Featured Post

First Monday 2014

GinsburgIt is the first Monday in October, the traditional opening day for the annual sessions of the Supreme Court of the United States. Contrary to some rather unseemly public requests, Justice Ginsburg has not resigned to ensure that a Democrat will name her successor; much like Tom Brady, she intends to stay until she can’t do a good job anymore. All of the Justices appear to be in good health, appropriate for their various ages (presently, we’ve one octogenarian; three septuagenarians; three sexagenarians; and two young ‘uns — the Chief is 59 and Justice Kagan is 54). By all indications, all nine of them intend to only leave the Court feet first.

SCOTUSSo we have the same bench as we did last year — four reliably “liberal” votes in Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan; four reliably “conservative” votes in Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, and one mostly “conservative” but sometimes not conservative vote in Justice Anthony Kennedy.

So here’s what I think will be some of the bigger cases that will be on the docket and resolved by some point in June of 2015.

Civil Rights:

United Parcel Service routinely offers light duty work to employees who are hurt on the job or otherwise eligible for accommodations under the Americans with Disabilities Act. But workers who fall pregnant are not offered light duty work; they are required to work their regular jobs until they can’t anymore, and then typically are brought back after their pregnancies are completed and put back to their same regular jobs. Now, pregnancy can be a “disability” under the ADA in a wide range of circumstances, but Young v. United Parcel Service looks at the issue from the standpoint of a different law, the Pregnancy Discrimination Act. This case is relevant to my interests — pregnancy discrimination cases have proven big winners for my firm in recent years.

shotgunSamuel James Johnson pled guilty to illegally shipping firearms, a Federal felony. After being released from prison, he was found in possession of a short-barreled shotgun. Johnson v. United States asks whether his conviction for possession of a firearm is a “violent” felony and therefore subject to sentencing enhancements. All that is at issue here is mere possession — no one claims that Mr. Johnson was actually using the shotgun for anything. So is “mere possession” of this weapon a “violent” felony?

Consumer Law:

teethwhiteningFederal anti-trust law exempts from most regulation an action undertaken by a state. But in North Carolina Board of Dental Examiners v. Federal Trade Commission the Fourth Circuit decided that the North Carolina Board of Dental Examiners might not really be a “state actor” given the fact that six of its eight members are dentists chosen by an election of existing dental license holders, and the seventh member is a dental hygienist chosen by licensed dental hygienists. So is this a public regulatory agency entitled to protect the public interest from non-dentists selling tooth-whitening products and services, or is it a private guild unfairly excluding competition to the detriment of the public?

Let’s say you’re doing a refinance of your distressed home mortgage. And the lender sends you a ton of forms. You’ve got to sign then because the traveling notary is there. Actually, that’s not so bad — the Truth in Lending Act gives you three days to rescind after the paperwork is all signed, and the bank has to give you a disclosure that you have three days after being told that you can rescind to do the rescission. And you decide that no, this is a bad deal, and you want to rescind. The law says that you can rescind by “notifying the creditor of [your] intent to do so.” Only how do you go about doing that? If you live in the Third, Fourth, and Eleventh Circuits, you just send a letter within three days of getting the disclosure, but that time ends three years after the loan is funded even if the bank never gave you the disclosure paperwork (probably because a clerk screwed up more than because of some malicious intent). But if you live in the First, Sixth, Eighth, Ninth, and Tenth Circuits, then you do it by filing a lawsuit seeking rescission. Which is rather more expensive. And if you live Louisiana, Mississippi, or Texas, well, not only do you not have an interpretive rule at all for a situation like this, but your Federal appellate court’s website is pretty damn ugly, too. So Jesinoski v. Countrywide Home Loans, Inc., and its companion cases Keiran v. Home Capital, Inc. and Takushi v. BAC Home Loans Servicing, LP look to resolve that split and create a single rule for the whole country. Rather a lot of money is at stake here.

Criminal Procedure:

In Heien v. North Carolina, a police officer pulls over the defendant for an apparent equipment violation — one of the two brake lights on the vehicle was out. While engaged in the traffic stop, the officer sees and searches a plastic baggie, discovering cocaine. Problem here is not the search of the vehicle after the traffic stop — the problem is the officer got the law wrong. In North Carolina, a vehicle can drive with only one working brake light, so there was no equipment violation. Should the evidence gathered after the stop be suppressed?

