Supreme Court: The Term in Review (2013–2014) Part 1 of 2


– “SUPREME COURT:
THE TERM IN REVIEW,” AN FJTN PROGRAM FOR JUDGES, STAFF ATTORNEYS, AND LAW CLERKS. NOW, FROM THE TELEVISION STUDIOS
OF THE FEDERAL JUDICIAL CENTER IN WASHINGTON, DC,
YOUR HOST JOHN COOKE. – HELLO. I’M JOHN COOKE, DEPUTY DIRECTOR OF THE
FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR’S “SUPREME
COURT: THE TERM IN REVIEW,” OUR ANNUAL LOOK AT THE DECISIONS
REACHED BY THE SUPREME COURT THAT ARE MOST LIKELY TO AFFECT
THE WORK OF FEDERAL JUDGES. THE COURT HANDED DOWN
67 SIGNED OPINIONS AFTER ARGUMENT THIS TERM
AND 5 PER CURIAM DECISIONS. WE’LL DISCUSS 44
OF THOSE DECISIONS. IN 47 OF THE 72
DECISIONS THIS TERM, ALL PARTICIPATING JUSTICES AGREED AT LEAST
ON THE CENTRAL RESULT. ONLY 10 CASES WERE DECIDED 5-4. SEVERAL DECISIONS ATTRACTED
CONSIDERABLE NEWS COVERAGE. THESE INCLUDED
BURWELL V. HOBBY LOBBY,
WHICH ACCORDED TO
CLOSELY HELD CORPORATIONS A RELIGIOUS EXEMPTION
FROM PROVIDING EMPLOYEES WITH CERTAIN FORMS
OF CONTRACEPTION UNDER THE AFFORDABLE CARE ACT, ANDMcCUTCHEON V. FEC,WHICH STRUCK DOWN AGGREGATE
LIMITS ON CAMPAIGN CONTRIBUTIONS AS A VIOLATION OF
THE FIRST AMENDMENT. WE’LL DISCUSS THOSE DECISIONS, BUT WE’LL FOCUS MORE
ON MORE COMMON ISSUES, LIKE SEARCH AND SEIZURE,
CRIMINAL LAW, CIVIL RIGHTS, AND FEDERAL PROCEDURE. WE’RE FORTUNATE TO HAVE OUR
EXPERT FACULTY WITH US AGAIN TO EXPLORE AND EXPLAIN
THIS TERM’S DECISIONS. THEY ARE ERWIN CHEMERINSKY, DEAN OF THE UNIVERSITY OF
CALIFORNIA AT IRVINE LAW SCHOOL; PROFESSOR EVAN LEE OF THE HASTINGS COLLEGE
OF LAW IN SAN FRANCISCO; PROFESSOR LAURIE LEVENSON OF LOYOLA LAW SCHOOL
IN LOS ANGELES; AND PROFESSOR SUZANNA SHERRY OF VANDERBILT UNIVERSITY
LAW SCHOOL. IN ADDITION, WE’LL SPEAK
WITH PROFESSOR MICHELLE HARNER OF THE UNIVERSITY OF MARYLAND
FRANCIS KING CAREY SCHOOL OF LAW ABOUT THIS TERM’S IMPORTANT
BANKRUPTCY DECISIONS AND PROFESSOR JOHN R. THOMAS OF
GEORGETOWN UNIVERSITY LAW CENTER ON THIS TERM’S PATENT LAW
AND COPYRIGHT DECISIONS. THE CENTER’S BETH WIGGINS
AND JIM CHANCE WILL MODERATE
OUR DISCUSSIONS. AS YOU KNOW, SINCE YOU’RE
WATCHING THIS PROGRAM, IT IS AVAILABLE TO YOU
EITHER AS STREAMING VIDEO ON OUR INTERNET SITE,
FJC ONLINE, OR ON DVD FROM OUR
INFORMATION SERVICES OFFICE. AS ALWAYS, THERE’S AN OUTLINE
OF THE CASES WE’LL DISCUSS IN THE ORDER WE’LL DISCUSS THEM. THESE WRITTEN MATERIALS
ALSO INCLUDE AN APPENDIX WITH BRIEF SUMMARIES
OF THE TERM’S CASES THAT WE WILL NOT DISCUSS TODAY. THE ONLINE SUMMARIES
OF EACH CASE ARE LINKED TO THE FULL OPINIONS. YOU’LL ALSO FIND
MATERIALS YOU’LL NEED TO APPLY FOR CLE CREDIT
FOR WATCHING THIS PROGRAM. YOU’LL BE ABLE TO LINK
TO THESE MATERIALS FROM THE SAME WEBPAGE
AT FJC ONLINE ON WHICH THIS VIDEO APPEARS. YOU’LL FIND AN EVALUATION FORM
FOR THIS PROGRAM ON THAT PAGE. IT’S AN ONLINE SURVEY,
SO ALL YOU NEED TO DO IS ANSWER THE QUESTIONS
AND HIT SEND. PLEASE FILL IT OUT. IT’S THE
ONLY WAY FOR US TO KNOW IF YOU FOUND THIS PROGRAM
USEFUL AND INTERESTING AND HOW WE CAN IMPROVE IT
IN THE FUTURE. NOW, HERE ARE BETH AND JIM
AND OUR FACULTY TO START THE DISCUSSION. WE BEGIN WITH FREEDOM
OF SPEECH AND RELIGION. – IS YOUR CLAIM LIMITED TO SENSITIVE MATERIALS
LIKE CONTRACEPTIVES, OR DOES IT INCLUDE ITEMS LIKE BLOOD TRANSFUSION,
VACCINES? FOR SOME RELIGIONS,
PRODUCTS MADE OF PORK? IS ANY CLAIM UNDER YOUR THEORY
THAT HAS A RELIGIOUS BASIS, COULD AN EMPLOYER PRECLUDE
THE USE OF THOSE ITEMS AS WELL? – WHAT ARE THE LIMITS
OF RELIGIOUS FREEDOM? WHO POSSESSES IT, AND WHAT CAN THE GOVERNMENT
DO UNDER FEDERAL LAW BEFORE IT UNLAWFULLY
BURDENS THAT FREEDOM? THOSE WERE THE QUESTIONS RAISED IN WHAT WERE PERHAPS THIS TERM’S
MOST ANTICIPATED DECISIONS, WHICH CAME TO BE
KNOWN COLLECTIVELY AS THE HOBBY LOBBY CASE. HELLO. I’M JIM CHANCE. THE ORIGINAL CLAIMS WERE
BROUGHT BY THE OWNERS OF TWO CLOSELY HELD
CORPORATIONS– THE HAHN FAMILY, WHO OWN THE CONESTOGA WOOD
SPECIALTIES CORPORATION, AND THE GREENS, WHO OWN
HOBBY LOBBY STORES INCORPORATED. BOTH FAMILIES PROFESS
FUNDAMENTAL CHRISTIAN VALUES AND CLAIM THAT REQUIRING
THEIR CORPORATIONS TO PROVIDE CERTAIN KINDS
OF CONTRACEPTION THROUGH THE EMPLOYEES’
HEALTH PLANS WOULD VIOLATE
THEIR RELIGIOUS FREEDOM UNDER THE RELIGIOUS FREEDOM
RESTORATION ACT, OR RFRA. NOW, RFRA STATES THAT
THE GOVERNMENT SHALL NOT SUBSTANTIALLY BURDEN A PERSON’S
EXERCISE OF RELIGION EVEN IF THE BURDEN RESULTS FROM
A RULE OF GENERAL APPLICABILITY. IN OTHER WORDS, EVEN A LAW THAT
APPLIES TO EVERYONE EQUALLY AND IS NOT TARGETED
AT RELIGIOUS PRACTICE CAN BE FOUND TO
SUBSTANTIALLY BURDEN A PERSON’S RELIGIOUS FREEDOM. THE PERSON CLAIMING
THE SUBSTANTIAL BURDEN IS ENTITLED TO AN EXEMPTION
FROM THE GENERAL RULE UNLESS THE GOVERNMENT CAN PROVE
THE ALLEGED BURDEN IS, FIRST, IN FURTHERANCE OF A COMPELLING
GOVERNMENTAL INTEREST, AND SECOND, IS THE
LEAST RESTRICTIVE MEANS OF FURTHERING THAT COMPELLING
GOVERNMENTAL INTEREST. SO, WHAT WERE
THE MAJOR QUESTIONS THE COURT HAD TO ADDRESS
HERE, LAURIE? – JIM, THERE WERE
ABOUT 4 QUESTIONS HERE. THE FIRST WAS, DID THESE
CORPORATIONS QUALIFY AS PERSONS UNDER THE RFRA ACT? SECOND, IF SO, DID THE MANDATE TO PROVIDE
THE CONTRACEPTIVE COVERAGE IMPOSE A SUBSTANTIAL BURDEN
ON THEIR EXERCISE OF RELIGION? THIRD, IF IT DID IMPOSE
THAT SUBSTANTIAL BURDEN, WAS IT IN FURTHERANCE OF A
COMPELLING GOVERNMENT INTEREST? AND FINALLY, AND IMPORTANTLY,
IS THIS MANDATE THE LEAST RESTRICTIVE MEANS
OF FURTHERING THAT INTEREST? – AND HOW DID THE COURT
ANSWER THOSE QUESTIONS? – THE SUPREME COURT HELD 5-4 THAT THIS VIOLATED THE RELIGIOUS
FREEDOM RESTORATION ACT TO REQUIRE THAT
CLOSE CORPORATIONS PROVIDE CONTRACEPTIVES
TO THEIR EMPLOYEES THAT THE COMPANY FINDS TO BE
RELIGIOUSLY OBJECTIONABLE. THE SUPREME COURT OPINION
WAS WRITTEN BY JUSTICE ALITO. THE COURT SAID THAT CORPORATIONS
ARE PERSONS WHO ARE PROTECTED UNDER THE RELIGIOUS
FREEDOM RESTORATION ACT. THE COURT SAID THAT THESE
PERSONS, CORPORATIONS, CAN CLAIM TO HAVE
FREE EXERCISE OF RELIGION. THE COURT SAID THE OWNERS
SHOULDN’T HAVE TO CHOOSE TO GIVE UP THEIR RELIGION IN ORDER TO HAVE THE BENEFITS
OF THE CORPORATE FORM. THE COURT SAID
IT SUBSTANTIALLY BURDENS FREE EXERCISE OF RELIGION TO REQUIRE THAT THE
CORPORATIONS PROVIDE COVERAGE FOR CONTRACEPTION
THROUGH INSURANCE THAT THE OWNERS FIND TO BE
RELIGIOUSLY OBJECTIONABLE. THE COURT SAID IT WOULD
ASSUME WITHOUT DECIDING THAT THERE IS
A COMPELLING INTEREST, MAKING SURE THAT CONTRACEPTIVES
ARE AVAILABLE FOR WOMEN, BUT THE COURT SAID THIS WAS NOT THE LEAST RESTRICTIVE
ALTERNATIVE. THE COURT POINTED TO A
COUPLE OF OTHER OPTIONS THEY THOUGHT COULD BE USED. ONE WOULD BE FOR
THE FEDERAL GOVERNMENT TO DIRECTLY PROVIDE OR PAY FOR
CONTRACEPTIVES FOR WOMEN. ANOTHER WOULD MAKE AVAILABLE FOR FOR-PROFIT COMPANIES
THAT OBJECT TO CONTRACEPTIVES THE SAME MECHANISM THE LAW
PROVIDES FOR NONPROFITS THAT ARE AFFILIATED WITH
RELIGIOUS INSTITUTIONS. – NOW, JUSTICE GINSBURG
WROTE A PRETTY STRONG DISSENT FOR HERSELF, JUSTICE KAGAN, JUSTICE SOTOMAYOR,
AND JUSTICE BREYER. ISN’T THAT RIGHT, LAURIE? – OH, SHE DID, AND SHE SAID
THAT THE MAJORITY DECISION HAD A “STARTLING BREADTH”
BECAUSE IT HAD PROVIDED A WAY FOR MANY KINDS OF
COMMERCIAL ENTERPRISES TO OPT OUT OF
A VARIETY OF LAWS BY CLAIMING THAT IT VIOLATED
THEIR RELIGIOUS BELIEFS. THE DISSENT WROTE THAT
THE MAJORITY DOES NOT BASE ITS DECISION ON THE FIRST
AMENDMENT FREE EXERCISE CLAUSE, BECAUSE THAT JURISPRUDENCE
WOULD NOT SUPPORT THE DECISION. INSTEAD, THEY BASE IT UPON WHAT THE DISSENT SAYS IS AN
INCORRECT READING OF RFRA. AND, CONTRARY TO WHAT
THE MAJORITY SAYS, THE DISSENT SAYS THAT
NONPROFITSAREDIFFERENT. THEY’RE NOT FOCUSING ON PROFITS. THEY’RE FOCUSING
ON SOMETHING ELSE. FINALLY, THEY DISAGREE
WITH THE MAJORITY BECAUSE THEY SAY THAT HERE,
INSTEAD WHAT YOU HAVE IS THE EMPLOYERS
BURDENING THE EMPLOYEES, WHO ARE ULTIMATELY
MAKING THE DECISION ON WHAT CONTRACEPTIVE CHOICES
THEY WOULD LIKE TO HAVE. – ERWIN, WHAT ARE THE
IMPLICATIONS OF THIS DECISION? – I THINK THE ONE THING
WE WOULD ALL AGREE TO IS THAT THIS COULD LEAD TO
A GREAT DEAL OF LITIGATION. THIS IS THE FIRST TIME THE
SUPREME COURT HAS EVER HELD THAT FOR-PROFIT COMPANIES
CAN CLAIM TO HAVE BENEFITS OF FREE EXERCISE
OF RELIGION. NOW, THIS WAS LIMITED
TO CLOSE CORPORATIONS UNDER THE RELIGIOUS FREEDOM
RESTORATION ACT, BUT IT’S SURE THAT OTHER
COMPANIES ARE GOING TO TRY TO TAKE ADVANTAGE OF IT. THERE’S ALSO THE ISSUE THAT
JUSTICE SOTOMAYOR RAISED AND THE QUESTION THAT WE HEARD AT THE BEGINNING
OF THIS SEGMENT– WHAT OF A CHRISTIAN SCIENTIST WHO SAYS IT VIOLATES
HIS OR HER RELIGION TO PROVIDE
ANY INSURANCE COVERAGE? WHAT ABOUT AN EMPLOYER WHO SAYS THEY DON’T WANT TO PROVIDE
