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Supreme Court Orders

November 25, 2019 10:02 AM | Posted by Kent Scheidegger | No Comments
Update: See end of post.
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The U.S. Supreme Court held a conference Friday. As usual, the Court issued a very short orders list later the same day, taking up a single case, and a long list today turning down many cases.

The case taken up Friday wasTanzin v. Tanvir, No. 19-71, regarding a civil suit against federal employees for putting the plaintiffs on the "do not fly" list, allegedly in violation of the Religious Freedom Restoration Act.

Among the cases turned down today was Johnson v. City of Ferguson, No. 19-345 a suit by the perpetrator of the massively destructive "hands up" lie, claiming that he was the injured party in the notorious incident. See this post.
Continue reading Supreme Court Orders.

Brainless Experts to the Rescue

October 9, 2019 8:59 AM | Posted by Michael Rushford | No Comments
In a recent post, we reported on a new guidance by the New York Commission on Human Rights that declared that use of the term "illegal alien" was a form of harassment and that offenders could be fined $250,000.  Former civil rights attorney Hans Bader noted that this is a clear violation of the First Amendment, and that the term is commonly used in both federal statutes and Supreme Court decisions.  In a story in the Chicago Tribune reporter Cindy Dampier went to an "expert," Professor Claire Thomas, director of the Asylum Clinic at New York Law School, to correct this fallacy, "....it's commonplace knowledge that the term 'illegal alien' is pejorative," she says, "and that a person who wants to spread hate in this city of immigrants will face consequences."  The "expert" also pointed out another common misconception: That the term supposedly is not used in statutes and in legal circles. "The term illegal alien isn't a term that comes up in our laws," she says, noting that it does appear very rarely in pieces of federal legislation. "However, the term 'alien' is in our statutes, and you will hear people referred to as 'the alien,' when you are representing them."  Apparently, Professor Thomas' expertise does not include an understanding of Title 8 of the United States Code at 8 USC 1365 and 8 USC 1611. "Illegal alien" is also found in other statutes, like 6 USC 240, 13 USC 141, and 18 USC App. 1201 to 1203. That's at least 5 federal statutes, not to mention state laws as well. She also must have missed its use in Supreme Court rulings, such as Arizona v. United States (2012). 

Update:  In response to being called out for misleading the public in its story about the use of the term illegal alien, the Chicago Tribune prominently reposted the story as reported here.

Rep. Green's Impeachment Resolution

July 17, 2019 4:43 PM | Posted by Kent Scheidegger
Which is worse, a statement that is at best intemperate and at worst intolerant or a governmental act that violates the Constitution? I would think the latter is far worse, and quite obviously so.

CNN has the text of Rep. Al Green's impeachment resolution here, making the remarkable claim that the President's recent controversial tweet is an impeachable offense.
Continue reading Rep. Green's Impeachment Resolution.

Threatening Little Girls

July 9, 2019 2:29 PM | Posted by Kent Scheidegger | 6 Comments

There just is no moral bottom for those who strive to suppress Politically Incorrect opinions.

Chantal da Silva reports for Newsweek:

The family-run Twitter account of a young girl who went viral for posing in photos mocking New York Rep. Alexandria Ocasio-Cortez has been pulled. The family claims to have received death threats for using their daughter to parody photos of a visit Ocasio-Cortez made to a migrant detention camp last year.

Earlier this week, the account had tweeted out several photos of "Mini AOC," an 8-year-old girl named Ava ... widely known for her impersonations of Ocasio-Cortez, standing outside a fenced-off park in an all-white outfit and red lipstick, looking visibly upset.
Continue reading Threatening Little Girls.

Bikini Baristas

July 3, 2019 10:38 AM | Posted by Kent Scheidegger | No Comments
And now, for something completely different, comes today's U.S. Ninth Circuit Court of Appeals decision in Edge v. City of Everett, No.17-36038:

"Bikini barista" stands are drive-through businesses where scantily clad employees sell coffee and other nonalcoholic beverages. In Everett, Washington, a police investigation confirmed complaints that some baristas were engaging in lewd conduct at these establishments, that some baristas had been victimized by patrons, and that other crimes were associated with the stands. The City responded by adopting Everett Municipal Code (EMC) § 5.132.010-060 (the Dress Code Ordinance) requiring that the dress of employees, owners, and operators of Quick-Service Facilities cover "minimum body areas." Separately, the City also broadened its lewd conduct misdemeanor by expanding the Everett Municipal Code's definition of "lewd act" to include the public display of specific parts of the body. EMC § 10.24.010. The City also created a new misdemeanor called Facilitating Lewd Conduct for those who permit, cause or encourage lewd conduct. EMC § 10.24.020
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SCOTUS Action in Law Enforcement Civil Suits

May 28, 2019 7:16 AM | Posted by Kent Scheidegger | 3 Comments
The U.S. Supreme Court released an orders list and decisions today. There are no criminal cases of note, but there is action in two civil suits against law enforcement officers.