Certain kinds of persons (in many states, this includes teachers and doctors) are called “mandatory reporters” which means that if they come across what is reasonably believed to be evidence of child abuse, they must report what they’ve observed to state authorities. Ohio v. Clark asks the Court to decide whether doing so renders such a “mandatory reporter” an “accuser” for purposes of the Confrontation Clause.

red grouperPerhaps a bit more amusingly (other than to the defendant), in Yates v. United States, the Court will ask whether the anti-spoliation provisions of the Sarbanes-Oxley Act of 2002 apply to the destruction of fish. The story: John Yates is a commercial fisherman from Florida, whose catch was inspected by the Florida Fish and Wildlife Commission and the warden found seventy-two red groupers which were purportedly undersize. Yates’ defense was that the warden failed to measure the length of the fish with their mouths open and their tails squeezed. But three of fish themselves went missing from the hold between the time of the at-sea inspection and the time Yates pulled in to the dock, and Yates was convicted of disposing of the fish before they could be used or preserved or memorialized as evidence against him (presumably by throwing them overboard). What does this have to do with securities fraud? SOX makes it a crime to dispose of any “tangible object” with the “intent to … obstruct a criminal prosecution,” a fish is a tangible object, and taking undersized fish is a crime. (And Yates must have been a serious a-hole to somebody to have wound up on a Federal prosecutor’s docket like this from a state-issued fish-poaching ticket which normally would have resulted in a fine; in traffic court, I’ve heard that called a “sixty-six with a bullet.”) Also at issue is whether it’s enough for the state to show that the undersize fish count was different at sea and at dock, or whether a further showing of the warden is necessary (i.e., “I saw three fish being thrown overboard” or “This time, I squeezed the tails”).

Federalism and Separation of Powers:

A rather hoary old legal concept called the “nondelegation doctrine” will be dusted off and tried on for size again in Department of Transportation v. Association of American Railroads, which will determine whether it is appropriate for Congress to delegate its rulemaking authority regarding standards regarding when preference in rail access is granted to Amtrak passenger trains, specifically to the Federal Railroad Administration and Amtrak.

passportsIf you happened to have been born in Jerusalem, and you hold a United States passport, you may have noticed that your passport identifies your place of birth by the city, but does not identify a particular country. The State Department began doing that quite some time ago to avoid controversy, which after all might rather substantially inconvenience an American traveler who encountered a customs agent somewhere who decided not to recognize the existence of a nation-state called “Israel.” But in 2002, Congress passed a law compelling the State Department to list “Israel” as the country in which the city of Jerusalem is found, and the State Department has proceeded ever since to flatly ignore that law. So in  Zivotofsky v. Kerry we will finally find out if the State Department’s claim that the President has exclusive authority to decide what gets put in passports or not holds water.

First Amendment (and related similar statutory rights):

An exception to the First Amendment’s general protections to speech is a prohibition against a “true threat.” What is a “true threat,” you ask? Good question — and we’ll know the answer a whole lot more after the case of Elonis v. United States is decided — because at issue there is whether a prosecution for a “true threat” requires that the government prove the speaker’s subjective intent in making the challenged statement, or whether it is sufficient for the government to prove that a “reasonable person” would regard the statement as threatening, something that I presume is called an “objective” standard.

beard prisonerHolt v. Hobbs sees a challenge under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), something of a companion law to the RFRA that was at issue in last year’s Burwell v. Hobby Lobby case. Gregory Houston Holt, a Muslim who also goes by the name Abdul Maalik Muhammed, is incarcerated in Arkansas, which requires that its male prisoners shave their facial hair. Holt claims a religious obligation to wear a beard of at least a half of an inch in length, and wants the prison to make an exception to its rule so he can wear a beard. Boring stuff, right? No way; this is the case I’m watching the closest on the whole docket. Why? Well, how about this for starters: Mr. Holt successfully applied for review to the Court in propia persona and got certiorari granted on hand-written forms without legal assistance (I don’t know if he is a lawyer himself). So after getting certiorari, he has now become represented by a public interest firm — the same one that prevailed in Burwell as a principal counsel for Hobby Lobby, the Becket Fund for Religious Liberty. So this is particularly interesting because we’ll see how far the Court will go in extending the generous doctrines given to the RFRA in the Hobby Lobby case to RLUIPA, possibly signaling a dial-back of the holding in that case or, in the alternative, confirming that we are indeed entering a brave new world of individual religious belief being used to poke holes in all sorts of laws of general application.

Religion and speech rights intersect in the case of Reed v. Town of Gilbert. Gilbert, Arizona has local ordinances restricting the size of signs, and the times signs may be displayed, to advertise non-commercial events. A pastor of a local church says that these restrictions prevent him from advertising services at his church and therefore discriminate against his ability to practice his religion as well as to speak freely. The town’s only response has been to assert that the sign ordinance was enacted with a non-discriminatory motive and is entirely neutral as to content, and therefore is a permissible time, place, and manner regulation.