MEDICAL CARE COVERAGE FOR THOSE PRODUCTS
THAT WERE MADE FROM PORK, WHICH IS SOMETHING
JUSTICE SOTOMAYOR RAISED? JUSTICE ALITO, IN HIS OPINION,
SAID THIS WOULD NOT PROVIDE A BASIS FOR COMPANIES TO
OBJECT TO LAWS THAT PROHIBIT RACE DISCRIMINATION
BASED ON THEIR RELIGION, BUT WHAT ABOUT AN EMPLOYER THAT WANTS TO DISCRIMINATE
BASED ON GENDER AND SAYS APPLYING FEDERAL
CIVIL RIGHTS LAWS HERE VIOLATE THE RELIGIOUS
FREEDOM RESTORATION ACT? – THOSE ARE GOOD QUESTIONS THAT
I THINK THE COURT LEFT OPEN, BUT IN THINKING ABOUT
THOSE QUESTIONS, WE HAVE TO BEAR IN MIND JUSTICE KENNEDY’S
CONCURRING OPINION. HE WAS NECESSARY
TO THE MAJORITY, AND HE WROTE
A CONCURRING OPINION STRESSING THE NARROWNESS
OF THE HOLDING, WHICH FOR HIM DEPENDED
PRIMARILY ON THE FACT THAT THE GOVERNMENT
ALREADY HAD AVAILABLE AND WAS USING, FOR NONPROFITS,
A LESS RESTRICTIVE ALTERNATIVE. – THANKS. IN OUR NEXT DECISION,
TOWN OF GREECE V. GALLOWAY,
THE CHALLENGE WAS TO
THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT. FOR 8 YEARS,
FROM 1999 TO 2007, THE TOWN BOARD OF THE
TOWN OF GREECE, NEW YORK, INVITED A MEMBER OF THE CLERGY TO START ITS MEETINGS
WITH A PRAYER. THE CLERGY AND THE PRAYERS
WERE ALWAYS CHRISTIAN. WHEN 2 PEOPLE
COMPLAINED ABOUT THIS, THE BOARD INVITED THE MEMBERS
OF OTHER RELIGIOUS GROUPS TO GIVE THE PRAYER. THAT LASTED FOR 4 MONTHS, AND AFTER THAT, THE BOARD
REVERTED TO INVITING ONLY CHRISTIAN CLERGY
TO SAY THE PRAYERS. CITIZENS ATTENDING THE
MEETINGS FINALLY FILED SUIT, CLAIMING THE PRACTICE VIOLATED
THE ESTABLISHMENT CLAUSE. SO, LAURIE, WHAT DID
THE COURT HOLD? – WELL, THERE WAS
A PLURALITY FOR THE HOLDING, BUT A NUMBER OF OPINIONS
ON THE REASONING. JUSTICE KENNEDY WROTE
FOR THE PLURALITY, WHICH INCLUDED
CHIEF JUSTICE ROBERTS AND JUSTICE ALITO IN FULL AND THEN JUSTICES
SCALIA AND THOMAS EXCEPT FOR ONE PART
OF THE OPINION. JUSTICE KENNEDY, IN WRITING
FOR THE PLURALITY, FOUND THAT THE BOARD’S PRACTICE DID NOT VIOLATE
THE FIRST AMENDMENT. HE NOTED THE SUPREME
COURT’S DECISION BACK IN 1983
INMARSH V. CHAMBERSWHERE THE COURT HELD
THAT IT WAS OK TO OPEN LEGISLATIVE
SESSIONS WITH A PRAYER AND THAT THAT DIDN’T VIOLATE
THE ESTABLISHMENT CLAUSE. HE FURTHER SAID THAT YOU HAVE
TO LOOK AT HISTORICAL PRACTICES TO UNDERSTAND HOW THE
FIRST AMENDMENT WILL WORK, AND HE SAID THAT THOSE PRAYERS
DON’T HAVE TO BE GENERIC, BECAUSE OTHERWISE THE GOVERNMENT
MIGHT BECOME EMBROILED OR CENSORING THE PRAYERS
BY THESE VARIOUS MINISTERS. THE MAJORITY FELT, HOWEVER,
THAT THE TOWN HAD MADE ENOUGH OF AN EFFORT TO REACH OUT
TO OTHER RELIGIOUS GROUPS, AND THEREFORE, EVEN THOUGH THESE PRAYERS WERE
PREDOMINANTLY CHRISTIAN, THEY DID NOT VIOLATE
THE ESTABLISHMENT CLAUSE. – SO DOES THAT MEAN THESE
PRAYERS ARE ALWAYS ACCEPTABLE? – NO. THE COURT
DIDN’T GO THAT FAR, THOUGH I THINK IT WILL BE
VERY DIFFICULT TO CHALLENGE LEGISLATIVE PRAYERS
IN THE FUTURE. JUSTICE KENNEDY SAID IT WOULD
VIOLATE THE FIRST AMENDMENT ONLY IF THERE’S A PATTERN
OF PRAYER OVER TIME THAT DENIGRATED
OR PROSELYTIZED RELIGION OR REFLECTED AN IMPERMISSIBLE
GOVERNMENT PURPOSE. HE SAID THAT THE GOVERNMENT CAN’T DIRECT PEOPLE TO
PARTICIPATE IN PRAYER OR DENIGRATE THOSE WHO CHOOSE
NOT TO PARTICIPATE IN PRAYER. HE SAID THE GOVERNMENT CAN’T
ALLOCATE BENEFITS OR BURDENS BASED ON WHO PARTICIPATES
IN PRAYER. THE COURT EMPHASIZED,
AND HERE I THINK ALL OF THE JUSTICES OF
THE MAJORITY WOULD AGREE, THAT THERE CANNOT BE A CHALLENGE
TO LEGISLATIVE PRAYERS JUST BECAUSE THESE PEOPLE
FIND THEM TO BE OFFENSIVE. – AND WHAT ABOUT THE
DISSENTERS, LAURIE? – THERE WERE 2 DISSENTS
IN THIS CASE. YOU HAD JUSTICE BREYER
AND JUSTICE KAGAN, AND THEY JOINED EACH OTHER
IN THEIR DISSENTS. NEITHER ONE OF THEM DISAGREED
WITHMARSH V. CHAMBERS,BUT THEY DID NOT THINK THAT THE TOWN OF GREECE
HAD DONE ENOUGH NOW TO INCLUDE MORE NON-CHRISTIAN
FAITHS IN THE PRAYERS. JUSTICE BREYER ALSO
POINTED OUT THAT WHEN THE HOUSE OF REPRESENTATIVES
ALLOWS THE PRAYERS, THEY GIVE SOME GUIDELINES
TO THE VARIOUS PEOPLE– THE CHAPLAINS WHO
ARE PRESENTING THEM– AND THAT THE TOWN SHOULD HAVE
DONE THAT IN THIS SITUATION. JUSTICE KAGAN EMPHASIZED
THAT THESE MEETINGS ARE DIFFERENT FROM THE
MEETINGS OF THE HOUSE, THAT WHEN YOU HAVE
A LEGISLATURE, IT’S ONLY THE MEMBERS
OF THE LEGISLATURE WHO ARE ENGAGED IN THIS PRAYER. BUT WHEN YOU HAVE
THIS TOWN MEETING, YOU HAVE OTHER CITIZENS
COMING IN FRONT, AND THEY MIGHT FEEL OBLIGED OR
OTHERWISE FEEL LIKE OUTSIDERS IF THEY DON’T ENGAGE
IN THE PRAYER. BY PLACING ITS IMPRIMATUR
ON THESE PRAYERS, THE DISSENTERS SAID THAT THEY REALLY ARE ESTABLISHING
A RELIGIOUS CREED. – ALTHOUGH ABORTION
IS OFTEN AN ISSUE THAT IMPLICATES RELIGION
IN PUBLIC DISCOURSE, THE CHALLENGE IN OUR NEXT
DECISION WAS TO A VIOLATION OF FREE SPEECH RIGHTS
UNDER THE FIRST AMENDMENT. IT ISMcCULLEN V. COAKLEY,AND IT DEALT WITH A
MASSACHUSETTS LAW THAT CREATED A 35-FOOT BUFFER ZONE AROUND
ABORTION CLINICS IN THAT STATE. THE ONLY PEOPLE ALLOWED
IN THE ZONE WERE PATIENTS, CLINIC EMPLOYEES, POLICE,
AND PEOPLE NEEDING TO CROSS THE AREA TO GET
INTO ADJACENT BUILDINGS. NOW, THE STATED PURPOSE
OF THE LAW WAS PROTECTING PUBLIC SAFETY AND
PATIENT ACCESS TO THE CLINIC, BUT THE GROUP
CHALLENGING THE LAW SAID IT VIOLATED THEIR
FREE SPEECH RIGHTS BY PREVENTING THEM FROM
COUNSELING THE PATIENTS ON THEIR OPTIONS
OTHER THAN ABORTION. THEY CLAIMED IT WAS
A CONTENT-BASED LAW THAT ALLOWED PRO-ABORTION
CLINIC PERSONNEL TO TALK TO THE PATIENTS, BUT NOT ANTI-ABORTION
ADVOCATES. SO, LAURIE, DID THE COURT
FIND IT UNCONSTITUTIONAL? – THIS WAS ONE OF
THOSE DECISIONS WHERE THE UNANIMOUS
DECISION, THE RESULT– THERE WAS A UNANIMOUS RESULT, BUT THEY WERE SPLINTERED
ON THE REASONING. SO, YES, 9-0, THEY FOUND THAT THE BUFFER ZONE WAS
UNCONSTITUTIONAL BECAUSE THE LAW WAS NOT SUFFICIENTLY
NARROWLY TAILORED. IN THIS CASE, THE JUSTICES
NOTED THAT A PUBLIC SIDEWALK IS THE CLASSIC FORUM
FOR PUBLIC SPEECH AND SHOULD RECEIVE
FREE SPEECH PROTECTION. THE COURT SAID THAT THE
CHALLENGED BUFFER ZONES BURDENED SUBSTANTIALLY
MORE ON THE SPEECH THAN WAS NECESSARY TO ACHIEVE
THE GOVERNMENT’S INTEREST AND THAT THE FEDERAL
AND STATES ALREADY HAD LAWS TO PROTECT THE OBSTRUCTION
OF THESE CLINICS. BUT THE COURT ALSO SAID
THAT THE LAW WAS NEUTRAL IN ITS DESIGN TO
PROTECT PUBLIC SAFETY AND THE PEOPLE
ENTERING THE CLINICS. SO THE DECISION ACTUALLY
PRESERVES THE ABILITY OF STATES TO PASS LAWS WITH NARROWER
TYPES OF BUFFER ZONES. – AND YOU SAID THERE
WERE OTHER DECISIONS? – JUSTICE SCALIA READ AN OPINION
CONCURRING THE JUDGMENT, JOINED BY JUSTICES
KENNEDY AND THOMAS. JUSTICE SCALIA SAID THIS
SHOULD BE FOUND TO BE A CONTENT-BASED
RESTRICTION ON SPEECH THAT YOU HAVE TO MEET
STRICT SCRUTINY. JUSTICE SCALIA URGED THE COURT TO OVERRULE ITS PRIOR DECISION
UPHOLDING BUFFER ZONES,HILL V. COLORADO,IN 2000. THERE, THE SUPREME COURT
UPHELD A COLORADO LAW THAT CREATED A 100-FOOT ZONE
AROUND HEALTHCARE FACILITIES AND SAID IT WAS IMPERMISSIBLE
TO GO WITHIN 8 FEET OF A PERSON WITHOUT AN INDIVIDUAL’S CONSENT FOR PURPOSE OF
COUNSELING OR PROTEST. JUSTICE ALITO ALSO
WROTE AN OPINION CONCURRING IN THE JUDGMENT. HE, TOO, WOULD HAVE SAID THAT THIS IS
VIEWPOINT DISCRIMINATION VIOLATING THE FIRST AMENDMENT, THOUGH HE DIDN’T
EXPLICITLY CALL FOR THE OVERRULING
OFHILL V. COLORADO.– SO WHAT WERE THE IMPLICATIONS
OF THE MAJORITY’S DECISION? – I THINK THIS IS
AN IMPORTANT CASE. THE SUPREME COURT HAS SAID HERE THAT ANY BUFFER ZONES NEED
TO BE NARROWLY TAILORED. THE COURT DIDN’T OVERRULE
HILL V. COLORADO,
SO STATE AND LOCAL GOVERNMENTS
CAN ADOPT BUFFER ZONES LIKE THE COLORADO LAW
THAT I DESCRIBED, BUT ANY BUFFER ZONES THAT
INTRUDE ON PUBLIC SIDEWALKS ARE GOING TO BE
NARROWLY TAILORED, ESPECIALLY TO MAKE SURE THAT
THOSE WHO OPPOSE ABORTION HAVE THE CHANCE TO SPEAK TO PATIENTS ENTERING
THE FACILITIES. – ERWIN, DON’T YOU THINK
THE BIG QUESTION HERE IS WHERE THE COURT IS
GOING TO DRAW THE LINE, AND WILL THEY BE ABLE TO RELY ON THESE ANTI-OBSTRUCTION
STATE AND FEDERAL STATUTES? AND IF NOT, THEN WHAT ARE THE
JURISDICTIONS SUPPOSED TO DO, ESPECIALLY WITH THIS LESS-THAN-STRICT
SCRUTINY STANDARD? HOW WILL THAT PLAY OUT
IN FIRST AMENDMENT ANALYSIS? – I THINK LAURIE IS
ABSOLUTELY RIGHT HERE. STATE AND LOCAL GOVERNMENTS– IN FACT, EVEN THE
FEDERAL GOVERNMENT– ADOPTED MANY LAWS
THAT CREATE BUFFER ZONES TO TRY TO BALANCE
SPEECH INTERESTS AGAINST OTHERS,
LIKE PRIVACY. THERE’S A FEDERAL LAW
THAT CREATES A 300-FOOT BUFFER ZONE
AROUND MILITARY FUNERALS. 41 STATES HAVE ADOPTED LAWS
THAT CREATE BUFFER ZONES AROUND CEMETERIES
AND FUNERAL HOMES. MANY LOCAL GOVERNMENTS
HAVE ORDINANCES THAT CREATE BUFFER ZONES
