Tuesday, May 22, 2018

Redefining Strickland Prejudice after Weaver v. Massachusetts

At the Harvard Law Review Blog, Eve Brensike Primus and I posted a short piece about the Sixth Amendment right to effective assistance of counsel under Strickland v. Washington focusing, in particular, on some interesting things the Supreme Court had to say about Strickland's prejudice requirement last term in Weaver v. Massachusetts. I've copied the intro below. For the entire post, click here.

"Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to show they were prejudiced by their attorneys’ ineffectiveness. After Weaver, criminal defendants should argue, and courts should recognize, that an attorney’s deficient performance is prejudicial when counsel’s errors rendered the trial process fundamentally unfair—even if those errors did not have a probable effect on the trial outcome."

Posted by Justin Murray on May 22, 2018 at 12:08 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (3)

Monday, May 14, 2018

Mootness in Sanchez-Gomez

SCOTUS on Monday decided United States v. Sanchez-Gomez, unanimously holding (per the Chief) that the constitutional challenge to a district-wide policy of shackling all pretrial detainees was moot when the prosecutions of the four defendants ended; neither the special treatment of class actions (where there had been no class certification) nor capable-of-repetition kept the case alive. My opinion analysis is on SCOTUSBlog.

The opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties. The Court emphasized the "usual rule that litigation is conducted by and on behalf of the individual named parties only" and that the "'mere presence of . . . allegations' that might, if resolved in respondents' favor, benefit other similarly situated individuals" does not matter. The Court was talking about Article III mootness and when disputes remain alive. But the principles carry to questions such as the scope of an injunction.

Posted by Howard Wasserman on May 14, 2018 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, May 12, 2018

Eighth Circuit on municipal liability

In Webb v. City of Maplewood, a class challenged various practices relating to unpaid traffic fines (H/T: Volokh Conspiracy's weekly round-up). The Eighth Circuit affirmed denial of the City's defense of sovereign immunity, which was correct. The city tried to obtain immunity by emphasizing the role of the municipal court, a separate, immune entity, in enacting and carrying out the challenged practices. But the court said that the municipal court's separate liability or immunity, if any, did not shield the city from its liability. "If the municipal court rather than the City is responsible for the practices, the City will have a defense on the merits but not immunity from suit."

On that last point, many courts would treat the last point as a matter of Article III standing--the plaintiffs would be said to lack standing to sue the City, because the injury was not traceable to the City nor redressable by an injunction against the City.*

[*] This happened in many marriage-equality cases. Plaintiffs would sue the governor or attorney general, who would argue that he is not the responsible executive officer for things such as marriage licenses or vital records such as death certificates. The dismissal always was framed as 12(b)(1) lack of standing.

I have long believed that position was wrong, that suing a non-responsible defendant should be treated as grounds for the defendant to prevail on a 12(b)(6) or summary judgment. I am glad the court got this right, although with little analysis or explanation for why this should be a matter of merits (and likely because the City failed to frame it as standing).

Posted by Howard Wasserman on May 12, 2018 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, May 09, 2018

Prejudice, Legal Realism, and the Right/Remedy Relationship

Last week, I sketched the contours of a criminal procedure puzzle that’s been on my mind lately. To briefly recap, the puzzle I’m exploring has to do with the unusual way in which courts conceptualize prejudice in two of criminal procedure’s most important doctrinal areas: (1) the Brady rule, which requires prosecutors to disclose (some) exculpatory evidence to the defense as a matter of Due Process, and (2) the Sixth Amendment right to effective assistance of counsel. For both of these rules, the Supreme Court has held that prejudice is an element of the defendant’s constitutional entitlement, which means that if no prejudice ensues from a prosecutor’s failure to disclose exculpatory evidence or from ineffective assistance of counsel (“IAC”), then no constitutional error occurs. By contrast, in most other areas of criminal procedure, courts consider prejudice only in specific remedial contexts—typically as part of harmless error review in appellate or postconviction proceedings—and do not characterize it as an element that restricts the scope of the underlying procedural rights.

Does this distinction make any practical difference? In The Path of the Law, Holmes famously defined law as “prophecies of what the courts will do in fact, and nothing more pretentious.” Inspired by this conception of law, one might dismiss the distinction I’ve identified as unintelligible or, at best, unimportant. After all, when applying any of the doctrines discussed here—Brady, IAC, and harmless error—appellate and postconviction courts will deny a remedy for alleged criminal procedure errors that are not prejudicial. Because our “prophecies” about how these courts will act does not vary across all three doctrines, it is tempting to conclude—as does Dan Epps in a provocative forthcoming article—that they are “functionally indistinguishable” from one another.

I respectfully disagree—with Holmes as to the nature of the right/remedy relationship, and with Epps regarding prejudice law. The grounds for my disagreement with each of them are intertwined. My concern with Holmes’ theory of rights and remedies—at least when applied to constitutional law (as Daryl Levinson and others have done)—is that it is unduly court-centric. By reducing the import of law to remedies supplied by courts, Holmesian legal theory obscures the fact that nonjudicial actors often make important contributions to rights enforcement. Likewise, I worry that Epps overlooks or underestimates the value of criminal procedure enforcement by nonjudicial actors when he equates the denial of appellate and postconviction remedies for nonprejudicial errors (via harmless error review) with the idea, reflected in Brady and IAC law, that nonprejudicial “errors” are not true legal errors at all. Relatedly, Epps also neglects the fact that trial judges often enforce rights that—unlike Brady and IAC, but like most criminal procedure rules—lack a prejudice element even when nonenforcement of those rights at the trial level would not prejudice the defendant and thus would not result in a remedy on appeal.

That’s my theory, anyway—what does the evidence show? In future posts I will show that, for Brady and IAC, (1) there are a number of potentially valuable enforcement mechanisms besides appellate and postconviction remedies, but (2) the prejudice element that the Supreme Court built into the definition of both rights has compromised the efficacy of these alternative enforcement strategies. Specifically, the built-in prejudice rule for Brady undermines, either directly or indirectly, (1) the scope of pretrial disclosure required of prosecutors by the Constitution, (2) the scope of disclosure required by professional ethics rules for prosecutors, and (3) efforts by trial judges to order prosecutors to fully disclose all exculpatory evidence without regard to prejudice. And for IAC, the Supreme Court’s prejudice requirement stands in the way of (1) prospective actions challenging chronically underfunded indigent defense systems through class actions or other devices and (2) attorney malpractice suits by criminal defendants.

Stay tuned as I build my case for these claims in later posts. In the meantime, please send your comments if you think I might have missed other potential lines of argument or would otherwise like to share your thoughts. And thanks to those of you who previously commented on the first installment!

Posted by Justin Murray on May 9, 2018 at 06:25 PM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink | Comments (4)

Tuesday, May 08, 2018

"Nationwide" Injunctions Are Really "Universal" Injunctions (Revised)

The updated/revised draft of my article on universal injunctions (complete with new, and more descriptive, title) is on SSRN (hoping the article will be published by June). The new version adds four new developments to the discussion: the Seventh Circuit affirmance of the universal injunction prohibiting enforcement of the sanctuary-city regulations in Chicago; a third district court decision enjoining DACA rescission (this one from D.D.C.); the brief discussion from Justice Gorsuch of cosmic injunctions during Trump v. Hawaii arguments; and an excellent new article by Jonathan Mitchell (VAP at Stanford) exposing what he labels the "writ-of-erasure fallacy," the incorrect belief that declaring a law unconstitutional erases the law, when what it actually does is prohibit enforcement of the law. (I would add prohibit enforcement of the law against the parties to that case, although Mitchell takes no express position on that).

Posted by Howard Wasserman on May 8, 2018 at 11:49 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, May 07, 2018

Heckler's vetos and equal protection at Colorado State

Heckling becomes a heckler's veto when government action ratifies private preferences; ratification is necessary to create a First-Amendment-violative veto as opposed to a stand-off between competing speakers. That framing helps explain the real problem underlying the recent incident involving two Native-American prospective students on a tour at Colorado State. And it exposes the key shortcoming and blindspot in the lengthy, heartfelt letter on the incident from CSU President Tony Frank.

Two Native-American high schoolers from New Mexico were part of a CSU tour group. A woman on the tour became nervous around the two and called university police, complaining that the students' dress, manner, and quietness showed that they were definitely not part of the tour. Police questioned the boys (the body cam video is linked in the President's letter) for about five minutes before letting them go, at which point the campus group had moved on, so the two left campus. Watching the video, the officers are polite and never aggressive, although the questioning ("why didn't you answer the questions of others in the tour group when they asked") reflect a baseline of suspicion. The President expressed regret for the events and related how the school was using social media to reach out to the family because other attempts to contact them have been unsuccessful (read "we are publicly demagogueing them into responding to us and accepting our apology"--the weakest part of the letter).

The President uses his letter to call attention to the "battle with hate within our communities," to insist that "[t]here is no place for hate at Colorado State University," and to urge people to return from summer break "with a commitment to be a little kinder, a little better, to work a little harder at seeing each other’s point of view, and to use our voice." This emphasis on stopping private bigotry among members of the CSU community ignores  the role of government, particularly police, conduct. Private bigotry is inevitable and, in some contexts, constitutionally protected; it becomes a problem when government lends force to that private bigotry, even if only in a five-minute Terry stop. If the woman caller (who remains anonymous) wants to be suspicious and nervous around teen-age boys of color, that is, and should be, her business. The problem arose because CSU lent its coercive power to her bigotry, thereby causing an injury to the two boys. By shifting the emphasis on what everyone else can do to battle prejudice, Frank's letter exonerates his own governmental entity.

Posted by Howard Wasserman on May 7, 2018 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (5)

Sunday, May 06, 2018

Bray on conflicting universal injunctions

One of the problems with universal injunctions is the risk of conflicting universal injunctions--Ct I enjoins government to do X universally, while Ct II enjoins government to refrain from doing X, universally. This almost happened with DAPA--after affirmance of the Fifth Circuit injunction prohibiting enforcement of DAPA, lawsuits were filed in federal courts in Illinois and New York, seeking declarations that the Fifth Circuit injunction did not affect enforcement of DAPA in states that were not party to Texas; those cases were dismissed before courts reached that point.

The situation may arise again over DACA rescission--judges in the Northern District of California, Eastern District of New York, and District of the District of Columbia have issued universal injunctions requiring the federal government to continue enforcing the DACA policy and granting or renewing DACA status for eligible recipients. As Sam Bray discusses, seven states have filed suit in the Southern District of Texas (naturally), seeking a universal injunction prohibiting the federal government from granting or renewing DACA status. If issued, it would create imposing directly conflicting obligations on the government--required by one court to continue granting DACA status to all persons everyone, required by one court to refrain from granting DACA status to any persons anywhere.

Bray describes a "fight to the death" between universal injunctions and the principle that a judgment resolves issues between parties to a lawsuit, but does not conclude the rights of strangers to those proceedings.

