Ferguson & Tennesse v. Gardner

After the police released a statement about Mike Brown supposedly committing robbery and stealing some cigars before being killed by a police officer while running away, I couldn’t help but notice the similarity in facts to a prominent Supreme Court case about the use of deadly force. The case was Tennessee v. Garner, 471 U.S. 1 (1985). Per the Wikipedia entry:

At about 10:45 p.m. on October 3, 1974, Memphis Police Department Officers Leslie Wright and Elton Hymon were dispatched to answer a burglary call next door. Officer Hymon went behind the house as his partner radioed back to the station. Hymon witnessed someone running across the yard. The fleeing suspect, Edward Garner, stopped at a 6-foot-high (1.8 m) chain-link fence. Using his flashlight, Hymon could see Garner’s face and hands, and was reasonably sure that Garner was unarmed. The police testified that they believed Garner was 17 or 18 years old; Garner was in fact 15 years old. After Hymon ordered Garner to halt, Garner began to climb the fence. Believing that Garner would certainly flee if he made it over the fence, Hymon shot him. The bullet struck Garner in the back of the head, and he died shortly after an ambulance took him to a nearby hospital. Ten dollars and a purse taken from the burglarized house were found on his body.

Hymon acted according to a Tennessee state statute and official Memphis Police Department policy authorizing deadly force against a fleeing suspect. The statute provided that “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.”

The United States Supreme Court decided that the officer’s actions violated the decedent’s Fourth Amendment rights. This was, apparently, a departure from the common law where deadly force was permitted against a suspected felon who, given the opportunity to submit to the police, nevertheless attempted to flee. The Supreme Court in Garner reasoned:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
. . .
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

For those interested in such things, Graham v. Connor, 490 U.S. 386 (1989) is another landmark Fourth Amendment case concerning police use of force — more generally and not just the use of deadly force:

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

An interesting wrinkle to this objective reasonableness test is that it attempts to assess the use of force from the perspective of an “objectively reasonable” officer. The upshot is that constitutionally permitted use of force isn’t rendered unconstitutional due to the subjective malice of the actual officer and constitutionally prohibited use of force isn’t rendered permissible due to the subjective good faith intentions of the officer.

Do Corporations Have Religious Beliefs?

I don’t know the legal answer to that question – if it has been squarely addressed before, but the Hobby Lobby case was argued to the Supreme Court today and the question came to mind again. The ACA requires that if a corporation provides compensation to its employees in the form of health insurance benefits that the insurance include, among other things, coverage for contraception. The owners of the shares in Hobby Lobby Stores, Inc. oppose on religious grounds certain IUDs and pills that prevent impregnation of a fertilized egg into the uterus.

In my mind, corporations are incapable of belief and the religious beliefs of individuals are distinct from the religious beliefs of the corporations in which they have an ownership interest.

Corporations are a government created legal fiction designed to limit personal responsibility. There is obviously utility to the corporate structure. But, I don’t understand how religious beliefs can get through the corporate shield but personal liability cannot.

I could probably get behind allowing individual owners to abandon the corporate form and exercise their religious beliefs to avoid the contraception mandate if they felt that strongly about it. Or, better yet, go single payer and disassociate insurance and employment altogether.


Judge Posner Is Not Amused

A March 12, 2014 decision by the 7th Circuit Court of Appeals must have been gratifying for the plaintiff-appellee in the case of Central States v. Lewis. Judge Posner gave the defendant-appellants a beat down – their lawyer in particular.

Plaintiff was a health plan. Defendant had been injured in a motor vehicle accident. The health plan paid for defendant’s medical bills to the tune of about $180,000 following a motor vehicle accident. Defendant (through her Georgia attorney — the accident took place in Georgia.) turned around and sued the person who caused the accident. So far, so good. The motorist’s insurance company paid defendant $500,000. The health plan has a lien against that settlement. The defendant is supposed to pay back her health plan the $180,000 because the wrongdoer has now paid for the injury. You can’t double dip. But her attorney just ignored the lien, paid his client $200,000 and pocketed the remaining 60%. (Awfully high as a contingency fee as Judge Posner notes).

The health plan filed suit to enforce the lien and get their $180k back. The District Court entered a preliminary injunction ordering the attorney to put at least $180k in his client trust account on behalf of his client until the lien issue was resolved. He ignored the order. When pressed, the lawyer proclaimed that his client had already spent her money and that none of the money in his firm’s account was from that settlement. When pressed for an accounting, their documentation was skeletal. The District Court entered a finding of civil contempt which was what was on appeal here.

The only supporting evidence cited (it is not discussed) is an affidavit by Lewis saying that she and her husband had spent her entire share of the settlement proceeds on a new house, a vehicle, and “repayment of personal loans, medical expenses, prescriptions, living expenses, and other expenses”; a pair of affidavits by Lashgari stating that neither he nor his law firm is “in possession of funds that could be used to” restore $180,000 to a client trust account; and a bank statement dated June 2011 for a trust account maintained by Lashgari’s law firm, Lashgari & Associates, P.C., www.lawyers4carwrecks.com (visited March 12, 2014). The bank statement shows the $500,000 deposit of the settlement proceeds and a subsequent withdrawal of $202,000, representing Lashgari’s disbursement to Lewis of her share of the settlement. The share he retained—$298,000, a shade short of 60 percent of the settlement proceeds—seems too high for a contingent fee, but he argues that Lewis owed him for unspecified “advances” that he had made to her. The latest entry in the statement is for June 30, 2011— fewer than three weeks before this lawsuit was filed—and shows a balance of $341,000.