AROUND PLACES OF WORSHIP– CHURCHES, SYNAGOGUES, MOSQUES. I THINK YOU’RE GOING TO SEE
CHALLENGES TO MANY OF THESE, AND THE QUESTION THAT THE
COURT DOESN’T ADDRESS HERE– HOW IS IT YOU DETERMINE WHETHER A BUFFER ZONE
IS NARROWLY TAILORED– IS GOING TO HAVE TO BE ADDRESSED
BY THE LOWER COURTS. – THANKS. IN 1976, IN A DECISION
TITLEDBUCKLEY V. VALEO,THE COURT DREW A DISTINCTION
BETWEEN LEGAL LIMITS ON CONTRIBUTIONS TO CANDIDATES
AND POLITICAL PARTIES, WHICH GENERALLY
CAN BE REGULATED, AND INDEPENDENT
POLITICAL EXPENDITURES, DIFFERENT KINDS OF EXPENDITURES,
WHICH GENERALLY CANNOT. THIS TERM,
INMcCUTCHEON V. FEC,THE COURT HAD TO DECIDE
IF AGGREGATE LIMITS ON CONTRIBUTIONS TO THE
CANDIDATES AND THEIR AGENTS WERE UNCONSTITUTIONAL. NOW, THOSE LIMITS WERE PART OF THE BIPARTISAN CAMPAIGN
FINANCE REFORM ACT OF 2002, AND THE LAW PROVIDED THAT AN INDIVIDUAL CONTRIBUTOR
CAN’T GIVE MORE THAN $46,200 TO CANDIDATES OR
THEIR AUTHORIZED AGENTS OR GIVE MORE THAN $70,800
TO ANYONE ELSE IN A 2-YEAR ELECTION CYCLE. INMcCUTCHEON,THE COURT
HELD THAT THESE LIMITS VIOLATED THE FIRST AMENDMENT
RIGHTS OF THE CONTRIBUTORS. AND WHAT WAS THE COURT’S
REASONING, LAURIE? – WELL, THERE’S NO
MAJORITY OPINION, BUT THERE WAS
A PLURALITY OPINION WRITTEN BY THE CHIEF JUSTICE FOR HIMSELF, JUSTICES
KENNEDY, SCALIA, AND ALITO, AND THAT OPINION FOUND
THAT THE GOAL OF PREVENTING CORRUPTION
OR THE APPEARANCE OF CORRUPTION IS OUTWEIGHED BY
THE INTERFERENCE ON THE DONOR’S RIGHT TO PARTICIPATE
IN THE POLITICAL PROCESS. AND CONGRESS CAN ONLY TARGET
QUID PRO QUO TYPE OF CORRUPTION, AND THAT DOESN’T APPLY TO
AGGREGATE LIMITS BECAUSE THESE CONTRIBUTIONS ARE MADE
TO TOO MANY OF THE CANDIDATES. SO THE COURT SAID THAT THE
REAL WAY TO PREVENT CORRUPTION, WITH BASE LIMITS
ON CONTRIBUTIONS TO INDIVIDUAL CANDIDATES, AND THIS DECISION
DOES NOT AFFECT THOSE, AND ALSO SAID–
JUSTICE THOMAS SAID, IN HIS CONCURRENCE,
SOMETHING SLIGHTLY DIFFERENT. HE SAID THAT ALL
CONTRIBUTION LIMITS SHOULD BE DECLARED
UNCONSTITUTIONAL. – AND THE DISSENT? – JUSTICE BREYER WROTE FOR
THE 4 DISSENTING JUSTICES. HE SAID THIS CASE, TOGETHER WITH
THE SUPREME COURT’S DECISION INCITIZENS UNITED V. FEDERAL
ELECTION COMMISSION,
AND I’LL QUOTE HIS EXACT WORD, HAVE “EVISCERATED” FEDERAL
CAMPAIGN FINANCE LAW. JUSTICE BREYER OBJECTED TO
THE HOLDING ON MANY LEVELS. HE SAID THE COURT DEFINES
THE GOVERNMENT’S INTEREST OF AVERTING CORRUPTION
TOO NARROWLY, SO IT’S ONLY ABOUT
QUID PRO QUO CORRUPTION. HE SAID THE GOVERNMENT
HAS MANY OTHER INTERESTS IN AGGREGATE CONTRIBUTION LIMITS THAT THE MAJORITY DOESN’T
TAKE INTO ACCOUNT, SUCH AS PREVENTING CIRCUMVENTION OF
FEDERAL CAMPAIGN FINANCE LAW. HE SAID THERE REALLY AREN’T ANY
LESS RESTRICTIVE ALTERNATIVES. I THINK THAT THE REAL
IMPLICATION OF THIS CASE IS GOING TO BE CHALLENGES TO
OTHER CONTRIBUTION LIMITS THAT EXIST–FEDERAL,
STATE, AND LOCAL. I THINK YOU’RE GOING
TO SEE CHALLENGES TO THE SIZE
OF CONTRIBUTION LIMITS, ARGUING THAT THEY’RE TOO SMALL, THEY’RE NOT SUFFICIENTLY
NARROWLY TAILORED. I THINK YOU’RE GOING TO SEE
CORPORATIONS CHALLENGING FEDERAL AND STATE LAWS THAT
KEEP CORPORATIONS AND UNIONS FROM CONTRIBUTING MONEY
DIRECTLY TO CANDIDATES. – THE FIRST AMENDMENT
TO THE CONSTITUTION PROTECTS NOT ONLY
THE RIGHT TO FREE SPEECH, BUT ALSO THE COMPLEMENTARY
RIGHT NOT TO BE FORCED TO SUPPORT SPEECH
ONE DOESN’T AGREE WITH. THAT WAS THE RIGHT
UNDERLYING A 1977 DECISION BY THE COURT INABOOD V.
DETROIT BOARD OF EDUCATION
THAT HELD THAT NO ONE
CAN BE FORCED TO JOIN A PUBLIC
EMPLOYEES UNION. SO NON-MEMBERS CANNOT
BE COMPELLED TO PAY FOR THE POLITICAL
ACTIVITIES OF THE UNION, BUT IN ORDER TO PREVENT THEM FROM BEING
SO-CALLED FREE RIDERS, NON-MEMBERS CAN BE REQUIRED
TO PAY THEIR SHARE OF THE COLLECTIVE BARGAINING
ACTIVITIES OF THE UNION BECAUSE THEY BENEFIT
FROM THOSE. SO THIS YEAR,
INHARRIS V. QUINN,THE QUESTION WAS WHETHER THE
HOLDING INABOODAPPLIED TO SOME HOME HEALTHCARE WORKERS WHO WERE PAID BY THE STATE
UNDER ILLINOIS LAW BUT WHO WORKED
FOR THEIR CLIENTS. SO THESE SO-CALLED PERSONAL
ASSISTANTS WERE PAID TO TAKE CARE OF ELDERLY OR DISABLED PEOPLE
IN THEIR HOMES SO THAT THEY WOULDN’T NEED
TO BE INSTITUTIONALIZED, AND THE CLIENTS DEFINED THE JOBS
OF THE PERSONAL ASSISTANTS, AND THEY CONTROLLED THE HIRING
AND FIRING AND DISCIPLINE. ALTHOUGH THE STATE HAD
MINIMAL INVOLVEMENT OTHER THAN PAYING THEM, ILLINOIS DEEMED THEM
TO BE STATE EMPLOYEES SO THEY COULD JOIN A LABOR UNION AND ENGAGE IN COLLECTIVE
BARGAINING ACTIVITIES. SO, ERWIN, WHAT WAS
THE DISPUTE HERE? – SOME OF THE HOME HEALTHCARE
WORKERS DID NOT WANT TO HAVE TO PAY THE SHARE
OF THE UNION DUES THAT WOULD GO FOR THE COLLECTIVE
BARGAINING ACTIVITIES. THEY SAID TO PAY THE
SO-CALLED FAIR SHARE AMOUNT VIOLATED THEIR
FIRST AMENDMENT RIGHTS. THE SUPREME COURT OPINION
WAS WRITTEN BY JUSTICE ALITO, AND IT WAS 5-4. JUSTICE ALITO SAID
THERE’S A DISTINCTION BETWEEN THESE
HOME HEALTHCARE WORKERS, WHO HE REFERRED TO AS
QUASI-GOVERNMENT EMPLOYEES, AND FULL-FLEDGED
GOVERNMENT EMPLOYEES WHERE THEABOOD
PRINCIPLE APPLIES. HE NOTED THAT THESE
INDIVIDUALS DON’T WORK IN A SINGLE WORKPLACE. HE SAID THEY’RE HIRED BY THOSE WHO ARE ACTUALLY
USING THEIR SERVICES, THEY’RE SUPERVISED BY THOSE
WHO ARE USING THEIR SERVICES, AND SO HE SAID THE GENERAL
PRINCIPLES OFABOODSHOULDN’T BE EXTENDED
TO THIS SITUATION. – GO AHEAD, LAURIE. – BUT IN THIS ONE,
THE MAJORITY SAID, YOU KNOW, THERE WEREN’T THE USUAL
COMPELLING INTERESTS THAT YOU SEE INABOODFOR HAVING THESE UNIONS
REPRESENT THE PUBLIC EMPLOYEES, WHICH WOULD BE
TO PROMOTE LABOR PEACE OR TO HAVE THE GOVERNANCE
OF THE EMPLOYEES. THEY SAID IT DIDN’T EXIST HERE
BECAUSE IN THIS SITUATION, THE STATE LAW SET THE
SALARIES FOR THE EMPLOYEES AND THE CONDITIONS
FOR THE EMPLOYEES, SO THERE REALLY WAS
NO REASON TO MAKE THEM PAY THEIR “FAIR SHARE” OF THE FEE
FOR THE COLLECTIVE BARGAINING. – SO WHERE DID THAT LEAVE
THESE PERSONAL ASSISTANTS? – JUSTICE ALITO,
WRITING FOR THE COURT, SAID SINCEABOODDOESN’T APPLY,
STRICT SCRUTINY IS TO BE USED, AND THE COURT FELT
THAT STRICT SCRUTINY WAS NOT MET BY THE GOVERNMENT IN JUSTIFYING REQUIRING
THESE HOME HEALTHCARE WORKERS TO PAY FOR THE COLLECTIVE
BARGAINING ACTIVITIES. I THINK IT’S WORTH NOTING THAT JUSTICE ALITO’S
OPINION FOR THE COURT WAS SHARPLY CRITICAL OF THE
COURT’S DECISION INABOOD.HE SAIDABOODWAS AN ANOMALY, AND IT SHOULD NOT BE EXTENDED
TO THIS KIND OF WORK SITUATION. – AND WHAT DID THE
DISSENTERS SAY? – WELL, THE DISSENTERS SAID,
JUSTICE KAGAN WRITING, SAYING OF COURSEABOOD
SHOULD GOVERN THE DECISION HERE. IT IS THE PROPER
STANDARD TO USE WHEN THESE PUBLIC SECTOR
UNION DUES ARE AT ISSUE. THE DISSENTERS
ALSO TOOK ISSUE WITH THE MAJORITY’S EVALUATION
OF THE FACTS IN THIS CASE AND SAID THAT IN FACT,
THE UNION DID BARGAIN FOR PAY AND DID BARGAIN
FOR CONDITIONS. I MEAN, OVERALL, ONE HAS
TO LOOK AT THIS DECISION AND SAY IT IS A BLOW
TO PUBLIC SECTOR UNIONS. – EDWARD LANE WAS ALSO
A PUBLIC SECTOR EMPLOYEE, THIS TIME AT A COMMUNITY
COLLEGE IN ALABAMA. IN AUDITING THE WORK RECORDS
OF COLLEGE EMPLOYEES, HE FOUND THAT ONE OF THEM,
SUZANNE SCHMITZ, ALSO A MEMBER OF
THE STATE LEGISLATURE, WAS COLLECTING A SALARY BUT
NEVER SHOWED UP FOR WORK. LANE WAS WARNED NOT TO PURSUE
THE CASE AGAINST SCHMITZ BECAUSE SHE HAD SOME
POWERFUL FRIENDS, BUT LANE DID HIS JOB
AND FIRED SCHMITZ FOR REFUSING TO WORK
FOR HER SALARY. UNDER SUBPOENA,
HE TESTIFIED AGAINST SCHMITZ BEFORE THE GRAND JURY
AND TWICE AT TRIAL. AND SCHMITZ WAS CONVICTED
OF MAIL FRAUD AND THEFT OF FEDERAL FUNDS
AND SENT TO PRISON. LANE WAS ALSO LATER TERMINATED. HE SUED HIS SUPERVISOR,
STEVE FRANKS, FOR RETALIATORY FIRING AND VIOLATING HIS FIRST
AMENDMENT RIGHT OF FREE SPEECH, AND HIS SUIT WAS DISMISSED
BY THE TRIAL COURT, AND FRANKS WAS GRANTED
QUALIFIED IMMUNITY ON THE GROUND THAT A
PUBLIC EMPLOYEE’S SPEECH PURSUANT TO OFFICIAL DUTIES IS NOT PROTECTED BY
THE FIRST AMENDMENT. SO, HOW DID IT WORK OUT
FOR EDWARD LANE IN THE SUPREME COURT, ERWIN? – THERE WERE 2 ISSUES
BEFORE THE SUPREME COURT. FIRST, DID IT VIOLATE LANE’S
FIRST AMENDMENT RIGHTS TO FIRE HIM FOR
THE SPEECH THAT HE GAVE AS TESTIMONY IN COURT
PURSUANT TO SUBPOENA? AND IF SO, SECOND, THEN
WAS THE DEFENDANT FRANKS PROTECTED BY
QUALIFIED IMMUNITY? THE SUPREME COURT WAS UNANIMOUS. JUSTICE SOTOMAYOR WROTE
THE OPINION FOR THE COURT. AS TO THE FIRST,
THE COURT FOUND THAT HE DID VIOLATE LANE’S
FIRST AMENDMENT RIGHTS. INGARCETTI V. CEBALLOSIN 2006,
THE SUPREME COURT SAID THERE’S NO FIRST AMENDMENT
PROTECTION FOR THE SPEECH OF GOVERNMENT EMPLOYEES
ON THE JOB IN THE SCOPE OF THEIR DUTIES. THE ELEVENTH CIRCUIT
