Thursday, January 31, 2013
Law students (and future law students) are watching this on The Colbert Report:
(h/t Chase Vine)
Wednesday, January 23, 2013
In its unanimous twenty page opinion in Doe v. Prosecutor, Marion County today, the Seventh Circuit concluded that the Indiana statute restricting registered sex offenders from social media is unconstitutional.
At issue was Indiana Code § 35-42-4-12, prohibiting sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.
Recall that the district judge rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open, and reasoning that many "sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims."
Reversing, the Seventh Circuit found that the statute was not narrowly tailored to serve the state’s interests, but "broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors." The opinion stressed that there were many alternative - and more specific - means by which the state could accomplish its purpose.
The court made clear that the problem was the statute's overbreadth with its caveat:
this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines.
Additionally, while subsequent Indiana statutes might meet a narrowly tailored requirement, "the blanket ban on social media in this case regrettably" did not.
Thursday, January 3, 2013
The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act and California’s Proposition 8 cases," or "DOMPRP8."
The disclaimer is worth a look:
Disclaimer: We have provided a link to this site because it has information that may be of interest to our users. The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.
Wednesday, December 26, 2012
An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar. The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."
The newspaper's actions come in the wake of renewed conversations regarding gun control and ownership. However, the disclosure of information using google maps is not new. Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage. (Recall Prop 8 is now before the United States Supreme Court.)
While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant. In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state. Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous. The names were thus disclosed.
State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records. The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.
[image screenshot via]
Thursday, December 20, 2012
The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."
Any mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:
As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.
In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.
Professor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation. In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts." He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists. Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence." Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.
Ford's arguments about the social science literature, however, are exceedingly well-taken. In sum, it is inconclusive at best. Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:
The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.
Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games. This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.
[image: Mortal Kombat via]
Monday, November 26, 2012
The energy surrounding the Court's anticipated grant of certiorari in at least one of the same-sex marriage cases - - - either one or more of the DOMA cases or the Prop 8 case (Perry v. Brown) - - - raises yet again the question of public access to Supreme Court oral arguments. While these cases are only the latest, they perhaps have special resonance given the Court's quelling of the planned broadcast of the Proposition 8 trial in federal court on dubious procedural grounds.
Prof Lisa McElroy's article, Cameras at the Supreme Court: A Rhetorical Analysis, forthcoming in BYU Law Review and available in draft on ssrn, argues persuasively for the broadcast of Supreme Court proceedings, based on the public's interest in accessing its government, including the judicial branch. The contribution of McElroy's excellent piece, however, is that it is not simply an argument, but an engagement with the "stories" the Court - - - and its Justices - - - tell about the Court and its lack of cameras. McElroy writes that there
can be no doubt that the Court has sincere concerns when it comes to granting public access to the Supreme Court, especially through broadcasting of official Court work. Among them are a desire for day-to- day privacy, a concern that allowing cameras or internet streaming will somehow damage the public’s perception of the Court, fears that broadcasting could somehow subject the Court or the Justices personally to mockery, and concerns that funny or less-than-devout comments made during oral argument might end up on the Internet or on programs like Jon Stewart. It is concerned that televising Supreme Court proceedings would change the very nature of those proceedings.
But, she continues,
the question we must ask is whether these concerns add up to a story with a factual basis, or whether they are a fairy tale that the Justices tell Americans–perhaps even themselves. Are the Court’s concerns borne out objectively, or are they instead a part of the story the institution has created (consciously or unconsciously) to justify its refusal to allow the American people virtual and physical access? Are inaccessibility, grandeur, and intimidation the only paths to legitimacy and respect?
Additionally, McElroy discusses whether the members of the Court are simply uncomfortable with technology, or jealous of their privacy (an increasingly untenable rationale), or worried about security, or not interested in change.
For any scholar or student considering issues of public access to Court proceedings, McElroy's article is a treasure as well as a treasure trove.
Thursday, November 15, 2012
Is there an analogy between the discovery and publication of list of videos that then-nominee for Justice on the Supreme Court Robert Bork checked out from a local DC store and the discovery and discussion of the gmail account of ex-CIA chief David Petraeus? Are both invasions of privacy that provoke public outrage and should lead to Congressional action to protect individual rights?
