Bushmaster Firearms doesn't like to be sued. That's the bottom line. But dismissing it was not the first move for Bushmaster and the Remington Outdoor Company, its colleague in the lawsuit filed on behalf of victims of the Sandy Hook massacre. First ...
Bushmaster Firearms doesn't like to be sued. That's the bottom line. But dismissing it was not the first move for Bushmaster and the Remington Outdoor Company, its colleague in the lawsuit filed on behalf of victims of the Sandy Hook massacre. First ...
Moments ago, SCOTUS denied cert in the Drake case. This means it chose not to accept the case for briefs and argument. (As is typical, the Court gave no explanation.) The Third Circuit's decision upholding New Jersey's "May Issue" gun permit law stands.
Gun carry advocates will just have to wait for the next opportunity, which probably will be Peruta v. County of San Diego from the Ninth Circuit in California. The Court of Appeals has yet to rule on the State of California's requests to intervene and for the Court to consider the case en banc. (I.e. before a full court, in this case, 11 of its judges, rather than just the three-judge panel that rendered the 2-1 decision in January. The Ninth Circuit rarely grants en banc review.)
The Drake petition was discussed last Friday in Firearms Law & Policy.
Courtesy Franklin (VA) News-Post
When he went to buy a gun, Bruce Abramski checked Yes on ATF form 4473, that he was “the actual transferee/buyer” of a Glock 19.
In truth, he was not. It was a false statement.
As he arranged in advance, Abramski bought the Glock for his uncle and delivered it to him four days later. At the time he bought it, Abramski was a "straw purchaser."
After losing his motion to suppress evidence of the deal, he pleaded guilty - conditionally - pending appeal. The Fourth Circuit Court of Appeals denied his claims and his attorneys managed to convince SCOTUS that this was a case worth reviewing. Oral arguments are scheduled for January 22, 2014.
Below the orange bulls eye are the facts, summaries of the arguments and some thoughts on this case.
Amendment XVWho has the right to determine what's appropriate to safeguard the right to vote? Is it a Congress comprised of representatives of the people, with full fact-finding authority, which in 2005-06 "held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions... [compiling] more than 15,000 pages" of evidence for the legislative record, and passed Voting Rights Act reauthorization by lopsided bipartisan majorities of 98-0 in the Senate and 390-33 in the House?
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
No, apparently, it's a conservative activist Supreme Court, which in its 5-4 decision today determined that Congress' 2006 reauthorization of the Voting Rights Act did not adequately reflect current conditions and unconstitutionally infringed on states' rights to regulate their own elections. Equal "dignity" for the states, a bare majority holds, matters more than equal protection for their voters.
Now, some background: As I explained four years ago when the Court last took up the VRA, Section 5 created federal oversight of local elections administration, requiring that those states which had a history of discriminatory voting practices ("covered jurisdictions") couldn't make any changes that affected voting—couldn't even move the location of a polling place—without getting "preclearance" from the United States Department of Justice. That list of covered jurisdictions constitutes Section 4 of the Act, and not only includes many Southern states but also most of New York City, isolated parts of Michigan and South Dakota, and even some California counties (among other locations). Section 2 of the Act, on the other hand, covers all of America and prohibits any voting practice or procedure that has a discriminatory result, regardless of whether intentional discrimination can be proven—but unlike Section 5, it's DOJ's burden to prove discrimination, not the jurisdiction's burden to prove lack of ill effect.
In 2009, the Court stared at Section 4 and punted at fourth-and-one, with an 8-1 decision of the Court telling Congress that "the statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions," giving it one more chance to update the formula.
Now, four years later, it's "you had your chance, and you didn't." What the Court did today was strike Section 4 as unconstitutional, saying the coverage formula Congress re-passed in 2006 (the same jurisdictions as before) did not adequately reflect contemporary concerns. This renders the preclearance regime a dead letter until and unless Congress can engage in the horse-trading necessary to determine a new list of which states and counties must go to the constitutional principal's office, and that may never, never happen.
Continue below the fold to learn why the Chief Justice claimed this was necessary.
But first, did you know that the U.S. Constitution does not guarantee the right to vote for everyone, but we are fighting to change this. Please sign the petition to join Daily Kos, Color of Change, and a growing movement to pass a constitutional amendment guaranteeing and protecting the freedom to vote for all.
coup in the area of voting rights and remedies
to racial discrimination.
Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. . . . And I will remember that it's my job to call balls and strikes, and not to pitch or bat. -John Roberts Opening Statement at his Supreme Court confirmation hearing
In today's decision by the extreme radical Roberts 5 (PDF) striking down the Voting Rights Act, reauthorized in 2006 by an overwhelming vote in Congress (unanimously in the Senate and by a vote of 390-33 in the House) and signed by a Republican president, the chief justice, writing for the Radical 5, says:
[the Voting Rights Act is not] “consist[ent] with the letter and spirit of the constitution.” The dissent states that “[i]t cannot tenably be maintained” that this is an issue with regard to the Voting Rights Act[. . . .] The dissent treats the Act as if it were just like any other piece of legislation[. . . .]
This is shockingly disingenuous from the seemingly genial man from Indiana who today has taken another step in his pernicious project to declare any attempts by any government to address racial discrimination in this nation unconstitutional. For this is in fact NOT what Justice Ginsberg wrote. But the chief justice and the Radical 5 cannot honestly address the dissent because it has no answer for the obvious flaw in their decision—it is completely unmoorred from the Constitution. It is a shocking act of judicial activism, perhaps the most shocking of the Roberts Era. Roberts is no umpire—he is a man with an agenda—a racialist agenda to stamp out any efforts to address discrimination in our country.
On the law, there is not much to say. Justice Ginsburg addresses the constitutional point in the first few pages of her dissent, joined by Justices Breyer, Sotomayor and Kagan, as we'll see below the fold.
But first: It’s a little known fact that the U.S. Constitution does not guarantee the right to vote for everyone, but we are fighting to change this. Please sign the petition to join Daily Kos, Color of Change, and a growing movement to pass a constitutional amendment guaranteeing and protecting the freedom to vote for all.
an internal government computer system used to facilitate the government’s statutorily authorized collection of foreign intelligence information from electronic communication service providers under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. § 1881a). This authority was created by the Congress and has been widely known and publicly discussed since its inception in 2008.A good starting point for the discussion is the article written by Ben Wittes and Robert Chesney for The New Republic. (Wittes and Chesney run the excellent LawFare blog.) In the article, Wittes and Chesney acknowledge the dubious legality of the Section 215 information request:
[T[he story, and the leak of the FISA Court order that underlies it, do reflect something significantly new concerning a claimed authority about which the public was not previously informed. Specifically, it reveals that the government was using a particular section of FISA—known as Section 215—as a way of accessing not just specific items about specific persons on a case-by-case basis, but also as a means to create giant datasets of telephony metadata that might later be queried on a case-by-case basis. As we move into the age of Big Data, it may not be surprising that the government would want to have authority to generate such a database; we all recall the Total Information Awareness initiative, after all. But it is surprising to learn both that the government thinks it already has this authority under Section 215, and still more so that the FISA Court agrees and that members of Congress know this as well.As you can see below the fold, a plain reading of relevant provisions of Section 215 would explain why most people assumed that the requests were individualized and not a dragnet:
Section 215 allows the government to seek and receive an order from the FISA court requiring third parties (like Verizon) to produce “tangible things” like business records, so long as the government can certify that the information sought is “relevant” to a national security investigation. It is the analog in the context of national security investigations to the grand jury subpoena in a criminal probe—the instrument by which the government can compel people to turn over material germane to the investigation. Most people assumed, prior to the Guardian story, that this provision was being used on discrete occasions to obtain individual collections of records about known counterintelligence or terrorist suspects—for records showing, say, that a certain person made certain purchases from a certain vendor or used a particular telephone to make specific calls. The government has, to some extent, encouraged this understanding, suggesting that Section 215 orders are comparatively rare and focused on specific business records. [Emphasis supplied.]
And I was right.
That's Tina Renna in the picture. She's the primary writer and editor of a blog entitled "The County Watchers," which is hosted on the website of the Union County Watchdog Association (UCWA), a 501(c)(3) she runs, which reports on "alleged waste, corruption, and mismanagement in Union County, N.J." In other words, she may be a conservative whackadoodle, and at least she's not a Democrat, but I don't know and don't much care: If she's practicing journalism she ought to be protected like one, even if she's playing for the other team.