HAD RULED ON THAT CASE IN COMING OUT AGAINST LANE, BUT THE SUPREME COURT SAID
GIVING TESTIMONY IN COURT IS QUINTESSENTIALLY SPEECH
AS A CITIZEN, AND THEREFORE, IT IS PROTECTED BY
THE FIRST AMENDMENT. BUT AS THE SECOND ISSUE
THE COURT HELD THAT FRANKS WAS PROTECTED
BY QUALIFIED IMMUNITY. JUSTICE SOTOMAYOR’S OPINION
FOR THE UNANIMOUS COURT SAID THERE WERE NO
CASES ON POINT, ESPECIALLY IN
THE ELEVENTH CIRCUIT, THAT THIS KIND OF BEHAVIOR WOULD
VIOLATE THE CONSTITUTION. THUS, QUALIFIED
IMMUNITY APPLIED. – AND THIS IS THE FIRST
CASE SINCE GARCETTI TO EXPLAIN ITS SCOPE, SO THE COURT IS MAINTAINING
THAT DISTINCTION BETWEEN SPEECH AS AN EMPLOYEE
AND SPEECH AS A CITIZEN, WITH THIS TESTIMONY
BEING THE LATTER. THAT NARROWS THAT
EXCEPTION IN GARCETTI. BUT I THINK THAT,
ERWIN, YOU’RE RIGHT. IT’S ALSO IMPORTANT HERE THAT THE COURT FOUND
QUALIFIED IMMUNITY, EVEN THOUGH IT WAS
SO OBVIOUS THAT THIS WAS A FIRST AMENDMENT VIOLATION, WHICH I THINK WE’RE
GOING TO TALK ABOUT AS A CONTINUED TREND
THROUGH THE COURT. – THANKS. NOW, BEFORE WE
GO ON TO OUR NEXT SECTION, LET’S CHECK AND SEE IF
THERE ARE ANY QUESTIONS. – WE HAVE ONE, AND IT’S
RELATED TOHOBBY LOBBY,AND IT READS, “THE COURT GRANTED
AN INJUNCTION TO WHEATON COLLEGE “THAT ASKED FOR A RELIGIOUS
EXEMPTION UNDERHOBBY LOBBY.“WHAT DO YOU THINK THIS SAYS ABOUT THE REACH
OF THE DECISION?” – THERE’S A PROVISION OF
THE FEDERAL REGULATION THAT SAYS THAT NONPROFITS THAT ARE AFFILIATED WITH
RELIGIOUS INSTITUTIONS DO NOT HAVE TO PROVIDE
CONTRACEPTIVE COVERAGE TO THEIR INSURANCE IF THEY
SIGN A 2-PAGE STATEMENT. THE SUPREME COURT AFFIRMED A PRELIMINARY INJUNCTION
IN FAVOR OF WHEATON COLLEGE THAT IT SHOULD NOT HAVE TO
FILL OUT THAT 2-PAGE FORM. NOW, IT SAID INSTEAD, IT COULD
JUST SEND IN A 2-PAGE LETTER. NOW, THIS WAS NOT
A RULING ON THE MERITS. IT WAS GIVING
A PRELIMINARY INJUNCTION, WHICH MEANS THAT IT FOUND
A SUBSTANTIAL LIKELIHOOD THAT WHEATON COLLEGE
WOULD AVAIL ON THE MERITS THAT IT VIOLATES THE RELIGIOUS
FREEDOM RESTORATION ACT TO HAVE IT SIGN THIS
2-PAGE STATEMENT. JUSTICE SOTOMAYOR WROTE
IN VEHEMENT DISSENT, JOINED BY JUSTICES
GINSBURG AND KAGAN. SHE SAID JUST 3 DAYS
EARLIER INHOBBY LOBBY,THE COURT POINTED AT
THE ABILITY OF NONPROFITS TO SIGN THIS 2-PAGE STATEMENT AS A LESS RESTRICTIVE
ALTERNATIVE THAT CAN BE APPROVED FOR,
FOR-PROFIT COMPANIES. SHE SAID, WHAT’S THE
DIFFERENCE BETWEEN SIGNING A 2-PAGE STATEMENT AND FILLING OUT A LETTER
AND SENDING THAT IN? BUT IT’S INTERESTING
THAT THE COURT DID GIVE THE PRELIMINARY INJUNCTION
TO WHEATON COLLEGE, AND A PRELIMINARY INJUNCTION
IS SOME INDICATION THAT IT IS PROBABLY GOING TO
COME OUT ON THE MERITS. – THANKS, ERWIN. ALL RIGHT.
WE’LL BE BACK IN A MINUTE WITH A LOOK AT SOME
FOURTH AMENDMENT DECISIONS. – MR. DUMONT, ON YOUR ARGUMENT
AND ON THE GOVERNMENT’S– THE SOLICITOR GENERAL’S
PRINCIPAL ARGUMENT, TOO– A PERSON CAN BE
ARRESTED FOR ANYTHING. A PERSON CAN BE ARRESTED FOR
DRIVING WITHOUT A SEAT BELT. AND THE POLICE
COULD TAKE THAT PHONE AND COULD LOOK AT
EVERY SINGLE EMAIL THAT PERSON HAS WRITTEN,
INCLUDING WORK EMAILS, INCLUDING EMAILS
TO FAMILY MEMBERS, VERY INTIMATE COMMUNICATIONS– COULD LOOK AT ALL
THAT PERSON’S BANK RECORDS, COULD LOOK AT ALL THAT
PERSON’S MEDICAL DATA, COULD LOOK AT
THAT PERSON’S CALENDAR, COULD LOOK AT THAT PERSON’S GPS AND FIND OUT EVERY PLACE
THAT PERSON HAD BEEN RECENTLY BECAUSE THAT PERSON WAS ARRESTED
FOR DRIVING WITHOUT A SEAT BELT. NOW, THAT STRIKES ME AS A
VERY DIFFERENT KIND OF WORLD THAN THE KIND OF WORLD
THAT YOU WERE DESCRIBING WHERE SOMEBODY HAS PICTURES
OF THEIR FAMILY IN A BILLFOLD. DOESN’T IT STRIKE YOU THAT WAY? – THERE’S A LONG-STANDING DEBATE
AMONG CONSTITUTIONAL SCHOLARS ABOUT HOW TO ADAPT THE
MANDATES AND PROTECTIONS FOUND IN THAT
18th-CENTURY DOCUMENT TO THE CHANGING REALITIES
OF MODERN TIMES. THIS TERM, THE JUSTICES
WERE ASKED TO DECIDE WHAT THE FOURTH AMENDMENT
TO THE CONSTITUTION HAD TO SAY ABOUT CELL PHONES. AND, LAURIE, I THINK THEY FOUND
THAT ANSWER PRETTY CLEAR. – THAT’S RIGHT. THEY HAD
2 CASES, ACTUALLY. THEY HADRILEY V. CALIFORNIA ANDUNITED STATES
V. BRIMA WURIE.
THEY HAD DIFFERENT FACTS
AND WERE ARGUED SEPARATELY, BUT THE COURT
ISSUED ONE DECISION, SO LET ME GO OVER EACH. INRILEY,YOU HAD THE
DEFENDANT WHO WAS STOPPED FOR A TRAFFIC VIOLATION. THEY FOUND SOME WEAPONS. THEY ARRESTED HIM,
AND HE HAD A SMARTPHONE, AND THEY STARTED LOOKING
THROUGH THE SMARTPHONE, AND THEY FOUND PHOTOS AND
VIDEOS THAT IMPLICATED HIM IN A GANG-RELATED SHOOTING. IN THE WURIE CASE,
IT HAD THE DEFENDANT WHO WAS ARRESTED FOR
ENGAGING IN DRUG DEALING, AND HE HAD AN OLD-FASHIONED
FLIP PHONE, AND THEY LOOKED THROUGH THAT. THEY WERE ABLE TO TRACE
BACK THE RESIDENCE WHERE THE DRUGS
AND AMMUNITION WERE FOUND. THE EVIDENCE FROM BOTH OF THESE
WERE USED IN THE CRIMINAL TRIAL, AND THE QUESTION IS–
OR THEY TRIED TO USE IT– IS THIS FRUIT OF
AN ILLEGAL SEARCH? THE ISSUE FOR THE SUPREME COURT
WAS, WHEN A PERSON IS ARRESTED, CAN THE POLICE AUTOMATICALLY,
AS A SEARCH INCIDENT TO ARREST, GO THROUGH THEIR CELL PHONE
WITHOUT OBTAINING A WARRANT? – WHAT DO YOU THINK, ERWIN? – THE SUPREME COURT
HELD UNANIMOUSLY THAT ABSENT A WARRANT
OR EXIGENT CIRCUMSTANCES, THE POLICE CANNOT LOOK AT
THE CONTENTS OF A CELL PHONE JUST BECAUSE OF SEARCH
INCIDENT TO ARREST. – OK. SO WHAT WAS
THEIR REASONING? – HERE, THE COURT POINTED
TO THE 2 PRIOR DECISIONS THAT DEALT WITH THE SEARCH
INCIDENT TO ARREST DOCTRINE. ONE WASCHIMEL V.
CALIFORNIA
IN 1969. THE OTHER WASUNITED STATES
V. ROBINSON
IN 1973. THERE THE SUPREME COURT SAID WE ALLOW THE POLICE TO DO
A SEARCH INCIDENT TO ARREST TO PROTECT THE SAFETY
OF THE OFFICERS AND TO PREVENT THE
DESTRUCTION OF EVIDENCE. THE QUESTION IN THIS CASE WAS,
DO THOSE RATIONALES APPLY TO A SEARCH OF THE CONTENTS
OF THE CELL PHONE? – AND THE ANSWER BY THE
COURT WAS NOT VERY WELL, BECAUSE FRANKLY, IF YOU
LOOK AT A CELL PHONE, IT DOESN’T PRESENT THE SAME TYPE
OF DANGER AS SOMETHING ELSE. I MEAN, OF COURSE
THE POLICE CAN LOOK AT IT AND SEE IF IT’S HIDING
SOMETHING, LIKE A RAZOR BLADE. BUT THEY DON’T HAVE TO
SEARCH THROUGH THE CONTENT. THE SECOND THING, WHEN IT COMES
TO THE DESTRUCTION OF EVIDENCE, ONCE THIS PHONE IS
SECURED BY THE POLICE, IT’S MUCH LESS LIKELY THAT
THAT EVIDENCE WILL BE DESTROYED LIKE A PIECE OF PAPER MIGHT BE, AND SO THE COURT WENT THROUGH
A FAIRLY LENGTHY DISCUSSION REGARDING COMMON THREAT
TO THE EVIDENCE ON CELL PHONES– ENCRYPTION OR
WIPING THEM CLEAN– BUT IN THE END,
THE JUSTICES SAID THAT THEY DIDN’T THINK
IT WOULD BE THAT COMMON AND IT WAS SOMETHING THAT THE POLICE WERE
PREPARED TO DEAL WITH. – CHIEF JUSTICE ROBERTS EMPHASIZED THE TREMENDOUS
PRIVACY INTEREST THAT WE ALL HAVE IN THE
CONTENTS OF OUR CELL PHONE. HE REFERRED TO
THE PRIVACIES OF LIFE THAT WE FIND IN THE
CONTENTS OF CELL PHONES. HE SAID THERE COULD BE
MILLIONS OF PAGES OF TEXT, THOUSANDS OF PHOTOGRAPHS. SO WHEN YOU LOOK AT THE
CONTENTS OF A CELL PHONE, IT COULD BE INFORMATION
THAT GOES BACK MANY YEARS. HE POINTED OUT THAT THROUGH
A PERSON’S CELL PHONE, IT’S POSSIBLE TO BE ABLE
TO ACCESS THE CLOUD OR WEB AND GAIN EVEN MORE INFORMATION
ABOUT AN INDIVIDUAL. AND I THINK IT’S
IMPORTANT TO SAY THE COURT DIDNOTHOLD
THAT POLICE CAN NEVER LOOK AT THE CONTENTS OF A CELL PHONE. OBVIOUSLY, IF THERE’S A
WARRANT, THEY CAN DO SO. AND THE TRADITIONAL EXCEPTION TO
THE WARRANT REQUIREMENT FOR EXIGENT CIRCUMSTANCES
WOULD APPLY HERE, AS WELL. SO CHIEF JUSTICE ROBERTS SAID IF IT WAS A CHILD ABDUCTION OR
IF IT WAS A TERRORIST SITUATION, THEN THE POLICE COULD LOOK AT
THE CONTENTS OF THE CELL PHONE WITHOUT NEEDING
TO GET A WARRANT. – AND THE COURT ALSO
REJECTED SOME SUGGESTIONS THAT THEY LIMITED THE SEARCHES
BY THE TYPE OF DEVICE OR THE TYPE OF EVIDENCE
THEY’RE LOOKING FOR OR EVEN THE CRIME OF ARREST. THE SUPREME COURT SET
FORTH A CLEAR RULE THAT ABSENT EXIGENT CIRCUMSTANCES
OR, OF COURSE, CONSENT, THESE OFFICERS NEED
TO GO GET A WARRANT. AND THE COURT OPENLY RECOGNIZED THAT THIS WAS AN IMPOSITION
ON THE POLICE’S ABILITY TO FIGHT CRIME,
BUT AS THE COURT WROTE, PRIVACY COMES AT A COST. – I THINK THIS IS AN
ENORMOUSLY IMPORTANT CASE. THIS IS THE MOST
EMPHATIC PROTECTION OF INFORMATION PRIVACY,
ESPECIALLY WITH NEW TECHNOLOGY, EVER FROM THE SUPREME COURT. I’D ALSO POINT OUT
ONE OTHER THING. IN THE FIRST FOOTNOTE,
THE COURT SAYS THEY’RE NOT DEALING
WITH SITUATIONS WHERE THE GOVERNMENT IS COLLECTING AND ANALYZING AGGREGATE
AMOUNTS OF DATA. THE COURT WAS AWARE THAT
THERE’S A CHALLENGE TO THE NATIONAL SECURITY
AGENCY AND META DATA, AND IT WANTED TO TRANSMIT
THE MESSAGE TO THE LOWER COURTS, THAT’S NOT WHAT
THIS CASE IS ABOUT. – THAT’S FOR LATER. OK. IN 2006, INGEORGIA V.
