not under another. The state claims that it would be particularly inappropriate for the Court to force the states to agree with any one particular authority under these circumstances. The state also suggests that the APA, the AAIDD, and similar groups seek to limit the application of the death penalty. According to the state, if the Court requires states to adhere to (evolving) clinical criteria developed by these groups, then these groups “would have unavoidable incentives to adopt even more expansive definitions of mental retardation” in order to serve their political purpose, to limit the application of the death penalty.

Third, the state argues that its approach is appropriate under Atkins. The state says that its definition generally conforms to the clinical definitions. It claims that its approach requires a finding on all three prongs (intellectual functioning, adaptive functioning, and age-of-onset), and that its IQ threshold is a long-settled way of determining mental retardation. It contends that consideration of the SEM is appropriate for some purposes (like education, or determining eligibility for services), but not here, where Hall introduced numerous and varying test scores that fell above 70. The state says that a defendant can still introduce other mitigating evidence that satisfies some non-statutory definitions of mental retardation.

The state contends that there is no national consensus on how to use the SEM, or how to consider clinical criteria. Still, it says that its approach is consistent with other states. It claims that Hall’s approach would undermine its important interests in finality (because Hall’s approach would necessarily lead to subsequent challenges based on constantly evolving clinical definitions) and an objective determination of mental retardation.

Finally, the state argues that Hall is not mentally retarded. The state says that Hall’s crime—involving a multi-step plan that was cold, calculated, and premeditated—shows that he was not mentally retarded when he committed the crime. It also says that Hall’s medical evidence (including the results of his IQ tests) fail to show that his mental state was attributable to mental retardation. Instead, it says, Hall’s evidence suggests that his mental state was attributable to his difficult childhood, abusive mother, and poverty.

SIGNIFICANCE

According to an amicus brief filed by nine other states in support of Florida, ten states use “an obtained IQ test score above 70 [as] a conclusive, bright-line cutoff (without using the SEM) in evaluating the intellectual function prong of mental retardation.” Two other states have adopted bright-line cutoffs above 75. A number of other states either do not use a rigid cutoff, or allow application of the SEM in evaluating IQ scores. A number of other states have not firmly determined their approaches. (Thirty-two states in all still have the death penalty, according to deathpenaltyinfo.org. The amicus brief for Arizona and eight other states contains an appendix with a summary of state laws and rulings on determining mental retardation and another appendix with each state’s burden of proof.)

As a result, Hall potentially directly affects ten, or maybe twelve, states—those with rigid cutoffs for determining mental retardation. If the Court rules for Hall, those states will have to adjust their determination criteria to take into account the SEM, and possibly other factors. (The Question Presented asks only whether a state must consider the SEM. Still, there is nothing preventing the Court from saying more about the definition of mental retardation. It seems unlikely that the Court will prescribe a particular comprehensive definition or approach, though. Instead, if it rules for Hall, it will likely continue to give the states substantial room to craft their own definitions, within the broad boundaries of its ruling.)

On the other hand, if the Court rules for Florida, those states may obviously retain their rigid definitions. In that case, there is a possibility, although it seems quite slim, that other states that currently consider the SEM or other factors may simplify their own definitions and follow Florida’s approach.

 

February 27, 2014 in Cases and Case Materials, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Saturday, February 22, 2014

Same-Sex Marriage in Chicago, but not all of Illinois until June 1

In her very brief opinion and order in Lee v. Orr, United States District Judge Sharon Johnson Coleman found that Illinois' same-sex marriage ban - - - already changed by the legislature but not effective until June 1, 2014 because of state constitutional requirements  - - - was unconstitutional.  

The judge's reasoning was understandably scanty: Not only did the parties' agree that summary judgment was appropriate because there was no disputed issues of fact, but they essentially agreed that there were not disputed issues of law:

There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry. Indeed, the defendant and intervenor have joined in plaintiffs’ motion, with the caveat the defendant David Orr is bound to follow the law in Illinois.

The sticking points were the remedies.

First, and less sticky, was the timing.  The judge quoted Martin Luther King for her reasoning to extend previous rulings:

the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN’T WAIT 74 (1964).

Chicago map 1871

 

Second, and stickier, was the place:

The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. . . . Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.

Absent additional litigation - - - and different lawyering - - - same-sex marriage in Illinois is available in Chicago now and the rest of the state starting June 1.

