Tuesday, October 17, 2017

NFLPA victim of drive-by jurisdictional ruling

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Posted by Howard Wasserman on October 17, 2017 at 01:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Police Misconduct in Chicago: The Forgotten Past

To return to the topic of the DOJ Report on Chicago policing, I wanted to write a bit in this post and some later ones about other investigations into policing in Chicago that the DOJ ignored in its report. These other investigations are less well-known than the Kerner and Walker commission reports, so it’s worthwhile giving them attention for a moment or two. They are historically interesting on their own. At the same time, as my summaries suggest, they are evidence of the longstanding patterns and practices of police misconduct are in Chicago.

The first investigation, conducted in the summer of 1972, resulted in a report titled “The Misuse of Police Authority in Chicago,” prepared after a four-day blue-ribbon panel on police misconduct organized by Ralph Metcalfe. It was prompted by the grassroots efforts of the Third Ward Committee on Crime Prevention, which was concerned with the rise of crime in Chicago’s majority black neighborhoods and increasing instances of police misconduct.

The Third Ward Committee might have been as concerned with crime as it was with policing, but the blue-ribbon panel was only interested in the latter. In June and July 1972, Metcalfe, then a congressman representing the part of Chicago’s south side that included the third ward, and his multi-racial panel took testimony from Black, Latino, and white witnesses about instances of police brutality on the city’s predominantly black and brown south and west sides. The complaints ran an all too familiar gamut: a dentist complained about a police encounter following a routine traffic stop (he was missing a light over his license plate) that resulted in injuries to his wrists that prevented him from working for several days (Report, p. 2). A mother recounted how her son was shot to death by a police officer at a local public high school; her account that included claims that suggested the officer planted a gun near her son to justify the shooting (Report, p. 4). A gym teacher described a beating at the hands of twelve to fifteen white police officers (Report, p. 10). Many of the witnesses testified that police officers called them names (from n***r to “Black m**** f****” to “dirty Puerto Rican”). Most of the witnesses also testified that their complaints about their mistreatment to the Internal Affairs Division (IAD), the section of the police department assigned to handle police misconduct claims, were ignored.

The panel treated the problem of misconduct as a failure of policing, specifically the related failures to hire minority officers, train those officers who were hired, or investigate or discipline officers who were accused of abuse. Although high-ranking police officials ignored Metcalfe’s invitation to appear before the panel, the panel did hear from several experts on police hiring and training, and reviewed materials gathered by the Chicago Bar Association and the Law Enforcement Study Group. In addition, the panel considered the documentation gathered by the Afro-American Patrolmen’s League and lawyers affiliated with the ACLU of Illinois for Calvin v. Conlisk (72 C 3230), a civil rights case that charged that Chicago failed to properly train and discipline police officers.

The recommendations of the report echoed those discussed in Locking Up Our Own (esp. ch. 3);  they also sound uncomfortably similar to some of the police reform efforts discussed in Chicago today. The report called for increased public oversight and police accountability to the public (Report, pp. 60-61).  Among other things, it recommended that the department’s hiring and promotion practices (which it characterized as discriminatory) be reformed (Report, p. 62), and it recommended the creation of an independent (of the police department) investigative agency that would be charged with hearing claims of police misconduct and abuse (Report, pp. 65-59). And it called for an immediate end to an immediate end to aggressive patrol policies and a halt to the practice of stopping “Brown persons …by policemen for the sole purpose of investigating residency status” (Report, p. 74).

 

Posted by Elizabeth Dale on October 15, 2017 at 01:46 PM | Permalink | Comments (0)

Saturday, October 14, 2017

Argument on ATS in Jesner v. Arab Bank

SCOTUS heard argument on Wednesday in Jesner v. Arab Bank, considering whether a corporation can be sued under the  common law cause of action under the Alien Tort Statute. I listened to the audio and have a few thoughts on the procedure, without getting into the substantive question of corporate liability.