In describing the extent of the issue, he notes that "in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose 26 percent in the latest six-month reporting period, to nearly 8,000; the company said that it complied with 90 percent of the requests, either fully or partially."
Maas also quotes Robert Bork, not known as a friend of civil liberties, as resolutely ambivalent: "Is there too much intrusion into private lives? I can't answer that very well, because sometimes there is, sometimes there isn't."
The piece is worth a read for anyone considering how our constitutional notions of privacy shift and change.
[image: "Eavesdropping" by Vittorio Reggianini (1858–1938) via]
Wednesday, October 24, 2012
A "daily read" worth watching: Richard Posner (pictured) presented his lecture "How I Interpret Statutes and the Constitution" via video for Columbia Law Federalist Society's Madison Lecture Series on Judicial Engagement.
Posner speaks about originalism and living constitutionalism, proposing his own "middle-ground theory of interpretation that emphasizes common sense and analytic simplicity."
Friday, October 5, 2012
Being argued today in the Third Circuit is George v. TSA, a case seemingly about Arabic language flash cards as a rationale for airport detention by the TSA and Philadelphia police officers with obvious First Amendment implications.
The government has appealed from the denial of its motion to dismiss.
Plaintiff Nick George is represented by the ACLU, and the organization not only has an informative case page with documents, but an effective video:
[image of flash cards for sale at Amazon via]
Sunday, June 24, 2012
In her 19 page opinion in Doe v. Prosecutor, Marion County, Judge Tanya Walton Pratt of the Southern District of Indiana upheld the state's statute prohibiting some sex offenders from accessing social media.
She rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open.
The judge rejected the claim that the use of Facebook for the purposes this statute is meant to foreclose are already criminalized by another statute. Instead, she seemingly shifted the burden to Doe to suggest a more narrow statute that would achieve the state's goals:
That said, Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal (deterrence and prevention of online sexual exploitation of minors) while not violating his First Amendment rights. Here, the statute bars a subset of registered sex offenders from visiting a subset of web sites that minors (and the public at large) use with regularity, which include Facebook, Twitter, Google Plus, various chat rooms, and various instant messaging programs. In other words, Mr. Doe is only precluded from using web sites where online predators have easy access to a nearly limitless pool of potential victims.
She then added her own rationale:
Given the high recidivism rates, it is obvious that many sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims.
Regarding alternatives for communication, she readily conceded that
social networking is a prominent feature of modern-day society; however, communication does not begin with a “Facebook wall post” and end with a “140-character Tweet.”
But the list she provides of other "myriad feasible alternative forms of communications" may strike avid facebook users as odd: "the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook (or some other prohibited account), email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors (e.g. LinkedIn and a number of other sites which allow only adults)." The LinkedIn exemption is interesting. While the statute itself seems unclear, and the judge admits that there was "some confusion on this point during the briefing," she concluded that "it is seemingly clear that Mr. Doe can use the professional networking web site LinkedIn."
According to an AP report by Charles Wilson, the ACLU will appeal.
Tuesday, May 8, 2012
The Seventh Circuit in ACLU v Alvarez has instructed the district court to enjoin Illinois broad "eavesdropping statute" from being applied to a "police accountability" recording program in Chicago.
Illinois has one of the most severe wiretapping statutes under which, as the Seventh Circuit noted, might allow "silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment."
The majority of the panel phrased the question as "whether the First Amendment prevents Illinois prosecutors from enforcing the eaves- dropping statute against people who openly record police officers performing their official duties in public." The American Civil Liberties Union of Illinois (“ACLU”) challenged the statute as applied to the organization’s Chicago-area “police accountability program,” which "includes a plan to openly make audio- visual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders."
The majority reasoned that the
the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content- neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free- speech and free-press guarantees.
The majority supported this conclusion in a lengthy and closely argued analysis, peppered with scholarly citations as well as cases. It noted that the "First Circuit agrees," citing and discussing Glik v. Cunniffe.
Posner's dissent was predictable given his stance during the oral arguments in which he expressed disdain for a "civil rights" group ever having anything useful to say regarding police practices. He highlighted the procedural posture of the case (a preliminary injunction) and the presumed constitutionality of statutes unless a judge has a "gut feeling" regarding the statute. On the substance, he stressed the privacy interests of the persons engaged with police officers.
