Whether, to convict a defendant of distribution of a controlled substance analogue - a substance with a chemical structure that is "substantially similar" to a schedule I or II drug and has a "substantially similar" effect on the user (or is believed or represented by the defendant to have such a similar effect) - the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.Kind of an interesting "mental state" question, but not a big case.
Recently in Use of Force Category
A forensic pathologist quoted in a St. Louis Post-Dispatch story about the shooting death of Michael Brown said some of her statements concerning the autopsy were taken out of context.
Judy Melinek was quoted about the volatile case in which Brown -- black, 18 and unarmed -- was fatally shot Aug. 9 by Darren Wilson, a white Ferguson, Mo., police officer.
Last week's Post-Dispatch report, which focused on St. Louis County's official autopsy of Brown and an accompanying toxicology report, relied on unidentified sources with knowledge of the county's investigation of the shooting, leaked autopsy documents, and quotes from Melinek and others. The Post-Dispatch has said it stands by its reporting, including Melinek's comments.
But Melinek said she did not assert that a gunshot wound on Brown's hand definitively showed that he was reaching for Wilson's gun during a struggle while the officer was in a police SUV and Brown was standing at the driver's widow, as the Post-Dispatch reported.
The official autopsy on Michael Brown shows that he was shot in the hand at close range, according to an analysis of the findings by two experts not involved directly in the case.* * *
Ferguson, Mo., police officer Darren Wilson and Michael Brown fought for control of the officer's gun, and Wilson fatally shot the unarmed teenager after he moved toward the officer as they faced off in the street, according to interviews, news accounts and the full report of the St. Louis County autopsy of Brown's body.
Because Wilson is white and Brown was black, the case has ignited intense debate over how police interact with African American men. But more than a half-dozen unnamed black witnesses have provided testimony to a St. Louis County grand jury that largely supports Wilson's account of events of Aug. 9, according to several people familiar with the investigation who spoke with The Washington Post.
How were the incidents "resolved"?
Chemerinsky is upset about the doctrine of qualified immunity in civil suits against police officers for excessive force. Okay. Although I generally support it, at times I have had some qualms about some aspects and applications of that doctrine myself. But just looks at what he says to support this argument.
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.
Madziva was a property manager for a public housing agency. One day, a resident's unhappiness with the handling of her transfer request resulted in a minor scuffle in which the resident was the aggressor, and Madziva used a minimal amount of force to extricate himself. The agency's personnel manual had a flat prohibition on fighting and said self-defense was no excuse. The Pennsylvania Constitution provides in Article I, Section 1 (emphasis added):
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
The conflict between the manual and the Constitution resulted in a firing, as it should have. Unfortunately, instead of firing the bonehead who wrote the manual, they fired the manager who used reasonable force to defend himself from an assault.
The high court also summarily reversed a summary judgment for the police officer in an excessive force case, Tolan v. Cotton. There were sufficient disputed facts to go to trial. Justice Alito agrees with the result but questions why this one case was plucked out the stream of cases. It seems to be the exemplar of the kind of case SCOTUS passes up regardless of whether the lower court's decision is right or wrong. That is, it is the application of settled law to particular facts with little potential to blaze any new legal trail or settle any disagreement between lower courts on a recurring question.
Also on today's orders list is Beard v. Aguilar, No. 13-677, California's petition seeking review of a Ninth Circuit decision overturning a murder conviction. The underlying issue is the reliability of dog alerts as evidence and disclosure of previous false hits. The Ninth Circuit said the California Court of Appeal's rejection of the claim was an unreasonable application of Brady v. Maryland. Justice Alito, joined by Justice Scalia, dissents from denial of certiorari with only a cite to his Tolan concurrence, described above. I gather he means to point out that the Court took Tolan even while letting other wrong decisions pass by.
Town of Greece v. Galloway is yet another case on opening public proceedings with prayers. FWIW, SCOTUS opens its own sessions with "God save this honorable court."
