Sunday, March 16, 2014

Epps on the Guaranty Clause and Kerr

Garrett Epps (U. Balt.) asked last week in The Atlantic: Can the U.S. Government Declare a State Constitution "Un-Republican"?

Epps's question comes on the heels of the Tenth Circuit ruling last week in Kerr v. Hickenlooper.  The Tenth Circuit ruled that a group of elected state office-holders have standing to challenge the state constitutional Taxpayer's Bill of Rights, or TABOR, under the Guaranty Clause, and that the suit isn't a political question.  Unless and until it's appealed, the ruling means that the plaintiffs' case can go forward.

TABOR is a Colorado state constitutional provision, adopted by popular initiative in 1992, that says that no governmental unit can raise taxes or approve a new tax without a vote of the people.  State office-holders argued in Kerr that this provision violates the U.S. constitutional provision, the Guaranty Clause, that says that the federal government "shall guaranty to every State in this Union a Republican Form of Government."  The governor, defendant in the case, argued that the plaintiffs lacked standing and that the case posed a non-justiciable political question.  A three-judge panel of the Tenth Circuit disagreed.

Epps's interest goes beyond the case, however.  He argues in his piece that the Guaranty Clause poses a "puzzle" for states' righters:

That clause, like a dormant volcano, rumbled last week in a courtroom in Denver [in the Kerr case].  The sound should worry those who think state prerogatives trump those of the nation.

. . .

The sobering implication [of the Guaranty Clause] is that Congress could decide at any point that a state's constitution was not "republican," expel its members from Congress, and require its people to draft a new constitution.

It's kind of hard to square that power with the claim that the state's are "co-sovereigns" with the federal government.  It's an odd kind of "co-sovereign" that exists by grace of its "peer."

March 16, 2014 in Federalism, News | Permalink | Comments (0) | TrackBack (0)

60 Minutes on Drones

60 Minutes ran a segment tonight on the use of drones for domestic surveillance, among other things, and the related privacy issues.  CBSNews.com has the principal segment, plus an extra on "the drone surveillance debate" and an "overtime" on "drones in flight airborne over Austin."

March 16, 2014 in News | Permalink | Comments (0) | TrackBack (0)

Friday, March 14, 2014

Daily Read: Media Coverage in the Pistorius Trial

The high profile trial of Oscar Pistorius may be South Africa's "OJ Simpson moment." Although there are certainly differences - - - Pistorius admits he fired the gunshots that killed his partner, Reeva Steenkamp; his defense is that he thought she was an intruder - - -  the televised trials and intense media interest are similar.

Yet the South African judge has had to contend with the question of how much graphic material to allow.

Over at Constitutionally Speaking, Pierre De Vos confronts the issues.  The original decision was to "grant permission to media houses to broadcast the Oscar Pistorius murder trial live on radio and television."  But then during the trial, there was a "ruling by Judge Masipa to ban live tweeting of the evidence of the pathologist, apparently to protect the sensibilities of the family of the deceased due to the potential graphic nature of the evidence" was "at best ill-advised."  Indeed, the judge later reversed  his own "decision to prohibit live tweeting of the pathologist’s evidence," but continued to ban the audio or audio-visual broadcasting of the pathologist's "testimony due to the possible graphic nature of the evidence."

399px-Oscar_Pistorius_2_Daegu_2011

Amy Davidson, writing on the New Yorker Blog,  provides journalist context to the testimony in question; testimony that made Pistorius himself vomit. 

For comparative constitutionalists interested in conflicts of "free press" and "fair trial," the Pistorius trial is yet another case study.

[image of Oscar Pistorius via]

March 14, 2014 in Comparative Constitutionalism, Criminal Procedure, News, Speech, Television | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 12, 2014

Florida Supreme Court Says Bar Can Deny Law License to Undocumented Immigrants

The Florida Supreme Court last week ruled that the state bar can deny a law license to undocumented immigrants.  The ruling means that FSU law school graduate Jose Godinez-Samperio, and other undocumented immigrants, cannot be admitted to the Florida bar--at least for now.

At the same time, concurring justices called on the state legislature to change Florida law to allow admission of certain unauthorized aliens, following California's recent lead.  See In re Garcia

The question came to the court by way of a certified question of the Florida Board of Bar Examiners on the application of Gordinez-Samperio.  Gordinez-Samperio came to the U.S. when he was nine years old with his parents, who overstayed their visas.  He learned English, became an Eagle Scout, was valedictorian of his high school graduating class, and attended New College of FSU.  But he's undocumented.

The court cited federal law that states that aliens are not "eligible for any State . . . public benefit," including "any . . . professional license," unless they are "qualified alien[s]," nonimmigrant aliens, or aliens who are "paroled" into the United States for less than one year.  Federal law also allows states to override this provision, but only "through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility."