Posted by Howard Wasserman on May 6, 2018 at 11:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Judicial departmentalism and U.S. v. Nixon

The potential controversy over the special counsel issuing a grand-jury subpoena for President Trump offers a nice illustration of judicial departmentalism, outside my usual focus of constitutional litigation. The theory of judicial departmentalism is that Supreme Court precedent is binding within the judiciary but not on other branches and other actors, who remain free to engage in their own, independent legal and constitutional analysis, even if it diverges from controlling judicial authority and sets non-judicial actors on a contrary course of action. A corollary  is that the executive is not bound to follow precedent with which he disagrees, but must obey a judgment entered against him in a specific matter.

So how does this stand-off play out?

Step One: The President, his lawyers, and the executive-branch lawyers can decide, in their own best constitutional judgment, that a President is not subject to a testimonial subpoena (which is not precisely covered by United States v. Nixon) or even that Nixon was wrong. They also can give controlling weight to non-judicial sources of advice, such as OLC opinions. And they can act on their constitutional understanding by refusing to comply with the subpoena, without being said to be "disobeying" or "ignoring" the courts or acting contrary to law or to their oaths.

Step Two: Faced with that response, the special counsel will move in federal court to enforce the subpoena. All federal courts will be bound to follow Nixon and other judicial precedent and will order the President to testify. All levels of the federal judicial hierarchy are similarly bound, unless SCOTUS wants to overrule Nixon, which I doubt, or the document subpoena/testimonial subpoena distinction is a meaningful one. Now Trump is compelled to obey. And his refusal constitutes disregard for the courts and to his oath.

A wise lawyer at Step One will be aware and will advise his client as to what will happen at Step Two, perhaps prompting different behavior at Step One. A wise political adviser might do the same. The point of judicial departmentalism is that compliance with precedent is a matter of prudence, choice, and political incentives, not legal compulsion. Legal compulsion comes only from Step Two.

Posted by Howard Wasserman on May 6, 2018 at 09:52 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Thursday, May 03, 2018

A solution for the wrong problem

At National Review, James Lucas argues argues for special procedures to limit the effects of nationwide injunctions, including automatic stays, de novo review, and some form of mandatory SCOTUS review. The problem is not nationwide injunctions, but their issuance by single district judges working within a narrow geographic area.

But the issue with these injunctions is not their nationwide scope, it is their universal application beyond the named plaintiffs  in individual actions, without class certification or broad third-party standing. So Lucas' proposals offer solutions to the wrong problem. (That is not, in fact, a problem at all. Injunctions should be nationwide, in the sense of protecting the named plaintiff everyone in the nation).

Posted by Howard Wasserman on May 3, 2018 at 02:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, May 02, 2018

Prejudice Rules and Criminal Procedure Enforcement

Hello! As Howard mentioned, I’ll be contributing to the blog this month as a guest. Thanks to Howard and Richard (Re) for the opportunity.

By way of introduction, my research focuses mainly on constitutional remedies and other mechanisms for enforcing constitutional rights. As a former public defender, I’m especially interested in constitutional criminal procedure and the various regulatory systems it has produced to bring about compliance with its strictures. These regulatory systems have failed in many different domains of criminal procedure. But few have failed as spectacularly as those pertaining to prosecutors’ evidentiary disclosure obligations under Brady and the right to counsel, as recent work by Jason Kreag, Eve Primus, and others has shown. Through a series of posts over the course of the month, I will ask why these two enforcement regimes have fared so badly, how we can make them better, and what broader implications this analysis may have for constitutional law and theory.

In particular, I’d like to explore the possibility that the failure of these regimes stems in part from an anomalous legal premise that the Supreme Court has embraced in relation to Brady and the right to counsel but that courts have rejected in virtually every other area of criminal procedure. In its cases involving Brady and the right to counsel (more specifically, the right to effective assistance of counsel), the Supreme Court has held that no constitutional violation occurs unless the defendant proves that the alleged error prejudiced the defendant in the sense that it may have altered the outcome of the proceeding. Simply put, the Court has held that no harm means no foul—no matter how extensively the prosecutor suppressed exculpatory evidence or how egregiously defense counsel performed in representing the defendant—for these two rights. No other significant area of constitutional criminal procedure works this way. To be sure, appellate and postconviction courts generally can (and routinely do) consider prejudice when applying the harmless error doctrine to decide whether criminal procedure errors justify setting aside the defendant’s conviction or sentence. But the harmless error doctrine presupposes that an error occurred regardless of whether that error caused prejudice. By contrast, no prejudice means no error under the Supreme Court’s Brady and effective assistance precedents.

Is this a distinction without a difference? If the defendant is going to lose on appeal anyhow, due to her inability to show prejudice, does it really matter whether the court rejects the defendant’s claim on the theory that the lack of prejudice (1) means that no constitutional error occurred (as the Brady and effective assistance doctrines hold) or (2) disentitles the defendant to the remedy of reversal (as the harmless error doctrine holds)?

I think it matters a great deal, for reasons I’ll describe in future posts. I will also touch on some larger theoretical implications—regarding the nature of the right/remedy relationship, departmentalism, and other topics—that I hope will interest readers who do not ordinarily follow doctrinal debates in criminal procedure. Please share your initial thoughts in the comments section. And stay tuned!

(Note: this post was edited on 5/7/2018 to fix the URL for the last source cited.)

Posted by Justin Murray on May 2, 2018 at 11:54 AM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink | Comments (6)

Tuesday, May 01, 2018

Adjudicative jurisdiction and substantive merits under the ATS

Michael Dorf explains the connection between the "only jurisdictional' understanding of the ATS and the narrowing of the judge-made substantive cause of action. Although the Court has never put it in these terms, Michael argues that it makes "internal sense" to understand the jurisdictional grant as the source of the implied right of action (a substantive, non-jurisdictional issue), so the right of action should not extend beyond the circumstances cognizable in 1789. I tried to get at the same idea in discussing Kiobel.

Posted by Howard Wasserman on May 1, 2018 at 08:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, April 25, 2018

Cosmic injunctions

Not much discussion of universal injunction in Wednesday's argument in Trump v. Hawaii. The one real exchange occurred late in Neal Katyal's argument for Hawaii, prompted by Justice Gorsuch, who questioned the "troubling rise of this nationwide injunction, cosmic injunction." Gorsuch recognized that the issue was not geography, but district courts issuing a remedy "not limited to relief for the parties at issue or even a class action" and  "assert[ing] the right to strike down a -- a federal statute with regard to anybody anywhere in the world." Katyal acknowledged sharing Gorsuch's impulse, but argued that the Court should not address the issue in this case, because of its immigration context and the need to leave it to lower courts to figure out in the first instance.

I am curious whether the lack of interest in the scope of the injunction hints at where the Court will come down on the merits.

Posted by Howard Wasserman on April 25, 2018 at 08:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, April 22, 2018

Universal injunctions in Trump v. Hawaii and Chicago v. Sessions

SCOTUS hears argument on Wednesday in Trump v. Hawaii on the constitutional and statutory validity of the third travel ban, including (perhaps) the validity of the universal injunction. Marty Lederman explores the scope-of-injunction issue; he concludes that if the court reaches the scope question, it may be entirely dicta. A Supreme Court decision declaring the ban constitutionally invalid will, in almost all cases, result in the government suspending enforcement across the board. So the Court passing on the scope issue will have no practical effect.

Meanwhile, a divided Seventh Circuit panel affirmed the universal injunction as to the sanctuary-city-funding regulations. Sam Bray critiques the ruling at the VC. I will be spending the coming week updating some writing on the subject.

A few thoughts after the jump.

Marty's argument that a Supreme Court decision has the same effect as a universal injunction is right as a formal matter, because the President tends to proceed on an assumption of judicial supremacy--the Court's constitutional word is the last constitutional word. Much of the public shares that assumption, so the President may be politically bound to do the same. But a committed judicial-departmentalist executive could make these questions interesting.

Marty touches on the plaintiffs' Establishment Clause argument in favor of universality--that a limited injunction "fail[s] to 'remove the stigmatic harm that respondents suffer based on ‘the simple enactment’ of the Government’s policy.'”  Although I do not discuss it in my article, this argument has never made sense to me. The traditional conception is that the simple enactment of a law, regulation, or policy does not violate constitutional rights; only the (actual, attempted, or threatened) enforcement of the law, regulation, or policy violates constitutional rights. And I do not believe there is anything unique about the Establishment Clause in this regard. The E/C cases involving stigmatic harm have involved executive actions sending a message of exclusion--religious displays, football prayer, legislative prayer, etc. Stigmatic harm has not been a basis (to my recollection--I have not looked at this recently) for challenging the enactment and existence of the law itself. If it were, the injunction would have to compel repeal of the law or regulation, rather than prohibiting its enforcement. This logic, if it prevails, could not be limited to the Establishment Clause. It also should apply to speech cases, because the "simple enactment" of the law would have a chilling effect even on those not threatened with enforcement, justifying an injunction to protect them along with the threatened (so as to have standing) plaintiffs.

Hawaii also argues that it cannot identify in advance who might seek to study there so as to be protected by the injunction, so everyone must be protected. But the difficulty of identifying those with a sufficient connection with the plaintiff can be left for future enforcement of the injunction protecting Hawaii; it need not be decided at the point of issuance.

As for Chicago and sanctuary cities, the court deserves credit for offering a detailed and non-conclusory defense of universality, only the second court to do so (the other being the district court it was affirming). Sam captured the defects in the opinion. The problem remains the same. The attempt to allow this universal injunction while limiting universal injunctions to "rare circumstances" fails, because the limiting principles are not limiting principles and appear to justify a universal injunction in every case.

Posted by Howard Wasserman on April 22, 2018 at 05:59 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Tuesday, April 17, 2018

Foley on appointing a special master in the Cohen case

At the Election Law Blog, Ned Foley questions the potential appointment of a special master to review and determine privilege of the materials seized from Michael Cohen. He concludes:

Thus, it seems to me that there should be an extremely strong presumption in favor of using conventional procedures to handle the Cohen case. If those procedures would be good enough if the client involved were a major business figure (like Mark Zuckerberg), or a major sports or entertainment figure (like O.J. Simpson), then they should be good enough if the client is a business and entertainment figure who later becomes president (like Donald Trump).

I would add two things in support of Ned's conclusion. First, one reason this is a "politically charged case" is that the President has been relentlessly attacking the Department of Justice, including over the seizure of Cohen's documents.There is an unfortunate irony, and perverse incentive, that the President's attacks on the prosecution politically charge the case so as to require special procedures.

Second, DOJ uses filter teams, not a special master, when reviewing materials seized from congressional offices for possible Speech-or-Debate-protected materials. Such cases are at least as politically charged as this one, with the added bonus that they implicate the Separation of Powers when the executive investigates the legislature.

Posted by Howard Wasserman on April 17, 2018 at 02:41 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, April 11, 2018

Truth, Trust, and the First Amendment in the Digital Age

The University of Missouri Schools of Law and Journalism co-sponsored a symposium last week at the National Press Club in D.C. entitled Truth, Trust, and the First Amendment in the Digital Age. C-Span carried the symposium, including the keynote by the inestimably fabulous First Amendment attorney Floyd Abrams.