The Court a good job (certainly better than four years ago in Kiobel) talking about the issues without conflating jurisdiction and merits. Everyone spoke about causes of action and the scope of the norms that are part of federal common law and can be enforced through that cause of action, without speaking about jurisdiction in a sloppy way.

Justice Gorsuch asked petitioner/plaintiff counsel what the continued point of the ATS is, given that § 1331 grants jurisdiction over claims grounded in federal common law incorporating international law. Counsel explained that the ATS is like the maritime-jurisdiction grant, a more specific grant in the Judiciary Act of 1789 through which Congress could make absolutely clear that such cases could be brought in federal court. What neither mentioned (and what you would expect Gorsuch to remember, given his Originalist obsession) is that the 1789 Act did not include general "arising under" federal-question jurisdiction, necessitating these subject-specific grants. To the extent § 1350 is vestigial or superfluous with modern § 1331, it is not alone.

Posted by Howard Wasserman on October 14, 2017 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, October 13, 2017

Zarda and the Trump Administration's Surprising (and Largely Unrecognized) Approach to Anti-Discrimination Principles

The Trump Administration's Justice Department ("DOJ") attracted substantial public criticism for its decision to file an amicus brief before the en banc U.S. Court of Appeals for the Second Circuit in Zarda v. Altitude Express.  The main issue in the case whether Title VII of the Civil Rights Act's prohibition against sex-based discrimination prevents employers from discriminating based on sexual orientation.  DOJ argued that Title VII should not be interpreted to prohibit employment discrimination against homosexuals.  It contends, in part, that "sex discrimination" necessarily involves the belief that one sex is inferior to the other.  Because discrimination against homosexuals does not involve or arise from a belief that either males or females are superior to the other sex, it does not constitute "sex discrimination."  Many commentators have assailed DOJ's decision to get involved in the case at such a late stage to argue against gay rights, particularly since the EEOC is already a party litigant and urging the exact opposite interpretation of Title VII.  Putting aside the merits of DOJ's position for a moment, I wanted to point out an overlooked -- and potentially significant -- implication of DOJ's argument that might have escaped the notice of the Trump Administration's political appointees (who were the only people to sign the brief).

Continue reading "Zarda and the Trump Administration's Surprising (and Largely Unrecognized) Approach to Anti-Discrimination Principles"

Posted by Michael T. Morley on October 13, 2017 at 06:01 PM | Permalink | Comments (9)

Thursday, October 12, 2017

Unconstitutional Intent and the Executive

A central focus of the ongoing Travel Ban cases is whether the restrictions they impose are invalid because they were motivated by invidiously discriminatory intent on the part of the President.  Broadly speaking, a government action which is otherwise constitutionally permissible violates Equal Protection principles (whether under the Fourteenth Amendment or the Fifth Amendment's Due Process Clause as construed in Bolling v. Sharpe) if the official who adopts, approves, or takes that action did so based on racial considerations -- which for brevity should be understood as including ethnicity and national origin as well -- or religious considerations.  This Equal Protection principle applies even more forcefully when the government official acts based on stereotypical views about, or animus toward, people of a particular race or religion.  The foundations of this principle trace back to the Supreme Court's post-Civil War Era ruling in Yick Wo v. Hopkins.  (I would like to refer to Yick Wo as a Reconstruction Era case, but it was decided a decade after Reconstruction ended).  The Free Exercise and Establishment Clauses reinforce, complement, and establish Equal Protection-type safeguards prohibiting intentional religion-based discrimination.  This posting considers some of the implications of focusing on the President's personal, subjective intent and motivation to identify such discrimination in determining the constitutionality of official action. 

Continue reading "Unconstitutional Intent and the Executive "

Posted by Michael T. Morley on October 12, 2017 at 09:33 PM | Permalink | Comments (7)

Laptops are loud

I banned laptops from my classroom beginning in January 2009 (the first semester following the faculty vote on my tenure) and my only regret was that I did not do so sooner. This was the early days of the anti-laptop push-back. A few professors (including David Cole of Georgetown) had begun identifying and arguing the negative effects, although we did yet have the empirical studies as support. In any event, it ha been about 20 semesters of teaching with no computers in the room.