The court said that there was no such state law.

It also rejected the argument that applicants who have been granted status under the deferred action program, DACA, announced by President Obama in June 2012, were not exempt from the bar on state professional licenses.  The court, quoting DACA, said that DACA is "an act of prosecutorial discretion . . . [and] [d]eferred action does not provide an individual with lawful status."

Gordinez-Samperio and other undocumented immigrants can still get bar membership, if the state legislature allows for it--as California did in the Garcia case.

 

March 12, 2014 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 11, 2014

Feinstein Rails Against CIA Search of Committee Computers

Senator Dianne Feinstein, the head of the Senate Intelligence Committee, railed against CIA searches of the Committee computer network in a speech on the Senate floor today. Senator Feinstein said the searches violated separation of powers, the Senate's constitutional investigation and oversight powers, and the Fourth Amendment, among other things. 

The CIA allegedly searched Committee computers to determine how Committee staff obtained certain documents related to CIA detention and interrogation policies.  (CIA Director John Brennan denied this.)  The CIA Inspector General referred the matter to the Justice Department.

In a related matter, the CIA General Counsel asked the Justice Department to investigate whether Committee staff improperly obtained CIA material.  Senator Feinstein said that this move was designed to intimidate the Committee. 

As a result, DOJ is apparently investigating two issues: whether the CIA improperly spied on the Committee, and whether Committee staff improperly obtained certain CIA material.  The NYT has a good back-grounder here

March 11, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 5, 2014

World Justice Project's Rule of Law Index 2014

The World Justice Project released its Rule of Law Index 2014, a report that "measures how the rule of law is experienced in everyday life in 99 countries around the globe, based on over 100,000 household and 2,400 expert surveys worldwide."

Adherence to the rule of law is assessed using 47 indicators organized around eight themes: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.

The report ranks the U.S. 19th out of 99 countries worldwide, and 13th out of 24 in the Americas.  We got our worst scores for "accessibility and affordability" in the civil justice system, and "no discrimination" in the criminal justice system.  High points included absence of corruption (across the board, except that "no corruption in the legislature" got a relatively low score), absence of civil conflict, and absence of crime.

March 5, 2014 in Courts and Judging, International, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2014

225 Years of Federal Government under our Constitution

Today, March 4, 2014, marks 225 years of governance under our Constitution.  As explained over at the National Constitution Center's Constitution Daily blog, the Confederation Congress set March 4, 1789, as the date that it would hand off power to the new Congress under the new Constitution.  (It took another month to get a quorum.)

March 4 was then the convening date for each new Congress until 1933.  There was a debate about the convening time, though--was it midnight March 3, or noon March 4?  The time was important, because the outgoing Congress had last-minute work to do before the new session commenced.  But if the Senate were running a little behind, no worries: the Senate doorkeeper routinely set the Senate clock back a few minutes (to "political time") to allow the outgoing Congress time to get its work done.

The time issue was solved by the Twentieth Amendment, ratified in 1933, which set the convening time to 12 noon on January 3.  (The Twentieth Amendment thus also shortened the length of the lame-duck outgoing Congress--between the November election and the start of the new session.)

March 4, 2014 in News | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

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)

Pro Publica on Voting Changes Since Shelby County

Pro Publica has a concise list of state-by-state changes to voting laws since the Supreme Court's ruling last summer in Shelby County.  The page includes an interactive map that shows how previously covered jurisdictions have taken advantage of their lack of coverage to impose tighter voting requirements.

Recall that the Supreme Court ruled last summer in Shelby County that Section 4 of the Voting Rights Act, the coverage formula for the preclearance provision (in Section 5), exceeded congressional authority.  Chief Justice Roberts wrote that "things had changed" since Congress enacted the VRA in 1965, but that the preclearance coverage formula hadn't kept pace.  Moreover, he wrote that a coverage formula that treats states differently, as Sections 4 and 5 did, violated a newly minted principle of equal state sovereignty.

In the immediate wake of the ruling, previously covered jurisdictions like Texas and North Carolina moved swiftly to enact more restrictive voting requirements that were previously denied preclearance--bold, in-your-face moves that illustrated the impact of the Court's ruling.  Since that time, more jurisdictions, many of them previously covered jurisdictions, have similarly tightened voting requirements in ways that will likely have disparate impacts on poor and racial minority communities.

February 27, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 25, 2014

Cohabitant Can Consent to Search Over Objection of Absent Occupant

The Supreme Court ruled today that a cohabitant of an apartment can validly consent to a search of the apartment, even over the objections of an absent co-occupant.  The ruling in Fernandez v. California means that police can search an apartment (or home), without a warrant, based on the permission of one occupant, even when another occupant objects, so long as the other occupant isn't around.

