Tuesday, February 25, 2014
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."
Monday, February 24, 2014
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.
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.
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.
Saturday, February 22, 2014
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).
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]
Friday, February 21, 2014
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.
Thursday, February 20, 2014
Federal Judge Dismisses Complaint Alleging NYC Police Surveillance of Muslim Communities in New Jersey
In a terse ten page opinion today in Hassan v. City of New York, United States District Judge William Martini dismissed a complaint alleging that the New York City Police Department’s surveillance program targeted New Jersey Muslims solely on the basis of religion, thereby violating their First and Fourteenth Amendment rights.
The judge first found that there were not sufficient allegations to satisfy Article III standing. He relied upon Laird v. Tatum, 408 U.S. 1 (1972) to conclude that there was not an injury in fact because, as in Tatum, the allegations of a "subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm."
The judge also found that the causation requirement of standing was not met because any injury was not caused by the surveillance but by the revelation of the surveillance:
None of the Plaintiffs’ injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation of those documents. Nowhere in the Complaint do Plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. This confirms that Plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. The harms are not “fairly traceable” to any act of surveillance.
On the merits of the allegations, the judge applied the Iqbal "plausibility" and discriminatory "purpose" standard, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and concluded that:
Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself. While this surveillance Program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.
Copies of the complaint and other pleadings are available at the Center for Constitutional Rights. The dismissal is sure to be appealed.
Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.
One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate." But, the Third Circuit stated, that is not a "constitutional flaw."
The challenged statutory provisions included ones that:
(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a “preparation room”;
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.
The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.
In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:
The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL’s proscription at Central Hudson’s third step: by allowing funeral homes to operate under predecessors’ names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names. A funeral director operating a home that has been established in the community, and known under his or her predecessor’s name, does not rely on his or her own personal reputation to attract business; rather, the predecessor’s name and reputation is determinative. Nor does a funeral home operating under a former owner’s name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State’s regulation seeks to further.
ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case. It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.
February 20, 2014 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Dormant Commerce Clause, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Sunday, February 16, 2014
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."
Friday, February 14, 2014
Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny. Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and "responsible procreation" coupled with "optimal child rearing" are not satisfactory. The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:
This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.
Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . .
The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.
Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies. Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia. Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal." (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause). Others may contest that there can be "no serious doubt" that marriage is a fundamental right.
Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions: 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, and Kitchen v. Herbert, from the District of Utah (now stayed).
Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit.
But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.
[image: 1848 map of Virginia via]
February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)
Thursday, February 13, 2014
United States District Judge John G. Heyburn's opinion in Bourke v. Beshear finds that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.
The judge's 23 page opinion is crafted for both a nonlegal and legal audience.
For popular consumption, Judge Heyburn's opinion has passages written in direct prose answering questions he himself has posed and unburdened with extensive citations. For example, he writes:
For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly?
The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. If this were not so, many practices that we now abhor would still exist.
He discusses religiosity in similar terms, beginning by noting that many Kentuckians believe "what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit" and later opining that
The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.
For its legal audience, Judge Heyburn's opinion contains a rigorous analysis of equal protection doctrine, of the Supreme Court's decision last June in United States v. Windsor, and of the courts applying Windsor.
Engaging with the Court's opinion in Windsor, authored by Justice Kennedy, Judge Heyburn expresses some frustration with the lack of clear equal protection doctrine, observing that the Court "never clearly explained the applicable standard of review." Nevertheless, Judge Heyburn used two "principles" of Windsor: that the actual purpose of the law must be considered in light of animus and that the laws must not demean one group by depriving them of the rights provided for others. Ultimately, Judge Heyburn applies rational basis review and finds that the government interests proferred by Kentucky - - - as well as those advanced in an amicus brief submitted by the Family Trust Foundation of Kentucky - - - are not legitimate interests.
Judge Heyburn also discusses the three federal district judges who have reached similar conclusions in "well-reasoned opinions," citing the opinions in Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
To be clear, the effect of the opinion is not to mandate clerks in Kentucky begin offering marriage licenses to same-sex couples. But it is to require Kentucky to recognize same-sex marriages valid in another state as valid in Kentucky on the same terms as other marriages.
[image: 1921 map of Kentucky via]
Tuesday, February 11, 2014
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)
In its unanimous opinion today in ACLU of North Carolina v. Tata a panel of the Fourth Circuit has concluded that North Carolina's specialty license plate "Choose Life" is unconstitutional under the First Amendment.
Recall that in December 2012, Senior United States District Judge James Fox found that while the the "choose life" specialty license plate was offered by the government, it was not the type of "government speech" to which the First Amendment would not apply.
As the Fourth Circuit explained:
The Supreme Court and this Court have recognized individual speech interests in license plate messages. And in this case, too, the specialty plate speech at issue implicates private speech rights, and thus First Amendment protections apply.