Anyway, Renna wrote two blog posts on the alleged misuse of county-owned generators by county employees during Hurricane Sandy and also concerning the subsequent Union County Prosecutor's investigation. In those posts, she suggested she knew the names of 16 county employees who had done so:
I believe I know most if not all of the names of employees who are alleged to have taken home generators, including the county police who are charged with investigating chain saws that were taken about a year ago. That investigation involving a freeholder’s son is being allowed to drag on. It isn’t just three employees involved in generatorgate, with permission from their boss, as the county would like us to believe.The local prosecutors asked her to come in; she didn't. They sent her a grand jury subpoena compelling her to testify concerning her knowledge; she moved to quash it. Read more about the court's decision below the fold.
Do you remember the night of Saturday, October 2, 2010, Tyler? Probably not, because by 2:08 AM, you were pulled over by the Missouri state police for speeding and veering across the center line. Officer thought you were drunk—bloodshot eyes, slurred speech, you smelled like alcohol—oh, and you told the officer you had "a couple of beers."
Field sobriety tests didn't go so well either, but at least you were smart enough to decline to provide a breathalyzer sample ... at which point the officer decided to drive you to the nearest hospital for a blood draw instead. He didn't get a warrant, and you didn't consent, even though that meant an immediate one-year revocation of your driver’s license. Guess what? The officer told the lab tech to draw your blood anyway, and at approximately 2:35 AM, your BAC was measured at 0.154 percent, well above the legal limit of 0.08. Your lawyer was sober enough to move to suppress the blood evidence at trial. He won then. The state appealed.
And today, Tyler, you're a winner. In an 8-1 decision, the Supreme Court rejected arguments offered by the state of Missouri (and the Obama administration) which sought to dispense with the warrant requirement before shoving a needle into your arm, no matter how much your BAC might dissipate over time, because that alone was no reason to dispense with the Fourth Amendment when it comes to DUI blood testing. The evidence cannot be used against him.
Justice Sotomayor wrote the principal opinion, for herself and Justices Scalia, Kennedy, Ginsburg and Kagan:
It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. ... But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, not to accept the “considerable overgeneralization” that a per se rule would reflect.Simple enough, really. Keep reading unless you can already guess who the one dissenter is, or can already guess the surprise ending for McNeely.
The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “ ‘now or never’ ” situation. In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant.
I previewed Kiobel v. Royal Dutch Petroleum before its reargument last fall, so go there for more of the backstory. The bottom line today is that there are four justices who really don't want American courts open to these human rights cases (guess who!), four justices who are open to such cases as a general matter, but not necessarily this one (oh, guess!), and one Justice in the middle who could be open to such cases, but only if Congress is really, really, super-clear about it, maybe (oh, come on, this is the easy one).
We're dealing today with the Alien Tort Statute, passed as part of the Judiciary Act of 1789, which reads:
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.The chief justice, writing for the five you'd expect, relied on the presumption that Congress doesn't intend for its statutes to have extraterritorial reach unless it say so explicitly:
To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches “any civil action” suggest application to torts committed abroad; it is well established that generic terms like “any” or “every” do not rebut the presumption against extraterritoriality.More, including pirates, below the fold:
Petitioners make much of the fact that the ATS provides jurisdiction over civil actions for “torts” in violation of the law of nations. They claim that in using that word, the First Congress “necessarily meant to provide for jurisdiction over extraterritorial transitory torts that could arise on foreign soil.”... The reference to “tort” does not demonstrate that the First Congress “necessarily meant” for those causes of action to reach conduct in the territory of a foreign sovereign. In the end, nothing in the text of the ATS evinces the requisite clear indication of extraterritoriality.
There's a lot of procedural mumbo-jumbo involved in today's Supreme Court decision in Genesis HealthCare Corp. v. Symczyk, so I'll try to make things as simple (and easy to pronounce: it's sim-chick) as possible so we can leap ahead to an absolutely badass dissent by Justice Kagan.