RANDOLPH,
THE COURT DECIDED THAT POLICE COULD NOT SEARCH A MULTI-OCCUPANT RESIDENCE
WITHOUT A WARRANT IF ONE OF THE OCCUPANTS PRESENT
CONSENTED, BUT THE OTHER DIDN’T. THIS TERM, INFERNANDEZ
V. CALIFORNIA,
THE COURT ASKED WHETHER
THAT RULE APPLIED WHEN THE CONSENTING
OCCUPANT WAS PRESENT BUT THE PREVIOUSLY
NON-CONSENTING OCCUPANT WAS NOT. SO POLICE SEARCHING
FOR A ROBBERY SUSPECT SAW A MAN RUN INTO
A NEARBY BUILDING AND THEN HEARD SCREAMS COMING
FROM ONE OF THE APARTMENTS. THEY KNOCKED ON
THE APARTMENT DOOR, AND ROXANNE ROJAS ANSWERED. SHE WAS HOLDING A CRYING BABY, HER FACE WAS BRUISED, AND THERE
WAS BLOOD ON HER SHIRT. WALTER FERNANDEZ CAME TO
THE DOOR AND REFUSED CONSENT FOR THE POLICE TO
SEARCH THE APARTMENT. SUSPECTING FERNANDEZ
HAD ASSAULTED ROJAS, THE POLICE ARRESTED HIM
AND TOOK HIM AWAY. AN HOUR LATER, THEY WENT
BACK TO THE APARTMENT AND RECEIVED CONSENT
FROM ROJAS TO SEARCH IT. THEY FOUND EVIDENCE
INCRIMINATING FERNANDEZ OF ROBBERY THAT WAS USED
AGAINST HIM IN COURT. SO, LAURIE, WAS THIS
SEARCH VALID? – THE COURT SAID IT WAS. IN THE MAJORITY OPINION
WRITTEN BY JUSTICE ALITO, HE SAID THEGEORGIA V. RANDOLPH
LIMITATION ONLY APPLIES IF THE CO-OCCUPANT IS THERE AND THAT THE COURT WAS
NOT GOING TO DECIDE HOW LONG HIS OBJECTION
MIGHT LAST. OTHERWISE, YOU HAVE TO PUT
TOGETHER ARBITRARY RULES LIMITING POLICE’S OPPORTUNITY
TO GO BACK AND ASK A CO-OCCUPANT FOR
CONSENT TO SEARCH. – BUT, ERWIN, THERE WAS
A DISSENT HERE, RIGHT? – JUSTICE GINSBURG
WROTE THE DISSENT, JOINED BY JUSTICES
SOTOMAYOR AND KAGAN. SHE STRESSED THAT
THIS SHOULD BE DECIDED BY SIMPLE APPLICATION
OFGEORGIA V. RANDOLPH.SHE EXPRESSED GREAT CONCERN THAT POLICE CAN SIMPLY
CIRCUMVENTGEORGIA V. RANDOLPHBY WAITING UNTIL THE PERSON WHO DIDN’T CONSENT TO
THE SEARCH LEAVES THE HOME. BUT THE SUPREME
COURT WAS CLEAR–GEORGIA V. RANDOLPHAPPLIES
ONLY IN A SITUATION WHERE BOTH OCCUPANTS
OF THE DWELLING ARE PRESENT AT THE TIME OF THE SEARCH. – OK. FINALLY, WE HAVE
NAVARETTE V. CALIFORNIA.
ERWIN, TURNING TO YOU AGAIN,
CAN YOU EXPLAIN THE FACTS HERE? – SURE. THERE WAS AN
ANONYMOUS 911 CALL THAT SAID THAT A PERSON HAD BEEN
RUN OFF THE ROAD BY A CAR DRIVING ERRATICALLY. THE CALLER GAVE
A DESCRIPTION OF THE CAR, INCLUDING ITS
LICENSE PLATE NUMBER. WITHIN 15 MINUTES,
THE POLICE FOUND THAT CAR. THE OFFICERS FOLLOWED THE CAR
FOR 5 MILES, FOR 5 MINUTES. THE POLICE THEMSELVES DIDN’T
OBSERVE ANY ERRATIC DRIVING. BUT BASED ON THE 911 CALL,
THE POLICE PULLED OVER THE CAR. THE OFFICERS SAID THEY
SMELLED MARIJUANA. THEY THEN DID
THE SEARCH OF THE CAR. THEY FOUND 30 POUNDS
OF MARIJUANA. AND SO THE ISSUE BEFORE
THE SUPREME COURT WAS WHETHER THE ANONYMOUS
911 CALL BY ITSELF COULD BE A BASIS
FOR STOPPING THE CAR. – SO WHAT DID
THE SUPREME COURT SAY? – THE SUPREME COURT SAID
THAT THE STOP DID COMPLY WITH THE FOURTH AMENDMENT, THAT IF YOU LOOK AT THE TOTALITY
OF THE CIRCUMSTANCES, THE OFFICERS COULD
SAY THAT THERE WAS REASONABLE SUSPICION THAT
THE DRIVER WAS INTOXICATED. JUSTICE THOMAS
WROTE THE OPINION, AND HE DID SAY
IT WAS A CLOSE CALL. BUT HE SAID, HERE THE POLICE
COULD VERIFY THE DESCRIPTION, VERIFY THE LICENSE PLATE NUMBER. YOU’RE DEALING WITH A
CLASSIC SITUATION OF A CAR, PERHAPS, A DRUNKEN DRIVER TRYING
TO RUN SOMEBODY OFF THE ROAD. SO GIVEN THE TOTALITY
OF CIRCUMSTANCES, THEY WOULD ALLOW THE STOP. – JUSTICE SCALIA WROTE THE
DISSENT, WHICH WAS JOINED BY JUSTICES GINSBURG,
SOTOMAYOR, AND KAGAN. JUSTICE SCALIA SAID IT’S
JUST GOING TO MAKE IT TOO EASY FOR ANYONE TO HAVE
SOMEBODY ELSE PULLED OVER BY MAKING AN ANONYMOUS 911 CALL. JUSTICE SCALIA SAID
YOU CAN’T ASSUME THAT JUST BECAUSE A CAR IS
MOMENTARILY DRIVING ERRATICALLY THAT THE DRIVER IS UNDER THE
INFLUENCE OR INTOXICATED. IT’S INTERESTING THAT THIS
CASE REFLECTS A PATTERN WE’VE SEEN IN MANY CASES. JUSTICE BREYER IS VOTING
IN FAVOR OF THE POLICE AND LAW ENFORCEMENT,
JUST LIKE HE DID IN FERNANDEZ. JUSTICE SCALIA IS VOTING IN
FAVOR OF THE CRIMINAL DEFENDANT, AS HE HAS IN A NUMBER OF RECENT
FOURTH AMENDMENT DECISIONS. – THANKS, ERWIN,
AND THANKS, LAURIE. ANY QUESTIONS ON THIS PANEL? – WE HAVE ONE HERE. “WHAT EFFECT WILL THERILEY
DECISION HAVE ON SEARCHES “OF OTHER ELECTRONIC DEVICES,
LIKE LAPTOPS AND TABLETS, AND WHAT DOES IT SAY ABOUT CASES
OF SUCH DEVICES AT THE BORDER?” – JIM, I LIKE THAT QUESTION. I THINK WHEN IT COMES TO THE
STOPS INCIDENT TO ARREST, OTHER TYPES OF
ELECTRONIC DEVICES THAT HAVE THAT TYPE
OF INFORMATION PROBABLY WILL BE
GOVERNED BYRILEY.THE OFFICER SHOULD GO
AND GET THAT WARRANT IF THEY DON’T HAVE EXIGENT
CIRCUMSTANCES OR CONSENT. BUT I DON’T THINK
IT ANSWERS THE QUESTION FOR THE BORDER SEARCHES. THE COURTS ARE STILL DIVIDED
WHEN IT COMES TO THE BORDER HOW MUCH THE CUSTOM OFFICERS
CAN LOOK THROUGH COMPUTERS AND OTHER TYPES OF DEVICES. – OK. NO MORE QUESTIONS. WE’LL BE RIGHT BACK, THEN, WITH A LOOK AT SOME
CIVIL RIGHTS DECISIONS. – THE RULE THAT WE ADVOCATE IS AND THE ONLY REAL QUESTION
PRESENTED IN THIS CASE IS JUST THIS–IF A STATE
CONDITIONS THE OPPORTUNITY TO DEMONSTRATE
MENTAL RETARDATION ON OBTAINED IQ TEST SCORES,
IT CANNOT IGNORE THE MEASUREMENT ERROR THAT
IS INHERENT IN THOSE SCORES THAT IS A FEATURE,
STATISTICAL FEATURE, OF THE TEST INSTRUMENT ITSELF. – THAT IS SETH WAXMAN,
REPRESENTING THE PETITIONER IN OUR FIRST DECISION IN
THIS PANEL,HALL V. FLORIDA.AS YOU MIGHT HAVE GATHERED
FROM THAT BIT OF AUDIO, THE ISSUE IN QUESTION
WAS THE PROPER WAY TO MEASURE THE MENTAL
ABILITY OF A DEFENDANT, AND WHAT WAS AT STAKE WAS
WHETHER FLORIDA HAD GIVEN FREDDIE LEE HALL
A CHANCE TO PROVE HE WAS INTELLECTUALLY DISABLED WHEN HE WAS TRIED
FOR MURDER IN 1978. IF HE WAS, HE WOULD BE
INELIGIBLE TO BE EXECUTED UNDER THE COURT’S 2002 DECISION
INATKINS V. VIRGINIA.SUZANNA, CAN YOU FILL US IN
ON SOME BACKGROUND HERE? – WELL, AS YOU JUST
MENTIONED, UNDER ATKINS, THE COURT HELD THAT IT
WAS UNCONSTITUTIONAL TO EXECUTE SOMEONE WHO IS
INTELLECTUALLY DISABLED, BUT THAT CASE
LEFT OPEN THE QUESTION HOW STATES COULD DEFINE
INTELLECTUAL DISABILITY FOR PURPOSES OF
ELIGIBILITY FOR EXECUTION. SO FLORIDA AND A FEW OTHER
STATES SET AN ABSOLUTE CUTOFF OF A SCORE OF 70 OR BELOW
ON AN IQ TEST. UNDER FLORIDA LAW, IF YOUR
IQ WAS HIGHER THAN 70, YOU COULD NOT EVEN PRESENT ANY EVIDENCE OF AN
INTELLECTUAL DISABILITY. – SO HOW DID FREDDIE HALL SCORE? – A HEARING WAS HELD IN 2009. HALL’S SCORE WAS REPORTED
TO BE 71 ON THE IQ TEST. ANOTHER TEST WAS ADMINISTERED,
AND HIS SCORE WAS 73, SO THE FLORIDA
SUPREME COURT SAID SINCE HIS SCORE
WAS ABOVE 70, HE WAS NOT DEEMED
INTELLECTUALLY DISABLED, AND THE DEATH PENALTY
COULD BE IMPOSED. – SO WHAT DID
THE HIGH COURT SAY? – THEY HELD 5-4 THAT FLORIDA’S
APPROACH WAS UNCONSTITUTIONAL– THAT IS, THAT STATES
CANNOT USE AN ABSOLUTE CUTOFF
OF LESS THAN 75. – THIS IS WHERE YOU GET
INTO THE STATISTICS. THE QUESTION IS, HOW DO WE
DETERMINE RELIABILITY? SETH WAXMAN ARGUED TO THE COURT THAT IF YOU WANT TO HAVE
A 95% CERTAINTY THAT A PERSON’S IQ IS 70 OR ABOVE,
IT NEEDS TO BE SET AT 75. I THINK THE COURT
WAS VERY CONCERNED ABOUT THE UNRELIABILITY
OF IQ TESTS. JUSTICE KENNEDY EVEN SAYS WE SHOULDN’T BE
EXECUTING A PERSON BECAUSE THE IQ IS 71
RATHER THAN 70. – RIGHT. SO WHAT DO YOU
THINK THE IMPLICATIONS FOR THE LOWER COURTS ARE? – MANY STATES HAVE
LAWS LIKE FLORIDA’S THAT SET THE IQ AT 70. SOME STATES HAVE LAWS
THAT SET THE IQ AT 75 TO DETERMINE IF SOMEONE IS
SO INTELLECTUALLY DISABLED, THE DEATH PENALTY
COULDN’T BE IMPOSED. YOU’RE GOING TO SEE CHALLENGES
TO ALL OF THESE LAWS. I THINK THE BOTTOM LINE
FROM THIS CASE IS, THERE’S GOING TO HAVE
TO BE THE OPPORTUNITY FOR A DEFENDANT TO PRESENT OTHER
EVIDENCE BESIDES THE IQ SCORE, SUCH AS TESTIMONY
AND BEING ABLE TO SHOW THAT HE OR SHE IS
INTELLECTUALLY DISABLED AND THE DEATH PENALTY
CAN’T BE IMPOSED. – I AGREE WITH ERWIN. I THINK THERE’S GOING TO BE
SOME OTHER CHALLENGES, TOO. I THINK JUDGES ARE GOING
TO SEE FURTHER CHALLENGES TO STATE LAWS THAT SET ABSOLUTE
CUTOFFS AT 75 OR ABOVE, BECAUSE ALTHOUGH THE COURT
SAID IT WAS UNCONSTITUTIONAL TO SET A CUTOFF BELOW 75,
IT NEVER ACTUALLY SAID THAT IT WOULD BE CONSTITUTIONAL
TO SET A CUTOFF AT 75. THERE’S ALSO, I THINK,
GOING TO BE DISPUTE ABOUT WHAT TYPES OF
EVIDENCE CAN BE USED TO SHOW INTELLECTUAL
DISABILITY, IN PARTICULAR, EVIDENCE OF DEFICITS
IN ADAPTIVE FUNCTIONING, BECAUSE THE MAJORITY RELIED ON A DEFINITION OF
INTELLECTUAL DISABILITY THAT REQUIRES CONCURRENT
DEFICITS IN BOTH INTELLECTUAL FUNCTIONING
AND ADAPTIVE FUNCTIONING. – OK. THANK YOU. IN OUR NEXT DECISION,
THE COURT AGAIN REVISITS AN ISSUE IT DEALT WITH
IN RECENT YEARS– AFFIRMATIVE ACTION
IN HIGHER EDUCATION. THIS ISSCHUETTE V.