Samantha Elauf was 17 years old when she applied for a job at an Abercrombie & Fitch store in her home town of Tulsa, Oklahoma. Young Ms. Elauf, a Muslim, wears a head scarf for religious reasons. She and her friend who also worked there inquired of the manager if the head scarf was allowable, and the manager initially indicated yes, considering that another employee had been allowed to work wearing a yarmulke; the manager did want the scarf to be colorful and not black, and Ms. Elauf seemed to be good with that. The manager assumed Ms. Elauf was Muslim, but appropriately did not inquire about her religion during the job interview. But the manager wasn’t quite sure, and sought guidance from higher up the food chain. That higher-up said “no” to the scarf, and Ms. Elauf wound up not getting the job. Thing is, the higher-up was never told that Ms. Elauf was a Muslim; the inquiry was purely about the company’s dress code. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, the Court will be asked whether it is necessary to hold the company liable for religious discrimination in its hiring decision if the company decision-maker did not know of the aggrieved complainant’s religion when the questioned employment decision was made.

Voting and Gerrymandering

Alabama DistrictsOf some interest to hard-core political wonks are some redistricting cases: Alabama Democratic Conference v. Alabama, and Alabama Legislative Black Caucus v. Alabama. Both deal with challenges to legislative maps drawn by the Alabama Legislature, and whether or not the Republican-majority Legislature went too far in gerrymandering the districts in their favor.

More interesting, from my perspective, is Arizona State Legislature v. Arizona Independent Redistricting Commission. It relates to the ability of state voters to take away redistricting powers from the state Legislature, where such district map drawing normally takes place, and to give that power to an extralegislative commission. Several states have adopted such commissions through citizen initiative, so this will have an effect on many states other than Arizona.

Finally in this area, keep your eyes on petitions for review from Wisconsin (Frank v. Walker) and North Carolina (North Carolina v. League of Women Voters) concerning voter ID laws. Perhaps we will see if the Voting Rights Act is truly a dead letter, as gloomy progressives have proclaimed in a multiplicity of jeremiads ever since last year’s decision in Shelby County v. Holder.

Water, Water Everywhere

Republican RiverAn original jurisdiction case (meaning that it was first filed in the Supreme Court) originally filed in 1998 is going to oral arguments: Kansas v. Nebraska and Colorado. At issue are water allocation apportionments and draws from the Republican River, a secondary tributary of the Missouri River. These three states are parties to a compact — sort of a cross between a contract and a treaty between the states — that allocates how the river water is to be allocated.

Not yet granted certiorari but of interest are appeals regarding allocation of water away from agricultural use in California for the purpose of preserving a little fish called the Delta Smelt. The case is called Stewart and Jasper Orchards v. Jewell and the petition has not yet been decided upon. SCOTUS previously passed on the case, but a new Ninth Circuit decision adopting a strong application of the Endangered Species Act makes this more likely to earn review. My question is, if it rains a lot in California, will the case be mooted?

Wonk Bait

There’s some other stuff on the docket too, some cases of interest to subject matter experts regarding the finer points of Federal civil procedure and eligibility to assert claims of trademark violation. Frankly, I don’t think those will be of any substantial general interest so I’ve omitted them here.

Burt, Aren’t You Forgetting Something?

Disney MenI know exactly what you’re talking about and no, I didn’t forget.

Remarkably missing from this list are the following cases: Bogan v. BaskinHerbert v. Kitchen, McQuigg v. BosticRainey v. Bostic, Schaefer v. Bostic, Smith v. Bishop, and Walker v. Wolf. These are the seven pending same-sex marriage cases, and three of them from Virginia. (Because Virginia is for lovers. Just not necessarily lovers of the same sex.)

To whatever extent the Court acts on these petitions, it is likely to act on all of them in concert, likely unifying the cases because they present substantial overlapping questions of law and fact: whether the Equal Protections and Due Process clauses of the Fourteenth Amendment prohibit state law definitions of marriage as between one man and one woman and whether they compel the recognition of out-of-state same-sex marriage licenses, and/or compel granting of marriage licenses to same-sex couples on the same basis they are offered to opposite-sex couples.

Recall that on the books, last year’s watershed case of United States v. Windsor dealt with the validity of a same-sex marriage license issued in Canada under Federal law. Recall also that the language in Windsor dealt both with the substantive due process rights of the couple to be married and the fact that the regulation of marriage was under Federalism principles an issue reserved to the various states. It’s been a happy year for same-sex marriage advocates with the striking down of part of DOMA, but the part that survived points to the issue.