If you're interested, the panels and keynote are available to watch on C-Span at this LINK

Barbara Cochran of the School of Journalism moderated the journalism panel, which included remarks by:

Peter Baker, The New York Times
Dan Balz, The Washington Post
Major Garrett, CBS News
Hadas Gold, CNN
Clarence Page, Chicago Tribune
Chris Buskirk, American Greatness
Margaret Talev, Bloomberg News

I moderated the media law scholars and media lawyers panel, which included remarks by:

Amy Gajda, Tulane University School of Law
Ronnell Andersen Jones, University of Utah College of Law
Mary-Rose Papandrea, University of North Carolina School of Law
Charles Tobin, Ballard Spahr LLP
Sonja West, University of Georgia School of Law
Kurt Wimmer, Covington & Burling LLP

 

 

Posted by Lyrissa Lidsky on April 11, 2018 at 10:59 AM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky, Symposium | Permalink | Comments (0)

Thursday, April 05, 2018

Class certification and universal injunctions

Judge Chutkan of the District of the District of Columbia last week issued a preliminary injunction barring HHS and the Office of Refugee Resettlement from enforcing policies preventing pregnant unaccompanied undocumented minors in federal detention from obtaining services to terminate pregnancies. Wanting a broad injunction that would reach beyond the four named plaintiffs (all of whom had terminated their pregnancies) to all women who might be subject to the challenged regulations, the court did it the proper way. It certified a class and issued a class-wide 23(b)(2) injunction prohibiting enforcement of the policies as to all members of a class defined as "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government."

Unlike courts in many recent cases, Judge Chutkan  followed the middle step of certifying a broad class, then issuing an injunction protecting the entire class that is the plaintiff in the action. But the case illustrates an important point. If universal injunctions are readily available, no plaintiff would bother jumping through the class-certification hurdles, but will proceed directly to asking the court for the same broad injunction while keeping the action as an individual one.

Posted by Howard Wasserman on April 5, 2018 at 12:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, April 03, 2018

Yet another qualified-immunity summary reversal (Link Corrected)

SCOTUS on Monday summarily reversed the Ninth Circuit's denial of qualified immunity in Kisela v. Hughes, which resulted from an officer shooting a woman in the mistaken belief that she was threatening her roommate with a knife. Such summary reversals of denial of qualified immunity have become commonplace, as you recall. This one brought a dissent from Justice Sotomayor joined by Justice Ginsburg, who argued that, even if the lower court was wrong, it was not "so manifestly incorrect as to warrant 'the extraordinary remedy of a summary reversal.'"

I have not had a chance to read or digest the opinion. But Will Baude offers some comments, especially about the one-side nature of qualified immunity and its evolution into an absolute bar to recovery. So does Orin Kerr, who offers an explanation for why the Court has gone down this road with immunity grounded in the distincion between conduct rules and decision rules.

Posted by Howard Wasserman on April 3, 2018 at 04:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, March 31, 2018

12(b)(6) denied in Beckman v. Chicago Bears

I wrote last year about Beckman v. Chicago Bears, a First Amendment lawsuit by a Green Bay Packers fan who holds season tickets and a Personal Seat License ("PSL") at Soldier Field and was prohibited from participating in an on-field event for season-ticket holders because he was wearing a Packers jersey. The district court denied the Bears' 12(b)(6); Beckman plausibly pleaded a connection between the event and the Chicago Parks District to make the Bears a state actor and viewpoint discrimination. (The court granted the NFL's motion to dismiss on standing grounds).

The state-action analysis relies on a combination of the CPD retaining power to approve certain on-field events for PSL-holders and receiving revenues from certain PSL sales. Beckman filed the complaint pro se, so the court's Iqbal analysis bent-over backwards to draw inferences in the plaintiff's favor. The court identified several inferences as plausible despite no express allegations to fill the gap. For example, there was no allegation that CPD approved the event at issue or that Beckman held one of the PSLs from which CPD gained revenues, both facts necessary to the state-action analysis. But the court insisted that both inferences were plausible, which was sufficient.

Posted by Howard Wasserman on March 31, 2018 at 10:30 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, March 27, 2018

"Bound and gagged in body armor, hung upside down"

My analysis of Monday's argument in United States v. Sanchez-Gomez is on SCOTUSBlog. It was a good argument--both attorneys were very good, the Justices asked probing-but-not-obnoxious questions, and the bench left room for both attorneys to answer. I believe the Respondents will win--Kennedy seemed inclined towards them. The title of the post (and of my SCOTUSBlog post) comes from a hypothetical from Breyer.

On a different note, what is going on with the male Justices and Justice Sotomayor. Justice Kennedy interrupted her three or four times yesterday. And in NIFLA v. Becerra (the clinic compelled-speech case) last week, the Chief cut Sotomayor off when she interrupted an answer to a question from Justice Breyer, snapping " Maybe could welet him finish the answer, please?", something the Chief virtually never does--and certainly not as sharply.

Posted by Howard Wasserman on March 27, 2018 at 10:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, March 09, 2018

A quick word on the speech controversy at Lewis & Clark

A quick thought on the students at Lewis & Clark Law School protesting Christina Sommers earlier this week. I confess to knowing nothing about Sommers or why she generated such anger from the students. I was surprised by the heat the event generated--the discussion on the ConLawProf listserv became quite stark. People may have been a bit surprised to see this happening at a law school (recall Heather Gerken's argument last summer that the nature of legal education affects how students go about protesting). There was some discussion of whether the protesters' actions warranted school code-of-conduct charges, which must be reported to the Bar and can create longer-term professional headaches than they would for undergrads.

Having watched the several videos, it appears there were two groups of protesters, inside and outside the room and the building. So this case illustrates the vision of counter-speech and heckling I have been trying to formulate. The latter group was engaged in protected activity. Although they made noise and made it more difficult for Sommers to be heard, they were not interfering with her use of a reserved space in which one speaker had priority right. It appears they were in an otherwise public outdoor space (although I do not know the details or rules about spaces at L&C); if so, their speech in that space should receive equal footing with Sommers' speech in the classroom.

Posted by Howard Wasserman on March 9, 2018 at 12:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Tuesday, February 27, 2018

The irrrepressible myth of Patchak v. Zinke

The Supreme Court decided Patchak v. Zinke, concluding yet again that Congress' power to "change the law" to push pending litigation to its preferred conclusion is, in practice, unbounded. The purported "no dictating outcomes" principle of United States v. Klein does not impose a meaningful limitation, because nothing that Congress does (or is likely to do) is anything other than a change in the law. The law at issue in Patchak affected one case and no other cases had been brought or could be brought that would relate to that land. This will be as close as Congress will come to "In Smith v. Jones, Smith wins" without touching that third rail.

Justice Thomas wrote for himself (and also assigned the opinion) and Breyer, Alito, and Kagan; Ginsburg and Sotomayor concurred in the judgment (tying the result to sovereign immunity); the Chief dissented (as he had in Bank Markazi) for Kennedy and Gorsuch [Update: I should add that the Chief showed rhetorical restraint in this opinion, something often lacking from opinions in which he feels strongly about an issue].

An additional wrinkle was that the plurality deemed the statute a jurisdiction-stripping provision, which I am not convinced is correct. The statute says a suit relating to the proper "shall not be filed or maintained in a Federal court and shall be promptly dismissed;" that language also could describe a non-jurisdictional procedural rule or an element of the claim ("no action shall be filed or maintained against a company with less than 15 employees"), although the plurality insisted it could not be either.

So the opinion was a two-fer: Klein has no practical force and the Court overused jurisdiction.

Posted by Howard Wasserman on February 27, 2018 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, February 22, 2018

Tinker wept

upon reading this missive from the superintendent of the Needville (TX) School District. Some of the quotations reflect an unfortunate picture of the connection between education and the creation of an engaged People in a democracy. "A school is a place to learn and grow educationally, emotionally and morally," which somehow does not include caring or becoming involved in matters of public concern. Students must "[r]espect yourself, your fellow students and the Needville Independent School District and please understand that we are here for an education and not a political protest." So speaking on matters of public concern is not educational and is a sign of disrespect for oneself and other (perhaps respect is the new unity that I argue is anathema to free expression).

Rhodes can do this and get away with it. A student walk-out would constitute "disruption" by in-school speech that schools are free under modern student-speech doctrine to halt or punish. He couched it in an unfortunately over-officious tone and a genuine disrespect for students as individuals with First Amendment rights. It appears he believes students do shed their First Amendment rights at his schoolhouse gates.

I am interested to see if and how students may respond to this if committed to engaging in protest. How might Rhodes respond to a silent protest with black armbands--is he going to ignore Tinker? And, whatever the trend in student-speech cases, is a court? Alternatively, if protests gain sufficient critical mass and Rhodes attempts to suspend hundreds of students, would his job survive the parental anger? Alternatively, what if students all stay home that day and then attend a protest at a dedicated time--would Rhodes challenge the decision of dozes or hundreds of parents to keep their children home and would his job survive the parental anger if he tried?

Posted by Howard Wasserman on February 22, 2018 at 11:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Wednesday, February 07, 2018

Florida bans counter-speech, too

Parallel bills in the Florida House and Senate would do two things: Prohibit schools from establishing free-speech zones (while permitting content-neutral time, place, and manner restrictions) and prohibit students from "materially disrupt[ing] previously scheduled or reserved activities on campus occurring at the same time." Both rights are enforceable with a private action for damages and attorney's fees against the university. The ACLU opposed the second piece of the bill, arguing that it gives universities a financial incentive to halt counter-speech "out of concern that someone might boo too loudly." This bill sounds in similar efforts by the University of Wisconsin Board of Regents.

Give what I have been writing about hecklers and counter-speech, I believe the second piece is a terrible idea. It has a vagueness problem, since the bill does not define materially disrupt. It limits the disruption to "previously scheduled or reserved activities," trying to create some speaker priority within certain spaces. But it still faces the problem that counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the "original" speaker. This bill defines one speaker as a speaker and the other as a material disruptor--and gives the state a financial incentive to limit the disruptor. But it does not explain when counter-speech ends and disruption begins or how the balance applies in different forums (e.g., counter-speakers in a reserved auditorium and seeking to rush the stage as opposed to counter-speakers in an outside public space).

The sponsor of the Senate bill argued that the universities should be able to impose rules for civil discourse just as legislatures do. Civil discourse might be a worthy goal. But the First Amendment does not allow government to impose that as a necessary obligation. Public debate should be more "uninhibited, robust, and wide-open" than what occurs in a legislature or other governing body. There is a power balance within a legislature--every member of the body stands on roughly equal footing and all can work the levers of institutional power within the body to achieve some ends. People in the public arena ork against a power imbalance, speaking against those who wield real power (government officials, police, private individuals who wield greater power and influence), where speaking is the only action available to them. The powerless need greater leeway, even to the point of "vehement, caustic, and sometimes unpleasantly sharp attacks."

In the public forum, in other words, speakers must be able to persist, even after being warned and given an explanation.

Posted by Howard Wasserman on February 7, 2018 at 11:56 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Friday, February 02, 2018

The Hayekian Fourth Amendment

Thanks to Howard and the other PrawfsBlawg folks for allowing me to blog here the last couple of months.  I wanted to leave with another blurb about my piece, “A Unified Approach to Fourth Amendment Search Doctrine.”  As I mentioned in a previous post, and as the title suggests, the upshot is that the “reasonable expectation of privacy” (REOP) approach and the “trespass” approach to determining when a Fourth Amendment search has occurred really devolve, at least in many cases, into the same inquiry.  This is because, at least at the margins, whether a trespass has occurred will often depend on the same kind of social norms and customs that form the backbone of the REOP test.

