Saturday, December 08, 2018

Are politically motivated crimes by racists hate crimes?

James Alex Fields, Jr., who drove his car into a crowd of people in Charlottesville and killed counter-protester Heather Heyer, was convicted on Friday of first-degree murder, along with eight counts of malicious wounding. Sentencing begins Monday.

Fields also faces multiple federal hate-crime charges under § 249 for causing death or bodily injury because of the "actual or perceived race, color, religion, or national origin of any person" and under § 245 for using force to interfere with person's enjoyment of protected activities on the basis of race.

My question: How is what he did a racially motivated hate crime? The one person killed was white, as were many of the people injured. The DOJ press release announcing the indictment (from June) described Fields driving into a "racially and ethnically diverse crowd," seeming to suggest that Fields was targeting African-Americans and a group of people affiliated with African-Americans. But did he target that group because of their race (or the race of some of them)? Or did he target them because they were counter-protesters holding certain beliefs about racial, religious, and ethnic equality? The latter is not covered by either § 249 or § 245. And it would seem to stretch "perceived race" to cover people who are not part of some group but support rights and equality for that group.

At best, this crime seems politically motivated--Fields appears to be a racist and he picked victims who disagree with his positions. But is that a race-base hate crime?

Posted by Howard Wasserman on December 8, 2018 at 02:53 PM | Permalink | Comments (9)

Friday, December 07, 2018

Comments Fixed

I understand there had been some problems with the Comments sections. That problem has been resolved and comments can be made on all open posts.

Posted by Administrators on December 7, 2018 at 11:18 AM | Permalink | Comments (1)

Thursday, December 06, 2018

Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule

978-1-4766-6715-7I am thrilled to announce that Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule has been published by McFarland Press. This brings together all the writing I have been doing on the subject since 2012, in multiple law review articles and on this blog, including a full eight seasons of an empirical study of the rule's invocation.

Makes a great gift for the baseball fan in your life. And there are four more days of Channukah and three weeks until Christmas.

Posted by Howard Wasserman on December 6, 2018 at 09:31 AM in Books, Howard Wasserman, Sports | Permalink | Comments (3)

Wednesday, December 05, 2018

JOTWELL: Malveaux on Trammell on preclusion and nationwide injunctions

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Alan Trammell, Demystifying Nationwide Injunctions, which uses preclusion principles (including arguing that offensive non-mutual preclusion should be available against the government) to support the power to issue broader injunctions.

Alan's paper just came across SSRN yesterday, so I look forward to reading and citing it. My initial thought is that the preclusion analogy (even accepting that Mendoza is wrong) runs into the fact that allowing non-particularized injunctions allows the issue court to police the effect of its own judgment, whereas preclusion ordinarily is the bailiwick of the second court. This is sort of the issue in Nevada v. Dept of Labor and the private attorneys held in contempt for violating the injunction of one court (based on privity principles) by representing a plaintiff in a different lawsuit in a different court . To the extent the injunction binds these private attorneys, it would be through preclusion, which would be for the second court to determine, not the issuing court.

Posted by Howard Wasserman on December 5, 2018 at 09:30 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 04, 2018

The limits of civil litigation for exposing truth

The past week has brought to light the story of Jeffrey Epstein, a billionaire hedge-fund manager and alleged sexual predator and child rapist. Epstein pleaded guilty to two state felony counts and served 13 months in unusually forgiving conditions, with a federal investigation and prosecution stopped in its tracks by a broad non-prosecution agreement.*

[*] Full disclosure; The former US Attorney at the center of the controversy, now Secretary of Labor Alex Acosta, was my dean from 2009-17.

The story has exploded now for two reasons. First is the Miami Herald's multi-part in-depth reporting on the case. Second is ongoing civil litigation--one case  by Epstein's victims in federal court claiming the federal settlement violated the Crime Victims Rights Act (which gives crime victims certain notice and other rights) and one case in state court by attorney Bradley Edwards. The latter began as a suit by Epstein against Edwards and his former partner, claiming the latter committed fraud, racketeering, and other crimes in investigating Epstein; Edwards filed a counterclaim for malicious prosecution, which remained alive after Epstein dropped his lawsuit. Trial on the counterclaim was scheduled to begin today, with Edwards expected to call at least seven of Epstein's victims to testify. But the case settled as the jury was being selected, with Epstein paying an undisclosed sum, conceding that he attempted to damage Edwards' professional reputation, and apologizing.

