Category Archives: legal

From the Archives — At the U.S. Supreme Court:

Originally reported June 2012.

REICHLE VS. HOWARDS

The Supreme Court issued a decision in Reichle v. Howards this week, a case involving a confrontation between then Vice-President Richard Cheney and a member of the public, Steven Howards.

Howards was arrested by members of the Secret Service, agents Reichle and Doyle, after he interacted with the Vice President at a mall in Colorado.  Howards was critical of the Vice President, asking him “how many kids he killed that day,” and he also touched the Vice President on the shoulder.  When Howards lied about touching the Vice President during subsequent questioning by the Secret Service, he was arrested.

Charges against Howards were dropped, but Howards sued the Secret Service agents, Reichle and Doyle, petitioners in the Supreme Court, claiming his constitutional right to free speech was infringed by the arrest, which he saw as a retaliatory act, resulting from the expression of his political views.

The legal issue of the case at a preliminary stage was the immunity from liability that Secret Service agents should be accorded in the conduct of their official duties.   The court accepted certiorari on two related issues concerning such liability.

First, should the agents receive qualified immunity because there was not clearly-established law at the time of the incident — regarding liability for infringement of first amendment rights in the course of an arrest? Qualified immunity shields government officials from civil damages liability, unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.

Secondly, should the agents receive absolute immunity because there was probable cause for the arrest?  The Supreme Court has held that there is absolute immunity from First Amendment claims in the context of retaliatory prosecutions if probable cause existed.  Some federal jurisdictions have also held that if there is probable cause for making an arrest, then this is a complete defense to a claim of First Amendment violation by retaliatory arrest.

Both of my earlier podcasts on this case, at the certiorari stage and again at the oral argument stage, focused primarily on the question of whether the legitimate grounds for arrest (probable cause) provided a basis for absolute immunity.  As it turns out, the Supreme Court decided not to decide this issue, despite a split of authority in the Circuit Courts of Appeal on this point.

Instead, the Court, with Justice Clarence Thomas writing, in an opinion joined by five justices, held that the law — whether retaliatory arrest could be a basis for liability — was not clearly established at the time of the incident.   This, in itself, provided the qualified immunity that would protect the Secret Service agents from suit in this case.

The High Court reversed the 3rd Circuit Court of Appeals, which had held that the law was clearly established, and that probable cause did not automatically defeat a First Amendment retaliatory arrest claim.   Thomas noted that his approach “comports with our usual reluctance to decide constitutional questions unnecessarily.”

In an opinion marked by subtle distinctions, Thomas explained that “courts may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all.”

Thomas explained the court’s reasoning: “This clearly established standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties, by ensuring that officials can reasonably anticipate when their conduct may give rise to liability for damages.”

Thomas also noted that the Supreme Court’s position on retaliatory prosecution in Hartman v. Moore – a case finding qualified immunity existed in the context of retaliatory prosecution — “injected uncertainty into the law in the tenth as well as other circuits because of the similarity between retaliatory prosecution – for which Hartman held probable cause was a basis for immunity — and retaliatory arrest for which Hartman did not make a determination.

Thomas was careful not to suggest that the instant case decided the issue of absolute immunity either.  Instead, he said only that clearly-established law governing liability did not exist at the time of the incident.

Justice Ginsburg, in a concurrence joined by Justice Breyer, agreed that Secret Service agents such as petitioners Reichle and Doyle, were entitled to qualified immunity, saying that their responsibilities protecting officials necessitated immunity so long as their decisions were rational, but Ginsburg would not recognize qualified immunity based on lack of clearly-established law for ordinary law-enforcement officers.  Ginsburg distinguished Hartman because retaliatory prosecution was different than what ordinary law enforcement officers consider in terms of arrests.  Hartman was inapplicable and thus did not add any confusion to the law as it concerned ordinary law enforcement officers.