In the orders list, the court took up for full briefing and argument two civil cases. Ryan v. Hurles is relisted yet again.
"I just wanted to come here to . . . let you know how important it is that we amend this stand your ground, because it certainly did not work in my case," Fulton said, speaking without consulting prepared remarks. "The person that shot and killed my son is walking the streets today. This law does not work."As we have noted here multiple times, the "stand your ground" aspect of Florida's self-defense law was completely irrelevant to that case. The prosecution witness established that Martin had Zimmerman pinned on the ground at the time Zimmerman shot him. "Duty to retreat," the point on which Florida's law differs significantly from the laws of a number of other states, is irrelevant when retreat is not an option. See this post last July. The relevant aspects of Florida self-defense law are fairly standard. How can a law "not work in my case" when it has nothing to do with the case?
The hearing was strange, also, in that it was conducted before a legislative body with no authority to make the requested change in the law. The circumstances in which a person can use deadly force in self-defense is a matter of state law, and nothing in the United States Constitution authorizes Congress to step in. Section 5 of the Fourteenth Amendment does allow Congress to override some state laws that are used in a discriminatory manner, but despite all the race-baiting that has gone on in the Martin/Zimmerman matter, the claim that "stand your ground" laws are discriminatory is utterly unsupported.
The heroic husband was shot in arm but stabbed the robber, who remains at large. Want to bet the next thing he does is buy a gun?
It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.One need not imagine. It has happened. President Washington used military force to put down the Whiskey Rebellion. President Lincoln used military force to quash a larger rebellion. President Eisenhower sent the 101st Airborne to deal with Little Rock High School. Fortunately, they didn't have to shoot anyone in the latter instance, but they might have.
We have not hesitated to criticize Mr. Holder on this blog when he is wrong, but he is right in this instance. A lawful use of military force, even on American soil, cannot be ruled out in advance, even though the circumstances would have to be extreme and are unlikely to occur in our time.
Update: The WSJ has this editorial Thursday:
The country needs more Senators who care about liberty, but if Mr. Paul wants to be taken seriously he needs to do more than pull political stunts that fire up impressionable libertarian kids in their college dorms. He needs to know what he's talking about.
Update 2: The AG has sent Sen. Paul a supplemental letter:
It has come to my attention that you have now asked an additional question: "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" The answer to that question is no.
The attorney for the man who shot and killed Florida teenager Trayvon Martin said Monday he'll seek to get the case dismissed using a traditional self-defense argument and not the state's "stand your ground" statute.I've been saying for some time I didn't think this was "stand your ground" case.
Mark O'Mara, who is defending George Zimmerman against a second-degree murder charge in the fatal February shooting, said the traditional self-defense approach is appropriate because the facts suggest his client couldn't retreat from a beating Martin was giving him.
Zimmerman's attorneys had said last week that they would use Florida's "stand your ground" law, which allows people to use deadly force -- rather than retreat -- if they believe their lives are in danger.
"The facts don't seem to support a 'stand your ground' defense," O'Mara said.
Some states, however, don't need a "stand your ground" statute because their courts never made a "duty to retreat" rule by caselaw in the first place. Bob Egelko has this story in the SF Chron noting that California is one such state. Overall, though, California law is not particularly friendly to people using deadly force against the initial aggressor. Of the three briefs that CJLF has filed in support of defendants over the years, two of them have been in California cases where the initial victim was charged with murder for using supposedly excessive force against the initial aggressor.
Both Egelko and Curt Anderson for AP note additional advantages for the defendant in the Florida law, aside from the "stand your ground" aspect.
Anderson says, "The U.S. Supreme Court has never weighed in on the constitutionality of such laws, and none has been struck down by a lower court." Well, of course not. People can, should, and do debate the wisdom of such laws, but what serious argument could be made that they are unconstitutional? It has apparently become part of our modern legal mentality that we assume every important question must be a constitutional question, and a federal one at that.
Bill Cosby weighs in with an interesting interview at CNN.