[image: map of Chicago, circa 1871, via]

February 22, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sunday, February 16, 2014

Ninth Circuit Strikes "Good Cause" Requirement for Concealed Carry

A divided three-judge panel of the Ninth Circuit ruled last week in Peruta v. County of San Diego that the city's "good cause" requirement for a concealed carry permit, enacted under California's general ban on concealed carry, violated the Second Amendment.

The ruling deepens a split in the circuits on concealed carry.  As the court wrote, "Indeed, we are the fifth circuit court to opine expressly on the issue, joining an existent circuit split. . . .  Our reading of the Second Amendment is akin to the Seventh Circuit's interpretation in Moore . . . and at odds with the aproach of the Second, Third, and Fourth Circuits . . . ."

The case involves California's and San Diego's concealed carry permitting requirements.  California law generally bans concealed carry, but allows a person to apply for a concealed carry permit where he or she lives, provided that the person shows "good moral character," completes a training course, and establishes "good cause."  San Diego enacted a policy that defines "good cause" as "a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way."  Concern for "one's personal safety alone is not considered good cause."

The court surveyed the history and concluded that "the carrying of an operable handgun outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes 'bear[ing] Arms' within the meaning of the Second Amendment."

As to the "good cause" requirement: the court ruled that California's scheme--which bans open carry, and restricts concealed carry to all but those who can show a particularized "good cause"--amounts to a destruction of the core right to bear arms for self-defense (as opposed to a mere burden on the right).  The court thus struck the permitting scheme, without specifying a level of scrutiny.  "Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly better than a near-total prohibition on bearing them (this case), and vice versa.  Both go too far."  Op. at 57.

Judge Thomas dissented, arguing that the majority "not only strikes down San Diego County's concealed carry policy, but upends the entire California firearm regulatory scheme."

February 16, 2014 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Gitmo Detainees May Assert Mistreatment Claims

A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.

The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).

The ruling is likely to bring  a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement.  It may also bring a congressional response--to foreclose those claims.

The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.

Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims.  The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).

The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:

Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).

The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.

In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims).  It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims.  And it said that Boumediene struck Section 2241(e)(1). 

So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.

The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed).  The court said that the Supreme Court left this question open, and that there is a split among the circuits.  Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:

The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention."  Munaf v. Geren.  The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention.  In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.

Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.

The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.

Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).

The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims.  The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest.  The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA. 

The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.

February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Aftermath of Windsor in the Federal Government: AG Holder's Memo

Citing United States v. Windsor, declaring DOMA's section 3 unconstitutional, in a Memorandum issued on Monday February 10, Attorney General Eric Holder has announced that it is the policy of the federal government to "recognize same-sex marriages as broadly as possible."  Holder discussed the forthcoming memo in a speech delivered the previous weekend.

Memo DOJ

In the memo, Holder specifies that marriage recognition will extend to "same-sex marriages, valid in the jurisdiction where the marriage was celebrated to the extent consistent with the law."  This shifts the marriage validity question away from domicile or residence. 

Importantly, in footnote 1 of the Memo, Holder notes that the policy is limited to marriage and "does not apply to individuals who have entered into another similar relationship such as a domestic partnership or civil union, recognized under state law that is not denominated as a marriage under the laws of that state."

Holder also expresses pride in the DOJ's role in the litigation challenging DOMA, citing his 2011 letter concluding that sexual orientation classifications should be subject to strict scrutiny and that DOMA failed this constitutional test.

One of the more interesting aspects of Holder's Memo is the discussion of marital testimonial privileges.  Holder directs prosecutors to apply the memo "prospectively" - - - to conduct that occurred on or after the date of the Windsor decision (and not the date of the 2011 Holder memo or the present memo).

February 11, 2014 in Current Affairs, Executive Authority, Family, Fundamental Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

Daily Read: Sara Rankin's Homeless Bill of Rights

Given that the extant constitutional rights have proven ills-suited toward recognizing the rights of homeless persons (even to have a blanket or to be fed), Professor Sara Rankin's article, "A Homeless Bill of Rights (Revolution)," available in draft on ssrn, is an important look at state constitional efforts.  Rankin surveys current efforts to advance homeless bills of rights in nine states and Puerto Rico, concluding that such efforts are likely to have more of an incremental social impact than any immediate legal impact.