The majority found that the clearly-established law standard was not satisfied in the context of First Amendment liability for retaliatory-arrest claims.  Uncertainty existed where the Supreme Court had never recognized a First Amendment right to free speech in the face of probable cause for arrest, and there was a split of authority in the circuits on the issue.

Thomas also considered whether there might be clearly-established law within a federal circuit despite conflicting decisions in other circuits, but found, “assuming arguendo that controlling court of appeals authority could be a dispositive source of clearly established law in the circumstances of this case, the Tenth Circuit’s cases do not satisfy the clearly established standard here.”

Justice Kagan did not participate in this case.

At the U.S. Supreme Court:

Bond vs. The United States

The US Supreme Court accepted certiorari this week in the case Bond vs. The United States.  In 2011 the high court decided, as a preliminary issue in the same case, that petitioner Carole Bond of Pennsylvania had standing to challenge her prosecution under federal law.  Bond had been prosecuted in federal court under the Chemical Weapons Convention Implementation Act, which criminalized the use of chemicals as chemical weapons under American law in conjunction with the adoption and implementation under international treaty of the Chemical Weapons Convention.

The facts, which led to Bond’s prosecution, concern her attempt to injure or kill a former friend after the woman was discovered to have had an affair with and to have had a child with Bond’s husband.  Bond was a microbiologist and when she decided to harm her former friend, she relied on her professional expertise to employ toxic chemical compounds in her assault.  Over a period of three months Bond repeatedly applied two different chemical compounds on the victim’s house and car door handles and mailbox.  The victim observed and avoided the chemicals on several occasions.  She alerted the local police but the police did not identify the chemicals or find evidence that linked them to Bond.  At one point the victim did receive a minor burn on her thumb from contact with the chemicals.  A federal investigation by the postal service determined that the substances were toxic chemicals 10-chlorophenoxarsine and potassium dichromate and traced the evidence to Bond.  Bond was arrested and prosecuted by federal authorities and eventually pled guilty to violations of the chemical weapons implementation act and was sentenced to six years in prison, although she reserved her right to appeal.

After the Supreme Court decided that Bond had standing to challenge her federal prosecution, her case was remanded to the Third Circuit Court of Appeals.  There Bond argued that her case was essentially a local criminal matter appropriately subject to state criminal law relating to assault.  Her constitutional claim was that the federal government did not have power to step into the area of state criminal law and to prosecute her under the Chemical Weapons Act.

Bond is not disputing that there are federal crimes, such as an attack on a federal official.  But Bond argues that the government must derive its authority in federal criminal law from the substantive federal issue involved.  Here the only federal issue was that there was an international treaty and the substantive federal legislation had been enacted to implement the treaty.

Bond argued that the Chemical Weapons legislation was meant to prohibit the use of chemicals in warfare.  This would be a legitimate federal purpose as the federal government has authority through the constitutional roles of the executive and congress related to warfare.  However, in applying the Chemical Weapons law outside of the context of war in an area of criminal law where the states had traditional authority, Bond argued the prosecution violated the 10th Amendment protection of state authority from encroachment by the federal government.

The Chemical Weapons Act law does not only regulate the type of chemical that are so dangerous that they are only found in military stockpiles.  It applies broadly to any chemical that “through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”

However, the Act is limited by an exclusion of chemicals that are used for any “peaceful purpose related to an industrial, agricultural, research, medical or pharmaceutical activity or other activity.

Bond claimed that her prosecution under federal law violated the constitution because the facts of her case should not be seen as presenting use of a chemical weapon.  Since the government did prosecute her under that theory, Bond argued the federal chemical weapons statute intruded on state authority in its application to her.