The title of this post refers to another aspect of the piece:  that these social norms and customs form, and have always formed, from the ground up.  Our law is better seen as “grown law,” as Hayek put it, rather than as being imposed from above.  True, fully formed law in the positive law sense consists of an edict backed up by state power.  But the origin of all laws is in the people’s lived experiences.  It is bottom-up, not top-down.  From this premise, the search for nationwide standards for what constitutes a Fourth Amendment search, either via the REOP approach or the “trespass” approach, is highly questionable.

Posted by Michael J.Z. Mannheimer on February 2, 2018 at 04:30 PM in Constitutional thoughts | Permalink | Comments (16)

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 27, 2018

Congress makes procedure

The following was introduced in the Senate back in August:
S.1757 — 115th Congress (2017-2018)            
Building America's Trust Act
Sponsor: Sen. Cornyn, John [R-TX] (Introduced 08/03/2017) Cosponsors: (8)
 Cosponsors 
Sen. Barrasso, John [R-WY]*          08/03/2017
Sen. Johnson, Ron [R-WI]*  08/03/2017
Sen. Tillis, Thom [R-NC]*    08/03/2017
Sen. Heller, Dean [R-NV]*  08/03/2017
Sen. Scott, Tim [R-SC]*       08/03/2017
Sen. Inhofe, James M. [R-OK]*       08/03/2017
Sen. Wicker, Roger F. [R-MS]         09/18/2017
Sen. Lankford, James [R-OK]          10/04/2017
SEC. 564. APPROPRIATE REMEDIES FOR IMMIGRATION LITIGATION.
(a) Limitation On Class ActionS.—No court may certify a class under rule 23 of the Federal Rules of Civil Procedure in any civil action that—
        (1) is filed after the date of enactment of this Act; and
(2) pertains to the administration or enforcement of the immigration laws.
 

 

Critics of universal injunctions (myself included) have argued that FRCP 23(b)(2) class actions provide the basis for non-particularized injunctions and offer a reason that courts should not grant non-particularized injunctions in non-class cases. Allowing courts to issue broader injunctions in individual cases undermines 23(b)(2) (which, David Marcus has shown, was enacted precisely to allow broader relief in school-desegregation cases)--if a court can issue a universal injunction as a matter of course, the injunctive class action is superfluous. And having 23(b)(2) suggests that universal injunctions generally should not issue outside of a properly certified class.

 

This bill (which is unlikely to pass, so it will not matter) would cut-off that option, by limiting all constitutional cases to individual challenges of the plaintiffs before the court and thus individualized injunctions protecting those parties. On the other hand, perhaps it would make the court more likely to issue a universal injunction in individual cases, where the court believes the equities demand broader relief and a class is not an option.

Posted by Howard Wasserman on January 27, 2018 at 02:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 25, 2018

An old solution that misses the problem

On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.

But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.

Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent,  not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.

We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.

Posted by Howard Wasserman on January 25, 2018 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Monday, January 22, 2018

A Crack in the Whren Wall?

Earlier today, the Supreme Court decided District of Columbia v. Wesby, a case about whether police had probable cause to arrest some D.C. partygoers who were in a vacant house without permission of the owner.  It was clear that the plaintiffs manifested the actus reus of the crime of trespassing and the case centered around whether police had probable cause to believe the partygoers knew or should have known that they did not have the owner’s consent to be there.  The case involves some, um, interesting facts.  The partygoers were invited to the house by a woman known only as “Peaches” or “Tasty,” and the police found in the house “a makeshift strip club” where “[s]everal women were wearing only bras and thongs, with cash tucked into their garter belts.”  (Well, make up your mind, Justice Thomas; were they “wearing only bras and thongs” or were they also wearing garter belts?)  I was not surprised, particularly after listening to the oral argument, that the Court held that the officers had probable cause and, separately, that they were protected by qualified immunity in believing that they had probable cause.

The surprise came at the end.  Justice Ginsburg wrote a two-page opinion concurring in the judgment in part.  She concluded that the officers were protected by qualified immunity, given that the arrests of the partygoers were supported by probable cause under current law.  However, Justice Ginsburg wrote separately to “to question whether th[e] Court, in assessing probable cause, should continue to ignore why police in fact acted.”  Those steeped in Criminal Procedure likely read this with a raised eyebrow, for Justice Ginsburg was referring to the Court’s unanimous 1996 opinion in Whren v. United StatesWhren rejected the argument that police officer motives were relevant to determining whether there was probable cause.  Instead, the Court held, probable cause is a wholly objective standard, and the motives of a police officer in acting upon probable cause are irrelevant.

Here is the relevant passage from Justice Ginsburg’s opinion today:

The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A number of commentators have criticized the path we charted in Whren v. United States, 517 U. S. 806 (1996), and follow-on opinions, holding that “an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause,” Devenpeck v. Alford, 543 U. S. 146, 153 (2004). See, e.g., 1 W. LaFave, Search and Seizure §1.4(f), p. 186 (5th ed. 2012) (“The apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.”). I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.

Justice Ginsburg had joined the Whren opinion without comment so the fact that she is beginning to have qualms about it over twenty years later is big news.  And the fact that perhaps the biggest fan of Whren, its author Justice Scalia, is no longer on the Court might give the Justices more freedom to re-visit the issue.  On the other hand, no other Justice, not even the usual suspects, joined Justice Ginsburg’s opinion today.  Time will tell but Justice Ginsburg’s separate opinion today might be the first crack in the Whren wall.

Posted by Michael J.Z. Mannheimer on January 22, 2018 at 08:21 PM in Constitutional thoughts | Permalink | Comments (9)

Another Federal Death Case in a Non-Death State

For the second time this month, the federal government has filed a notice of intent to seek the death penalty for a murder committed in a non-death State.  This particular case is a good example of just how broadly federal jurisdiction extends, permitting the federal government to seek the death penalty in cases where there is little national interest.

Brendt Christensen is accused of kidnapping Yingying Zhang from a bus stop in Champaign, Illinois and later sexually assaulting, torturing, and killing her.  There is no allegation that Christensen ever crossed state lines during this crime.  Thus, prior to 2006 this would not have been a federal offense.  But the Federal Kidnapping Act was amended that year to cover kidnappings where the actor “uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.”  The instrumentalities of interstate commerce that Christensen used during the kidnapping were (1) his cell phone and (2) his car.

It is unclear whether an automobile is an instrumentality of interstate commerce, although at least two federal circuit courts have written that it is.  Unfortunately, the reasoning of the courts leaves something to be desired.  See United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (“Instrumentalities of interstate commerce . . . are the people and things themselves moving in commerce, including automobiles . . . .”); United States v. Bishop, 66 F.3d 569, 588 (3d Cir.1995) (agreeing with Government’s position that “motor vehicles are the quintessential instrumentalities of modern interstate commerce” (internal quotation marks omitted)).  I imagine that an automobile could be considered an instrumentality of interstate commerce on at least two theories.  First, the car itself most likely traveled in interstate commerce when it was sold to its original owner.  And second, the car could be used to cross state lines.

Notice, though, that if an automobile is considered an instrumentality of interstate commerce, a good many mine-run kidnappings are now federal crimes.  Where death results, and where the crime takes place entirely within a non-death-penalty State, the feds can prosecute such offenses in order to seek the death penalty.

Download Christensen Indictment

Download Christensen Notice of Intent

Posted by Michael J.Z. Mannheimer on January 22, 2018 at 01:17 AM in Constitutional thoughts | Permalink | Comments (0)

Saturday, January 20, 2018

Cert granted in travel ban case

SCOTUS granted cert in the Ninth Circuit case, out of Hawaii, challenging the third travel ban. Included in the questions presented is "whether the district court’s order applies too broadly," meaning the Court may address head-on the propriety of universal injunctions (unless, as I somewhat suspect, the Court declares the ban constitutionally valid, in which case it may never reach the remedy question).

Posted by Howard Wasserman on January 20, 2018 at 11:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, January 19, 2018

Thought on the Oral Argument in Byrd v. United States

After having listened to the oral arguments in Byrd v. United States, I have only a little to add to my prior blog posts (here and here).

First, Justice Gorsuch seems to be filling Justice Scalia’s shoes in advocating for a property-based notion of what constitutes a search.  (This was also pretty clear from his comments at oral argument in Carpenter v. United States, the cell site location information case).  Recall that in Byrd, the question is whether Byrd has standing to challenge the search of the car his girlfriend rented but of which he was not an authorized driver.  Because the police conduct there was clearly a search, the “what is a search” question might seem tangential.  But it is actually at the heart of the case because whether Byrd has standing is just another way of asking whether the police conducted a search as to him.  Justice Gorsuch seemed to be tossing a softball to Byrd’s counsel in asking whether the Court should look to reasonable expectations of privacy (REOP), on the one hand, or to property rights, on the other:

Do we look at what the reasonable expectations of privacy are by social science data, get my law clerks to go do that, or do we just announce normatively what we think it ought to be?  Should it depend on regional and cultural norms across the country?  Gosh, it's very complicated. * * * Professors Baude and Stern, among many others, suggest maybe we ought to look back at that property test again. What do you think?

Counsel for Byrd, in essence, agreed with Justice Gorsuch that the Court should look to property interests, which provide, as counsel put it, “a very clear and simple rule.”

The problem is that this clean dichotomy between a “clear and simple” property-based rule and an insolubly complex REOP test is an illusion.  As I argue in my recent piece, “A Unified Approach to Fourth Amendment Search Doctrine,” a trespass-centered test, in close cases, is no simpler than the REOP standard.  Take, for instance, Florida v. Jardines, where police took a drug dog up to the front door of Jardines’s house and had it sniff around the porch for a minute or two, after which it alerted to the presence of drugs in the house.  In holding this to be a search, the Court, speaking through Justice Scalia, reasoned that, although there is an implicit license to come up to the front door of a house and knock, there is no implicit license to come up to the front door of a house, refrain from knocking, and instead snoop around the porch.

I’m not so sure that’s correct.  But regardless of whether it is, it is at least an arguable point, and it depends upon what people expect others to do, based upon custom and social norms.  Thus, the supposedly clear property-based right to not have others trespass upon one’s land hinges in Jardines on a very close question of whether there was an implicit license, which devolves into a question of custom and norms, which is exactly the question we have to confront under the REOP standard! 

This close kinship between a trespass-based approach and a REOP approach is no accident.  After all, our positive law comes, ultimately, from social norms and customs, which sometimes blossom into enforceable legal rights and interests.  Indeed, the common law was, according to Coke and Blackstone, the law of long usage and custom.  As I argue in my piece, a trespass-based Fourth Amendment search test and a REOP-based Fourth Amendment search test are really one and the same.  The REOP approach simply looks to social norms before they have gelled into positive law.  But law is still law if it is recognized as such, even if there is no statute or case on point.