Justice Thomas' decision for the majority (the five you'd expect) relies on the fact that while Laurie Symczyk pleaded on behalf of herself and others similarly situated, no such person had formally entered parallel FLSA claims in this case, such that once Symczyk received an official offer covering the entirety of her claims it mooted any "case or controversy" which had existed:
In the absence of any claimant’s opting in, respondent’s suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action. While the FLSA authorizes an aggrieved employee to bring an action on behalf of himself and “other employees similarly situated,” the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied.Yeah, yeah, whatever. Now read the Justice Kagan dissent. There's something rhetorically here which reminded one friend from law school of Judge Richard Posner, or Prof. Richard Epstein, in terms of possessing and sustaining a tone of this is easy, and you people are idiots for thinking otherwise. Shame on you. From the top, then:
The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it. The issue here, the majority tells us, is whether a “collective action” brought under the Fair Labor Standards Act of 1938 (FLSA) “is justiciable when the lone plaintiff’s individual claim becomes moot.” Embedded within that question is a crucial premise: that the individual claim has become moot, as the lower courts held and the majority assumes without deciding. But what if that premise is bogus? What if the plaintiff’s individual claim here never became moot? And what if, in addition, no similar claim for damages will ever become moot? In that event, the majority’s decision—founded as it is on an unfounded assumption—would have no real-world meaning or application. The decision would turn out to be the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so. That is the case here, for reasons I’ll describe. Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise.Let's continue, shall we?
Kennedy also wasn’t sympathetic to treating married gay couples differently under federal law, charting out a compromise that lets states define marriage and requires the federal government to accept their definition.This is facile thinking in my view. What, pray tell, puts Justice Kennedy in a box? He is the deciding vote, even though he probably will not carry five votes for an opinion that decides solely on federalism grounds. (Unfortunately, I think it is too probable that a non-conservative Justice will join Justice Kennedy to give him cover if he asks for it. See Kagan and Breyer joining Chief Justice Roberts on his absurd reasoning on Medicaid expansion in the ACA case.)
Perhaps conscious of Kennedy’s predicament, Roberts tried to build consensus against striking down DOMA on federalism grounds, knowing that neither side arguing the case was seeking that middle path. He repeatedly — and successfully — asked the government’s anti-DOMA lawyer to affirm that it does not believe the 1996 law violates states rights.
“So just to be clear, you don’t think there is a federalism problem with what Congress has done in DOMA?” Roberts asked U.S. Solicitor General Donald Verrilli on Wednesday.
“We — no, we don’t, Mr. Chief Justice,” Verrilli responded.
Lyle Denniston, a veteran Supreme Court analyst with the award-winning SCOTUSblog, described Roberts’ move as “a strategic effort to put Kennedy in a box.”
ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion withrespect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part,and dissenting in part, in which SOTOMAYOR, J., joined, and in whichBREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.But there are no boxes for SCOTUS Justices. They can write alone if they wish. Indeed the unmistakable attack on the power of precedent is one of the least commented aspects of the Roberts Court. While rarely expressly overruling precedent, the Roberts Court is a champion at ignoring it.
Frankly, I think Roberts is giving Kennedy some of his own, after the raking he took for providing the 5th vote to uphold the mandate in ACA. Remember that while Roberts cast the deciding vote, his opinion (PDF), outside of his taxing power decision and (apparently the Medicaid expansion issue), did not carry a formal majority. The Chief Justice was in no box.
And neither is Kennedy. If he does not want to decide Windsor on equal protection grounds, he won't. He knows he carries the 5th vote either way. Just like the Chief Justice did in the ACA case.
Post script: This analysis also assumes that the Court will not reach the merits in the Prop. 8 case. I agree with that analysis, as I think the Court will decide that the petitioners lack standing.
Today: But what about a pot-sniffing dog on your front porch?
In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified tip that Joelis Jardines was growing pot at his home. One month later, the MDPD and DEA sent a joint surveillance team to Jardines’ home. Nothing happened for 15 minutes, until Franky the Drug-Sniffing Dog was brought to the house. Franky was trained to detect the smell of marijuana, cocaine, heroin and several other drugs, and went crazy near the door, spinning around all over the place. On that basis, the police obtained a search warrant, searched, and found marijuana plants growing there.
Jardines moved to suppress the evidence on Fourth Amendment grounds. In a 5-4 decision Tuesday, the Supreme Court agreed. The majority opinion was written by Justice Scalia, based on the same "a trespass is a search" analysis which guided him in the GPS case. Writing for himself and Justices Thomas, Ginsburg, Sotomayor and Kagan, Scalia explains:
When it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.If "Justice Scalia" and "wait, I like this Fourth Amendment decision?" don't square for you, keep reading:
We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.” That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.” This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.”