The Court of Appeals rejected Bond’s challenge to her prosecution.  The Third Circuit found that the fact that Congress had enacted the Chemical Weapons Implementation Act in order to meet the government’s obligations under the treaty was sufficient to confer federal authority.  Congress has the authority to enact legislation to implement a valid treaty under the Constitution’s Necessary and Proper Clause.  The Third Circuit did not consider there to be limits on that authority once conferred.  The third circuit decision raised the question of whether it made sense for such an expansion of federal authority based upon a treaty negotiated with another country, and this was expressly contained in a concurrence, but the Court believed it was bound by an earlier Supreme Court case, Missouri v. Holland from 1920, which stated in dictum that “if [a] treaty is valid there can be no dispute about the validity of the statue [implementing that treaty] under Art 1, Section 8, as a necessary and proper means to execute the powers of the Government.” The Third Circuit concluded that principles of federalism “will ordinarily impose no limitation on Congress’s ability to write laws supporting treaties.”

Dictum is language in an opinion or decision by a court that is not fundamental to the holding of the case.  Dictum is not given the weight of precedent, but where the dictum is from a Supreme Court decision lower courts look to the language of the high court for the Court’s reasoning and interpretation.

In fact, there is a split of authorities in the circuit courts of appeal as to whether a valid treaty can expand the federal governments constitutional authority beyond enumerated powers.  The Ninth Circuit considered a closely related question of the effect of a treaty’s impact and concluded, that “treaty provisions which create domestic law and have the same effect as legislation must be subject to the same substantive limitations as any other legislation.”  The 2nd and 11th circuits have followed Holland, while other circuits not.  In addition, Holland was decided in 1920 and more recent judicial trends towards federalism and states rights call in to question the applicability of the language contained in Holland.

The Supreme Court will hear argument on Bond v. the United States later this term.

Podcast FCC v. AT&T

By Marc Seltzer; the following podcast was originally broadcast at via iTunes on January 16, 2011 at Supreme Podcast.

. . .

This week the Supreme Court heard oral arguments in a case titled Federal Communications Commission v. AT & T.

The case comes out of the third Circuit, which includes the states Delaware, New Jersey and Pennsylvania, after a three judge appellate panel there decided in favor of AT&T, and the Federal Communications Commission, or FCC, petitioned the Supreme Court for review.

The case concerns the potential release of documents contained in an FCC investigation file.

The FCC, a federal agency, conducted an investigation into potential overcharging of the government by AT&T on a technology project for the New London school district.  AT&T had called the billing issues to the government’s attention after its own internal investigation and subsequently reached an agreement to resolve the issue.  However, a trade association, including competitors of AT&T, filed a Freedom of Information Act request, commonly referred to as a “FOIA,” seeking release of the FCC file.  The file included internal e-mails providing pricing and billing information, the names of employees involved in the billing issue, and AT&T’s internal assessments of the employee’s violations.

The FOIA request required government officials to turn over documents unless an exemption applies.

AT&T asserted that a law enforcement investigation exemption, #7, applied to information in the government’s possession, which is private, and if released would be an “unwarranted invasion of personal privacy.”

Supreme Court precedent on FOIA generally has embraced a balancing act.  In one recent noteworthy case, United States DOD v. ACLU, over the release of photographs of prisoner abuse by the US military, the high court explained:
Congress established in FOIA a “basic policy”
favoring disclosure, but it simultaneously recognized
that “important interests [are] served by the exemptions.”
Those exemptions embody Congress’s commonsense
determination that “public disclosure is not always
in the public interest.”  For that reason, the “Court consistently
has taken a practical approach” in interpreting FOIA’s
exemptions, in order to strike a “workable balance.”

The FCC reviewed AT&T’s request to keep the government’s files secret and decided that the personal privacy exemptions did not protect corporations from the release of private information:  “A corporation, as a matter of law, has no ‘personal privacy.'”

AT & T challenged the FCC decision by filing a lawsuit in federal district court, claiming that Exemption 7 for personal privacy applied to corporations.  AT&T argued that “person” is defined in the FCC exemptions to include an individual, partnership, corporation, association, or public or private organization other than an agency.”  If person included corporation, AT&T argued, it followed that personal privacy would include corporate privacy.  However, the district court agreed with the FCC, finding that a corporation could not claim protection of a personal privacy exemption.  Person may be defined as corporation, but personal was not defined, and neither case law nor common usage conceived of personal as applying to corporations.