These seven cases, through various angles, reach the very core of the same-sex marriage: whether a state may, consistent with the Constitution, disallow same-sex marriages while permitting opposite-sex marriages. And here, eight votes are pretty easily anticipated — and there are seemingly equally strong policy arguments pulling at Justice Kennedy, very likely the deciding vote. Advocates and opponents of SSM should all proceed with caution because this really could go either way.

No one seriously thinks that certiorari will be denied here. It’s inconceivable that the Court would simply let matters rest where they are. But it’s odd that it hasn’t been granted yet, either. And since certiorari has not been granted yet, officially none of these cases are on the docket and my prediction that all seven will be unified for a two- or three-day oral argument session could very well turn out not to be how it goes down. And it’s also well within the realm of imagination that the Court may decide to put these cases on hold, awaiting more appeals from other states and other circuits, to consolidate all of them.

But while the cases could be listed as early as next Tuesday, we might not see the cases formally listed until as late as January, according to one observer with a particularly keen eye on the Court.

Parting Thought

The docket seems like it lacks some sex appeal this year as compared to last, which is a bit disappointing. That’ll change once the same-sex marriage cases make it on the docket, of course, but they may very well dominate the political and press coverage of what the Court is doing. The Arizona redistricting case seems like it could have the farthest-reaching implications, although I suspect we would need to wait eight years, until after the 2022 elections, to really see the impact of a ruling affirming redistricting commissions. As for now, I’m watching Holt the closest: a prisoner’s beard in Arkansas is a bellwether for quite a lot more than the law of personal grooming.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

Please do be so kind as to share this post.
Share

75 thoughts on “First Monday 2014

  1. From the point of view of someone who supports ssm, what’s the worst that can happen if the court hears the cases? How much can it limit/roll back what the court’s already done? I suppose in theory, it could overturn Windsor, etc., entirely, but I suspect the court wouldn’t overturn a ruling so soon after it was issued. I’m asking more about what could happen?

      Quote  Link

    Report

    • About all the could happen, I think, is that they’d say the states aren’t bound to allow SSM, that they can ban it. That would leave it as a statewide issue within the purview of state-level politics and constitutions.

      Some states where a lower level court has overturned bans would probably re-file their cases to the lower court to have those rulings overturned based on the SCOTUS ruling. But in some of those the issue probably is already declining in political salience, so they might not bother to fight to restore their bans.

      If they did, and won–as they probably would in such a scenario–they’d have the problem of some SSM marriages in their state, while not allowing others, which would lead to a renewed round of legal challenges on slightly different legal grounds.

        Quote  Link

      Report

      • I wouldn’t be terribly surprised over a ruling that said, in effect, that states can prevent you from becoming married in that state but nonetheless have to recognize ssm marriages from other states. Being legally married here but not over there just has too many screwed up legal consequences to let stand.

        We had an interesting brou-ha-ha a few years ago over a similar question. The age of consent is a year or two lower in Nebraska than Kansas. So a couple of teenagers ran away from their home in Kansas, crossed the line into Nebraska and got married. When they returned to Kansas, at the girls’ parents insistence, the boy was arrested and charged with statutory rape. To complicate things of course, she was pregnant.

        I don’t recall how the thing was ultimately resolved, but there was a lot of public sympathy for the kids on the basis that while they shouldn’t oughta done what they done is it really the best thing to throw baby-daddy in jail?

          Quote  Link

        Report

      • That could happen, but it would be weird in that the Court has never put marriage into Full Faith and Credit Clause territory, but has treated it under their made-up Public Policy Exception. So as logical as it sounds as a result, the underlying rejection of precedent would be a significant legal change in itself.

          Quote  Link

        Report

  2. Probably happening later this month will be another matter related to the question of how much power voters can take away from their state legislature. Colorado’s Tax-payer bill of rights amendment (TABOR) back in the 1990s removed the legislature’s power to raise taxes; all they can do is put a proposed increase on the ballet for the voters to approve/disapprove. A few years back some members of the legislature challenged TABOR in federal court on the grounds of the Establishment Clause, that setting tax rates is such a fundamentally important government role that Colorado no longer has a “republican form of government”. The state’s half-hearted defense of TABOR has been based on (a) it’s a political question and (b) the SCOTUS has (implicitly) said that the Establishment Guarantee Clause is solely a matter for Congress, not the courts. So far, the District Court, a three-judge panel of the Appeals Court, and the Appeals Court en banc have said that the SCOTUS hasn’t put the Establishment Guarantee Clause outside the reach of the courts and that this case is sufficiently different from the precedents to go forward to trial. By my reckoning, the state has until October 22 to appeal to the SCOTUS, or things go back to the District Court. I don’t see the appeal not happening.

      Quote  Link

    Report

  3. is “mere possession” of this weapon a “violent” felony?