THE COALITION TO DEFEND
AFFIRMATIVE ACTION.
WE SHOULD NOTE, IN THE
INTEREST OF FULL DISCLOSURE, THAT YOUR NAME WAS ON
THE BRIEF AS CO-COUNSEL FOR ONE OF THE
RESPONDENTS, RIGHT, ERWIN? – YES. – OK. SUZANNA,
LET’S START WITH YOU. WHAT’S THE ISSUE HERE? – WELL, IN 2006, MICHIGAN
VOTERS PASSED AN INITIATIVE THAT AMENDED THE STATE
CONSTITUTION TO PROHIBIT THE STATE OR ANY OF ITS
POLITICAL SUBDIVISIONS, INCLUDING THE STATE UNIVERSITY, FROM DISCRIMINATING
OR GIVING PREFERENCE ON THE BASIS
OF RACE OR GENDER IN EDUCATION, CONTRACTING,
OR EMPLOYMENT, AND 2 LAWSUITS CHALLENGED THAT
REFERENDUM, CALLED PROPOSAL 2, IN THE AREA OF EDUCATION,
AND THE SIXTH CIRCUIT STRUCK DOWN PROP 2
AS UNCONSTITUTIONAL. – WHAT WAS THE REASONING? – THE SIXTH CIRCUIT,
INITIALLY IN A PANEL DECISION AND THEN IN AN 8-7
EN BANC RULING, SAID THAT PROPOSAL 2
IMPERMISSIBLY RESTRUCTURED THE POLITICAL PROCESS
ALONG RACIAL LINES. THE SIXTH CIRCUIT RELIED ON
2 EARLIER SUPREME COURT CASES,HUNTER V. ERICKSONAND
WASHINGTON V. SEATTLE SCHOOLS.
THE SIXTH CIRCUIT SAID
ALMOST ANYONE IN THE STATE WHO WANTS A PREFERENCE IN ADMISSION TO THE
MICHIGAN SCHOOLS COULD GET IT BY GOING BEFORE THE
MICHIGAN LEGISLATURE OR THE MICHIGAN
BOARD OF REGENTS. IF IN-STATE RESIDENTS
WANTED PREFERENCE OVER OUT-OF-STATE RESIDENTS, IF THOSE WHO WENT
TO MICHIGAN SCHOOLS WANTED A PREFERENCE
FOR THEIR CHILDREN, THE MICHIGAN LEGISLATURE, THE BOARD OF REGENTS,
COULD DO IT. THE SIXTH CIRCUIT SAID THE ONLY GROUP THAT
REALISTICALLY COULD NOT USE THE POLITICAL PROCESS
WOULD BE RACIAL MINORITIES. FOR THEM TO HAVE THE STATE ADAPT RACIALLY SENSITIVE ADMISSIONS
POLICIES–AFFIRMATIVE ACTION– WOULD REQUIRE THE MUCH
MORE ARDUOUS PROCESS OF AMENDING THE STATE
CONSTITUTION. – OK. SO HOW DID THE
SUPREME COURT COME DOWN? – THE SUPREME COURT REVERSED
THE SIXTH CIRCUIT. IT WAS 6-2, BUT WITHOUT
A MAJORITY OPINION. SO THERE WAS A LOT
OF DISAGREEMENT, BUT WHAT THE 6 JUSTICES IN
THE MAJORITY DID AGREE ON IS THAT WHILE AFFIRMATIVE ACTION IS CONSTITUTIONALLY PERMISSIBLE
UNDER SOME CIRCUMSTANCES, IT’S NOT
CONSTITUTIONALLY MANDATED, SO THAT FACIALLY RACE-NEUTRAL
LAWS ARE CONSTITUTIONAL EVEN IF THEY HAVE A NEGATIVE
EFFECT ON RACIAL MINORITIES, UNLESS THERE’S EVIDENCE
OF DISCRIMINATORY MOTIVE. THERE WAS NO EVIDENCE OF
DISCRIMINATORY MOTIVE HERE, AND SO THE COURT UPHELD
THE MICHIGAN INITIATIVE. – OK. SO ONE MORE QUESTION
I HAVE, THEN, IS, WHAT ABOUT THE PRECEDENTS
THE SIXTH CIRCUIT RELIED ON– THAT IS,HUNTER V. ERICKSONAND
WASHINGTON V. SEATTLE SCHOOLS?
– WELL, THEY HAVEN’T BEEN
FORMALLY OVERRULED, BUT THEY’VE CERTAINLY
BEEN NARROWED ON THE POLITICAL PROCESS POINT. IF YOU LOOK IN PARTICULAR AT JUSTICE KENNEDY’S
PLURALITY OPINION AND ITS INSISTENCE ON PROOF
OF INTENTIONAL DISCRIMINATION, IT’S JUST HARD TO IMAGINE A FUTURE FOR THE POLITICAL
RESTRUCTURING DOCTRINE. – OUR NEXT CASES ARE
ABOUT QUALIFIED IMMUNITY AND WHEN LAW ENFORCEMENT
OFFICERS CAN EXPECT TO BE GIVEN ITS PROTECTION. JUST TO REMIND EVERYONE,
QUALIFIED IMMUNITY MEANS THAT WHEN GOVERNMENT OFFICERS
ARE SUED FOR MONEY DAMAGES FOR A CONSTITUTIONAL VIOLATION AND DON’T HAVE
ABSOLUTE IMMUNITY, THEY CAN ONLY BE HELD
LIABLE IF THEY VIOLATE CLEARLY ESTABLISHED LAW THAT A
REASONABLE OFFICER SHOULD KNOW. WE’RE GOING TO DISCUSS
THESE DECISIONS TOGETHER BECAUSE OF WHAT THEY SAY
COLLECTIVELY ABOUT THE DOCTRINE. INPLUMHOFF V. RICKARD,
POLICE SHOT 15 TIMES INTO A CAR THAT LED THEM
ON A HIGH-SPEED CHASE, SOMETIMES AT MORE THAN
A HUNDRED MILES PER HOUR. THEY HAD A REASONABLE SUSPICION THAT THE DRIVER
HAD BEEN DRINKING, AND HE REPEATEDLY TRIED
TO ESCAPE WHEN CORNERED, EVEN WHEN POLICE
STARTED SHOOTING. BOTH THE DRIVER AND
THE PASSENGER WERE KILLED. INWOOD V. MOSS,SECRET SERVICE AGENTS PROTECTING
PRESIDENT GEORGE W. BUSH WHILE HE DINED AT
AN OUTDOOR RESTAURANT HAD TO CONTROL CROWDS OF
SUPPORTERS AND PROTESTERS ON THE STREETS NEARBY. IN MOVING THE
2 DIFFERENT GROUPS, THE ANTI-BUSH PROTESTERS
WERE PLACED FURTHER AWAY FROM THE PRESIDENT THAN
THE PRO-BUSH SUPPORTERS. THE SECRET SERVICE AGENTS
WERE CHARGED WITH VIOLATING THE FIRST AMENDMENT RIGHTS OF
THE ANTI-BUSH DEMONSTRATORS BY DISCRIMINATING BASED
ON THEIR VIEWPOINT. THE COURT FOUND FOR THE
LAW ENFORCEMENT OFFICERS IN BOTH OF THESE CASES. SO, SUZANNA, CAN WE
START BY TALKING ABOUT THE SIMILARITIES AND DIFFERENCES
BETWEEN THE 2 CASES? – YES. THE MOST IMPORTANT
SIMILARITY IN THESE CASES IS THAT BOTH INVOLVED
LAW ENFORCEMENT OFFICERS MAKING DECISIONS ON THE FLY, AND IN FACT, IN ONE CASE,
IT WAS A SPLIT-SECOND DECISION. AND THE JUSTICES HAVE ALWAYS
BEEN VERY RELUCTANT TO SECOND-GUESS LAW ENFORCEMENT
OFFICERS IN THESE CIRCUMSTANCES, AND SO THEY OFTEN GRANT
THEM QUALIFIED IMMUNITY. THESE CASES ARE
PERFECT EXAMPLES. IN ONE CASE, THE SAFETY OF
THE PRESIDENT WAS AT ISSUE. AND IN THE OTHER,
THE HIGH-SPEED CHASE WAS POSING SERIOUS
RISKS TO THE PUBLIC. – I THINK SOMETHING ELSE
IS GOING ON HERE, THOUGH. I THINK THESE CASES
ARE PART OF A PATTERN OF THE SUPREME COURT
FINDING QUALIFIED IMMUNITY BECAUSE OF THE ABSENCE
OF A CASE ON POINT. INWOOD V.MOSS,
THE LAW IS CLEAR THAT VIEWPOINT DISCRIMINATION
BY THE GOVERNMENT VIOLATES THE FIRST AMENDMENT. BUT JUSTICE GINSBURG’S OPINION
FOR A UNANIMOUS COURT SAID THERE WAS QUALIFIED
IMMUNITY BECAUSE THERE’S NO CASE ON POINT AS TO WHEN SECRET SERVICE AGENTS
VIOLATE THE FIRST AMENDMENT. INPLUMHOFF V. RICKARD,
THE SUPREME COURT FOUND THAT THE OFFICERS’ BEHAVIOR DID NOT VIOLATE
THE FOURTH AMENDMENT, BUT THEN WENT ON TO SAY
THERE WAS QUALIFIED IMMUNITY BECAUSE THE FACTS OF
A HIGH-SPEED CHASE ARE SO INDIVIDUAL, IT’S UNLIKELY THAT THERE’LL
EVER BE A CASE ON POINT. I’D REFER TO A THE CASE
THAT WE TALKED ABOUT EARLIER IN OUR DISCUSSION
ON THE FIRST AMENDMENT. INLANE V. FRANKS,
THE SUPREME COURT SAID EVEN THOUGH IT VIOLATES
THE FIRST AMENDMENT TO FIRE A GOVERNMENT EMPLOYEE
FOR TRUTHFUL TESTIMONY GIVEN PURSUANT TO A SUBPOENA, THE DEFENDANT WAS PROTECTED
BY QUALIFIED IMMUNITY BECAUSE THERE WAS
NO CASE ON POINT. – I AGREE WITH ERWIN, BUT THERE IS ONE CAVEAT
TO KEEP IN MIND, I THINK, AND THAT’S THAT THE CAR
CHASE SCENARIO INVOLVED ONLY A LEGAL QUESTION,
NOT A FACTUAL DISPUTE. THE ONLY QUESTION WAS WHETHER THE OFFICERS’ CONDUCT
VIOLATED THE FOURTH AMENDMENT. THERE WAS NO FACTUAL DISPUTE ABOUT WHAT IT WAS
THE OFFICERS DID. EARLIER IN THE TERM, THOUGH, THE COURT REVERSED A GRANT
OF SUMMARY JUDGMENT THAT HAD BEEN GIVEN
TO POLICE OFFICERS ON QUALIFIED IMMUNITY GROUNDS BECAUSE THERE WERE FACTUAL
DISPUTES IN THAT CASE, AND THE COURT SAID– THIS IS
A CASE CALLEDTOLAN V. COTTON.THE COURT SAID THAT THE
LOWER COURT HAD FAILED TO CONSIDER THE DISPUTED
EVIDENCE IN THE LIGHT MOST FAVORABLE TO
THE NON-MOVING PARTY. SO PLUMHOFF IS BROAD IN THE
SENSE THAT, AS ERWIN SUGGESTED, I THINK IT MAKES
IT VERY DIFFICULT TO OVERCOME QUALIFIED IMMUNITY
IN THESE SORTS OF SCENARIOS, BUT IT’S NARROW IN THE SENSE
THAT IT ONLY APPLIES IN CASES WHERE THERE
ARE LEGAL DISPUTES, BUT NO FACTUAL DISPUTES. – OK. THANKS. FINALLY, INSTANTON V. SIMS,THE JUSTICES AGAIN HELD
FOR POLICE OFFICERS, THIS TIME IN
A PER CURIAM DECISION WITHOUT BRIEFING
OR ORAL ARGUMENT. HERE, A POLICE OFFICER FOLLOWED
A MISDEMEANOR SUSPECT INTO A HOUSE
IN HOT PURSUIT. THE OFFICER WAS
SUED FOR VIOLATING THE FOURTH AMENDMENT
RIGHTS OF THE HOMEOWNER. BECAUSE THE
LOWER COURTS WERE SPLIT ON WHETHER THE OFFICER’S
CONDUCT WAS A VIOLATION, THE COURT SAID THERE WAS
NOT CLEARLY ESTABLISHED LAW THAT A REASONABLE
OFFICER SHOULD KNOW. IN FINDING THAT THE OFFICER
HAD QUALIFIED IMMUNITY, THE COURT REPEATED