In the past week, I have visited classrooms of three colleagues (as part of P&T review) who allow laptops. And boy do they make a lot of noise when 20+ students are all typing away at once. I noticed the quiet of no laptops almost immediately in January 2009. I forgot the loudness until this week.

 I know the students in the classes I observed either have in this semester and/or had in past semesters) professors who banned laptops. I remain struck and confused by how little voluntary change there has been. I keep expecting the no-laptop benefits to become so clear that students would recognize and never go back. But it has not happpened. Despite being prohibited from using laptops in Class A, more than half the students in both classes have gone back to using them when allowed to do so in Class B.

Posted by Howard Wasserman on October 12, 2017 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (37)

JOTWELL: Mullenix on Symeonides on forum-selection clauses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Simeon Symeonides, What Law Governs Forum Selection Clauses?, ___ La. L. Rev. (forthcoming).

Posted by Howard Wasserman on October 12, 2017 at 09:58 AM in Article Spotlight | Permalink | Comments (0)

Wednesday, October 11, 2017

How far we have come, in the wrong direction (Updated)

Gyree Durante, a freshman backup quarterback at Albright College, a D-III school in Pennsylvania, was kicked off the team for kneeling during the national anthem. The team's "leadership council" had decided to kneel during the coin toss (because racial injustice is intimately associated with coin tosses) but stand for the anthem. Durante thus acted against the team decision that was an "expression of team unity and out of the mutual respect team members have for one another and the value they place on their differences."

[Updated: Upon further consideration, I must marvel at how so much anti-intellectualism and raw majoritarianism was packed into such a seemingly anodyne statement. Because the majority won, in a rout. The athlete inclined to do so was denied the opportunity to express a criticism of an aspect of American society in a meaningful way, unless kneeling or coin tosses per se mean something about racially disparate police violence. The majority deigned to allow him a small expressive token, but that token is meaningless as a message (or the message the athlete wanted to send), again unless kneeling or coin tosses say something about racism and police violence. Yet this is praised as  "mutual respect for differences."  There was no mutual respect at work here--the majority got what it wanted by prohibiting a protest around the symbol of what some people see as the social problem to be protested; Duarte got nothing of expressive consequence.]

In this article, I discussed Toni Smith, who in 2003 was a member of the women's basketball team at Manhattanville College, a D-III school in New York. During the ramp-up to the Iraq invasion (which was being sold to the public as a necessary national-security response to 9/11), Smith would turn her back to the flag during the anthem. She was not sanctioned and was supported by her teammates, coaches, and school administrators. Some fans booed or jeered and one person walked onto the court mid-game to get in her face. A Google search revealed that Smith (now Smith-Thompson) is an organizer with the NYCLU and wrote an open letter to Colin Kaepernick in 2016.

But it is striking that such protests (which I describe in the article as symbolic counter-speech, in that a person counter-speaks to a symbol through the symbol itself) draw more public anger and less support from teammates and those around the protester today than 15 years ago, on the eve of what at the time was a popular military action. That speaks depressing volumes to our willingness to protect political dissent (or at least certain forms of political dissent). Smith-Thompson suggested the difference is social media. Another difference is that President George W. Bush did not make a hobby of calling out dissenters as unpatriotic sons-of-bitches.

Posted by Howard Wasserman on October 11, 2017 at 10:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Against unity

Unity is the enemy of the freedom of speech.

If unity is a primary value or principle, then free speech cannot exist.  If the goal is for society (or some segment of it) to be "unified," then speech that "divides"--that undermines unity or does something other than unify--cannot be tolerated. But another word for speech that "divides" is speech that anyone disagrees with, Holmes's "thought that we hate." If the goal is unity, then ideas and speech that divide-- ideas that anyone disagrees with--can be and must be suppressed or pushed out of sight. A society that values unity uber alles has no need to protect the freedom of speech and will not protect the freedom of speech. A "united" community will not seek to suppress speech that unites everyone in agreement, only speech that divides. But division undermines unity, so that society is justified in suppressing that dividing speech.