    This doesn’t even seem like an interesting question. Still, I’m sure we’ll have at least one dissenting opinion that argues that it is through some mangling of what the word “violent” means.

    In North Carolina, a vehicle can drive with only one working brake light, so there was no equipment violation. Should the evidence gathered after the stop be suppressed?

    I think it’s fair to say that at least over the past ten years, the Court has never seen a search it didn’t like. I don’t follow their decisions that closely, but every time I have heard a ruling on this type of issue the Court sides with the police though Scalia will give us a nice rousing dissent into the aether about how freedom is supposed to be an actual thing.

      Quote  Link

    Report

    • I think it’s fair to say that at least over the past ten years, the Court has never seen a search it didn’t like.

      Well… didn’t they just recently declare that a search warrant was needed to search your cell-phone? That’s positive at least. But it does seem that they’re pretty loose on the whole “probable cause” thingy. In particular, they’ve been pretty generous to the police vis-a-vis precisely how contraband was discovered and whether such evidence should be suppressed. I’m not optimistic.

        Quote  Link

      Report

    • I dunno, . Given that a prosecutor chose to charge for the sentencing enhancement, I’d say the issue is interesting to at least some people. Taking the prosecutor’s side of this arguendo, is there some sort of use of a short-barreled shotgun that is not violent? Seems like the short barrel would make it a poor choice for skeet.

        Quote  Link

      Report

      • Technically, the length of the barrel has nothing at all to do with violent action. One could argue that a short barrel indicates nefarious intent (in making the shotgun a bit more concealable while severely degrading the accuracy & effective range), but that in & of itself is not violent.

        I worry about the extension of such language to cover intent, since it can lead to bad places. Or should we outlaw cars with big engines, or off-road trucks, because the owner might buy such with the intent of being able to evade the police? How about encrypted cell phones?

          Quote  Link

        Report

      • Collecting firearms is common enough, and hardly violent. Not that this particular defendant was likely to have been collecting, but I don’t agree with MRS that we shouldn’t be taking intent into account for purposes of determining whether a felony is “violent.” Either it’s violent or it’s not. And it’s not as if the guy gets off scot-free if the answer to this is no – he just avoids qualifying for the enhancement.

          Quote  Link

        Report

      • I’ll dive down the slope again here.

        If the guy had been found with his station wagon full of fertilizer, propane tanks and gasoline, would it be ok to assume violent intent?

        I’m not sure that my opinion on this case differs from anyone’s here, but I must confess I’m a little more sympathetic than everyone else to the idea that a white supremacist just released from prison being caught illegally carrying around a sawed off shot gun might show up to a prosecutor as something requiring more than whatever penalties my dad mailing me a skeet gun might warrant.

          Quote  Link

        Report

      • I think you misunderstand me. I’m not saying that intent can not be used, only that it should used carefully. Illegal possession of a firearm absent any other factors should not be considered a violent felony.

        For instance, a guy busted with said shotgun while driving to his moms house – non-violent.
        If they have evidence that he was intending to blow mom away once he got there, and they can make that case (what would that be, conspiracy to commit murder?, or just assault?), then I could see an argument for treating the possession as violent, since immediate violence was intended.

          Quote  Link

        Report

      • That depends, does said person have a legitimate reason to be hauling around lots of fertilizer, diesel, & propane (like, say, he’s a farmer, or he’s in the business of selling these items, or he has a hobby farm outside of town he is setting up).

        Of course, this example pushes into another area of regulation that I find offensive, that of Constructive Possession, wherein the very act of owning the components of something prohibited is used as evidence of trying to own said prohibited item.

        The BATFE uses this a lot, and gets slapped around by the courts from time to time for stretching the bounds of reason with it (most recently with a case of a guy having the tools & materials to build a suppressor, but no actual suppressors, or partially built suppressors were found). Personally I find the limits of Constructive Possession to be far too broad, since a showing of intent is not usually required, AFAIK.

          Quote  Link

        Report

      • “That depends, does said person have a legitimate reason to be hauling around lots of fertilizer, diesel, & propane (like, say, he’s a farmer, or he’s in the business of selling these items, or he has a hobby farm outside of town he is setting up).”

        I think you’re actually underscoring my point here.

        The prosecutor didn’t arbitrarily charge Samuel James Johnson with violent intent; they added that on because of who he was and what he had been convicted of in the past.

        My point is that Samuel James Johnson is actually the kind of person I would insist we detain were he caught with a car foul of fertilizer, propane and gasoline — because waiting until he’s blown up a building to prove he intended to do bad things seems like a really, really terrible idea. And I confess, I kind of feel the same about him being caught with a sawed-off shotgun. To me, it’s not remotely the same as some gun collector having an unusual firearm hanging on his wall.