RankinsRankin (pictured right)  highlights the aspirational aspects of such bills, arguing

Homeless bills of rights present an important opportunity to impact American rights consciousness. The emergence of these new laws may encourage housed Americans to confront—and perhaps one day, overcome—our persistent, deeply-rooted biases against the homeless. Regardless of whether homeless advocates’ ideal provisions are enacted, enforced, or implemented in the near future, even modest versions of these new laws can stake an important claim in the movement building process. After all, the U.S. Declaration of Independence and the Bill of Rights remained dormant and aspirational for years after their enactment, but like all declarations of fundamental rights, these documents set crucial goals for society to achieve over time.

Certainly, however, such laws would counteract the increasing "ciminalization" of homelessness that she discusses:

Of 234 cities surveyed by the National Law Center on Homelessness and Poverty (NLCHP), 53 percent prohibited begging or panhandling in public places, 40 percent prohibited camping in public places, and 33 percent prohibited sitting or lying down in public places. These laws authorize police to perform “sweeps” to clear public areas of homeless people. Police sweeps often result in the confiscation and destruction of personal belongings, including identification, documentation, medications, and other property of sentimental value.

Rankin's article is an important read for anyone considering the constitutional parameters of addressing homelessness.

 

February 9, 2014 in Fundamental Rights, Scholarship, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 4, 2014

Fourth Circuit Strikes Proof-of-Religion Requirement in Prison


The Fourth Circuit ruled in Wall v. Wade that a Virginia prison's requirement that inmates show physical indicia of their faith before participating in Ramadan violated the Free Exercise Clause.

The case arose when Wall, an inmate at the Red Onion State Prison, or ROSP, in Pound, Virginia, sought a religious accommodation to participate in Ramadan--special meals served before sunrise and after sunset.  But ROSP policy required prisoners to show "physical indicia" of their faith--such as a Quran, Kufi, prayer rug, or written religious materials obtains from the prison Chaplain's office--before receiving the accommodation.  Wall had none of these, because his "physical indicia" were lost when he was transferred to ROSP from another facility.  So officials denied his accommodation.

Wall nevertheless skipped breakfast and concealed a portion of his meal in his cell to save until after sunset.  ROSP staff discovered the food and threatened to charge Wall with possessing contraband.  As the court wrote, "Faced with choosing between starvation and sanctions, Wall ate during the day and violated his religious beliefs."

Wall filed formal complaints and later sued, arguing that ROSP policy as applied to him violated RLUIPA and the Free Exercise Clause.  The district court dismissed the case, but the Fourth Circuit reversed.

The court held that the policy violated the four-part test in Turner v. Safley:

First, demanding specific physical items as proof of faith will rarely be an acceptable means of achieving the prison's stated interest in reducing costs.  Strict application of such a rule fails even a rational connection requirement. . . .

[Second, i]t is clear that Wall was absolutely precluded from observing Ramadan because of the defendants' actions. . . .

[Third, w]e are not satisfied that the defendants have sufficiently explained how a less restrictive policy would have imposed a significant burden on prison resources. . . .

Finally, we are satisfied that there existed "easy[] [and] obvious alternatives" to the challenged regulation.

The court ruled that Wall's rights were "clearly established," and that ROSP officials therefore did not enjoy qualified immunity.

The court also rejected the claim that Wall's case was moot in light of the Prison's changed policy.  Applying the "voluntary cessation" doctrine, the court wrote,  "We have no difficulty concluding that the defendants failed to meet their "heavy burden" of establishing that it is not "absolutely clear" the 2010 Ramadan policy will not be reinstated." 

February 4, 2014 in Cases and Case Materials, Free Exercise Clause, Fundamental Rights, News, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 21, 2014

Public-Sector Fair Share Appears to be Safe

 The Supreme Court heard oral arguments today in Harris v. Quinn, the case testing whether fair-share fees for non-union in-home care providers in the Illinois Medicaid program violate the First Amendment.  (Our argument preview is here.)  The Court in Abood v. Detroit Board of Education previously upheld public-sector fair-share fees to support a union's collective bargaining activities in the interests of preventing free-riders on a union's activities and promoting workplace peace.  But this case put Abood directly in the Court's cross-hairs, as the petitioners argued to overturn the decades-old case.

If today's arguments are any indication, that seems an unlikely result.

Still, it's not entirely clear what the Court will do with the case.  For one thing, there was just a lot of confusion about it.  For example, on the question whether the union's work here (in the state's Medicaid program) represented advocacy on a public matter (thus strengthening the non-members' claims), no clear position emerged.  Here's an exchange between Justice Kagan and the attorney for the petitioners (the home-care workers):

Justice Kagan: But you're not objecting, I think, to the union as a whole.  What you're objecting to is an individual employee having to support that activity.  The scale is no different.  It's an individual employee.