On the orders list, the El Paso cross-border shooting case of Hernandez v. Mesa is back for a sequel. "Once more into the breach, dear friends ..." Update: Brent Kendall has this story on the case in the WSJ.

Nieves v. Bartlett, No. 17-1174, involves a claim of retaliatory arrest when the police did, in fact, have probable cause to make the arrest. The presence of probable cause generally defeats a First Amendment retaliatory arrest claim. However, for a warrantless misdemeanor arrest, the "no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."

The opinion of the Court is by Chief Justice Roberts, joined in full by Justices Breyer, Alito, Kagan, and Kavanaugh. Justices Thomas, Gorsuch, and Ginsburg concur in varying parts. Only Justice Sotomayor dissents entirely. The line-up analyzers will have fun with that one.

Defamation, Public Debate, and Hockey Sticks

May 22, 2019 1:32 PM | Posted by Kent Scheidegger | No Comments
Off-topic but interesting: National Review v. Michael Mann, No. 18-1451 asks the Supreme Court to venture once again into the topic of defamation litigation versus robust debate on issues of public importance, a problem going back to the classic case of New York Times v. Sullivan, 376 U.S. 254 (1964).

Last Minute Filings and Equal-Access Execution Clergy

March 29, 2019 2:23 PM | Posted by Kent Scheidegger | 2 Comments
As noted in the News Scan, the U.S. Supreme Court issued a stay for a Texas murderer who says he wants his "Buddhist spiritual advisor" "or another Buddhist reverend of the State's choosing" to be with him in the execution chamber. The stay petition is here.*

The Fifth Circuit denied the stay petition for having been filed at the last minute. On February 7, the Supreme Court vacated on that basis a stay order issued by the Eleventh Circuit for Dominique Ray, discussed in this post. Murphy claims his case is distinguishable from Ray's, and the State answers that his delay is even worse. The order says:

The State may not carry out Murphy's execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy's Buddhist spiritual advisor or another Buddhist reverend of the State's choosing to accompany Murphy in the execution chamber during the execution.
Justice Kavanaugh wrote a short opinion concurring in the grant of the stay, and with the four Ray dissenters that makes five. He drops a one-sentence footnote saying that, on the facts, he finds the petition timely enough. On the merits of the clergy-in-the-room controversy, he sees it pretty much the same way I did in the February 8 post. It's not hard, folks. If you don't want non-employee chaplains in the execution room, and you don't have employee chaplains for the non-Judeo-Christian religions, then just don't allow any chaplains in the room at all. If the murderer wants to confess and ask God's forgiveness with a clergyman, great, but he can do it before entering the room.
Continue reading Last Minute Filings and Equal-Access Execution Clergy.

USCA6 Tosses "Incitement to Riot" Claim v. President Trump

September 11, 2018 11:05 AM | Posted by Kent Scheidegger | No Comments
A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today decided Nwanguma v. Trump, No. 17-6290:

Plaintiffs participated in a Trump for President campaign rally in Louisville in March 2016 . . . with the purpose of protesting. Perceived to be disruptive, they were unceremoniously ushered out after then-candidate Donald J. Trump said, "Get 'em out of here." Plaintiffs were pushed and shoved by members of the audience as they made their exit and now seek damages from Trump alleging his actions amounted to "inciting to riot," a misdemeanor under Kentucky law. The district court denied Trump's motion to dismiss the claim but certified its order for immediate interlocutory appeal. The court identified a two-part question for review: whether plaintiffs have stated a valid claim under Kentucky law and, if so, whether the First Amendment immunizes Trump from punishment under state law. We answer "no" to the first part, because plaintiffs' allegations do not satisfy the required elements of "incitement to riot." As to the second part, we hold "yes," Trump's speech enjoys First Amendment protection, because he did not specifically advocate imminent lawless action. The district court's denial of Trump's motion to dismiss the claim must therefore be reversed.
Continue reading USCA6 Tosses "Incitement to Riot" Claim v. President Trump.

Bonds for Hearing Spectators

September 5, 2018 11:18 AM | Posted by Kent Scheidegger | No Comments
"Congress shall make no law ... abridging the freedom of speech ...."  So says the First Amendment to the United States Constitution. "The freedom of speech" is not unlimited freedom to say anything, any time, anywhere. Freedom of speech protects political dissent and other types of expression, but government can place reasonable limitations on "time, place, and manner" so that speakers do not interfere with the rights of others or with the conduct of government business.

Protesters disrupting the current Supreme Court confirmation hearings should not be tolerated, and arresting them isn't getting the job done. One alternative is to close the hearings to public spectators altogether. I suggest a less restrictive alternative.

Let every member of the general public who wants to attend the hearing in person present a credit card, and put a hold on it for $500. At the end of the day, the hold will be released if the spectator caused no disruption. If the spectator does disrupt and has to be removed, the hold becomes a charge. I expect the number of people willing to disrupt will drop sharply.