This means that "unity" is not a neutral or benign principle. A governing entity (the NFL, the President's spokesperson, whoever)  that argues about the need for unity is really arguing that it can and should be able to suppress speech. Because those who utter divisive--i.e., unpopular or dissenting--ideas divide, undermining that goal of unity.

Posted by Howard Wasserman on October 11, 2017 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (23)

Tuesday, October 10, 2017

Argument: Hamer v. NHSC

Here is my SCOTUSBlog recap of Tuesday's argument Hamer v. NHSC. Justice Ginsburg was as engaged in this argument as I think I ever have seen her. She even had some love for the arguments of Scott Dodson (Hastings), who filed an amicus brief putting forward his theory that a jurisdictional rule is any rule, regardless of source, that places a case in one court and out of another. She asked petitioner's counsel about Scott's argument; his response was that Scott's formulation is "incorrect" because inconsistent with prior cases and the Rules of Civil Procedure, although without explaining whether or why that formulation is normatively wrong. No one else followed on Ginsburg's question.

Posted by Howard Wasserman on October 10, 2017 at 10:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, October 09, 2017

"Thanks, Iowa Supreme Court!"

Today in my Election Law class we covered state regulation of false or misleading campaign advertisements. (The doctrine is generally that even blatantly false ads enjoy First Amendment protection.) It is one of my favorite class periods of the semester because I show some pretty incredible political ads. The one below is perhaps the most outlandish. It aired during the Iowa judicial retention election in 2010, just after the Iowa Supreme Court had issued a ruling that effectively legalized same-sex marriage. The ad is worth two minutes of your time. (All three justices up for retention lost.)

(Although I find the ad amusing, I also think it's offensive and harmful.)

The debate during this class is always spirited, with some students arguing that the government should be allowed to regulate patently false campaign speech -- especially if it is about the election itself (such as "Republicans should vote on Tuesday; Democrats should vote on Wednesday") -- while other students take a more absolutist First Amendment approach. The debate has perhaps become even more interesting these days given the current tenor of our political discourse.

Posted by Josh Douglas on October 9, 2017 at 02:17 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

On Not Thinking Much About History

The Department of Justice’s January 2017 report on the Chicago police department prompted me to reflect on how policy makers often ignore the historical context that shapes the issues that they wish to engage. In this post, I want to talk a bit about how that sort of inattention was manifested in that particular report. In a latter post, I hope to explore the larger question.

I should begin by admitting that there is much to admire about the report, especially now that events and decisions in D.C. and Chicago have made it less likely it will have any actual impact.  Prepared in a little more than a year, the report rests on an extensive investigation that spanned 300 days of interviews in Chicago. DOJ researchers visited each of the city’s 22 police districts, interviewed officers and commanders, and went on ride-alongs with police officers. The researchers talked with officials of Chicago’s various police unions, met representatives of 90 community organizations, and held several community forums. They also reviewed training documents, reports on policing in the city, and Chicago’s police misconduct complaint database. Finally, the researchers met with local lawyers and activists working on police misconduct in Chicago, and consulted current and former law enforcement officers from around the country (Report, p. 2).

And all that evidence is arrayed to substantiate the report’s damning conclusion that a significant number of Chicago’s police officers engaged in unconstitutional or illegal use of lethal and nonlethal force, as part of a pattern of discriminatory or harassing interactions with people of color and members of Chicago’s LGBTQ communities. The report also provides ample support for the charge that Chicago’s police have a code of silence and culture of lying designed to undermine investigations into misconduct.

It is also the case that the analysis offered in the report is complex. It traces the use of lethal and nonlethal force from actual police practices, through the failures to train and mentor that helped establish those practices, to the lack of discipline that institutionalized the practices. Its treatment is evenhanded, exploring the impact police misconduct has on its most frequent victims, Chicago’s communities of color and LGBTQ population, while also considering the effect poor training and lack of discipline has on members of the police department. Indeed, the report’s discussion of the Independent Police Review Authority (IPRA)’s failures to investigate and discipline officers, makes it clear that just how related these problems are. Bad investigations by IPRA have destroyed citizen trust in the department, especially in the communities hardest hit by the police abuse. At the same time, the erratic discipline IPRA has meted out discouraged officers who tried to follow the rules, encouraged the creation of a department culture that favors silence, lies, and concealment (p. 8, 51-52), and sabotaged efforts to create standards of acceptable practice.