Which leads to a second observation about the Byrd oral argument.  Following Justice Gorsuch’s question, counsel for Byrd argued that his simple possession of the car gave him some legal rights in it:  “[P]ossession is nine-tenths of the law, and . . . that has roots in the common law going back to the 1600s and 1700s.”  Just after this comment, Justice Alito expressed his concern that the common law really could not provide answers because there simply was no case law addressing this precise question:

[T]he problem with going down this property route is that we go off in search of a type of case that almost never arose, if it ever did . . . arise at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. * * * When would that ever have happened in 18th-century America?  Never.

There are two flaws in Justice Alito’s reasoning here, the first of which counsel for Byrd attempted to correct and the second of which he did not.  First, the question is not what right “an unauthorized sub-bailee” would have against “a law enforcement officer.”  The question is what right “an unauthorized sub-bailee” would have against anyone committing a trespass to chattels.  The point of the Fourth Amendment search baseline is to separate those acts that we expect private persons to be able to perform and those we don’t expect private persons to be able to perform.  When the police commit an act that falls into the latter category, the police need special dispensation to do so in the form of a warrant or a warrant-substitute.  That is the touchstone of the search inquiry.  When counsel for Byrd raised this point, Justice Alito responded that this case involved no “private-party stranger” but “a party who has lawful rights that no private party had, which was to stop this vehicle.”  But that is a non-sequitur.  The challenge here is not to the stop but to the search.  Looking at the sequence of events step-by-step, we can essentially disregard the stop, because Byrd does not contest that it was lawful.  Instead, the focus is on the entry into the stationary car which, of course, any private person might have undertaken.

The second flaw in Justice Alito’s argument repeats a flaw from his dissent in Jardines.  He assumes that because there is no case law, there is no law.  But the types of conduct involved in the Court’s cases – e.g., a trespass to a chattel possessed by “an unauthorized sub-bailee” (Byrd); a trespass to land by approaching a front door and looking about the porch for evidence instead of knocking (Jardines); a trespass to chattel by placing a small item surreptitiously on its underside (Jones); a trespass to chattel by physically manipulating an opaque soft-sided bag (Bond) – are very unlikely to result in litigation, for fairly obvious reasons.  But that does not mean that there is no law.  If, for example, I see a fellow bus passenger manhandling my soft-sided luggage to determine its contents, and I tell him to stop, but he persists, I would like to think I am privileged to use whatever ordinary physical force is necessary in order to prevent my knapsack from being fondled, without being guilty of, or liable for, a battery.  I may be right about that and I may be wrong.  Either way, that such a case may have arisen only rarely if ever does not mean that I do not have enforceable rights and interests to protect my chattel should the need arise.  It means only that I am unlikely to sue this person, or to be charged with a crime or sued in tort if I engage in self-help.  It is even more unlikely that such a case would result in a reported opinion.  It is only because of our fetishistic obsession with reported appellate decisions that we equate case reports with the law.

Posted by Michael J.Z. Mannheimer on January 19, 2018 at 05:13 PM in Constitutional thoughts | Permalink | Comments (7)

Thursday, January 18, 2018

Speaking truth to power v. exercising actual power

I appreciate Sen. Flake's words about Donald Trump and the rhetorical threat he poses to free-speech and republican values. But it is difficult not to see it as 1) something that hundreds of people have been saying for two years in the media, blogs, and other places and 2) empty words.

On the second point: Free speech is important because of its power to persuade. But a democratic theory of free speech recognizes that speech is a form of influence for those who lack formal political or governing power or influence. Words alone therefore ring hollow when unaccompanied by action by a person in a position of power. That is what I see with respect to Flake--he has repeatedly criticized the President, but like most other congressional Republicans has fallen in line with what he wants when (as in most situations) it aligns with Republican policy preferences. So the words are nice. But they do not achieve much when Flake's own voting conduct undermines them.

Posted by Howard Wasserman on January 18, 2018 at 06:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Wednesday, January 17, 2018

Universal, Not Nationwide, and Never Appropriate

The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.

Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.

Posted by Howard Wasserman on January 17, 2018 at 05:34 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (13)

Monday, January 15, 2018

NY Times on (improperly named) nationwide injunctions

In the wake of a decision enjoining the DACA-repeal regulations, the Times has an article on recent nationwide/universal injunctions, especially in immigration cases. The article includes comments from Sam Bray (who wrote the definitive piece on the subject). (I have been writing about this at Prawfs for a while and my own effort in the debate, for a symposium at Lewis & Clark later this year, will be on SSRN in a few days).

A few thoughts on the article (much of which I have talked about and will hit in the forthcoming paper) after the jump.

The article (like so many of these discussions) ignores the real issue of universality v. nationwide scope.  It is not the injunction applying everywhere, but applying to everyone—prohibiting enforcement of the challenged laws not only as to the named plaintiffs, but as to every person against whom the law might be enforced. In the sanctuary cities case in the Northern District of Illinois, the injunction barred enforcement not only against the named city (Chicago), but every other sanctuary city. In the travel ban cases, it barred enforcement not only against the named plaintiffs, but all persons from the named countries. That is the real problem, because the general rule is that an injunction should not extend beyond the plaintiffs, absent certification of a plaintiff class or the rare situations in which rights and relief are indivisible as between the plaintiffs and others.
 
The Supreme Court’s power to issue these beyond-the-plaintiff injunctions is no greater than that of a single district judge (the article includes what I am sure is an out-of-context rhetorical question from Sam about how can a single judge decide a question for the whole country) . If the injunction that the district court can enter should be limited to the plaintiffs, then the Supreme Court’s affirmance of that injunction must be similarly limited. SCOTUS’s decision has nationwide/universal presidential value—so any new enforcement efforts by the government against non-plaintiffs would fail. But that is the effect of precedent (and a degree of non-departmentalism), not the effect of a judgment/injunction.
 
The article makes this sound new. But we had this conversation during the marriage-equality litigation and its aftermath. There were questions of what SCOTUS’s decision about the Kentucky ban meant for the South Dakota ban, what SCOTUS’s decision about the Kentucky ban meant for the antics of Kim Davis as to new marriage applications, or what the decision of one district court in Alabama meant for the antics of Roy Moore. Again, the answers depended on whether one talked about precedent or judgments/injunctions.
 

Posted by Howard Wasserman on January 15, 2018 at 07:51 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Sunday, January 14, 2018

Judging balls and strikes in Husted

I am a few days late on this from the oral argument in Husted v. A Philip Randolph Institute, on whether an Ohio process of removing voters from voting rolls based, in part, on failure to vote violated federal law. (I listened to the audio rather than reading the transcript, but could not to so until this weekend).

On a substantive point, it is interesting to hear Paul Smith, the respondent's attorney, the Chief, and Justice Alito repeatedly talk past one another. Ohio's program goes as follows--if a voter fails to vote in a two-year period, a notice is sent to the voter's listed address; if the voter fails to return the notice card and does not vote in the next four-year period, she is removed from the rolls. The Chief and Alito repeatedly pushed Smith as to whether failure to vote could be used to confirm other evidence that a person had moved or died, in this case, the non-return of the card; Smith argued that the program relied on failure to vote (in violation of federal law), because the non-return of the card was not reliable evidence of moving and the state had no other evidence of the voter having moved other than the failure to vote. The Justices never seemed to catch that argument or how it differed from what they were saying.

On a fun point, Smith and Justice Kagan showed that judging really is about balls and strikes with the following exchange, on proximate cause:

MR. SMITH: * * * And calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two. It just doesn't -- it doesn't really make sense.

* * *

JUSTICE KAGAN: I don't understand why it's just -- it is proximate cause, but both -­ strike one, strike two, strike three. They're all proximate causes of the strikeout.

MR. SMITH: Well, I agree with that, Your Honor, as well.

Posted by Howard Wasserman on January 14, 2018 at 03:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, January 09, 2018

Collins v. Virginia and the Remnants of Coolidge v. New Hampshire

Today, the Supreme Court heard argument in Collins v. Virginia, which addresses what limits, if any, remain on the “automobile exception” to the Fourth Amendment’s warrant requirement.  I have not yet had a chance to take a look at the transcript, and I may have further thoughts on this after I do.  But for those whose memory of criminal procedure is hazy, the Court has held in a long series of cases that police can generally search an automobile or other motor vehicle without a warrant as long as they have probable cause to think there is seizable evidence within.  The exception began as a sub-species of the “exigency” exception, the theory being that if police could not immediately search a vehicle, it could be easily driven away and out of the jurisdiction or, at least, would be much more difficult to later locate.  But the exception has morphed into a self-standing justification for dispensing with the warrant requirement such that the Court has applied it in cases where the car has already been impounded and there was no real danger of its being driven away.  The Court has also added a distinct justification to the exception:  the reduced expectation of privacy people have in their cars.

In Collins, Virginia police observed a motorcycle parked on Collins’s property within the curtilage of his house, and they had probable cause to believe that it had been used in a crime.  An officer entered the property, removed the motorcycle’s cover, and searched for and obtained the motorcycle’s VIN.  When he ran the VIN, he learned that the motorcycle had been stolen and Collins was later arrested for and convicted of receiving stolen property.

The Virginia Supreme Court affirmed his conviction, holding that the warrantless search of the motorcycle for its VIN was a reasonable Fourth Amendment search pursuant to the automobile exception.  In the U.S. Supreme Court, Collins challenges this determination given that the motorcycle was on his property, unlike the more typical case in which the automobile exception would apply, where the automobile is being driven on the highway when the police form probable cause to search it.  (Collins does not seem to challenge the removal of the motorcycle cover as a separate search, perhaps because there was obviously a motorcycle beneath it.)

Virginia relies heavily on two cases in which the Court approved warrantless searches of automobiles located on private property.  In Pennsylvania v. Kilgore (a companion case of Pennsylvania v. Labron), police searched a farmhouse with the consent of its owner and also searched Kilgore’s truck, which was parked in the driveway, finding cocaine.  The Pennsylvania Supreme Court held that the automobile exception did not apply because there were no exigent circumstances to justify dispensing with the warrant requirement.  The U.S. Supreme Court reversed per curiam, putting the final nail in the coffin of the idea that the automobile exception was somehow tied to the existence of an actual exigency.  But this case does not help Virginia very much, in part because the police already had consent to be on the premises (more on that below) but mostly because the U.S. Supreme Court simply did not address the issue whether and to what extent the automobile exception applies on private property; it addressed only the question of whether exigency is a separate and independent requirement to trigger the exception.

Virginia also relies on Scher v. United States, a Prohibition-era case in which federal agents followed Scher’s car from a public highway into Scher’s garage after having been informed that the car contained bootleg alcohol.  When an officer approached and questioned Scher in the garage, Scher admitted he had alcohol in the trunk.  The agent searched the trunk, found the alcohol, and arrested Scher.  The Court upheld the search but its reasoning is rather opaque.  Citing Carroll v. United States, the progenitor of the automobile exception, the Court first wrote “it seems plain enough that just before he entered the garage the following officers properly could have stopped [Scher’s] car, made search and put him under arrest. * * * Passage of the car into the open garage closely followed by the observing officer did not destroy this right.”  The Court then pointed out that “[n]o search was made of the garage.”  The Court then observed:  “Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt.”  Finally, the Court concluded:  “The officers did nothing unreasonable or oppressive,” citing Agnello v. United States, a search-incident-to-arrest case.