Three Criminal and Related Cases for Next SCOTUS Term

June 28, 2018 2:54 PM | Posted by Kent Scheidegger | 4 Comments
In today's orders list from the "clean-up conference," the U.S. Supreme Court took up three criminal and related cases for briefing, argument, and decision next term.  The cases and their Questions Presented (as drafted by the party asking the Court to take the case) are:

No. 17-646, Gamble v. United States:  "Whether the Court should overrule the 'separate sovereigns' exception to the Double Jeopardy Clause."

No. 17-1174, Nieves v. Bartlett:  "In Hartman v. Moore, 54 7 U.S. 250 (2006), this Court held that probable cause defeats a First Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a First Amendment retaliatory-arrest claim under § 1983?"

No. 17-532, Herrera v. Wyoming, "Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians' 1868 federal treaty right to hunt on the 'unoccupied lands of the United States,' thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family."

A Narrow Rule on Retaliatory Arrest?

June 18, 2018 10:21 AM | Posted by Kent Scheidegger | 2 Comments
In Lozman v. City of Riviera Beach the U.S. Supreme Court claimed to be establishing a "narrow" rule on a civil suit for retaliatory arrest even when the arrest is supported probable cause.  I have my doubts.  We have seen "narrow" rules grow like cancer before.

Plaintiff Fane Lozman had some ongoing disagreements with the city.  He may have been right; it doesn't matter.  At the public comment portion of a city council meeting he starts going off about the arrest of an official in another jurisdiction with no apparent connection to the meeting.  When he won't shut up and won't leave, the council has him arrested.  The Court has the video on its web site.  He claims the arrest was retaliation for his outspoken criticism and not just for his conduct on this occasion.

Generally speaking, the Supreme Court says a seizure supported by probable cause is legal and does not permit going behind the cause for an ulterior motive.  Whren v. United States, 517 U.S. 806 (1996) rejected a claim that a traffic stop violated the Fourth Amendment because the real motive was to investigate possible drug trafficking.  In the First Amendment context, the law is not so clear.
Continue reading A Narrow Rule on Retaliatory Arrest?.

Two Civil Cases From SCOTUS Today

June 14, 2018 8:26 AM | Posted by Kent Scheidegger | No Comments
The U.S. Supreme Court did not decide any of the remaining criminal law cases on its docket.  There were two civil case decisions.  One is the case of campaign buttons in polling places, Minnesota Voters Alliance v. Mansky, No. 16-1435.  The Court did not strike down button bans but said, "the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out."  Minnesota law does not, so it cannot stand.  Sound familiar?  No, Furman v. Georgia (1972) is not cited.  I checked.

Attorney General Sessions Speaks at Georgetown

September 26, 2017 1:35 PM | Posted by Bill Otis | 3 Comments
The Washington Post carries this article about Attorney General Sessions' talk today at the school where I'm an adjunct professor, Georgetown University Law Center.  The talk was about free speech on campus.

There are a dozen different things to be said about this.  I will content myself with four.

First, Georgetown is a private university and may invite whomever it wants to appear on campus and whomever it wants to be in the audience.  In today's climate, Georgetown deserves credit for inviting Jeff Sessions (although it should scarcely be remarkable that a law school, of all places, would invite the Attorney General of the United States).

Second, there are complaints that not everyone who would have liked to be in the audience was accommodated.  Well, gosh  --  I would have liked to attend for sure, and I teach there, but I wasn't invited either.  Good for the University that it gave my potential seat to a student.  The fact that not everyone can fit in the room should be too obvious for words, but apparently it isn't.  It was, you see, all a conservative plot.

Third, the event was hosted by my friend and colleague, the brilliant libertarian leader Prof. Randy Barnett.  Randy argued the Supreme Court case against the government's prohibition of medical marijuana in Gonzales v. Raich, and thus is an opponent of Sessions on one of today's key criminal justice issues.  What a tribute to Randy that he offered a platform to a man with whom he has such a major disagreement, knowing that he would take plenty of heat for it to boot.

Fourth, some protesters brought signs saying "Hate Speech Is Not Free Speech." This is arrant nonsense, first because the AG said nothing that a rational person could characterize as hate; and second because hate speech most certainly is free speech, as these law students, before almost anyone else, surely must know.  See, e.g., the ACLU's famous defense of Nazis marching in Skokie, Illinois.
Continue reading Attorney General Sessions Speaks at Georgetown.

Is Antifa a Street Gang?

September 18, 2017 10:41 AM | Posted by Kent Scheidegger | No Comments
David Pyrooz and James Densley assert that Antifa can be designated a street gang in this op-ed in the WSJ. They note that there are many definitions of "street gang":

Yet under any scientific or official definition, Antifa makes the grade. Gangs are groups. They have a collective identity, which includes signs, symbols and other features that distinguish the in-group from the out-group. Bloods wear red; Crips wear blue; Antifa wear black. It's obvious when Antifa members join protests, even for the untrained eye. And don't be fooled by Antifa's diffuse structure. Conventional street gangs are pretty disorganized too.
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Continue reading Is Antifa a Street Gang?.
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