[Chicago Police Officers on horeseback near "El" via]
Tuesday, April 3, 2012
Awaiting Governor Jan Brewer’s signature is Arizona HB-2549 , a bill that “updates” the previous telephone harassment statute to apply to the internet. The bill applies to obscene, lewd, profane language as well as the suggestion of any lascivious act.
The bill’s text, which would be codified as Arizona Revised Statutes §13-2916, entitled "Use of an electronic or digital device to terrify, intimidate, threaten, harass, annoy or offend; classification; definition", with the updated provisions IN ALL CAPS, provides:
A. It is unlawful for any person, with intent to terrify, intimidate,threaten, harass, annoy or offend, to use ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person. It is also unlawful to otherwise disturb by repeated anonymous ELECTRONIC OR DIGITAL COMMUNICATIONS the peace, quiet or right of privacy of any person at the place where COMMUNICATIONS were received.
B. Any offense committed by use of AN ELECTRONIC OR DIGITAL DEVICE as set forth in this section is deemed to have been committed at either the place where the COMMUNICATIONS originated or at the place where the COMMUNICATIONS were received.
C. Any person who violates this section is guilty of a class 1 misdemeanor.
D. FOR THE PURPOSES OF THIS SECTION, "ELECTRONIC OR DIGITAL DEVICE" INCLUDES ANY WIRED OR WIRELESS COMMUNICATION DEVICE AND MULTIMEDIA STORAGE DEVICE.
The First Amendment concern is that the statute is overbroad. It seems the new statute would apply to general communication on web sites, blogs, listserves and other Internet communication. Translated from the telephone to the Internet, the analogies are imperfect at best: a comments section of a blog, a youtube video, a facebook posting, or any number of Internet “communications" are simply not like a one-to-one telephone call.
Recent First Amendment cases such as US v. Stevens have declined to extend obscenity, and the Internet, unlike the telephone, is not a "regulated media."
If Governor Brewer signs the bill, a First Amendment challenge will surely follow.
[image, telephone circa 1931, via]
Friday, February 17, 2012
A broad statute banning persons convicted of certain sex offenses from accessing "social media" has been held unconstitutionally overbroad under the First Amendment in Doe v. Jindal, by Judge Brian Jackson, Chief Judge of the Middle District of Louisiana.
Louisiana Revised Statute §14:91.5, passed in 2011, provides that the "using or accessing of social networking websites, chat rooms, and peer-to-peer networks by a person who is required to register as a sex offender and who was previously convicted" of specified crimes involving minors. The penalties are severe:
(1) Whoever commits the crime of unlawful use or access of social media shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.
(2) Whoever commits the crime of unlawful use or access of social media, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.
The federal judge first found that John Doe and James Doe had standing to challenge the act. In construing the overbreadth challenge under the First Amendment, the judge looked to the Court's recent pronouncements in US v. Stevens, and similarly found that the statutory ban reached a substantial number of unconstitutional applications. The judge noted that the statute reached many commonly read news and information sites and interpreted the offense to be completed once a user accessed the website, whether intentionally or by mistake. The judge found the definition of "chat room" particularly problematic, as its ban would reach "the website for this Court."
While the state's interest in protecting children was undoubtedly "legitimate," the statute was not sufficiently precise or narrow.
As Louisiana officials consider an appeal to the Fifth Circuit, the legislature might also consider statutory revision.
[image: "Facebook man" via]
Sunday, January 29, 2012
Need a bit of humor? The latest episode of The Daily Show had some provocative comedy related to constitutional law developments earlier this month.
On the FCC v. Fox oral arguments, Stewart made somewhat implicit comparisons between sex and violence.
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|A Love Supreme - Profanity & Nudity on TV|
And on the Court's decision in Hosana-Tabor, he made some very explicit comparisons between Lutheran synod law and Moslem Shari'a law.
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|A Love Supreme - Religious Freedom vs. Americans with Disabilities Act|
Friday, January 20, 2012
In case you missed retired Justice JP Stevens on The Colbert Report:
|The Colbert Report||Mon - Thurs 11:30pm / 10:30c|
|Colbert Super PAC - John Paul Stevens|
Wednesday, January 18, 2012
SOPA, the Stop Online Privacy Act, H.R.3261, and its Senate counterpart, Protect-IP Act, S. 968, seek to protect copyright on the internet. It has provoked a day of protest today, including "blackouts" by Wikipedia, Reddit, and other sites, contending that the bills violate the First Amendment.