ITS EARLIER LANGUAGE THAT QUALIFIED IMMUNITY PROTECTS
ALL BUT THE PLAINLY INCOMPETENT OR THOSE WHO KNOWINGLY
VIOLATE THE LAW. QUESTIONS? – YEAH. I THINK WE HAVE ONE
INVOLVING THE FIFTH CIRCUIT, A DECISION FROM YESTERDAY. IT SAYS, “YESTERDAY,
THE FIFTH CIRCUIT UPHELD “THE UNIVERSITY OF TEXAS’
AFFIRMATIVE ACTION PLAN. HOW DOES THIS RELATE TO WHAT THE
SUPREME COURT DID INSCHUETTE?– THAT’S AN INTERESTING
QUESTION THERE. THE CASES RAISED
VERY DIFFERENT QUESTIONS. WHATSCHUETTEDECIDED WAS
WHETHER AFFIRMATIVE ACTION IS CONSTITUTIONALLY
MANDATED– IN OTHER WORDS,
WHETHER IT’S CONSTITUTIONAL TO ELIMINATE AFFIRMATIVE
ACTION PROGRAMS, AND THEY SAID THAT IT WAS. WHAT THE TEXAS CASE
RAISES IS THE QUESTION OF WHETHER PUTTING IN PLACE
AFFIRMATIVE ACTION PROGRAMS IS CONSTITUTIONAL; IS AFFIRMATIVE ACTION
ITSELF CONSTITUTIONAL? THIS IS THE CASE THAT
THE SUPREME COURT HAD SENT BACK
A COUPLE OF YEARS AGO, AND MY GUESS IS IT’S GOING TO
GO BACK TO THE SUPREME COURT, BUT THEY WON’T
RELY ONSCHUETTE.THEY’LL RELY ONBAKKEANDGRATZ
ANDGRUTTERAND THOSE CASES TO DECIDE WHETHER THE TEXAS
PROGRAM IS CONSTITUTIONAL. – THANKS. NEXT, WE’RE GOING TO LOOK AT
CRIMINAL LAW AND TRIAL RIGHTS. – STATUTORY INTERPRETATION
PLAYED A MAJOR PART IN THE COURT’S CRIMINAL
LAW DECISIONS THIS TERM, ADDRESSING ISSUES OFTEN
RAISED IN THE FEDERAL COURT. THE COURT STUCK PRETTY CLOSE TO THE LANGUAGE
OF THE STATUTES IN REACHING THESE DECISIONS AND TOOK A HARD LOOK AT
CAUSATION ISSUES THEY RAISED. A GOOD EXAMPLE OF
THIS LAST THEME WAS THE DECISION IN
BURRAGE V. UNITED STATES.
MR. BURRAGE SOLD
ONE GRAM OF HEROIN TO A CUSTOMER
NAMED JOSHUA BANKA. MR. BANKA WENT ON
A ONE-DAY BINGE USING A NUMBER OF DIFFERENT
NARCOTICS AND OPIOIDS BESIDES THE GRAM OF HEROIN
HE BOUGHT FROM BURRAGE AND DIED AS A RESULT
OF HIS DRUG USE. SO, EVAN, WHAT WAS THE
ISSUE BEFORE THE COURT? – WELL, UNDER FEDERAL LAW,
A DEFENDANT WHO’S CHARGED WITH ILLEGALLY
DISTRIBUTING DRUGS HAS TO SERVE A 20-YEAR
MINIMUM SENTENCE IF DEATH OR SERIOUS
BODILY INJURY RESULTS FROM THE USE OF THE SUBSTANCE. THE PROBLEM IS THAT THE
CONTROLLED SUBSTANCE ACT DOESN’T DEFINE THE
PHRASE “RESULTS FROM.” NOW, HERE, THE TRIAL COURT
INSTRUCTED THE JURY THAT IT COULD CONVICT
IF THE HEROIN WAS A CONTRIBUTING
CAUSE OF THE DEATH. THE JURY CONVICTED BURRAGE, AND THE APPEALS COURT
AFFIRMED THAT DECISION. – OK. IN OUR NEXT DECISION–
GO AHEAD. – LET ME JUMP IN JUST
FOR A MINUTE AND SAY THAT IN THIS SITUATION, THE COURT LOOKED CAREFULLY
AT THIS “RESULTS FROM” AND SAID IT’S REALLY SOMETHING
MORE LIKE “BUT FOR” CAUSE OR “BECAUSE OF” UNDER
THE TORT LAW STANDARDS, NOT JUST SIMPLY
THAT HE MADE A SALE AND THAT TRAGICALLY,
THE VICTIM DIED. IN OTHER WORDS, IT NEEDS TO
BE ABLE TO TRACE THAT CAUSE BACK TO THE PARTICULAR DRUG
THAT THE DEFENDANT SOLD TO THE VICTIM IN ORDER
FOR THIS STATUTE TO APPLY. – OUR NEXT DECISION DEALS WITH
THE ISSUE OF RESTITUTION. INPAROLINE V. UNITED STATES,A SMALL CHILD REFERRED TO IN
COURT DOCUMENTS ONLY AS AMY WAS SEXUALLY ABUSED
BY HER UNCLE. YEARS LATER, AT AGE 17, SHE DISCOVERED THAT
PICTURES OF HER ABUSE WERE BEING DISTRIBUTED
ON THE INTERNET. UNDER THE FEDERAL VIOLENCE
AGAINST WOMEN ACT OF 1994, DISTRICT COURTS ARE REQUIRED TO AWARD RESTITUTION FOR
CERTAIN CRIMINAL OFFENSES, FEDERAL OFFENSES, INCLUDING
POSSESSION OF CHILD PORNOGRAPHY. NOW, DOYLE PAROLINE
PLEADED GUILTY TO POSSESSING CHILD PORNOGRAPHY, INCLUDING 2 IMAGES
OF AMY’S ABUSE. LAURIE, THE QUESTION WAS,
WHAT RESTITUTION WAS OWED HER? – RIGHT. AND AMY SOUGHT,
ACTUALLY, $3.4 MILLION IN RESTITUTION
FROM PAROLINE. SHE ADMITTED THAT
SHE DIDN’T KNOW HIM, THAT NONE OF HER
CLAIMS FLOW DIRECTLY FROM HIS SPECIFIC
KNOWLEDGE OF THE PHOTOS, BUT NONETHELESS, SHE WANTED
THE RESTITUTION. THE TRIAL COURT AWARDED
AMY NO RESTITUTION BECAUSE THE GOVERNMENT
COULD NOT SHOW THAT PAROLINE’S POSSESSION OF THE
IMAGES WAS WHAT CONTRIBUTED AND WAS A PROXIMATE
CAUSE OF HER LOSSES. BUT THE FIFTH CIRCUIT
EN BANC REVERSED AND SAID THAT HOLDING THAT
RESTITUTION WAS NOT LIMITED TO THE LOSSES THAT
WERE PROXIMATELY CAUSED BY ANY INDIVIDUAL DEFENDANT, THAT THIS DEFENDANT
POSSESSED THE IMAGES AND WAS RESPONSIBLE
FOR THE ENTIRE LOSS. SO THE BASIC ISSUE IS,
HOW DO YOU DETERMINE THE AMOUNT OF RESTITUTION OWED
A VICTIM UNDER THE STATUTE BY A SINGLE POSSESSOR
OF THE PORNOGRAPHY? THE LANGUAGE OF THE STATUTE
REFERS TO, QUOTE, “THE LOSS SUSTAINED
BY THE VICTIM AS A RESULT OF THE OFFENSE,” NOT DISSIMILAR FROM THE LANGUAGE
IN THEBURRAGEDECISION. – YEAH. THE USUAL “BUT FOR”
CAUSATION STANDARD CAN’T BE MET HERE BECAUSE
THERE ARE THOUSANDS OF PEOPLE WHO POSSESSED THE
IMAGES OF AMY’S ABUSE, AND IT WOULD BE
IMPOSSIBLE TO TRACE ANY PARTICULAR PERSON’S
POSSESSION TO A CONCRETE LOSS ON AMY’S PART. SO UNDER THE AGGREGATE
CAUSATION STANDARD USED BY THE APPEALS COURT
IN THIS CASE, EACH PERSON WHO POSSESSED
AN IMAGE OF AMY’S ABUSE WAS JOINTLY AND SEVERALLY LIABLE
FOR ALL OF HER LOSSES. THE SUPREME COURT HERE
CHOSE A MIDDLE GROUND WHERE IT COULD BE PROVED THAT THE DEFENDANT POSSESSED
IMAGES OF THE VICTIM’S ABUSE AND THE VICTIM CONTINUED
TO SUFFER LOSSES FROM THE CONTINUED
TRAFFICKING IN THOSE IMAGES. BUT WHERE IT WAS IMPOSSIBLE
TO TRACE A PARTICULAR AMOUNT OF THOSE LOSSES TO THE
DEFENDANT’S POSSESSION, THE COURT SAID THAT THE
DISTRICT COURT SHOULD USE A SET OF GUIDELINES,
ROUGH GUIDEPOSTS FOR DETERMINING THE PROPER
AMOUNT OF RESTITUTION. AND THE COURT ACTUALLY NAMED
14 OF THESE GUIDEPOSTS, OF WHICH, 3–I’M JUST GOING
TO MENTION 3 OF THEM. ONE IS THE NUMBER OF OTHER
CRIMINAL DEFENDANTS PROVEN TO HAVE CONTRIBUTED TO THE
VICTIM’S GENERAL LOSSES. A SECOND WOULD BE REASONABLE
PREDICTION OF THE NUMBER OF FUTURE OFFENDERS LIKELY
TO BE CAUGHT AND CONVICTED OF CONTRIBUTING TO THE
VICTIM’S GENERAL LOSSES. AND 3, ANY AVAILABLE AND
REASONABLY RELIABLE ESTIMATE OF THE BROADER NUMBER
OF OFFENDERS. THE SUPREME COURT ALSO SAID
THAT THE DISTRICT COURT SHOULD THEN SET AN
APPROPRIATE PAYMENT SCHEDULE, TAKING INTO ACCOUNT THE
DEFENDANT’S FINANCIAL MEANS. I DO THINK THAT, SIGNIFICANTLY,
THE COURT HERE SAID THAT THE DEFENDANT’S SHARE
OF THE LOSSES SHOULD NOT BE, AND I’M QUOTING HERE,
“A TOKEN OR NOMINAL AMOUNT, “BUT INSTEAD, IT SHOULD
BE A REASONABLE “AND CIRCUMSCRIBED AWARD
THAT RECOGNIZES THE OFFENDER’S ROLE IN CAUSING
THE VICTIM’S LOSSES.” – OK. THIS WAS
A 5-4 DECISION WITH A COUPLE OF DISSENTS,
THOUGH, WASN’T IT, LAURIE? – YES. THERE WERE 2 DISSENTS. THE FIRST DISSENT WAS
WITH THE CHIEF JUSTICE, JUSTICES SCALIA AND THOMAS, AND THEY SAID THAT THE COURT
SHOULD REJECT RESTITUTION BECAUSE WHAT THE
MAJORITY CAME UP WITH IS REALLY NOT
A PROPER APPROACH, AND IT’S LEFT TO CONGRESS
TO CLEAN UP THE STATUTE. THE SECOND DISSENT
WENT THE OTHER WAY, AND THAT WAS JUSTICE SOTOMAYOR. SHE WOULD CALL FOR
FULL RESTITUTION FROM ANY SINGLE OFFENDER
OF THIS VIOLATION. SHE POINTED OUT THAT
THE STATUTE IMPOSES A MANDATORY DUTY ON
THE DISTRICT COURT TO INCLUDE A
RESTITUTION CLAIM. AND SHE SAID FINALLY,
LIKE TORT LAW, EACH DEFENDANT IN THIS
PORNOGRAPHY CASE SHOULD BE JOINTLY AND SEVERALLY
LIABLE FOR THE RESTITUTION. – OUR NEXT 2 DECISIONS
INVOLVE FIREARMS STATUTES AND WHEN DEFENDANTS CAN
BE LEGITIMATELY CHARGED UNDER 18 U.S.C. 922 (G)(9), CRIMINALIZES THE
POSSESSION OF A FIREARM BY ANYONE WHO’S BEEN CONVICTED OF A MISDEMEANOR CRIME
OF DOMESTIC VIOLENCE, WHICH INCLUDES STATE
MISDEMEANOR CONVICTIONS INVOLVING THE USE OR ATTEMPTED
USE OF PHYSICAL FORCE AGAINST A CURRENT OR
FORMER DOMESTIC PARTNER. SO, EVAN, HOW DID THIS
AFFECT JAMES CASTLEMAN? – WELL, IN 2001, CASTLEMAN