Scher’s mash-up of the automobile exception, hot pursuit, consent, and search-incident-to-arrest is worthy of a student’s C-minus test answer, and just as difficult to untangle.  But let’s try.  Reading the case most favorably for Virginia, it seems to say that the automobile exception applied in the moment before Scher entered his garage (by the way, the opinion does not make clear whether this was his garage, or just a garage, perhaps one he shared with others, but we’ll assume it was his).  Given that no warrant was needed to search the car at that moment, a hot-pursuit-type extension of the automobile exception is warranted given that probable cause was formed while the car was on the highway.  This is consistent with Chambers v. Maroney, in which the Court held that, because police had probable cause to search a vehicle at the time they stopped it, the automobile exception also encompassed a search that took place later after the car had been towed to an impound lot.  If that’s what Scher really means, it hardly helps Virginia, given that probable cause in Collins was formed after the motorcycle was already on Collins’s property within the curtilage of his house.

The most helpful precedent for Collins, as the title of this post suggests, is Coolidge v. New Hampshire.  There, after Coolidge’s arrest, state police, acting without a valid warrant, took custody of two cars that were parked on his driveway.  Incriminating evidence found within was used against Coolidge at trial.  The Court assumed that police had probable cause to search but held that the police needed a warrant, rejecting the State’s contention that the automobile exception applied.  The Court famously wrote:  “The word `automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”  One problem for Collins is that Part II.B. of the opinion in Coolidge, rejecting applicability of the automobile exception, was joined by only four Justices.  Another problem for Collins is that this portion of the opinion rejects the applicability of the automobile exception because there was no exigency.  But, again, the Court has subsequently and definitively, in cases such as Labron/Kilgore, rejected such a limitation on the exception.

Still, one can read Coolidge as rendering the automobile exception inapplicable when the automobile is located on private property.  Part II.D. of that opinion, joined by a majority of the Court, consisted of a broadside against the reasoning of Justice White’s dissent, which would have upheld the search of car under both the “plain view” and the automobile exceptions.  The majority in Part II.D. attacked this position on the ground that Justice White had ignored a basic distinction in Fourth Amendment law between searches that take place on a person’s own premises and those that take place elsewhere.  Thus, while only a plurality in Coolidge supported the now-discredited view that the automobile exception applies only where is some exigency that excuses the failure to get a warrant, a majority seems to have held that the exception does not apply where the automobile is located on private premises.  This also distinguishes Kilgore: although the automobile search there took place on private property, it does not appear that it was Kilgore’s property, and the police had the consent of the landowner to be there.

It seems to me that this is the basic problem with Virginia’s position:  it treats the entry onto Collins’s land and search of his motorcycle essentially as a single, continuous intrusion.  But it is not.  We are taught that when evaluating police actions against the constraints of the Fourth Amendment, we should take a piecemeal approach and analyze each separate intrusion separately.  And here there were two intrusions:  the entry onto Collins’s land and then the search of the motorcycle.  The Court’s recent re-invigoration of the so-called “trespass” test in Florida v. Jardines suggests why that is important.  If the police conducted a search simply by entering the property and approaching the covered motorcycle in order to obtain information, then the automobile exception does not even come into play.  To put it another way, to borrow from the Court’s “plain view” jurisprudence, the automobile exception should not apply unless the police have lawful access to the automobile in the first place.  And that ought to depend on where exactly on the property the motorcycle was.  If it was where any member of the public might have encountered it on the way to the front door, one could say that the police had lawful access to it, and a search then conducted with probable cause might well fall within the automobile exception.  But if not, then the police breached the Fourth Amendment before they even searched for the motorcycle’s VIN and the automobile exception could not repair that breach.

Posted by Michael J.Z. Mannheimer on January 9, 2018 at 08:29 PM in Constitutional thoughts | Permalink | Comments (1)

Wednesday, January 03, 2018

Common theme: Insanity swirls around this administration

About the only basis I could think of for one short post touching three disparate issues wafting from this administration:

1) Paul Manafort sued Rod Rosenstein and Bob Mueller, seeking a declaratory judgment and injunction invalidating Rosenstein's appointment of Mueller and the actions Mueller has taken in investigating and bringing charges against Manafort. Steve Vladeck is quoted in this Slate article arguing that the district may abstain on Younger/equitable grounds. I think Steve is right. Although not challenging the constitutionality of the statute of conviction (the typical Younger case), the action challenges the legal basis for a criminal prosecution and seeks an order that would require dismissal of the pending prosecution. The Slate piece is right--this lawsuit looks more political than legally sound.

2) Acting ICE Director Thomas Homan has asked DOJ to examine whether California Governor Jerry Brown and other officials in sanctuary jurisdictions are violating the federal law prohibiting harboring of aliens. This is far from my area. But it seems to me the statute requires a defendant to conceal or harbor a specific person; it is not enough to know that many aliens are present and not to do something to help the government some or all of them. It also seems that a state or local official should be able to assert a Tenth Amendment limitation on a statute that would criminalize officials for making state policy. If federal law cannot impress state or local governments to enforce federal law, it cannot allow for the arrest and prosecution of state and local officials who control those governments and who make and enforce those policies refusing to enforce federal law.

3) Does a news organization that receives one of the President's media awards wear it as a badge of First Amendment honor? As a Bizarro Pulitzer Prize?

Posted by Howard Wasserman on January 3, 2018 at 07:00 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, December 21, 2017

Zervos v. Trump, in federal or state court

Richard Primus discusses an amicus brief he wrote in Zervos v. Trump, the defamation lawsuit filed by a former Apprentice contestant in New York state court (Zervos claims Trump sexually assaulted her and that Trump's denials effectively defamed her as a liar). Trump has moved to dismiss, arguing that a sitting President enjoys immunity from suit in state court (stated differently, Clinton v. Jones applies only in federal court). Primus's brief (written for Steven Burbank, Richard Parker, and Lucas Powe) argues that state and federal courts are no different for purposes of the President's amenability to sue.

The existence of presidential immunity does not matter in this case, because Zervos will refile in federal court on diversity jurisdiction (Zervos is from California, Trump is probably from New York, but definitely someplace other than California). The surprise when Zervos filed suit was that she had filed in state court (in Trump's home state, no less) rather than federal court. It might have been a fear of anti-plaintiff federal procedure and a desire to take extensive (embarrassing) discovery that she is more likely to get in state court than federal court. But the same law applies and the jury pool in the Southern District of New York is the same (and as anti-Trump) as the County of New York, so it is not obvious Zervos is better off in state court than federal court.

From the other side, though, it is worth wondering why Trump is bothering to raise immunity in this case, because it will not end or even delay the lawsuit. Does he so badly want to be in federal court? Is he trying to protect the presidency apart from his personal interests (something he has not been inclined to do)? Is he trying to make Zervos work for it?

Posted by Howard Wasserman on December 21, 2017 at 10:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, December 16, 2017

Byrd v. United States and the Relationship Between Standing and Consent

I previously posted about Byrd v. United States, a Fourth Amendment case that the Supreme Court will be deciding this Term.  The issue in Byrd is whether a non-authorized driver of a rental car has standing to raise the exclusionary rule after an unlawful search.  Byrd’s fiancée rented the car and she alone was authorized to drive it but she loaned the car to Byrd, who was subsequently stopped for a traffic infraction.  Police then searched the car, finding evidence incriminating Byrd in a federal drug offense.  The case is in the Supreme Court on the assumption that the search was unlawful and the only question is whether Byrd has standing to assert that the items found pursuant to the search must be suppressed.

The case points up an interesting connection between the Court’s standing jurisprudence and its third-party consent jurisprudence.  The standing question, at least where a search is concerned, is whether the person asserting the exclusionary rule had a reasonable expectation of privacy (REOP) in the place searched.  Indeed, the Court has at least formally eschewed the idea of “standing” as a separate topic and has admonished courts and litigants to analyze such issues purely in terms of the Fourth Amendment claimant’s REOP.  (Despite this, everyone still speaks of “standing”).

Interestingly, the concept of REOP also sneaks into the Court’s third-party consent cases, which nearly always involves situations in which the police have undoubtedly undertaken a search and the only question is whether A’s consent to search is binding upon B.   The Court has decided those cases by looking at common social understandings regarding shared privacy in places, an analysis that looks a whole lot like its REOP cases, which govern whether a search has occurred at all.  For example, in Georgia v. Randolph, the court held that one co-occupant’s consent to search by a police officer was trumped by another present co-occupant’s objection, rendering the consent invalid as to the objecting co-occupant.  It relied heavily on common social understandings:  what would ordinary people do in the face of one occupant’s consent and one occupant’s objection to entry?

The Court has instructed that the validity of third-party consent depends upon whether (1) the third party had authority to consent in her own right and (2) whether the person asserting a Fourth Amendment violation assumed the risk that the third party would consent.  Generally, though, the Court’s cases have focused on the second element because they have involved situations in which the third party undoubtedly had the authority to consent to a search on her own behalf:  typically, as in Randolph, they involve co-occupants of premises.  Thus, whether the third party has a sufficient connection to the place searched to have authority to consent is an area that is undertheorized.  For example, does a minor child or an overnight guest at a premises have authority to consent to a search of all or part of the premises?

There is a kinship between standing and third-party consent, given that both use as their touchstone social custom and usage that form the backbone of the REOP standard.  Indeed, Randolph relied in part on Minnesota v. Olson, a standing case.  The question in both areas appears to be whether an individual has a sufficient connection to the place searched to, on the one hand, object to an unlawful search by the police or, on the other hand, bind a third party by consenting to a search by the police.  As Justice O’Connor wrote in her separate opinion in United States v. Karo, “surely a homeowner cannot simultaneously have so little interest in a container that his consent to its search is constitutionally ineffective, and have so great an interest in the container that its search violates his constitutional rights.”  Similarly, Justice White wrote in his dissent in Rakas v. Illinois:  “If a nonowner may consent to a search merely because he is a joint user or occupant of a `premises,’ then that same nonowner must have a protected privacy interest.  The scope of authority sufficient to grant a valid consent can hardly be broader than the contours of protected privacy.”

The upshot is that, if I am correct about this connection, consent issues can be resolved by reference to the law of standing and vice-versa.  As Justice O’Connor put it in her separate Karo opinion:  “Standing to object to [a] search . . . and power to give effective consent to the search[] should go hand in hand.”  That is to say, for example, because the Court held in Olson that overnight guests at a premises have standing to assert the exclusionary rule based on an unlawful search of the premises, it stands to reason that the same overnight guest has authority to consent to a search of the premises (though that authority might, as in Randolph, be trumped by the objection of someone with an equal or greater interest in the property).  By like token, because the Court in Minnesota v. Carter denied standing to someone on the premises for only a few hours for a purely commercial purpose with no prior relationship to the premises, such a person would also lack authority to consent to a search of the premises (whether police might reasonably believe that such a person had authority is, of course, a separate issue).

Let’s apply this to Byrd.  Assume hypothetically that Byrd has manifested consent to a search of the car and the police found evidence that incriminated his fiancée in a crime, and the fiancée subsequently moved to suppress on the ground that Byrd had no authority to consent to a search of the car that would be binding as to her.  I think her claim would and should be roundly rejected.  When she loaned the car to Byrd to use in her absence, she effectively gave him full authority to use the car, including the authority to allow others to enter, unless she specifically withheld that authority.  That, it seems to me, is the common understanding among those who lend and borrow cars.  And I see no reason why that would not hold true even though Byrd was not authorized by the owner of the car to use it.