SOPA has a savings clause in §2(a)(1) that provides
"FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution."
However, as Laurence Tribe's 20+ page memo on the unconstitutionality of SOPA concludes:
To their credit, SOPA’s sponsors recognize the importance of the constitutional issues raised by the statute they propose. The bill includes language stating “[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1stAmendment to the Constitution.” But proclaiming the bill to be constitutional does not make it so – any more than reminding everyone of a proposed law’s good intentions renders that law immune to First Amendment scrutiny. At the same time, the proviso may have the unintended effect of rendering large swaths of the bill inoperative. For it is difficult to understand how the provisions discussed above would operate except as impermissible prior restraints. The proviso creates confusion and underscores the need to go back to the drawing board and craft a new measure that works as a scalpel rather than a sledgehammer to address the governmental interests that SOPA purports to advance.
As the LATimes reports today, SOPA and Protect-IP are losing Congressional support, including from former co-sponsors. It may be that the legislation may be reworked to be more scalpel-like.
Friday, December 2, 2011
Chisholm v. Georgia (1793) is often considered the first important constitutional case rendered by the United States Supreme Court, predating Marbury v. Madison by a decade.
Certainly the importance of Chisholm v. Georgia is mitigated by the Eleventh Amendment, specifically passed to "overrule" the opinion, although to what extent remains controversial in Eleventh Amendment doctrine even now. On some views, the Eleventh Amendment adopts Justice Iredell's dissent in Chisholm v. Georgia.
ConLawProf John Orth has written extensively on this history, including in an excellent 1994 essay "The Truth About Justice Iredell's Dissent in Chisholm v. Georgia," 73 North Carolina Law Review 255.
But less careful researchers will be more likely to run across Iredell's dissent marketed as "general fiction" with the author relegated to "No bio available." The text, free elsewhere, is available as an eBook for 99¢.
Monday, November 21, 2011
Given the widely circulated police activities to control protest, including the pepper spraying of students at UC-Davis, as well as other incidents, damage lawsuits against law enforcement will most likely increase.
The complaint in Carpenter v. City of New York, filed in the Southern District of New York today, alleges violations of the Fourth Amendment resulting from false arrest and excessive force.
The specific incident was October 15, 2011: an occupy event of a CitiBank in New York City. Heather Carpenter, a CitiBank account holder, and her fiance', Julio Jose Jimenez-Artunduaga, were caught up in the arrests. The complaint does allege that Carpenter was there to withdraw her money in protest, but also that she left the bank building after doing so, and that Jimenez-Artunduaga was outside the building. However, the complaint alleges that the pair were forced back into the bank, and then arrested for trespassing. (The charges were dropped).
The events were captured on video and photographs, including the photograph of Jimenez-Artunduaga's bloody hand, attached to the complaint as an exhibit.
The complaint includes claims for relief against the city, both for policies and on a theory of supervisory liability. For example, paragraph 87 alleges:
Upon information and belief, Defendant CITY OF NEW YORK planned and implemented a policy, practice, custom and usage of controlling the OWS protests and those who
attended the bank protests, that was designed to and did preempt lawful activities by ordering and effecting indiscriminate mass arrests, illegally arresting protestors, including bank customers, and needlessly detaining them for excessively long periods. Upon information and belief, the CITY OF NEW YORK consciously disregarded the illegality and unconstitutionality of said arrests and detentions in order to facilitate and promote the CITY OF NEW YORK's desired reputation as corporate friendly and pro-bank.
Monday, November 14, 2011
An interesting segment on NPR's Morning Edition comparing Ayn Rand's economic thoughts to pronouncements of current politicians. Rand is the author of the novels Atlas Shrugged (1957) and The Fountainhead (1943).
The highlight is a 1959 interview with Rand by Mike Wallace, who asks about the United States' political direction of "the gradual growth of social, protective legislation, based on the principle that we are our brothers' keepers."
These programs are destroying individual liberties, Rand says, especially the freedom of producers, entrepreneurs, businessmen. The government has no right to take their property, she says.