        Does that create a kind of Constitutional double standard for people like Samuel James Johnson? It does, obviously. And while I’m not so sure that I would rule against him in this particular case, I have a sense that folks here are wondering why someone would even support that kind of move by a prosecutor. And Im just saying, I actually do get why someone would support it. I’m totally leaning on that fence, even if i’m not willing to climb over it.

        This one’s not so black and white to me as it is everyone else here. (no pun intended)

          Quote  Link

        Report

      • I’m with Vikram — this seems like a no-brainer. He wasn’t convicted of possession with intent to commit a violent act, he was convicted for possession. Treating this as a “violent” felony because of supposed intent would be punishing him for something that was never established in court.

          Quote  Link

        Report

      • Oh I get why a DA would charge him like that, I just don’t think we should allow a DA to do so. Not because I have any special sympathy for people with felony records who are dumb enough to touch a gun when they clearly should know better, but rather because I don’t trust that a DA would only use such in the case of clearly dangerous people.

        Nope, I firmly believe there are an abundance of DAs who love padding their conviction records with weapons & terrorism convictions (and drugs), and I am loathe to make their job easier by letting them over charge people who made mistakes but did no harm, or who really, truly were acting with no ill intent, but can’t field a high end defense attorney.

          Quote  Link

        Report

      • I overstated my point a bit there for purposes of brevity – obviously intent is something that can be taken into consideration; what I should have said was that there needs to be some sort of judicial determination as to intent beyond a reasonable doubt in order to say that the felony was a “violent felony” if there was no actual violence committed. That is not the case here, obviously.

        I can understand why the prosecutor made the argument, and in the context of the 8th Circuit, the prosecutor was probably even correct in doing so. But that doesn’t mean the 8th Circuit was right in the first place (not that you’re saying they were) – it seems that it had previously ruled that possession of a sawed-off shotgun was a violent felony, despite the weight of authority in other circuits and despite some strong guidance from SCOTUS itself. So the issue is less with the prosecutor here than it is with the prior case(s) in the 8th Circuit (and, potentially, with the prosecutor in the prior case(s), though I don’t know any specifics about that case(s) to say anything definitive).

        It’s also worth re-emphasizing that the question here is not whether the guy had a legal right to be in possession of this, or even whether he should evade jail time. He clearly did not have a right to be in possession of it – it’s a felony for anyone to possess a functional sawed-off shotgun in the State of Minnesota, and it’s a federal crime for convicted felons to be in possession of a firearm. The issue is instead whether he should be subjected to a statutory maximum penalty of 10 years or a mandatory minimum penalty of 15 years. It seems pretty clear that possession of a sawed off shotgun is not, in and of itself, an act of violence.

          Quote  Link

        Report

      • Actually, I believe “sawed off” is interchangeable with “short-barelled,” and is used whether it was manufactured that way or modified by the owner.

        If memory serves, “short-barelled” is a relatively recent term that was coined by lobbyists and Congress to make NFA laws that governed sawed-offs sound less odious to the public.

          Quote  Link

        Report

      • If the guy had been found with his station wagon full of fertilizer, propane tanks and gasoline, would it be ok to assume violent intent?

        That sounds like something that is probably already illegal for other reasons. It’s not like if we say that doing that isn’t violent, then the guy is free to go. You can still lock the guy up; you just can’t accurately characterize what he has done to that point as violent. (IMHO)

          Quote  Link

        Report

      • ATF definitions are… entertaining when it comes to firearms. There is a graphic floating about the internet showing just how strange they can be.

        That said, a short barreled shotgun that is manufactured that way, rather than modified, is legal to own, but it must be registered as an AOW (Any Other Weapon). $200 tax stamp & a back ground check & you’re golden. If you modify your shotgun to have a short barrel (under 18″, IIRC), you need to register it as an AOW & pay the tax stamp.

          Quote  Link

        Report

      • That’s an answer, but not the opinion I was asking you (and the other real lawyers here) for :^) In making its decision, will denial of cert for appeals of similar cases in other circuits be something that the Fifth Circuit should/must take into consideration? Perhaps even just as a matter of form?

          Quote  Link

        Report

      • I can hardly see how the Fifth wouldn’t take that into account. Check out Lyle Denniston’s latest on this; I think he get it just about right, and pretty quickly under the circumstances — with SCOTUS having granted stays belaying implementation of SSM previously, there may have been some mixed signals, but this signal is definitely pro-SSM.