The case arose when police knocked on an apartment door after hearing screams come from the apartment.  Roxanne Rojas answered; she appeared to be battered and bleeding.  Police asked Rojas to step out of the apartment so that they could conduct a protective sweep.  Fernandez came to the door and objected.

Police suspected that Fernandez assaulted Rojas and arrested him.  They then identified him as the perpetrator in an earlier robbery and took him to the station.

An officer later returned to the apartment, obtained oral permission from Rojas to search it, searched it, and found items linking Fernandez to the robbery. 

Fernandez moved to suppress the items, arguing that he did not give consent to search.  He relied on Georgia v. Randolph (2006), which held that the consent of one occupant is insufficient to allow a warrantless search if another occupant is present and objects to the search.

The Court declined to extend Randolph to this case, where Fernandez was absent.  Justice Alito wrote for the majority:

Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present.  We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

Justices Scalia and Thomas concurred, both taking issue with the Randolph rule itself, and Justice Scalia trying to shoehorn in a property law analysis.

Justice Ginsburg, writing for herself and Justices Sotomayor and Kagan, dissented:

Instead of adhering to the warrant requirement, today's decision tells the police that they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.  Suppressing the warrant requirement, the Court shrinks to petite size our holding in [Randolph] that "a physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant."

February 25, 2014 in Cases and Case Materials, Fourth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Monday, February 24, 2014

Harvard Conference on Religious Accommodation

Harvard Law will host a conference in early April, April 3 to April 5, titled Religious Accommodation in the Age of Civil Rights.  It includes a pretty amazing line-up.  Here's the description:

Current controversies over marriage equality, antidiscrimination law, and the Affordable Care Act's contraceptive mandate have raised conflicts between religious claims, on one hand, and LGBT equality and women's rights, on the other.  The conference seeks to deepen our understanding of the competing claims by bringing together nationally recognized scholars in the fields of sexuality, gender, and law and religion.

Click here for more information and registration.

February 24, 2014 in Conferences, News, Religion | Permalink | Comments (0) | TrackBack (0)

Brennan Center Launches Newsletter on Money in Politics

The Brennan Center at NYU launched its new newsletter Money in Politics last week.  According to the announcement, the newsletter "will highlight the latest news on the role of big money in politics, its potential impact on the 2014 election, and reform efforts nationwide."  Here's the first issue, published on February 20, covering New York's moves toward public financing, super-PAC donations from both sides of the aisle, a federal public financing bill, and various news related to spending and campaign finance reform.

February 24, 2014 in Campaign Finance, First Amendment, News | Permalink | Comments (0) | TrackBack (0)

La Verne Symposium on Brown, Cause Lawyering

The University of La Verne College of Law will host a symposium this Friday, February 28, titled Brown v. Board of Education at 60: Cause Lawyering for a New Generation.  Conlaw Prof. F. Michael Higginbotham (U. Baltimore) will deliver the keynote.  Registration and more information is here.

February 24, 2014 in Conferences, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 21, 2014

Seventh Circuit Pulls Back Curtain on Notre Dame's Challenge to Contraception Mandate

In an opinion dripping with contempt for Notre Dame's litigation strategies and legal theories, the Seventh Circuit today affirmed the denial of a preliminary injunction for the university in its challenge against the contraception mandate in Obamacare.  The ruling in Notre Dame v. Sebelius sends the case back to the district court for full proceedings and denies Notre Dame interim relief.

It also pulls back the curtain on Notre Dame's claim, revealing just how far-fetched it is.

The issue in this case--whether the government's accommodation for religious nonprofits to exempt themselves from the contraception mandate itself violates religious freedom--is the same issue in Little Sisters, the case in which the Supreme Court recently allowed a religious nonprofit to sidestep the mandate and the accommodation pending its appeal on the merits to the Tenth Circuit.

Recall that the government crafted an accommodation to the Obamacare requirement that employers provide health-insurance options that include contraception for females.  The accommodation allowed religious nonprofits (like Little Sisters and Notre Dame) to shift the mandate to their insurers or third-party administrators (which then would have to provide contraception options to the insured employees and students free of charge) by completing a short form indicating that they have a religious objection to contraception. 

Notre Dame, Little Sisters, and other religious nonprofits sued, arguing that the accommodation itself violated the Religious Freedom Restoration Act and the First Amendment.

The Seventh Circuit's ruling addresses only whether Notre Dame qualifies for a preliminary injunction from the accommodation (and mandate) while its case proceeds to the merits.  But in answering that question, the court had to determine whether Notre Dame is likely to succeed on the merits.  And the court said that it wasn't.