But ultimately the report fails. And it does so because it does not consider the larger context in which these problems have arisen. Its discussion of discipline ignores the work of scholars like Barry Friedman, whose recent work Unwarranted: Policing Without Permission, documented how decades of court decisions have made it harder for aggrieved individuals to bring police misconduct claims. Friedman’s study pointed out a trap created by the late Justice Scalia's jurisprudence on the Fourth Amendment. On one hand, the justice often voted against application of the exclusionary rule, on the theory that wrongful searches could be redressed by claims for money damages. On the other, Justice Scalia often voted against civil rights claimants who sought damages for wrongful searches and seizures (Friedman, 137). Victims of police misconduct in Chicago have found themselves caught in a similar bind. The legal retrenchment Friedman described have made it harder for them to press successful claims in court, while the failures of the review boards documented in the DOJ Report have meant they have little hope of obtaining administrative redress.

That failure, in turn, is exacerbated by another situation well-documented in another study by the Chicago Reporter. The Reporter’s investigation revealed that Chicago’s law department typically has settled police misconduct charges.  The consequence, as the Chicago Reporter put it, is that those “cases conclude as they occurred—outside the public glare.” Because settlement awards were typically confidential, Chicago residents are kept unaware of the scope and cost of police abuse. The secrecy also make it difficult to for individuals to establish persistent wrongdoing by individual officers. Again, none of that appears in the DOJ report.

These are not the only places where examining the recent problems tbe report described from a broader, historical perspective would have improved the report’s analysis. The discussion of abusive arrests in the report (p. 51), would have benefitted from consideration of Rights in Conflict, the report on the violence at the 1968 Democratic National Convention. Engagement with the Kerner Report on racial unrest in 1967 would have given depth to the DOJ discussion of tensions between Chicago’s police department and the city’s communities of color (p. 15). The discussion of the culture of silence and lies (p. 8) would have been strengthened by considered of Nicole Gonzales Van Cleve’s recent study of criminal justice in Cook County. And ultimately, the entire report would have been stronger if the DOJ had actively engaged the historic problem of racial and economic segregation in Chicago, since that enabled the police to treat residents of Chicago’s various communities in the very different ways the report describes.

The report’s narrow focus seems to have been deliberate. Prompted by the outrage that followed the city’s efforts to prevent investigation into the police shooting of Laquan McDonald, the Department of Justice chose to focus on lethal and nonlethal force, and the ways in which the Chicago police department dealt with that problem (p. 1). The narrow scope meant the report largely ignored the department’s long, tragic history of police torture and failed to explore whether the two problems were related. Yet as the Wickersham Commission pointed out in the 1930s (p. 127), and the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Punishment has recognized more recently (Art. 1.1), torture can involve either physical or mental abuse used to obtain confessions or violence used to coerce or intimidate a person during an arrest. So too, the report’s discussion of community mistrust of police (pp. 4, 15) should have considered whether Chicago’s campaign to deny police torture contributed to the problem.

Posted by Elizabeth Dale on October 9, 2017 at 11:10 AM | Permalink | Comments (0)

Sunday, October 08, 2017

Police as prosecutors

A lawsuit in Manhattan civil court is challenging a program in which NYPD lawyers prosecute summons cases, pursuant to a delegation by the Manhattan DA. The apparent impetus for the move was that the DA generally does not send attorneys to summons court, resulting in many cases being dismissed, in turn forming the basis for constitutional claims arguing that officers lacked probable cause to issue the summons. The police department requested the delegation so it could litigate summons cases or offer a resolution would require the defendants to admit liability, barring a subsequent lawsuit. Plaintiffs claim this is a conflict of interest for the police, which violates due process, undermines the adversary system, and raises a hint of selective prosecution. Plaintiffs allege that the police are pursuing only claims against those cited while engaged in expressive activity (the plaintiffs were cited for actions during a police-reform march, and the charges against one of them were dismissed when the judge found the arresting officers' testimony contradicted by video of the events).

