Today we hold that the elected Sheriff of the nation's fourth largest county, located mere miles from our border with Mexico, cannot challenge the federal government's deliberate nonenforcement of the immigration laws. I agree with my colleagues that the state of the law on standing "requires, or at least counsels, the result here reached." Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 798 (D.C. Cir. 1987). But, recognizing that Sheriff Arpaio's claims reflect the widespread perception that the administration's prosecutorial discretion meme is constitutionally problematic, I write separately to emphasize the narrowness of today's ruling, and note the consequences of our modern obsession with a myopic and constrained notion of standing.Sounds to me like an invitation to the Supreme Court to take this up.* * *No doubt the modern approach to standing serves to reduce our caseload. But there are much more important matters at stake. "Some [litigants] need bread; others need Shakespeare; others need their rightful place in the national society--what they all need is processors of law who will consider the people's needs more significant than administrative convenience." Id. at 1005 (quoting Edmond Cahn, Law in the Consumer Perspective, 112 U. PA. L. REV. 1, 13 (1963)). Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts' convenience over constitutional efficacy and the needs of our citizenry.
Recently in Civil Suits Category
The Defendants-Appellants' Reply Brief informed the court that "A panel of the Board of Parole Hearings has since provisionally granted Ms. Norsworthy parole." Reply Brief at 22. The parties are ordered to file status reports on or before Tuesday, July 28, 2015 regarding whether this case may be mooted by the Board of Parole Hearings panel's decision and commenting as to any possible effect on whether this court should conduct the oral argument scheduled for Thursday, August 13, 2015. The parties are further ordered to update this court within 7 days of any parole decision regarding the Plaintiff-Appellee.
The Supreme Court decided two criminal-related civil cases. In Los Angeles v. Patel, the Court struck down as unconstitutional on its face an LA ordinance letting the police inspect the guest registries of hotels at any time without a warrant. That is constitutional for junkyards, but, no, people are not the same as wrecked cars.
The second case is Kingsley v. Henderson. Pretrial detainees who claim that excessive force was used against them face a lower bar to recovery than convicted criminals.
Both cases were decided 5-4, with the "liberals" plus Justice Kennedy being the majority. (I generally don't care for those labels, but sometimes the simplistic model works.)
It also bears noting that Spider Man made an appearance in the high court in a patent/contract case, Kimble v. Marvel Entertainment LLC. How he made it through the court's tight security in that outfit I do not know. Justice Kagan has a good time with it, including a Spidey quote from 1962: "[I]n this world, with great power there must also come--great responsibility."
The next decision day is Thursday.
Yesterday, June 3, Judge Chang signed the stipulated judgment. Applications to intervene in the case were set for hearing tomorrow, June 5. The applicants were Mitchell Sims, the "slice of murder" killer sentenced to death in two states, represented at taxpayer expense by the Habeas Corpus Resource Center, and Michael Morales and Tiequon Cox, the men who murdered my clients' family members, represented by David Senior and, curiously, Jenner & Block, contra bono publico. Today, the court entered an order that the applications were moot in light of the settlement and cancelling the hearing.
Does the Americans with Disabilities Act have anything to do with the use of force by police to subdue a mentally ill and potentially dangerous person? It shouldn't. There is plenty of law governing use of force by police from other sources, and ADA is supposed to be about employment and public accommodations.
Lyle Denniston reports on the argument at SCOTUSblog. I would not be surprised if the Court drops the case. Technically, that's Dismissed as Improvidently Granted, or a DIG in SCOTUS practitioner parlance.
The main issue of that case is, of course, off-topic for the blog, and CJLF takes no position on it. Yet the law is a seamless web, and we always watch Supreme Court cases for points that may spill over and have an effect on our cases. Adam Liptak reports for the NYT that the issue of standing may pop up in this case.
Standing is an issue in two of CJLF's current cases, HCRC v. USDoJ and Winchell & Alexander v. Beard. See this post two weeks ago. Liptak's article begins:
The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: "What's it to you?"But a very complex body of law lies beneath that seemingly simple question.
To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.
Apparently no one has told the Supreme Court that yet, and they have set the argument for March 30.