Right out of the gate, the court practically mocked the university for asking for something that the court couldn't deliver--because of the university's litigation tactics.  In particular, the court noted that Notre Dame filed its case late, close to the mandate's (and the accommodation's) implementation date, so that it was forced to either file the form for the accommodation or incur fines under the Affordable Care Act.  Notre Dame filed the form, and its administrator notified Notre Dame employees that contraception was available to them.  With the cat out of the bag, the court wondered what relief does Notre Dame want?  Revoking the form would do nothing, because federal law requires the administrator (not Notre Dame) to provide contraception.  But the court can't order the administrator to stop providing contraception, because Notre Dame neglected to join the administrator in the case.

As to the merits, the court was equally dismissive.  In particular, the court rejected Notre Dame's "trigger" theory--that by signing the accommodation form, it triggers, or enables, contraception coverage by a third party, against its religious beliefs.  The court dismissed this out of hand:

The key word is "enable," and it's inaccurate.  Federal law, not the religious organization's signing and mailing the form, requires health-care insurers, along with third-party administrators or self-insured health plans, to cover contraceptive services.  By refusing to fill out the form Notre Dame would subject itself to penalties, but [its insurance company and administrator] would still be required by federal law to provide the services to the university's students and employees unless and until their contractual relations with Notre Dame terminated.

The court wrote further,

The novelty of Notre Dame's claim--not for the exemption, which it has, but for the right to have it without having to ask for it--deserves emphasis. . . .  What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. . . . 

The process of claiming one's exemption from the duty to provide contraceptive coverage is the opposite of cumbersome.  It amounts to signing one's name and mailing the signed form to two addresses.  Notre Dame may consider the process a substantial burden, but substantiality--like compelling government interest--is for the court to decide.  Otherwise there would have been no need for Congress in the Religious Freedom Restoration Act to prefix "substantial" to "burden."

The court also held that Notre Dame was not likely to succeed on its Establishment Clause claim, that the Act treats religions differently than religious organizations for the purpose of exemption from the contraception mandate. 

The court did find potential merit in Notre Dame's claim that a regulation that forbids a religious nonprofit from interfering with a third-party administrator's arrangements to provide for contraceptive services violates free speech.  But the court said that the parties "failed to place the issue in focus," and so didn't rule on it.

Judge Flaum dissented, arguing that the court should have granted Notre Dame's motion to dismiss the appeal after three Notre Dame students joined the appeal to argue that Notre Dame's religious conviction was not sincere, and that Notre Dame showed a likelihood of success on the merits.

February 21, 2014 in Cases and Case Materials, Establishment Clause, News, Opinion Analysis, Religion | 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)

Monday, February 10, 2014

Michigan Supremes Uphold Medical Marijuana, Strike Local Ban

The Michigan Supreme Court last week unanimously upheld Michigan's medical marijuana law, and struck a Michigan town's ordinance that purported to apply the federal Controlled Substances Act against it, in a two-step, federal-state-local preemption ruling.  The net result: Michigan's medical marijuana law stays on the books exactly as is, and the City of Wyoming's ordinance against it is struck.  And of course: Michigan medical marijuana users could still be prosecuted by federal authorities under the Controlled Substances Act. 

The case, Ter Beek v. City of Wyoming, involved a challenge to Wyoming's ordinance that was adopted to allow city authorities to enforce the federal Controlled Substances Act (the "CSA") against Michigan's medical marijuana law.  Wyoming's ordinance read:

Uses not expressly permitted under this article are prohibited in all districts.  Uses that are contrary to federal law, state law or local ordinance are prohibited.

That last sentence would ban marijuana that violates the CSA in the city.

But a city resident challenged it as preempted by the Michigan medical marijuana law under the Michigan Constitution.  The city argued in reply that Michigan's medical marijuana law was itself preempted--by the CSA under the federal Constitution.

The court ruled first that the CSA did not preempt the Michigan medical marijuana law.  The reason is simple: nothing in the Michigan law prohibits federal enforcement of the CSA.  There's no conflict preemption and no obstacle preemption.  Moreover, the CSA "explicitly contemplates a role for the States" in regulating medical marijuana.

The court held next that the Michigan medical marijuana law did preempt Wyoming's ordinance.  Again, the reason is simple: the ordinance, by allowing enforcement of the terms of the CSA by local officials, conflicts with the Michigan law.  The Michigan Constitution says that the City's "power to adopt resolutions and ordinances relating to its municipal concerns" is "subject to the constitution and the law."  Art. 7, Sec. 22.  That means that local laws can't conflict with state laws.  And the court said that Wyoming's did.

February 10, 2014 in Cases and Case Materials, Comparative Constitutionalism, Federalism, News, Opinion Analysis, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)