On appeal, the Third Circuit Court of Appeals reversed, agreeing with AT&T that the use of the world person included corporate or other entities and the words personal privacy included information of a corporation such as AT & T.  Neither the Third Circuit nor the district court conducted the second part of the exemption inquiry to determine, if the law protected corporations’ privacy interests, did the evidence in this instance require withholding documents in order to protect those interests.

The US supreme court will now decide if the FCC was right in rejecting AT&T’s claim to a personal privacy interest.

In oral argument, the justices appeared skeptical of AT &T’s attempt to include corporations or other entities within the language of personal privacy, especially given no traditional of doing so.  Discussing why the issue did not appear to have come up before, Justice Breyer said:

“Well, one reason might be that this has really never been a problem because all the legitimate — or most of them, anyway — that these organizations that have interests in privacy are actually taken care of by the other 17 exemptions here.”

Justice Scalia: “Another reason might be that personal — nobody ever thought that personal privacy would cover this.”

AT&T’s counsel,  Jeff Kleinberg, raised the issue of the use of FOIA by commercial competitors.

“Increasingly, FOIA is being used by – by competitors and legal adversaries to obtain information, not about what the government is doing, not about what the government is up to, but about what evidence the government might have gathered from private parties.”

But Justice Ginzberg asked: “Is that a reason to change what was the understanding of Exemption 7?”

The justices then inquired into the understanding of the exemption at the time that FOIA was created.

Attorney Kleinberg:
Well, Your Honor, the –Attorney General Levy’s memorandum did not go into a long discussion or description of the analysis. It simply said it does not appear or does not seem to apply to corporations.

Justice Scalia, somewhat rhetorically looking for congressional intent stated,
“But if Attorney General Levy’s description, which was — which was issued for the purpose of telling all the agencies of the Federal government what this new statute meant — and it had a lot of ambiguities in it — if that was wrong about -about this subject, you would have thought somebody would have objected.
I mean, did some members of Congress who -who had passed FOIA say, this is outrageous; what about the personal privacy of General Motors? I’m not aware of any objections along those lines.”

Airport Security Protests Fizzle and Inspections Continue as They Must

By Marc Seltzer; originally published at care2.com on December 6, 2010. (The original posting received more than 100 comments, often strongly disapproving, which can be seen at the care2.com link.)

. . .

Protests against airline security procedures did not materialize last week despite a media campaign in which a variety of hopeful instigators clamored that the public would not tolerate the invasion of privacy.  While the new procedures — x-ray technology that sees through clothes and pat downs that include private parts — are bound to make people uncomfortable, the vast majority of passengers accept that the threat of attack is serious and the security measures reasonable.

The sniping at the Obama administration and the Transportation Security Administration (TSA) and claims that TSA procedures are unconstitutional on the one hand and misguided on the other don’t hold up to scrutiny.  First of all, flying is optional.  We choose to do it by paying for a ticket and accepting the rules that go with the privilege of flying.  The government, rather than the private airline companies, conduct security operations, but no one is forcing passengers to get in line.  Second, flying is not something you do in the confines of your home, where you would expect the most 4th amendment protection from government search and seizure.  The question of whether it’s reasonable to conduct these admittedly invasive searches in an airport security line depends on the level of protection needed and the availability of other options.

While the U.S. has been lucky that the shoe bomber, underwear bomber and other attempts have failed to bring down a plane, there is a clear threat to aviation security.  The procedures are the best that experts can come up with at this moment.  No doubt less invasive, and more effective, machines are on the drawing board.

Another argument is that the scanners and pat downs can’t stop every conceivable threat.  True, but the new procedures increase the chances of a successful inspection for dangerous materials.  They take more time, they see more, and they make it more difficult to plan and carry out an attack.  That is enough to justify their use, even if something slips through.