I have found only one court of appeals case to address this particular issue, United States v. Hunter, a 2011 Tenth Circuit case cited in the scholars’ amicus brief on behalf of Byrd, which – full disclosure – I signed onto.  There, as in Byrd, a rental car was stopped for a traffic infraction and the driver was not authorized by the rental agreement to drive the car.  Unlike in Byrd, the lessee, Hunter, was sitting in the passenger seat.  And unlike Byrd, the driver in Hunter consented to a search.  The court upheld the reasonableness of the search, rejecting Hunter’s argument that the unauthorized driver was incapable of giving valid consent to search.  One could argue that Hunter’s silence in the face his friend’s consent itself constituted tacit consent on his part, or at least was reasonably so interpreted by the police officer.  But the court went further and wrote that “there is no legal authority which expressly states that only the named person on a rental car agreement can authorize a search of a rented car.”  If Hunter is correct, and I believe it is, then there is an even stronger case that Byrd, who was driving in the absence of the lessee of the car, would have had authority to consent so as to bind the lessee.  And if standing and authority to consent rise and fall together, Byrd ought to be deemed to have standing.

Posted by Michael J.Z. Mannheimer on December 16, 2017 at 09:35 PM in Constitutional thoughts | Permalink | Comments (6)

Sunday, December 10, 2017

Byrd v. United States and Fourth Amendment Search Doctrine

Greetings and thanks for the regular Prawfs for inviting me to guest-blog for December.  For those who don’t know me, I teach Criminal Law, Criminal Procedure, and related courses at Salmon P. Chase College of Law at Northern Kentucky University, and I write mostly in Criminal Procedure.  Much of my work has been centered around identifying and elaborating upon what I see as a neglected federalism component in the Bill of Rights, particularly the Fourth and Eighth Amendments.  In my blogging this month, I will likely focus on some interesting criminal procedure cases pending in the Supreme Court this Term.  Of course, everyone is talking about the recently argued Carpenter v. United States, on whether government acquisition of cell site location information stored by cell service providers constitutes a Fourth Amendment search.

But I want to write about some lower-profile cases as well.  And I want to start out with one that I think is one of the easier cases this Term, Byrd v. United States (DISCLOSURE:  I signed onto a scholars’ amicus brief on behalf of the Petitioner Byrd).  Byrd raises the question whether a non-authorized driver of a rental car has standing to raise the exclusionary rule after an unlawful search.  Essentially, Byrd’s fiancée rented the car in her own name and she was the only person authorized to drive it.  However, she loaned the car to Byrd, who was subsequently stopped for a traffic infraction.  There is a factual dispute over whether Byrd consented to a search of the car but the case is in the Supreme Court on the assumption that he did not and, because there was no probable cause to search, the search was presumably illegal.  The question, again, is whether Byrd has standing to assert that the items found pursuant to the search must be suppressed.  Based on the Court’s case law, the question is essentially whether Byrd, as opposed to the rental car company or the lessee, had a reasonable expectation of privacy (REOP) in the car.

I call this a relatively easy case because, whether one views the REOP standard purely as a measure of widespread societal attitudes, on the one hand, or as more closely related to positive-law concepts, on the other, one should come to the same conclusion.  Driving a rental car as an unauthorized driver, I would say, is a fairly common activity.  I’ve certainly done it.  I think most people would be shocked to learn that as an unauthorized driver, they have no REOP in the car such that any of their personal belongings placed into the car are subject to discovery by anyone who cares to snoop.  That, after all, is essentially the test of whether something is a search:  are the police doing what any ordinary person could do?  If so, then there is no search.  If not, then the police need some special dispensation, typically a warrant based on probable cause, or at least some level of individualized suspicion coupled with a good reason to dispense with a warrant.

If we take an approach that hews more closely to positive law, we come to the same conclusion.  True, the fact that a driver is unauthorized might result in a breach of the rental agreement.  Even that much is unclear, and if it is a breach, it is on the part of the lessee, not the third party to whom the lessee has given permission to use the car.  But that is all beside the point.  The question is whether the breach of the rental agreement somehow permits yet another party, in this case the police, to enter the car without permission of anyone with a property interest in the car.  Again, a search occurs if the police go beyond what any ordinary person could do.  So a positive-law approach would ask whether an ordinary person, even one knowing that Byrd was not an authorized driver, would have been justified in entering the car without permission.  Phrased that way, the answer seems obvious.  Byrd, who had permission of the lessee to use the car, had lawful possession of the car.  He thus had a property interest in the car superior to everyone in the world except two people:  the owner and the lessee.  Anyone else entering the car without permission is likely committing a tort, if not a crime.

Of course, that simply invites the question:  a tort or crime against whom?  Granted that the lessee had a REOP in the car and would have standing to assert the exclusionary rule, the question is whether Byrd did as well.

But imagine the following scenario.  Byrd parks the car on the street and comes back to find a stranger in the car rifling through his belongings.  Byrd orders the stranger out of the car but she refuses to budge.  Byrd then forcibly ejects the stranger from the car, causing her minor physical injuries.  She then sues Byrd for assault.  Would Byrd have a good defense?  I don’t know the law in Pennsylvania, where this case arose, but I have to imagine that the answer would be yes in every jurisdiction.  A person in possession of a chattel, even one with no property interest beyond mere possession, has the privilege to use ordinary physical force to terminate a trespass to the chattel, assuming the trespasser has been ordered to end the trespass.  Again, under conventional common-law principles, Byrd, despite his being an unauthorized driver, had an interest in the car superior to every person in the world other than the owner and the lessee, including the police.  Accordingly, Byrd has standing whether one focuses on widespread social understandings or on positive law.  Indeed, as I argue in my recent piece, “A Unified Approach to Fourth Amendment Search Doctrine,” and will explore in future posts, the property-based trespass approach and the privacy-based expectations approach are really two forms of the same basic standard, because our positive law derives from the same widespread social expectations that are at the heart of the REOP test.

Posted by Michael J.Z. Mannheimer on December 10, 2017 at 04:32 PM in Constitutional thoughts | Permalink | Comments (5)

Friday, December 01, 2017

Drifting justices

Richard Primus takes down the arguments that Chief Justice Roberts has become (or always has been) a secret liberal and has "moved left." Primus argues that it is not Roberts who has changed but the questions presented to the Court--the questions have moved right, shifting the conclusions Roberts reaches and the Justices with whom he aligns, even without him have changed. And none of this could have been accounted for when Roberts was being vetted, so this should not be regarded as a case of failed vetting.

This is an intriguing argument to which I would add a few thoughts.

1) On the vetting point, Primus focuses on Roberts twice rejecting aggressive conservative theories surrounding ACA, which were not on Republicans' minds when vetting Roberts in 2005 (when the individual mandate was a Republican idea). Roberts has voted the straight conservative line on those issues for which he would have been vetted--reproductive freedom, religious liberty, affirmative action, same-sex marriage, and voting rights. Put differently, while the questions presented have moved rightward on these issues, they have not reached the point of outflanking Roberts to the right.

2) Primus' framing offers a new way of thinking about Justice Frankfurter, where the questions presented moved leftward, leaving him straddling, if not dissenting, on many. For Frankfurter, it was a shift of constitutional issues--from the scope of federal power to individual rights. But the basic idea of the legal questions moving and the Justice staying in place holds.

Posted by Howard Wasserman on December 1, 2017 at 09:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Wednesday, November 29, 2017

Carpenter – Post-Oral Argument Thoughts

The following guest post is by past guest-Prawf Andrew Ferguson (UDC).

Today, the Supreme Court heard oral arguments on the much awaited Fourth Amendment case of the term – Carpenter v. United States.  Fourth Amendment nerds from all over the country flocked to the Supreme Court like it was a constitutional solar eclipse. 

Carpenter involves the warrantless collection of historic cell phone records for location information covering 127 days.  Suspected of being involved in a series of armed robberies (ironically enough of cell phone stores), police used Timothy Carpenter’s cell phone location data to tie him to the crimes and obtain a conviction.  Carpenter appealed arguing that obtaining this information without a warrant violated his Fourth Amendment rights.

The reason for the buzz of interest is because the case presents a real legal puzzle.  In a world where almost all of our digital devices work through third parties, the idea that law enforcement can simply obtain the data from our smart devices without a warrant means that our modern culture of self-surveillance has also potentially created a governmental surveillance state.  At the same time, the third party records in Carpenter were owned, controlled, and used by the phone companies, raising questions of who owns this data, who controls it, and does sharing it for one purpose also mean sharing it for all other purposes including government investigation? 

Much (almost instant) commentary has already been posted on this case, but two things are clear: first, the stakes for the future of the Fourth Amendment are quite high and demand an answer; and second, no Justice or advocate has a completely coherent answer to how the third party doctrine should apply in the digital age.

As to the stakes – almost any digital device you can imagine connects to third party providers (and creates third party records) in order to make the magic of “smart” devices happen.  In an interconnected world filled with smartphones, smart cars, smart homes, and smart medical devices, ubiquitous communication by email, text, Tweet, or chat, you share your data with private companies.   In a world of data trails, you are a potential police target at all times.  Your smartphone, your smart car, your fitness band provide exact geo-locational clues to your whereabouts.  Your location is being tracked, and police have recognized the utility of this information to prove criminal acts and patterns.  Data trails provide a wealth of clues to past and present criminal activity

As to the debate in the high court, the Supreme Court was, perhaps not surprisingly, divided.  Questions of how to distinguish decades old precedent mixed with questions about new future-oriented technology.  Hypotheticals about modern subpoena power mixed with queries about the Writs of Assistance.  John Adams got a shout out.  So did Stephen Henderson’s idea of a Fourth Amendment time machine.  So did the empiricists’ amicus brief.  Again, for Fourth Amendment nerds it was a party. 

At least from the questions at oral argument, it can be intuited that some Justices wish to rethink the existing third party records doctrine, and others wish to see how to make it fit a digital age.  (As a disclosure, I helped author one of the amicus briefs on behalf of Mr. Carpenter).  Theories abounded, with no clear resolution of how the Justices would decide. 

But one question – signaling perhaps a new way of thinking about the Fourth Amendment – seemed to trouble at least a few members of the Court – namely what rights (property based or otherwise) do the consumers of smart devices have over their own data.  This is a huge question in the digital age.  How does the Fourth Amendment protect smart data?  How do we conceptualize who owns or controls the location data coming from Carpenter’s cell phone?  

Here is how Justice Gorsuch framed the question to Carpenter’s lawyer Nathan Wessler of the ACLU:

JUSTICE GORSUCH: Mr. Wessler, I'm sorry, one quick question. Focusing on the property-based approach, putting aside reasonable expectation for just a moment, what do we know about what state law would say about this information? So say -- say a thief broke into T Mobile, stole this information and sought to make economic value of it. Would you have a conversion -- would your client have a conversion claim, for example, under state law? Have you explored that at all?