Update: A stipulation to dismiss has been filed. Rule 46.1 provides that "the Clerk, without further reference to the Court, will enter an order of dismissal." Update 2 (2/3): Done.
Brumfield v. Cain, No. 13-1433, another Louisiana case, is set for the same day and probably will go as scheduled. It has to do with the way that state handles murderers' claims that they are intellectually disabled.
That's it for criminal cases on the March calendar. San Francisco v. Sheehan, No. 13-1412, is a law-enforcement-related civil case on the Americans with Disabilities Act and accommodating "an armed, violent, and mentally ill suspect." It is set for March 23.
Plumhoff v. Rickard involves the police's use of deadly force against someone who led them on a high-speed chase over 100 miles an hour and continued trying to escape even after the police had him cornered. There are several holdings worth noting.
See also this prior post.
Michelle Kosilek, born Robert Kosilek, has been in a heated legal battle to get the surgery, which she [sic] says is required to relieve the emotional stress caused by the disorder. Kosilek is currently serving a life sentence for killing spouse Cheryl Kosilek in 1990.
In 2012, a federal judge ruled that the department must give Kosilek the surgery.
In January, that decision was reaffirmed by a three-judge panel of the 1st U.S. Circuit Court of Appeals, which said it is a constitutional right to receive medically necessary treatment "even if that treatment strikes some as odd or unorthodox."
The prisons department appealed and won a rehearing before the full appeals court. Five appeals court judges heard arguments on the matter Thursday and could take months to issue a decision.
What about the Second Amendment?
Finally, Castleman suggests--in a single paragraph--that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.Now there's a public spanking for an inadequate argument, but no precedent on the Second Amendment question.
For today's oral argument session, the Court is hearing Wood v. Moss. Aside from its interesting name (placing it in a category with the famous Plough v. Fields and Silver v. Gold) the case is about qualified immunity for Secret Service agents who were sued for thinking that demonstrators against the President just might pose a greater threat than demonstrators for him and acting accordingly.
Update: Adam Liptak has this article in the NYT on the argument, noting that some of the justices urged the lawyer for the government to take a bolder position than the one he was taking.
Does a police officer conducting a seizure in one state subject himself to civil suit in another state (in this case, on the other side of the country) merely because the seizure will have a foreseeable effect in that other state due to the property owner's residence there? No, said the Supreme Court unanimously. Assertion of jurisdiction on such a tenuous basis denies the sued officer due process of law.
The Idaho Statesman had this story on the suit when it was filed almost a year ago.
A pro se federal lawsuit by a group of prisoners blaming eight brewers for their life of crime was the most ridiculous lawsuit of 2013, according to the U.S. Chamber of Commerce's Institute for Legal Reform.The list was based on votes cast throughout the year via a dedicated web site, FacesOfLawsuitAbuse.org. The cases were filed in state and federal courts, some pro se and others by lawyers.
Keith Allen Brown shot a man to death in Priest Lake five years ago, leading to a 15-year prison sentence. But the 52-year-old says his problems started long before that, when he was just a boy and tasted alcohol for the first time.
Brown and four other inmates at Idaho's Kuna facility are suing major beer companies, blaming their crimes on alcoholism and claiming that the companies are responsible because they don't warn consumers that their products are addictive.
1. Whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the President by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade.All the press coverage will be on the birth-control insurance cases.
2. Whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.
Update: Not quite all. Robert Barnes has this story in the WaPo.
As the Justices were prepping for the conference, the heavy news coverage was of the 50th anniversary of the assassination of President Kennedy. All but Justice Kagan are old enough to remember that day.
Yorie Von Kahl was convicted of second degree murder in the 1983 fatal shooting of two deputy U.S. marshals in North Dakota. Kahl was sentenced to life in prison, but he scored a recent win from a Washington federal judge who found that Kahl could proceed with a libel suit against The Bureau of National Affairs, Inc. (BNA) over a summary of his case published by the company.BNA's summary of the case said Kahl "showed no hint of contrition." That turned out to be a prosecutor's argument rather than the judge's ruling, but Kahl himself may be partly responsible for the confusion.