The people in aviation security, from front line screeners to administration decision makers, deserve credit for doing a difficult job where a single mistake can cost many lives and the enemy actively tries to exploit errors and weaknesses.

Marc Seltzer is also a contributor to SupremePodcast.com, a weekly U.S. Supreme Court case review podcast.

Protesting Homosexuality at Funerals

By Marc Seltzer; originally published at care2.com on October 18, 2010
. . . .
Last week the U.S. Supreme Court heard oral argument in the case of a Baptist Minister who claimed that his first amendment right to free speech entitled him to protest at the funerals of U.S. military service men and women. The case follows roughly in line with those that have accorded the greatest possible freedom to Americans who make public political statements — in this case, “God Hates You,” and “Thank God for Dead Soldiers” — however offensive.

However, unlike past cases that evidence a strong bias towards free expression in the public forum — for example, Neo Nazi marchers in Chicago, demonstrating in the streets, or the pornography of Larry Flint, published in print — the anti-homosexuality protests of the Westboro Baptist congregation disrupt private sacred rituals.

Not just in the United States, but in cultures far and wide, reaching back as far as archaeological evidence exits to document, burial rites have been among the most profound of human traditions.

Would barring protests at funerals really undermine our First Amendment freedom?

Is there a slippery slope worry? Stop someone from protesting at a funeral today, and tomorrow they will be blocked from picketing in front of a factory or speaking on the steps of city hall?

I can think of nothing so precious — save maybe the moment of birth of a child — as the solemn ritual of family and friends gathering at graveside or place of worship, to eulogize, show support, to weep and to say goodbye to loved ones. To disturb people in either of these situations — and to use the Constitution to do so, is unacceptable.

It is not the type of speech which stands out here, it is the inappropriate context. Grief is not a public forum but a private rite. To undertake the necessary process of grieving requires not just the support of community but the immersion in the experience of loss. The funeral, however constituted by cultural tradition, leads us through both a conscious and unconscious transformation.

This sacred space must be preserved.

(For more on this story, including notes on the questions asked by new Justice Elena Kagan, check out my October 9, 2010, podcast review of the legal case Snyder v. Phelps at SupremePodcast.com)

. . .

January 12, 2011 UPDATE:  Following the Arizona shootings of January 9, 2011, the Arizona legislature unanimously passed a law barring protests in the immediate vicinity of funerals.

SupremePodcast.com — May 29, 2010

SupremePodcast.com

A weekly podcast review of U.S. Supreme Court decisions, grants of certiorari (cases accepted for review) and biographies of justices and nominees to the high Court.

May 29, 2010, Podcast

. .

Transcript of my May 29, 2010, SupremePodcast.com segment, Lewis v. Chicago:

Lewis v. City of Chicago, Ill.  Issued by the Supreme Court May 24, 2010

In a week when the 46 year old Civil Rights Act of 1964 was in the news –Tennessee Senate primary victor Rand Paul having questioned some of the Act’s provisions in articulating his philosophy of government overreach — the U.S. Supreme Court issued a unanimous opinion with respect to application of the Civil Rights Act to the City of Chicago and its fire department hiring practices.

The facts of the case are straightforward:  Chicago offered a test to 26,000 prospective firemen.  Those who achieved a score of 89 and above were marked “well qualified.”  Those who scored between 65 and 88 were deemed “qualified.”  Those below 65 were not qualified.  The city adopted this policy in 1995.  It further decided that only “well qualified” candidates would be hired first as needed.  It kept the files of “qualified” candidates in case all “well qualified” candidates were considered and additional positions were still available.

The city of Chicago continued to apply the same standard drawing from the original pool of “well qualified” candidates for six years, causing a number of potential “qualified” firemen not to be hired although it did select some qualified applicants in the end.