This illustrates the limits of civil litigation for exposing misconduct and revealing truth. The victim stories were tangential to this case, which was really about Epstein's conduct in filing the original lawsuit and Edwards' professional reputation. A settlement offer that resolves that central dispute is irresistible, even if it denies the victims the opportunity to tell their stories (the opportunity they claim they were denied by the actions of the U.S. Attorney's office). One perhaps might criticize Edwards for accepting the settlement rather than giving the victims the chance to testify, since that is what he was promoting as the point of the suit. (Following the settlement, he held a press conference outside the courthouse standing in front of the boxes of evidence he said he planned to present). But I doubt there was any way to avoid that. The judge would have pushed Edwards to accept a settlement that included the defending party admitting wrongdoing (as to Edwards, not as to the women) and apologizing. And had Edwards refused to settle, Epstein might have confessed judgment, rendering a trial on liability, and the women's testimony, unnecessary.

The next step is the federal action by the victims themselves. News reports indicate the plaintiffs hope the court will revoke the federal plea deal and allow the government to prosecute Epstein.

Posted by Howard Wasserman on December 4, 2018 at 09:01 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Backing off universality, at least for sanctuary cities

Judge Ramos Southern District of New York enjoined DOJ's sanctuary-city policies in an action brought by New York, Connecticut, New Jersey, Rhode Island, Washington, Virginia, Massachusetts, and New York City.  (H/T: Ilya Somin, who analyzes the substance of the decision).

Ramos declined to make the injunction universal, although not per se rejecting universality. He emphasized that no sanctuary-city injunctions have remained universal through appellate review and that recent decisions have stayed any non-particular application. The court did extend the injunction to each state's municipal subdivisions, concluding that subdivisions suffer the same injuries described earlier, which necessarily flow to the States by virtue of the subdivisions’ position within the States’ geographic boundaries and political systems, and which are compounded insofar as the States must make and monitor compliance with subdivisions’ subgrants with unlawful conditions." This is the converse of the  Ninth Circuit extending an injunction from party San Francisco to non-party California, because some grant funds sent to California were then distributed to San Francisco. Here, I presume, the state would have to cover any budgetary shortfall caused by the municipality's loss of DOJ funds. Either direction is consistent with the complete-relief requirement. But the court did not accept or apply the broader argument that some states and cities have urged (and that one AG presented during Q&A) that because DOJ has a limited pool of money and the size of the grants varies with the number of applicants, the injunction must be universal so that funds are not disproportionately allocated to non-sanctuary jurisdictions in a way that leaves nothing for sanctuary jurisdictions by the end of litigation.

In any event, this court's approach is a far cry from that of the Ninth Circuit in the DACA litigation, where the court seemed to approach universality as the default.

Posted by Howard Wasserman on December 4, 2018 at 06:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 03, 2018

Guest Post: Come On, Justices Gorsuch and Kavanaugh! Doctrinal (and Intemperate) Error in the Timbs v. Indiana Oral Argument

The following post is from Rory Little (UC-Hastings and SCOTUSBlog).

It’s bad enough when a Supreme Court Justice expresses sarcastic impatience with an advocate; even experienced advocates are on edge when they appear in the nation’s highest court. Perhaps even worse when the advocate is a sovereign state’s Solicitor General.  But it really is inexcusable when the sarcasm is based on doctrinal error and thus wrong.  Here’s why that happened in last week’s oral argument in Timbs v. Indiana.

Continue reading "Guest Post: Come On, Justices Gorsuch and Kavanaugh! Doctrinal (and Intemperate) Error in the Timbs v. Indiana Oral Argument"

Posted by Howard Wasserman on December 3, 2018 at 11:12 AM in Constitutional thoughts, Criminal Law, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, November 30, 2018

Incorporation and Government Structure

Inspired by this week's SCOTUS oral argument in Timbs v. Indiana, my colleague (and partner in crime) Andy Hessick and one of our talented UNC students, Elizabeth Fisher, wrote the following about incorporation.  I tend to think that they are wrong--especially about the jury trial right--but I'm having a hard time articulating precisely why.  They are looking for input (and I'm looking for help with counterarguments for the dinner table) so I'm posting it here for folks to weigh in with comments.