PLEADED GUILTY IN TENNESSEE TO HAVING INTENTIONALLY OR
KNOWINGLY CAUSED BODILY INJURY TO THE MOTHER OF HIS CHILD. THEN IN 2008,
FEDERAL AUTHORITIES LEARNED CASTLEMAN WAS SELLING
FIREARMS ON THE BLACK MARKET, AND THEY INDICTED HIM UNDER
THE STATUTE THAT YOU MENTIONED, 18 U.S.C. 922 (G)(9). THE TRIAL COURT DISMISSED
THE INDICTMENT, REASONING THAT UNDER THE
SUPREME COURT’S 2010 DECISION INJOHNSON V. UNITED STATES,THE USE OF PHYSICAL FORCE
UNDER 922 (G)(9), HAS TO ENTAIL VIOLENT
CONTACT WITH THE VICTIM, WHICH CASTLEMAN ARGUED
WASN’T THE CASE WITH HIM. THE APPEALS COURT AFFIRMED
UNDER SIMILAR REASONING, BUT THE SUPREME COURT
DISAGREED. IT DISTINGUISHED JOHNSON
FROM THIS CASE, SAYING THAT THERE ARE
GOOD REASONS TO THINK THAT CONGRESS MEANT THE WORD
“FORCE” IN A BROADER SENSE, AT LEAST WHEN IT OCCURS
IN DOMESTIC SITUATIONS. THE MAJORITY FOUND THAT
CONGRESS MEANT “FORCE” IN ITS COMMON LAW SENSE
OF OFFENSIVE TOUCHING. SO CASTLEMAN’S TENNESSEE
CONVICTION QUALIFIED UNDER 922 (G)(9), AND HE COULD BE INDICTED
UNDER THE FEDERAL STATUTE. – THE BOTTOM LINE IS
THIS IS GOING TO MAKE IT MUCH EASIER FOR DOMESTIC
VIOLENCE OFFENDERS TO BE CHARGED UNDER FEDERAL FIREARMS LAW. – JAMES ROSEMOND HAD BETTER
LUCK BEFORE THE COURT WHEN IT DECIDED HE COULD NOT
BE CHARGED UNDER FEDERAL LAW FOR AIDING AND ABETTING
A DRUG CRIME IN WHICH A FIREARM WAS USED. MR. ROSEMOND WAS ONE
OF 4 PEOPLE TAKING PART IN A DRUG SALE GONE BAD. ONE OF THE 4 FIRED A GUN
AT WOULD-BE DRUG BUYERS, WHO THEN RAN AWAY
WITH THE MARIJUANA RATHER THAN PAY FOR IT. BECAUSE IT WAS UNCLEAR
WHO FIRED THE SHOTS, ROSEMOND WAS CHARGED
AS BOTH THE SHOOTER AND AN AIDER AND ABETTOR. NOW, FEDERAL LAW PROHIBITS
USING OR CARRYING A FIREARM DURING AND IN RELATION TO ANY CRIME OF VIOLENCE
OR DRUG TRAFFICKING, BUT THERE WAS SOME QUESTION
ABOUT THE JURY INSTRUCTION IN THIS TRIAL,
WASN’T THERE, LAURIE? – THERE WAS, JIM. THE COURT ONLY INSTRUCTED
THE JURY THAT ROSEMOND HAD TO KNOWINGLY ASSOCIATE IN A
DRUG CRIME TO BE GUILTY OF THIS, AND ROSEMOND’S ATTORNEY ARGUED
THAT THE INSTRUCTION SHOULD REQUIRE THE JURY TO FIND
THAT ROSEMOND ALSO KNEW THAT A GUN WOULD BE
USED IN THE CRIME. ROSEMOND WAS CONVICTED
UNDER THE JUDGE’S INSTRUCTION, AND THE APPELLATE
COURT AFFIRMED. – WHAT DID THE
SUPREME COURT HOLD? – THE COURT HELD THAT TO
BE AN AIDER AND ABETTOR, AT LEAST UNDER THIS STATUTE, A DEFENDANT MUST AT
LEAST KNOW AHEAD OF TIME THAT ONE OF HIS CONFEDERATES
WILL CARRY A GUN, AND THE DEFENDANT HAS TO
HAVE A REALISTIC OPPORTUNITY TO DISCONTINUE HIS
PARTICIPATION IN THE CRIME. YEAH. THAT’S PRETTY MUCH IT. – OK. NEXT, WE’LL LOOK AT
ABRAMSKI V. UNITED STATES.
THIS IS THE SO-CALLED
STRAW PURCHASER CASE. BRUCE ABRAMSKI OFFERED TO
BUY A HANDGUN FOR HIS UNCLE. NOW, HIS UNCLE COULD HAVE
BOUGHT IT LEGALLY BY HIMSELF, BUT ABRAMSKI SAID HE
COULD GET IT CHEAPER USING AN OLD POLICE I.D. ABRAMSKI HAD BEEN BUT WAS
NO LONGER A POLICE OFFICER. NOW, THE PROBLEM FOR
MR. ABRAMSKI WAS THAT FEDERAL LAW 18 U.S.C. 922
(A)(6) DOES NOT ALLOW SUCH STRAW PURCHASES. IT REQUIRES THE BUYER
TO FILL OUT A FORM ASKING IF HE’S THE ACTUAL
TRANSFEREE/BUYER OF THE GUN OR IF HE’S BUYING IT
FOR SOMEONE ELSE. NOW, ANSWERING THAT
QUESTION FALSELY CARRIES A CRIMINAL PENALTY,
AND MR. ABRAMSKI LIED. THE TRIAL COURT CONVICTED HIM, AND THE APPELLATE COURT
UPHELD THE JUDGMENT, BUT HE MADE AN
ADDITIONAL ARGUMENT BEFORE THE SUPREME COURT,
DIDN’T HE, LAURIE? – YES, HE DID. THAT’S RIGHT.
ABRAMSKI ARGUED THAT EVEN IF HE DID ANSWER THE QUESTION ABOUT
BEING THE REAL BUYER FALSELY, THAT IT SHOULDN’T MATTER BECAUSE ALL THE
STATUTE CARES ABOUT IS WHETHER THE PERSON WHO
IS PAYING FOR THAT GUN AT THE POINT OF PURCHASE
IS ELIGIBLE TO BUY THE GUN. THE SUPREME COURT
REJECTED THAT ARGUMENT. THE 5-PERSON MAJORITY OPINION
WAS WRITTEN BY JUSTICE KAGAN. SHE SAID THAT THE FEDERAL
GUN LAW ESTABLISHES THIS ELABORATE SYSTEM OF
IN-PERSON IDENTIFICATION AND BACKGROUND CHECKS TO ENSURE THAT GUNS ARE KEPT
OUT OF THE HANDS OF FELONS OR OTHER INELIGIBLE PURCHASERS. THE PROVISIONS WOULD
MEAN VERY LITTLE IF IN FACT YOU COULD
HAVE SOMEONE EVADE THEM SIMPLY BY ENLISTING
AN INTERMEDIARY TO COME AND EXECUTE ALL THE PAPERWORK. – AND, EVAN, WHAT WAS ABRAMSKI’S
OTHER ORIGINAL ARGUMENT? – WELL, HIS OTHER ARGUMENT
WAS IT DIDN’T MATTER WHETHER HE LIED ABOUT WHO
WAS REALLY BUYING THE GUN BECAUSE HIS UNCLE WAS
QUALIFIED TO BUY THE GUN, BUT THE COURT DIDN’T FIND THAT ARGUMENT VERY
PERSUASIVE, EITHER. THE COURT SAID THAT
ABRAMSKI’S MISREPRESENTATIONS INTERFERED WITH THE
SELLER’S LEGAL OBLIGATION TO DO A PROPER BACKGROUND CHECK
AND TO MAINTAIN PROPER RECORDS OF FIREARM SALES
IN THEIR BUSINESS. – GOOD. WHEN THE GOVERNMENT IS
PROSECUTING A DEFENDANT WHO’S BEEN INDICTED,
THEY HAVE A NUMBER OF POWERS. NOW, ONE OF THESE POWERS IS THE POWER TO FREEZE THE
INDICTED DEFENDANT’S ASSETS PRIOR TO TRIAL IF THEY’D BE SUBJECT TO FORFEITURE
UPON CONVICTION. THIS IS WHAT THE GOVERNMENT
DID TO BRIAN AND KERRI KALEY AFTER THEY WERE INDICTED FOR TRANSPORTING STOLEN MEDICAL
DEVICES ACROSS STATE LINES AND LAUNDERING THE PROCEEDS
OF THAT ACTIVITY. THE RESTRAINING ORDER
GRANTED BY THE COURT PREVENTED THE KALEYS FROM
TRANSFERRING ANY ASSETS TRACEABLE TO OR INVOLVED
IN THE ALLEGED OFFENSE. NOW, THAT INCLUDED
A HALF-MILLION DOLLAR CERTIFICATE OF DEPOSIT THE KALEYS PLANNED
TO USE TO HIRE A LAWYER. IN ORDER TO LIFT
THAT RESTRAINT, THE KALEYS SOUGHT A
HEARING TO CHALLENGE THE UNDERLYING INDICTMENT
ON WHICH THEY WERE CHARGED AND THE PROBABLE CAUSE FINDING THAT ALLOWED THEIR
ASSETS TO BE FROZEN. SO THE QUESTION BEFORE
THE JUSTICES WAS WHETHER THE KALEYS HAD A CONSTITUTIONAL
RIGHT TO SUCH A HEARING. EVAN, WHAT DID THEY SAY? – WELL, BY 6-3 VOTE,
THE JUSTICES FOUND THAT THERE’S NOTHING IN THE
CONSTITUTION THAT ENTITLES A FEDERAL CRIMINAL DEFENDANT
TO JUDICIAL REVIEW OF A GRAND JURY’S FINDING
OF PROBABLE CAUSE BEFORE THE GOVERNMENT CAN OBTAIN A
PRE-FORFEITURE ASSET FREEZE. THE COURT HELD THAT IT HAD ALREADY EFFECTIVELY
DECIDED THIS QUESTION IN THE 1989 CASE OF
UNITED STATES V. MONSANTO,
WHEN IT HELD THAT SUCH ASSET
FREEZES WERE PERMISSIBLE ON A GRAND JURY’S FINDING
OF PROBABLE CAUSE THAT THE PROPERTY
WOULD ULTIMATELY PROVE CAPABLE OF BEING FORFEIT. THE MAJORITY FOUND NO REASON
WHY A PROBABLE CAUSE FINDING SUFFICIENT TO DENY
DEFENDANTS THEIR LIBERTY WOULD NOT ALSO BE SUFFICIENT
TO FREEZE THEIR PROPERTY. – I THINK THE BOTTOM LINE
IS THEY SAID THAT THE GRAND JURY GETS THE
LAST WORD ON PROBABLE CAUSE AND THAT THE DEFENDANT
DOESN’T GET A DO-OVER IN FRONT OF A DIFFERENT REFEREE. THIS IS PART OF THE CRUCIAL ROLE
THAT A GRAND JURY PLAYS IN FINDING PROBABLE CAUSE. AND MOREOVER, THEY FOUND
THERE MIGHT BE GOOD REASON THAT THE GOVERNMENT DOES NOT WANT TO
REVEAL ITS GRAND JURY WITNESSES THIS EARLY IN THE PROCEEDING. AND FINALLY, THEY SAID THAT
IT WOULD TAKE UP A MINI-TRIAL, A MINI-HEARING, IF THEY ACTUALLY
MADE THIS OPPORTUNITY AVAILABLE. – THANKS, EVERYONE. OK, BETH, ANY QUESTIONS? – YES. WE HAVE ONE,
AND THAT IS, “HOW DOES THE RULE OF LENITY PLAY INTO ALL OF
THESE DECISIONS?” – WELL, THE RULE OF LENITY
ESSENTIALLY SAYS THAT IF THERE’S A STATUTE AND IT CAN
BE INTERPRETED EITHER WAY, THEN YOU INTERPRET IT
IN FAVOR OF THE DEFENDANT, BUT THAT DEPENDS
ON EACH STATUTE. SO YES, THE COURT WAS
CITING THE RULE OF LENITY, BUT I THINK IT HAS TO GO
TO ANY PARTICULAR STATUTE THAT’S BEING CHALLENGED. – THANK YOU. WE’RE GOING
TO TAKE A SHORT BREAK AND THEN BE BACK TO TALK ABOUT FEDERAL COURTS
AND CIVIL PROCEDURE.

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