"I imagine that you're talking now about taxes," Wallace says. "And you believe that there should be no right by the government to tax. You believe that there should be no such thing as unemployment compensation, regulation during times of stress."
"That's right," Rand replies. "I am opposed to all forms of control. I am for an absolute, laissez-faire, free, unregulated economy."
A video of the interview is available in 3 parts; here's part 1:
While the usual constitutional law link might be Lochner, Rand's interview could prompt an interesting discussion of Commerce Clause, Takings Clause, or Taxing Clause, or Campaign Finance cases - - - and of course the Affordable Care Act (last discussed here).
Monday, October 17, 2011
In an opinion today in the companion cases of Mattos v. Knight & Maui County and Brooks v. City of Seattle, the Ninth Circuit sitting en banc reversed two district judges who denied summary judgment motions by law enforcement officers that they were entitled to qualified immunity as a matter of law.
In both situations, law enforcement officers wielded tasers against a woman who was arguably not threatening. Brooks entered a school zone, dropping her child off at school, and was charged with not adequately reducing her speed. Mattos was the victim of a domestic assault. Both women were tasered: Brooks because she refused to sign the citation and was placed under arrest, Mattos while she was asking why her partner was being arrested and attempting to defuse the situation. Brooks, 7 months pregnant was tasered three times; Mattos was subject without warning to a dart-taser.
The Ninth Circuit held that in each case the law enforcement officers used excessive force. For example, the court summarized its conclusions regarding Brooks:
In sum, Brooks’s alleged offenses were minor. She did not pose an immediate threat to the safety of the officers or others. She actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to remove her from her car. Brooks did not evade arrest by flight, and no other exigent circumstances existed at the time. She was seven months pregnant, which the officers knew, and they tased her three times within less than one minute,
inflicting extreme pain on Brooks.
As Judge Schroeder, concurring, noted, both women's conduct was nonthreatening:
I write separately only to emphasize the non-threatening nature of the plaintiffs’ conduct. Both were women, with children nearby, who were tased after engaging in no threatening conduct. In Mattos, a domestic violence victim wanted the officers outside her home so they would not awaken her children. In Brooks, the police stopped the pregnant plaintiff for speeding in front of her child’s school — when she refused to sign the traffic ticket and exit the vehicle, the police tased her. Her behavior may be difficult to understand, but it certainly posed no immediate threat to the officers.
Yet applying the increasingly stringent requirement after last term's decision in Ashcroft v. al-Kidd that there was a clearly established right at the time of the occurrence, the court found the officers were entitled to qualified immunity. The test, as the court distilled it was that "every reasonable officer at the time of the respective incidents would have known—beyond debate—that such conduct violates the Fourth Amendment." (Emphasis added). The court rehearsed several taser cases and concluded that the actions the court found were excessive force were not - - - beyond debate - - - excessive force.
The dissenting and concurring opinion of Kozinski, joined by Bea, is less sympathetic to the women. For Kozinski,
Brooks and Mattos breached the covenant of cooperation by refusing to comply with police orders. When citizens do that, police must bring the situation under control, and they have a number of tools at their disposal.
The "traditional tools" such as choke-holds can be "distasteful" according to Kozinski; "The Taser is a safe alternative." It is certainly to be preferred to "pepper-spray," which Kozinski maligns in two separate instances, including rhetorically rejecting "pepper spray or some other noxious chemical, which would be absorbed into her bloodstream and go straight to the fetus" as an alternative to control Brooks.
Kozinski rejects any concern for the women's status as women:
I thought we were long past the point where special pleading on the basis of sex was an acceptable form of argument. Women can, of course, be just as uncooperative and dangerous as men, and I would be most reluctant to adopt a constitutional rule that police must treat people differently because of their sex.
The opinion as a whole, and certainly Kozinski's remarks regarding gender and pepper spray, have special resonance to recent events at the "occupation" of Zuccotti Park near Wall Street. The pepper spraying of a woman protester by a senior law enforcement officer was captured on video and distributed widely.
Chelsea Elliot, the woman in the video being pepper sprayed by an officer identified as Anthony Bologna, is reportedly bringing a civil suit for excessive force. The NYPD is reportedly also investigating Bologna and other senior officers.
For those teaching constitutional litigation, civil rights, and similar courses this semester, the video and the case would make a great pairing for discussion or an individual student project.