Earlier this week the Court heard argument in Timbs v. Indiana, which asks whether the Fourteenth Amendment incorporates the Excessive Fines Clause against the states.  Questions for oral argument put the smart money on the Court saying it is incorporated.  If that’s right, then all of the first 8 amendments will be incorporated except for three provisions: the Third Amendment, the right to a jury in civil proceedings, and the right to a grand jury. The reason the Third Amendment is not incorporated is that the Court has never had the opportunity to consider the issue. Third Amendment claims are rare. But the non-incorporation of the other two provisions is harder to explain.

The extent to which the Fourteenth Amendment incorporates rights against the states has been a longstanding question. The text of the Fourteenth Amendment is vague, and the history surrounding its ratification is ambiguous.  Over the years, justices have floated various theories of incorporation.  Some have pressed for total incorporation; others argued for a fundamental-fairness test.  Today, the prevailing doctrine is the so-called “selective incorporation” test under which a right is incorporated if is fundamental or deeply rooted in our nation’s history. This test does not derive from either the text or the history of the Amendment.  Instead, it rests on the two principles of protecting individual rights while trying to avoid unduly constraining the states.

Under this selective incorporation test, incorporating the Excessive Fines Clause seems like a no-brainer. Prohibiting excessive fines is just as fundamental or deeply rooted as many of the other rights the Court has incorporated.  But it is hard to see why the grand jury and civil jury clauses are not incorporated under this test.  They are not obviously less fundamental or deeply rooted in our nation’s history than other guarantees in the Bill of Rights.  The inclusion of those rights in the Bill of Rights alone strongly suggests their importance. But the Court has repeatedly said that those rights are not incorporated, including in the 1970s after the Court started its modern wave of incorporation.

Questions from some of the justices in the Timbs argument suggest that they are prepared to incorporate all of the guarantees in the first 8 amendments based on a total incorporation theory.  But there are reasons not to incorporate the jury rights.  One reason—a reason we are developing in a new paper—is that incorporating these rights would more significantly interfere with the states’ sovereignty than the incorporation of other rights. Most rights impose substantive restrictions. For example, the First Amendment limits the government’s ability to regulate speech.  Other rights require the government to follow particular procedures.  For example, the Due Process Clause requires the government to afford process before depriving individuals of life, liberty, or property.  The grand jury and civil jury clauses do much more.  They require the government to adopt particular structures.  For example, the Seventh Amendment obliges the government to provide juries in common law cases over $20.

Continue reading "Incorporation and Government Structure"

Posted by Carissa Byrne Hessick on November 30, 2018 at 11:17 AM in Carissa Byrne Hessick, Constitutional thoughts | Permalink | Comments (5)

Nationwide Injunctions at the National Association of Attorneys General

Yesterday, I appeared with Suzette Malveaux (Colorado) for a panel on nationwide injunctions at the fall meeting of the National Association of Attorneys General. It was a fun discussion. Time ran short, so I did not have the chance to make one point: State AGs stand in a unique position because they are the only class of litigants who may be both beneficiaries and victims of universal injunctions--beneficiaries when they sue the federal government, victims when they defend the validity of their state laws.

I will post a video link if one becomes available.

Posted by Howard Wasserman on November 30, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 28, 2018

Bringing Students into the Criminal Procedure Courtroom

The following post is by Brian R. Gallini (Arkansas) and is sponsored by West Academic.

When I first started teaching the investigative criminal procedure course more than a decade ago, I was immediately struck by how the material captured student attention. I doubt it was my teaching. After all, the subject matter—largely an inquiry into what police can and cannot do—impacts us all as citizens.

Convincing students to engage with the criminal procedure course has become an increasingly easy sell. In just thirty-five days after its release, an average of 19.3 million viewers watched each episode of Making a Murderer. Meanwhile, in the first full year following its release, 80 million listeners downloaded season one of the hit podcast Serial. Those numbers reflect the reality that criminal procedure is an intriguing and constantly evolving area of the law that seemingly captures the public interest unlike other law school courses.

Continue reading "Bringing Students into the Criminal Procedure Courtroom"

Posted by Howard Wasserman on November 28, 2018 at 06:53 PM in Sponsored Announcements | Permalink | Comments (0)