        Another thought I have, supplemental to rather than dissenting from Mr. Denniston, is SCOTUS may also be willing to let SSM get enacted on a circuit-by-circuit basis and not sound off itself on the issue, thus avoiding risking its political capital, until and unless a circuit gets out of line. As it stands, it’ll be easier to count the number of states that don’t have SSM after today’s orders and the anticipated circuit orders: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas. Note that this consists of the entirety of the Fifth, Sixth, and Eleventh Circuits, and five of the seven states in the Eighth Circuit (Minnesota and Iowa have adopted SSM as matters of pure state law).

          Quote  Link

        Report

      • SCOTUS may also be willing to let SSM get enacted on a circuit-by-circuit basis and not sound off itself on the issue, thus avoiding risking its political capital, until and unless a circuit gets out of line.

        Ann Althouse reached the same conclusion earlier today.

        I think the Sixth Circuit is getting ready to rule on a SSM appeal (they heard oral arguments back in August), and I expect that the Sixth Circuit will fall in line with the other Circuit Courts. This will further reduce the number of members in the list of states that don’t have SSM.

          Quote  Link

        Report

      • …SCOTUS may also be willing to let SSM get enacted on a circuit-by-circuit basis… thus avoiding risking its political capital…

        I think this is an excellent point, particularly with this court. My perception is that CJ Roberts wants to be sure that “his” court doesn’t get caught on the wrong side of certain social issues, by which I mean the Court rules one way while public opinion is moving rapidly in the opposite direction. SSM is one of those. I would argue that last term’s decision on regulating GHG emissions from stationary sources is another one — a tortured piece of work to get to the point of “Yes, regulate big power plants, coal-burners in particular, but nothing more.”

          Quote  Link

        Report

  4. I’ll make my wager on the non-delegation clause case now. The opinion for the court will repeat the hoary old trope that of course delegation of legislative authority isn’t allowed, but for reasons explained through an arcane mandarin reading of past precedent this, like all other delegations, isn’t really a delegation.

      Quote  Link

    Report

    • Which would be reasoning in keeping with NFIB v. Sebelius, where they ruled that while Congress might or might not have the authority to mandate purchase of a particular good or service, it did have the authority to institute new taxes, and that’s what the ACA did.

        Quote  Link

      Report

  5. “Problem here is not the search of the vehicle after the traffic stop — the problem is the officer got the law wrong. In North Carolina, a vehicle can drive with only one working brake light, so there was no equipment violation. Should the evidence gathered after the stop be suppressed?”

    Pardon my French, but fuck yes the evidence should be suppressed. Ignorance of the law is not a defense for the accused. It sure as hell should not be an excuse for those charged with enforcing and upholding laws. Jesus fucking Christ… I don’t know why, but this is making me really angry right now.

    If the evidence is not suppressed, it opens the door to cops stopping anyone for anything, insisting they thought the stop was legal, and gaining fruits from the poisoned tree of Constitutional violations. No. Stop.

      Quote  Link

    Report

    • Yeah, and there’s some other hinckey things going on with the traffic stop, too — as in, the officer felt something suspicious was going on with the driver, although he could not articulate what that was at the preliminary hearing: the driver was staying in his lane, had his hands at the ten and two o’clock positions, and was driving approximately at the speed limit. In other words, we may be below the threshold of even reasonable suspicion here, much less probable cause. If the Fourth Amendment still means anything at all, the officer needs more than a hunch.

        Quote  Link

      Report

    • I tend to agree with the three of you, but out of curiosity I’ll push this one further down the slope.

      If, rather than having seen a baggie that had led to a search that found cocaine, the cop had seen very bloody children’s clothes that had led to discovering a living or dead body in the trunk, would we still have the same angry reaction — or for that matter, even the same preference for ruling?

        Quote  Link

      Report

      • Nice change of hypo! Keeps the legal issue the same but totally changes the sympathies.

        The legal issue being the same, the answer must remain the same. And I predict the answer would be the same as in ‘s hypo rather than the one we all seem sympathetic for when it’s just drugs — it’ll come out in favor of admissibility, on something akin to the “exigent circumstances” of the “inherent evanescence” of evidence located within a vehicle.

        Then again, my first prediction for the term was already wrong, so take that for what it’s worth.

          Quote  Link

        Report


      • One of the reasons that lawyers go to town over the exact wording of a law is (as I am sure you know) the fact that it is the actual law that matters, not the sympathies of an officer or jury. Weather it is a bag of dope, a smoking gun or bloody clown suit, an illegal search is an illegal search. Especially when someone, who is supposed to be the representative of the gov’t in such matters as tail light enforcement, doesn’t know the actual law they are using to gain a doorway into the land of permissible searches.