But this did not mean the state had no responsibility. Indeed, the court concluded:
North Carolina invites its vehicle owners to “[m]ake a statement” and “promote themselves”—but only if they are on the government’s side of a highly divisive political issue. This, North Carolina may not do. Because the specialty plate speech at issue implicates private speech rights and is not pure government speech, North Carolina’s authorizing a “Choose Life” plate while refusing to authorize a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment.
The court's opinion is an excellent rehearsal, in less than 30 pages, of what might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard. We recently discussed the Native American image on the Oklahoma license plate and Michigan's refusal of specific letters on a vanity license plate.
Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.
The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act). The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues. The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."
The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.
While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments. Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.
February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)
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.
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).
Monday, February 10, 2014
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.
While primarily known as a criminal law scholar, Professor Andrew Taslitz's work was integral to constitutional law, regularly focused not only on issues of constitutional criminal procedure, the death penalty, and national security, but also on equality of race, class, and gender.
He is editor of a forthcoming volume to be published by the ABA entitled "Media Coverage in Criminal Justice Cases: What Prosecutors and Defenders Should and Should Not Say" that exemplifies his contributions to both the scholarly and practicing communities.
He is also one of the 26 law professors featured in What the Best Law Teachers Do (Harvard University Press, 2013).
There is an announcement and memorial page (including ways to contribute) from American University Washington College of Law, where he began teaching in 2012, after having been at Howard Law School for almost two decades.
Affectionately known far and wide as "Taz," he will be missed.
A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today. It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.
Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."
The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program. It ends by implicating President Obama:
Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.
And Obama may even think it's one a "strong suit" of his.
This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.
Sunday, February 9, 2014
The Eleventh Circuit last week in Alabama Education Association v. Governor of Alabama reversed the district court's grant of a preliminary injunction against enforcement of a state law prohibiting public employees from arranging salary deductions for payments to organizations for use for "political activities." The ruling means that the case goes back to the district court, with a heavy thumb on the scale in favor of upholding the law against the plaintiffs' First Amendment challenge.
The law at issue, Alabama Code Sec. 17-17-5, prohibits public employees from "arrang[ing] by salary deduction or otherwise" for payments to (1) political action committees or (2) organizations that use any portion of the dues for "political activity." (Emphasis added.) The Act goes on to define "political activity" as
a. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.
b. Engaging in or paying for public opinion polling.
c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.
d. Engaging in or paying for any type of political advertising in any medium.
e. Phone calling for any political purpose.
f. Distributing political literature of any type.
g. Providing any type of in-kind help or support to or for a political candidate.
The Alabama Education Association, its political action committee A-VOTE, and some individual members brought a pre-enforcement challenge, arguing that the Act violated free speech on its face. In particular, they claimed that the "or otherwise" language rendered the Act overly-broad (because it would limit private forms of payment, not facilitated by the government, for political activities), and that the phrase "political activity" was unconstitutionally vague.
The Eleventh Circuit reversed the lower court's preliminary injunction against enforcement of the Act. The Eleventh Circuit's ruling hinged on the answers to questions its certified to the Alabama Supreme Court, asking the state court to define "or otherwise" and "political activities." According to the Alabama Supreme Court, the phrase "or otherwise" prohibited only the use of state mechanisms to support politically active organizations, and not private forms of payment not facilitated by the government. Citing Ysursa v. Pocatello Educ. Ass'n, the Eleventh Circuit held that "[t]his compels the conclusions that the Act only declines to promote speech, rather than abridging it, and that the Act does not implicate any constitutionally protected conduct, much less a substantial amount." The court said that the plaintiffs therefore were unlikely to succeed in their over-breadth challenge.
As to the vagueness challenge, the Eleventh Circuit said that whatever the meaning of "political activity," it at least included activity in which the plaintiffs were involved--that is, electioneering activities--and that therefore under Village of Hoffman Estates v. Flipside, the plaintiffs were unlikely to succeed on their void-for-vagueness challenge.
Before the opening of each town hall meeting, the Mayor recites a prayer - - -
Almighty God, we thank You for the many favours that You have granted Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as members of the municipal council and help us to be well aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding that will enable us to preserve the advantages that our city enjoys, so that everyone can benefit from them and we can make wise decisions. Amen.
Although a government official - - - rather than someone selected by government officials - - - recites the prayer (in French), the similarties to Town of Greece v. Galloway, argued before the United States Supreme Court in November, are obvious. However, the religious practice of the City of Saguenay in the province of Quebec, is going before the Supreme Court of Canada in Mouvement laïque québécois (MLQ) v. City of Saguenay. (Americans might analogize the Quebecois MLQ to American organizations such as Freedom from Religion).
There's a terrific discussion of the case by Victor Yee over at "The Court," a blog from Osgoode Hall about the Supreme Court of Canada.
Any decision by the Supreme Court could have implications for Quebec's controversial attempt to regulate the wearing of "ostentatious" religious gear by public employees and might draw on the Supreme Court of Canada's decision in R. v. N.S., involving the right of a witness in a criminal prosecution to wear a veil. Although the challenge in City of Saguenay is akin to a US Constitutional "Establishment Clause" challenge and the Canadian doctrine of government religious neutrality.