Similar questions were put to the government’s advocate, Michael Dreeben:

JUSTICE GORSUCH: Mr. Dreeben, I'd like to -- I'd like to drill down on that and return to Justice Kagan's question. You know, the facts here wind up looking a lot like Jones.

One thing Jones taught us is -- and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach.

So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let's say there is a property right. Let's say I have a property right in the conversion case I posited with your colleague. So that if someone were to steal my location information from T-Mobile I'd have a conversion claim, for example, against them for the economic value that was stolen.

Wouldn't that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?

            The question likely arises from a law review article written by William Baude and James Stern in the Harvard Law Review called The Positive Law Model of the Fourth Amendment and in Richard Re’s response essay, The Positive law Floor.  Both articles were cited in Carpenter’s brief and apparently caught the attention of the Court.  But, as anyone who has read those thoughtful pieces knows, positive law when it comes to the Fourth Amendment gets confusing and contested pretty quickly in practice.  It is not that the Positive Law model doesn’t offer some helpful ways to conceptualize the possible future rules, but it is hard to operationalize because positive law is messy. 

So, in the spirit of the ongoing debate, I offer my own thoughts to the intuition that Justice Gorsuch was reaching for – that there is some property-like element to our smart data – but with a different conceptual hook.  

My argument is not about positive law, but about the ownership/security interests we have in the data we create.  Smart data (including location data) is partially ours, and because it comes from our effects, we can claim some control over it.  The argument turns on the simple principle that the Fourth Amendment protects not simply the physical integrity of “persons, papers, homes, and effects” but also the information that comes from those constitutional derived sources (which would include Timothy Carpenter’s cell phone – as an effect – and its smart data).  As I wrote in The “Smart” Fourth Amendment:

The Fourth Amendment--at its core--protects “informational security” …. Underlying the protection of persons, papers, homes, and effects and behind the expectation of privacy lies a desire to guard personal information from government intrusion.

In other words, it is not the corporal person, alone, that deserves protection, but also the information about the person. It is not the sheaf of papers, but the revealing personal details in those words that matter. It is not the physical home that is as important as what happens in the home. …

In this longer work on how the Fourth Amendment should adapt to new “smart” technologies, I developed the idea of “informational security” the principle of why the Fourth Amendment should protect smart data, again similar to Justice Gorsuch’s intuition that there is some property/security right to control the locational information created by individuals through the use of smartphones.  [In the following excerpt from the article, I deleted the footnotes for easier reading.]

 

[I]nformational security is not an abstract concept, but arises from those particular constitutionally referenced sources. The Fourth Amendment secures someone, something, or somewhere. Information obtained from a constitutionally recognized source--effects, houses, persons, papers--gains derivative protection due to the source of the information. Focusing attention on a derivative constitutional source provides a useful and relatively easy guidepost to identify which types of information deserve constitutional protection.

Such derivative protection also covers information at some remove from the actual constitutionally protected interest. Charlie Katz's voice exited the closed glass door and was captured by the microphone taped on top of the phone booth. Antoine Jones's travel coordinates left the car and was captured by satellite technology. David Riley's smartphone communications data existed both on the phone and outside of it (in the cloud). Yet, the protections of the Constitution carried to these intangible, invisible, separate pieces of personal information. The constitutional protections of persons, houses, papers, and effects might, thus, be better characterized as protections of the information emanating from those constitutionally protected interests.

 

As laid out in more detail in the article, one can trace through the history of the Fourth Amendment and see this emphasis on protecting informational details arising from constitutionally protected sources (effects, homes, persons, papers).  For questions about whether we have any property rights in our own smart data, this can be an important consideration. 

            For example, in terms of effects:

Central to the protection granted effects has been securing personal information about those effects. The sparse Founding Era literature suggests a focus on protecting objects which revealed something about the owner--religion, culture, status, or family associations. Searching and seizing a colonist's religious objects was not offensive simply because it interfered with property rights, but because searching revealed personal information about family and faith. Rummaging through bedroom drawers was not solely about the inviolate nature of property but, as the early history suggested, also about revealing information that might be contained in those drawers. Interpreted one way, the protection of effects has largely been the protection of what the personal effects revealed or contained.

Similarly, while Justice Scalia attempted to ground his Jones argument in property rights, the harm of affixing the GPS device was not in any real sense to physical property (the car was undamaged). The real harm was exposing the revealing personal data about the effect (car). Placing the device on the car might have been a seizure, but what made it a search was collecting the locational data intercepted by police (the “use of that device to monitor the vehicle's movements”). The “use” in that case was the capturing of data trails via satellite transmissions communicated by cell phone to a government computer. By using the car to track its owner, the government invaded the informational security of the effect. Justice Scalia's Jones analysis requires both parts--trespass plus use--and as Justice Alito argues in his concurrence, neither alone should constitute a search under Scalia's reasoning. In holding that this interception/collection was a Fourth Amendment search, Justice Scalia implicitly acknowledged the centrality of informational security. What mattered was securing the information coming from the effect, not just securing the effect itself.

The concurring Justices in Jones also focused on the personal information revealed from the GPS device. The reason a twenty-eight-day tracking of locational data became a search rested solely on the informational exposure that resulted. Such collection of personal data points (touching on associational, health, and other private travels) became of constitutional significance when the data trails could be revealing of private, personal actions. The expectation of privacy was not about expectations from the effect (the car) itself, but the information to be inferred about the travels of the car. This personal information essentially radiating off the car is what created the constitutional harm.

The article goes on to discuss the other constitutionally protected terms and the quirks and problems with the theory of informational security, but at its core the article offers a way to get to a property-oriented approach to data protection without diving into positive law.  (Although, candidly, there are 84 pages of my article not excerpted that add a whole host of complexity to it). 

So, if the Supreme Court is looking for a reason to protect smart data under the Fourth Amendment, it offers a starting point for debate.  And, the best thing about the Carpenter argument day was that for one shining moment, everyone was focused on thinking about the Fourth Amendment and how it should apply to the digital age.  Can’t wait for the decision. 

Posted by Howard Wasserman on November 29, 2017 at 06:41 PM in Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (13)

Tuesday, November 21, 2017

Facial unconstitutionality does not support universal injunctions

Judge Orrick of the Northern District of California on Monday permanently enjoined (order embedded in story) enforcement of the administration's sanctuary-cities order. As with the April preliminary injunction, Judge Orrick made the injunction nationwide (really, universal). I criticized his reasoning for the universal preliminary injunction and the reasoning in this is not much better. The order again quotes Califano v. Yamasaki, ignoring that the order in that case involved a plaintiff class, not individual plaintiffs--universality made sense, as everyone in the class was a plaintiff protected by the injunction.

The court also relies on the fact that it found the regulation unconstitutional on its face, not simply in its application. But facial as opposed to as-applied goes to the scope of the judicial analysis. It should not go to the scope of the court's remedial authority. And it should not empower a district court to issue an order binding every district court in the country in actions involving different plaintiffs and subjecting the federal government to contempt sanctions for enforcement efforts having nothing to do with the two plaintiffs. Slapping the "facial" label on constitutional analysis should not so enhance the court's precedential or remedial authority.

Posted by Howard Wasserman on November 21, 2017 at 11:33 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (12)

Monday, November 13, 2017

First Amendment Day at SCOTUS

SCOTUS granted cert in three First Amendment cases today. The big one is National Institute of Family and Life Advocates v. Becerra, a challenge to a California law requiring that crisis pregnancy centers provide notice that publicly funded family-planning services are available elsewhere and that unlicensed clinics are unlicensed; the Court took it as a compelled-speech case and a vehicle to resolve a circuit split over the standard for "professional speech" (the Ninth Circuit applied intermediate scrutiny, while the Fourth Circuit applied strict scrutiny in invalidating similar regulations in Maryland.

The political valance of the case is interesting, as Dahlia Lithwick argues. The plaintiff here is a crisis-pregnancy center, resisting regulations that, in the name of protecting women's health, require the clinics to disclose information about the limits of their services (not providing abortion or contraception) and directing patients elsewhere for those services. But if these regulations violate the First Amendment, so should regulations in many states requiring clinics to provide pre-abortion counseling or to provide arguably false medical information about links between abortion and breast cancer, suicide, and mental-health consequences, designed to dissuade women from going through with the procedure.

Incidentally, this case meets the procedural posture I was looking for: The trial court denied a preliminary injunction, the court of appeals affirmed, and SCOTUS granted cert (to reverse, if I had to predict).

Posted by Howard Wasserman on November 13, 2017 at 07:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, November 04, 2017

Are The Bangles no longer welcome at Reed College, either?

Read the intro. Whatever else is happening, this demonstrates a point that came out in the comments to this post: The level of offense and the level of evil that protesters see in objectionable speech is beyond what we saw previously, which explains the more-intense reactions and confrontations between speech and counter-speech.

Posted by Howard Wasserman on November 4, 2017 at 05:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Monday, October 09, 2017

"Thanks, Iowa Supreme Court!"

Today in my Election Law class we covered state regulation of false or misleading campaign advertisements. (The doctrine is generally that even blatantly false ads enjoy First Amendment protection.) It is one of my favorite class periods of the semester because I show some pretty incredible political ads. The one below is perhaps the most outlandish. It aired during the Iowa judicial retention election in 2010, just after the Iowa Supreme Court had issued a ruling that effectively legalized same-sex marriage. The ad is worth two minutes of your time. (All three justices up for retention lost.)

(Although I find the ad amusing, I also think it's offensive and harmful.)

The debate during this class is always spirited, with some students arguing that the government should be allowed to regulate patently false campaign speech -- especially if it is about the election itself (such as "Republicans should vote on Tuesday; Democrats should vote on Wednesday") -- while other students take a more absolutist First Amendment approach. The debate has perhaps become even more interesting these days given the current tenor of our political discourse.

Posted by Josh Douglas on October 9, 2017 at 02:17 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

Sunday, October 08, 2017

Police as prosecutors

A lawsuit in Manhattan civil court is challenging a program in which NYPD lawyers prosecute summons cases, pursuant to a delegation by the Manhattan DA. The apparent impetus for the move was that the DA generally does not send attorneys to summons court, resulting in many cases being dismissed, in turn forming the basis for constitutional claims arguing that officers lacked probable cause to issue the summons. The police department requested the delegation so it could litigate summons cases or offer a resolution would require the defendants to admit liability, barring a subsequent lawsuit. Plaintiffs claim this is a conflict of interest for the police, which violates due process, undermines the adversary system, and raises a hint of selective prosecution. Plaintiffs allege that the police are pursuing only claims against those cited while engaged in expressive activity (the plaintiffs were cited for actions during a police-reform march, and the charges against one of them were dismissed when the judge found the arresting officers' testimony contradicted by video of the events).

For you crim/crim pro/PR scholars in the audience: What is the problem here, as a legal or ethical matter? Because I do not see it. A lot seems to be about the intent of the delegation and the police lawyers' strategy--to protect officers from subsequent civil suits. But that seems like one, valid influence on prosecutorial discretion, whether the DA or its delegee is exercising that discretion. As for the focus on people cited for expressive conduct, that sounds in selective prosecution, a defense that is hard to prove and as much of a problem (or non-problem) with or without the delegation. What am I missing? 

Posted by Howard Wasserman on October 8, 2017 at 11:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)