For you crim/crim pro/PR scholars in the audience: What is the problem here, as a legal or ethical matter? Because I do not see it. A lot seems to be about the intent of the delegation and the police lawyers' strategy--to protect officers from subsequent civil suits. But that seems like one, valid influence on prosecutorial discretion, whether the DA or its delegee is exercising that discretion. As for the focus on people cited for expressive conduct, that sounds in selective prosecution, a defense that is hard to prove and as much of a problem (or non-problem) with or without the delegation. What am I missing? 

Posted by Howard Wasserman on October 8, 2017 at 11:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Gill and Congressional Authority (A Response to Prof. Morley)

It's October, so that means two great things: baseball playoffs (go Nationals!) and continued commentary on election law.

Michael Morley starts us off with some interesting commentary on Gill v. Whitford, the partisan gerrymandering case that the Supreme Court just heard last week. His conclusion is basically that if the Court recognizes a standard for partisan gerrymandering under the Fourteenth Amendment's Equal Protection Clause, then that could open the door to substantial congressional intrusion into state and local redistricting, particularly allowing Congress "to attempt to influence and reshape the partisan outcomes of state and local races."

My response? Not bloody likely!

Continue reading "Gill and Congressional Authority (A Response to Prof. Morley)"

Posted by Josh Douglas on October 8, 2017 at 10:26 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (10)

The Overlooked Issue in Gill v. Whitford, the Supreme Court's Political Gerrymandering Case

This week, the Supreme Court heard oral arguments in Gill v. Whitford, the political gerrymandering case from Wisconsin.  The Court will decide whether "judicially manageable standards" exist for determining when a legislative map constitutes an unconstitutional political gerrymander and, if so, whether the lower court crafted the correct constitutional test.  In my next post, I will discuss some of the substantive considerations raised by the plaintiffs' claims and the lower court's ruling.  Here, however, I will bring attention to one of the most important issues in the case that has been almost entirely overlooked throughout the course of the litigation -- a Court ruling recognizing a broad right against political gerrymandering will expand the scope of Congress' power under Section 5 of the Fourteenth Amendment to regulate and attempt to influence the outcomes of state and local elections along partisan lines.  (Full disclosure:  I authored an amicus brief in support of the State of Wisconsin in Gill, but am writing here solely in my personal capacity).

Continue reading "The Overlooked Issue in Gill v. Whitford, the Supreme Court's Political Gerrymandering Case"

Posted by Michael T. Morley on October 8, 2017 at 12:51 PM | Permalink | Comments (10)

Saturday, October 07, 2017

University of Wisconsin bans counter-speech

An intentionally provocative headline, but not too far off. The Board of Regents adopted a policy that "students found to have twice engaged in violence or other disorderly conduct that disrupts others' free speech would be suspended. Students found to have disrupted others' free expression three times would be expelled." (H/T: Steven Lubet). The  linked article contains quotations capturing both sides of this: The regent who says the policy promotes listening and that "drowning out another speaker" does not qualify as freedom of speech, compared with the student who argues that the First Amendment is supposed to be messy and contentious.

The policy is glaringly vague (what is "disorderly conduct," what is "disruption"), etc.).  I expect the university to try to clear that up in its implementing regulations. Meanwhile, I wonder if a constitutional challenge now would be deemed unripe, since the policy is not yet at the point of implementation. In any event, I do not see how the university could write regulations that are clear enough to pass constitutional muster. If the counter-demonstrating, where the counter-demonstrators outnumber and outshout the original speakers, does that necessarily become disruption? Even if listening is a worthy goal to promote, can the state give people a choice between listening (which sounds compelled) or staying away, with talking back no longer an option?

Posted by Howard Wasserman on October 7, 2017 at 02:59 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (17)