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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.

Background on the Timbs case and the Doctrine of Incorporation

The State of Indiana sought to forfeit Tyson Timbs’ $42,000 Land Rover after Timbs use it to transport small amounts of heroin to drug deals.  The Indiana Supreme Court declined to consider whether this violated the Eighth Amendment’s “no Excessive Fines” clause, because the U.S. Supreme Court has never definitively said that that clause is “incorporated” against the states (via the Fourteenth Amendment’s “no state shall” deny Due Process clause).  Whether or not Timbs should lose his vehicle, the Question presented in Timbs may seem easy: the doctrine of incorporation, developed only in the 20th Century, is well-accepted. Most recently the Court ruled in 2010 in McDonald that the Second Amendment’s “right … to keep and bear arms” is incorporated and thereby governs state as well is federal actions.  Although it is surprising to many, the Bill of Rights was originally intended to apply only against the federal government, and for our first 100 years or more it was said to have no application to state actions.  However, after a century of litigation, all rights that are found to be “deeply rooted in this Nation’s history and tradition,” “so as to be ranked as fundamental,” are now said (McDonald) to be “incorporated” against state action as part of due process.  This includes most – but see below, not all – of the Bill of Rights provisions.

The “deeply rooted in this Nation’s history and traditions” test might be well-satisfied by the Eighth Amendment’s command that “excessive fines” shall not be “imposed” -- although the common practice in the early days of our Union of forfeiting entire ships used to run contraband might give an Originalist pause regarding whether a rule against the forfeiture of vessels of crime is in fact so “deeply rooted.”  (As Chief Justice Roberts noted at the Timbs argument “I certainly understand the argument that … with respect to forfeiting instrumentalities of the crime, … [i]t’s always proportionate since it’s the way the crime is accomplished.”)

But one thing is doctrinally clear: not all the rights specified in the Bill of Rights have been incorporated against the States.  For some rights, like the “no Excessive Fines” clause, this might merely be an accident of history.  (One can find a good discussion of “why hasn’t the excessive fines clause already been incorporated?” in the November 26 episode of “First Mondays” with Professors Beth Colgan and Dan Epps”)

The Fifth Amendment’s Grand Jury right has, and for good reason, not been incorporated

But for one Bill of Rights provision in particular – the Fifth Amendment’s right to be charged by a Grand Jury for any “capital or otherwise infamous crime” – the decision to not incorporate is long-standing and quite considered.  Every student and professor of Constitutional Criminal Procedure understands this intentional anomaly.  Yet, as recounted below, it appears to be a “blank spot” in the doctrinal understanding of the Court’s two newest Justices, Gorsuch and Kavanaugh.

By way of quick summary, in 1884 in Hurtado v. California, the Supreme Court ruled in no uncertain terms that the Fifth Amendment’s grand jury provision need not bind the states.  The progressive 1879 Constitution of the young state of California had provided a new system, one viewed as more protective than the old grand jury system, permitting the charging of criminal defendants by a prosecutorial “information.”  California’s then-new Penal Code -- unlike secret, non-judicial, one-sided grand jury proceedings -- permitted the prosecution’s information to be immediately tested by a preliminary hearing, presided over by a judge, providing counsel for the defendant and allowing for cross-examination.  When Joseph Hurtado was charged with murder (and ultimately sentenced to death) based upon an information rather than grand jury indictment, the U.S. Supreme Court viewed it as a “question … of grave and serious import” whether the Fifth Amendment’s grand jury rule should be required, under the Fourteenth Amendment, to apply against the state.  In a thorough opinion (while certainly sounding different in some ways from today), the Court ruled that “progress [and] improvement” is not forbidden by the Fourteenth Amendment, and that California’s information system, with all its additional protections for a defendant, was at least as protective of “principles of liberty and justice” as the grand jury system.

Hurtado has well stood the test of time.  Critics of the federal grand jury system are many.  Meanwhile, over half the states allow criminal charging by information rather than grand jury; and two states (Pennsylvania and Connecticut) have abolished the use of criminal charging grand juries entirely.)  Thus the respected NACDL (National Association of Criminal Defense Lawyers), which has filed amicus on Timbs’ behalf regarding Excessive Fines, would surely oppose (as would others on all sides of the criminal justice aisle) incorporation of the Grand Jury clause.

Intemperate Doctrinal Error at the Timbs oral argument

This brings us, finally, to Justices Gorsuch and Kavanaugh at the Timbs oral argument (transcript is here).  Justice Gorsuch lit into Indian’s Solicitor General Thomas Fisher (who I do not know) from the start.  He demanded agreement that “the Excessive Fines Clause is incorporated against the states.”  When Fisher resisted (unsurprisingly, since that is the Question Presented), Justice Gorsuch persisted:

 I mean, most of the incorporation cases took place in like the 1940s.” [– this is an erroneous account in itself as virtually all the criminal procedure incorporation case were products of the 1960s Warren Court –]  And here we are in 2018 still litigating incorporation of the Bill of Rights.  Really?  Come on, General.

The audio on this last statement (audio of the argument is here) is undeniably harsh: Justice Gorsuch’s tone is, frankly, unbecoming.

Fisher politely stood his ground, and Justice Kavanaugh took up Gorsuch’s point -- although he at least had the courtesy to pose his view as questions, a fortunate method since in fact he and Justice Gorsuch were wrong:        

Isn’t it too late in the day to argue that any of the Bill of Rights is not incorporated? … [A]ren’t all the Bill of Rights at this point in our conception of what they stand for, the history of each of them, incorporated?

As you now know, these rhetorical questions and accusations – “Come on, General” -- are flatly, doctrinally, incorrect.  Hurtado stands in their way, fully and after 134 years of careful consideration. 

Conclusion

Why does any other this matter, you may wonder?  Errors must happen all the time even in Supreme Court arguments, right?  Why single these four pages of transcript out?

Two reasons.  First, my perhaps old-fashioned view is that a little bit of humility is a good thing for at least new Supreme Court Justices, especially regarding areas of the law in which they may not have deep experience.  Neither Justice Gorsuch or Kavanaugh has any substantial background in criminal law, and at the D.C. Circuit at least Justice Kavanaugh’s criminal law exposure was not extensive.

Second, and far more important, one must point out doctrinal errors if one can before they leak into published Supreme Court opinions, not after.  It would be a grave error to say, sarcastically or otherwise, that all the rights in the Bill of Rights have been incorporated.  And it would be a far more serious error to suggest that a carefully considered procedure such as criminal information-followed-by-preliminary-hearing charging is somehow in danger of being wiped out by slapdash dicta in a Supreme Court case not even presenting the question.  It is for that reason, and with all respect for the understandably challenging task of being elevated to the Nation’s highest court, that the foregoing is published.

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)