Mr. Messenger: Yes, it's an individual employee being forced to support that expressive activity.  So the question becomes: What expressive activity are they being forced to support?  And when you're speaking of changing an entire government program, for example, Medicaid rates across the board, that is a matter of public concern.  That is a matter of lobbying or political --

Justice Kagan: But that's exactly what the individual employee in Justice Scalia's hypothetical is arguing for.  He wants wage rates to be changed across the board.  He knows they're not going to be changed just for him.  He wants higher wage rates.

Mr. Messenger: But, again, under this Court's private--under the public conern test, an individual simply speaking to that usually does not rise to a matter of public concern.

Chief Justice Roberts jumped in during the respondents' argument to underscore the problem.  He made a point that under the state's position one union's advocacy for increased Medicaid rates might be an issue of public concern (as in a teacher's union), but another union's advocacy for the same incrased Medicaid rates is a private employment issue (as here), suggesting that that can't be. 

Justice Breyer quickly rescued the respondents and outlined the opposite position--"Collective bargaining with any employer, meat packers, hours, safety depends on hours, always can involve public interest questions"--arguing that the Court shouldn't be in the business of this kind of line-drawing.

The one to watch here may be Justice Kennedy.  He suggested at one point that nearly all of this union's activities were public matters, but at a different point that the Court's jurisprudence provides (at least) a partial solution: non-members can be compelled to pay fair-share fees for those activities that might involve free-riding, but not for other activities for which they don't receive a benefit.  (Justice Scalia piped in to remind us that under the Court's jurisprudence non-members can opt-out of fees for benefits that they don't enjoy.)  The problem here may be sorting out which kind of benefit is which.

Justice Alito underscored this problem when he pressed the state on a hypothetical non-union teacher who has to pay a fair-share fee to support the union's advocacy of the tenure system.  But the teacher disagrees with the union's position on this, so has to pay another organization an equal amount to represent his or her views--just to counteract the advocacy supported by his or her compelled fair-share fee.  Justice Kennedy posed a similar hypo.  The state responded that here the fair-share fee supports union activity that benefits all workers, but it's not clear that a majority bought it, or, if they did, that they weren't also thinking beyond the narrow facts of this case.

The case also involved several puzzles, both practical and jurisprudential, that seem to put the petitioners' positions at odds with common sense and doctrine.  Here's Justice Sotomayor raising one with the petitioners:

Justice Sotomayor: Is there a problem for the State to say--the union, to organize has a certain amount of costs.  So putting aside fair representation laws, could the State say, this is what we're going to pay police officers, 100 dollars, but we're going to pay union members 110 to reimburse them for the cost of negotiation.  Would that be OK?

Mr. Messenger: Yes.

 Here's Justice Kagan raising another:

Justice Kagan: Because here's the thing: That in the workplace we've given the government a very wide degree of latitude and there's much that the government can do.  It can fire people.  It can demote people for things that they say in the workplace, not for things that they say as a citizen . . . .

So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with.  And I want to know what's the basis for that distinction, which it seems to me is just as hard as -- as if you were answering under the petition clause.

There was also significant confusion about whether the state's flexibility in negotiating wages--and therefore why the union's participation is necessary.  (If the wages are set--by the Medicaid program, for example--what benefit does the union bring?) 

Justices Scalia and Alito both expressed some skepticism over the state's intent in requiring fair-share, Justice Alito suggesting that it was Governor Blagojevich's reward to the union for a huge campaign contribution.

In rebuttal, Justice Scalia pressed the petitioners about free-riding and what their position could do to unions; Justice Kagan pressed them about what their position would do to "thousands and thousands" of public contracts that include fair-share provisions.  Justice Kagan earlier put a finer point on the case's significance and with the help of respondents' counsel told us just what's at stake:

Justice Kagan: So, Mr. Messeenger, even on the compulsory fees, I mean, what strikes me is that this is -- I'm just going to use the word here, it is a radical argument.  It would radically restructure the way any workplaces across this country are -- are run.

And let me just put it to you this way and ask if you agree with this -- with this statement.  Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State and people have disagreed.  Some States say yes, some States say no.  It raises considerable heat and passion and tension, as we recently saw in Wisconsin.  And -- but, you know, these are public policy choices that States make.

And is it fair to say that what you're suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question when they've been debating that, because, in fact, a right-to-work law is constitutionally compelled?

Mr. Messenger: In the public sector, yes . . . .

January 21, 2014 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (1) | TrackBack (0)