6000 African American candidates who had been rated qualified, but had not been hired, sued the city.

In the course of the litigation, the city stipulated, or accepted, the fact, that African Americans had been severely impacted in a way that was different than other racial groups by the 89-point cutoff.  This is called a severe disparate impact and is recognized by statute as a basis for challenging government hiring policies.  The Court of appeals referred to disparate-impact liability as “primarily intended to lighten plaintiff’s heavy burden of proving intentional discrimination after employers learned to cover their tracks.”

At trial the African American group of qualified candidates won their discrimination case.  The court ordered 132 of them to be hired by random selection from the class of 6000.   Back pay for what the 132 would have earned was awarded and was to be split among the other remaining candidates who were not hired.

The city appealed the trial court decision on the grounds that the applicants had not filed Equal Employment Opportunity Commission (EEOC) claims within 300 days of the test date.  The city argued that the statue required claims under Title 7 of the Civil Rights Act to be filed with the EEOC within 300 days of the violation of the law.  The city considered the discriminatory act to be when the test results were given, placing applicants into the “qualified” group, back in 1995. If the firemen failed to file a charge with the EEOC within 300 days, the city was entitled to consider the act lawful.  But the applicants argued that the policy was applied continuously over six years excluding them from advancing in the process and that the 300 day limit should be counted from each time the test results were used to determine which candidates would be called up for further consideration for open positions.

The 7th circuit reversed the trial court, finding the applicants’ claims were time barred.

The applicants petitioned the Supreme Court for review and in a decision written by justice Antonin Scalia the court unanimously reversed the 7th circuit.

The Court decided that in applying the same standard year after year to candidates who had originally “qualified” the city continued the violation such that the claims were filed in time.

The application of the policy had served to deny the firefighters’ opportunity.  The city could not hide behind the claim that their initial decision was all that counted for the purposes of starting the clock on timeliness.

The case was thus not in the Supreme Court on the merits of the discrimination claim and makes no substantive changes in the law on discrimination.  Those issues were decided in the trial court in favor of the fireman.  And the district or trial court decision, being a lower court, has little strength as precedent.  In fact, the Supreme Court sent the case back to the 7th circuit court of appeals on remand to make certain other determinations before final result would be known.

The case may be more significant for its dicta, which is the language and positions of the court not so central to its decision to become precedent but meaningful in expressing the court’s reasoning.  Justice Antonin Scalia used the case to forcefully articulate principles of judicial restraint.

“It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.

Our charge is to give effect to the law Congress enacted.  Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past.  If that effect was unintended, it is a problem for Congress, not one that the federal courts can fix.”

While not surprising, the unanimity behind such a clear statement of judicial restraint illustrates the ascendance of such principles.

What We Wont Learn from the Sotomayor Confirmation Hearings

By Marc Seltzer; originally published on July 9, 2009, at politicsunlocked.com.

(Linda Greenhouse’s New York Times piece about the confirmation hearings for Elena Kagan raised the issue of whether a justice can be forthcoming in their testimony to congress.  Interestingly, Kagan has articulated her belief that the executive brach has largely unfettered authority in the areas of national security, the point that I wrote about in reference to the Sotomayor hearings.  Still, I do not see any reason for Kagan to speak openly in the upcoming confirmation hearings in light of the intense politicization of the process.  My early post is reposted below.)

. .

If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.

The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war.  President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.

Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation.  Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide.  Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.

Underlying this and other such conflicts is the question of constitutional authority in the different branches of government.  The President is the Commander-in-Chief.  Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?

In the same vein, what are the limits of such Presidential authority?  Can the President authorize torture if he believes it is necessary for national defense?  If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?

The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit.  But a Supreme Court nominee could give us her reflections and a certain education.  This would be far more meaningful then the competing assertions of power by the administration and congress.  Of no more use are the pundits and professors who weigh in.  Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do.  The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch.   Pundits have none of this real world caution.

Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible.   There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.

I, for one, have no doubt that they are not where the President and Congress say they are.