          Quote  Link

        Report


  6. much like Tom Brady, she intends to stay until she can’t do a good job anymore

    You hate Brady and/or the Patriots and/or Michigan so much that you passed up a perfectly good opportunity to criticize Rehnquist?

    Hmm, Michigan, yeah, that would make sense.

      Quote  Link

    Report

  7. Ohio v. Clark is an interesting question. Mandatory reporters aren’t technically accusing anybody of child abuse but merely reporting to the police that a particular child might be abused by somebody. My feeling is that they should fall under the Confrontation Clause if their report does result in criminal proceedings being instated against a particular person even if that person wasn’t named in the mandatory report. They aren’t an accuser in the sense that they are saying that somebody did a crime but if the report leads to a criminal trial than the Defendant should be allowed to question them on why they thought the kid was being abused.

      Quote  Link

    Report

  8. As a soon-to-be educator, I’m not happy to see Ohio v. Clark on that list. If mandated reporting is considered an accusation, we really need to think about how mandated reporter laws work instead of just demanding that teachers show up in courts to defend anything they report, given how low the bar of what they’re supposed to report actually is.

      Quote  Link

    Report

  9. I wonder if the court didn’t decide to leave SSM off the docket due to a deference to politics. If they decided that case right now, the itshay would hit the anfay, no matter how they decided the actual issue. And that’s not only because SSM is on everyone’s minds. Seems to me that the only way to deny SSM rights at the federal level, given that inter-racial marriage bans are unconstitutional, is to appeal to some crazy religious principle, which in turn places religious rights above secular ones in ways that I think even the conservative justices prolly view as pretty strained. (Given recent decisions.)

      Quote  Link

    Report

    • If they decided that case right now, the itshay would hit the anfay, no matter how they decided the actual issue

      Honestly, I think we’re past that point. The usual suspects would howl and call down the wrath of comic-book Yahweh, but there’s no rioting in the streets of Alabama these days, so I doubt many folks would pay much attention to them.

        Quote  Link

      Report

      • To sorta answer you and James simultaneous: my own view is that SSM is so much closer to the hearts and minds of the folks invested in politics that it a decision really would create an itshay ormstay. The ACA was too complicated; voting rights too abstract. Gays marrying is right in yer face.

          Quote  Link

        Report

      • I thought gay marriage was down my throat and bending me over? You may be correct but it also could be the conservative judges didn’t want to take it on out of fear they inevitable would end up supporting SSM. Saying nothing was better then ending the anti ssm fight. But who knows who or how many judges didn’t want to take it up.

          Quote  Link

        Report

      • You may be correct but it also could be the conservative judges didn’t want to take it on out of fear they inevitable would end up supporting SSM.

        Which I hinted at (or proudly proclaimed, depending) in my initial comment! So, yeah. We agree on that atleast.

          Quote  Link

        Report

      • A majority of the population supports SSM now. Almost half of baby boomers do, and majorities of each age cohort below them do.Among boomers and the silent generation, pluralities support it. A majority of men, and a majority of women, support it. A majority of white mainline Protestants and a majority of Catholics support it (Black Protestants and White Evangelical Protestants don’t, but their support has increased significantly). A majority of Evangelical Millenials support it. A majorit of Millenial Republicans support it. A majority of African-Americans support it. A majority of Hispanics support it. A majority of self-described moderate Republicans, and majorities of independents and Democrats, support it.

        Who’s left to cause a ruckus? Old white Evangelicals, mostly. They matter in Republican primaries and local bond issue votes, and that’s about it.

        I don’t think the Supremes are scared of them. They’ve either decided it’s probably not necessary, given that they accept only about 1/10 of 1% of cases to hear, or they’re waiting for a Circuit Split. Scalia et al probably don’t want to take it because they’re sure how Kennedy will vote.*

        It’s all over but the shouting, and there’ll be surprisingly little of that.
        _____________________________
        *Kennedy can be said–in the context of SCOTUS–to have started this path with his opinion in Romer v. Evans back in ’94. Then he wrote the opinion in Lawrence v. Texas in ’03. He wrote the opinion in U.S. v. Windsor in 2013. I’ll wager a bottle of Buffalo Trace that if SCOTUS takes a case he writes the opinion and upholds a constitutional right to SSM. He has to want this–it’s his goddamed legacy–no other set of rulings he’s made will resound through history like these will.

          Quote  Link

        Report

  10. Re Kansas v. Nebraska and Colorado and Stewart and Jasper Orchards v. Jewell… Probably just my prejudices showing through, but I am… bothered that cases involving western water law, which is radically different from eastern water law, is being heard by a group of nine judges with law degrees from Harvard, Yale, and Columbia.

      Quote  Link

    Report

Leave a Reply

Your email address will not be published. Required fields are marked *