These documents—the only evidence cited in the defendants’ brief—show that Lewis and Lashgari willfully ignored the plan’s lien against the settlement proceeds. Lewis’s statement does not indicate the value of her assets; even if she has spent every last cent of the settlement proceeds that she received, it doesn’t follow that she’s assetless— presumably she still has the vehicle and the house, and she has not indicated their value. And though her statement was not notarized until December 2012, it purports to state her financial situation as of May 2012; there is no subsequent information about her finances. As with Lewis, so with Lashgari: one of his affidavits states that the money in the trust account from Lewis’s settlement has been spent, but there is no information about the account’s current balance or the assets of his law firm.

. . .

The defendants’ conduct has been outrageous. After resolving the merits of the underlying suit, the district court should give serious consideration to transmitting copies of this opinion and the record to the Department of Justice and to the General Counsel of the Georgia Bar. In the meantime, we direct the district court to determine whether the defendants should be jailed (a standard remedy for civil contempt, see, e.g., Turner v. Rogers, 131 S. Ct. 2507, 2512–13 (2011); In re Grand Jury Proceedings, 280 F.3d 1103, 1107–08 (7th Cir. 2002)), until they comply with the order to deposit the settlement proceeds in a trust account.

Judge Posner described the defendants’ behavior as “contumacious effrontery.” He also questions why the District Court has been so slow to deal with this case.

CATO Brief on Truthiness in Political Speech

The Supreme Court case of Susan B. Anthony List v. Driehaus involves a challenge to an Ohio law that makes it illegal to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” A parallel provision proscribes false statements “designed to promote the adoption or defeat of any ballot proposition or issue.” Susan B. Anthony List is a pro-life organization who planned to put up billboards that said “Shame on Steve Driehaus! Driehaus voted FOR tax-payer funded abortions.” They based this statement on Rep. Driehaus voting for the Affordable Care Act. He countered that the ACA did not fund abortions and threatened legal action. The Susan B. Anthony List’s advertiser refused to put up the ads due to the threatened action.

In any event, the CATO Institute with the assistance of P.J. O’Rourke filed a pretty bold amicus brief in opposition to the Ohio law and in support of the Susan B. Anthony List. It contends that truthiness is a time-honored and, more importantly, First Amendment protected part of American political discourse.

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular humanist professors of Chicano studies.

I tend to agree with CATO on this one. Even setting aside First Amendment concerns, policing political speech for honesty is an unworkable legal thicket.

7th Circuit: No Preliminary Injunction for Notre Dame on Contraception Challenge

I’m not sure I’ll get to a full review of the 7th Circuit’s decision in Notre Dame v. Sebelius (pdf), but the first few pages were good reading.

The ACA gives Notre Dame a route for opting out of providing contraception or paying for contraception for its students and employees. If it fills out a form saying:

“I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to
be covered; the organization is organized and operates as a
nonprofit entity; and the organization holds itself out as a
religious organization.”

then it gets an exemption. The oral argument I heard seemed to have Notre Dame’s counsel indicating that filling out the form violated its religious beliefs. However, the real objection seems to be that its students and employees would still have access to birth control. In the case of students, the insurer, Aetna would provide it; and in the case of employees, its third party administrator, Meritain would provide it. The federal government would reimburse Meritain up to 110% of its costs. As for Aetna, per the court:

Aetna can expect to recoup its costs of contraceptive coverage from savings on pregnancy medical care, since there will be fewer pregnancies if contraception is more broadly available, at no cost, to Notre Dame’s female employees and students, as well as from other regulatory offsets.

Neither Aetna nor Meritain have religious objections to contraception.

Judges Posner and Hamilton did not see a preliminary injunction being justified as they don’t appear to believe that filling out the form described above constitutes a religious burden and (I suppose – I haven’t finished reading the case) the subsequent imposition of a burden on Aetna and Meritain isn’t Notre Dame’s to complain about.

7th Circuit: Boys Basketball Hair Length Rule Violates Equal Protection

Yesterday, the 7th Circuit issued an opinion in the case of Hayden v. Greensburg Community School (pdf) concerning a complaint over a hair length rule imposed by a boys basketball coach at Greensburg Junior High.

It’s tough to draw a lot of long term conclusions from this case since it was in a sort of odd procedural posture where the parties had stipulated to facts and asked the court to enter judgment one way or another based on those stipulated facts. The record didn’t have a lot of information about what, if any, burdens were imposed on the girls basketball team. If there had been a showing that the burdens imposed on girls were comparable, even if different, the decision apparently might have been different.

But, Judges Rovner and Easterbrook reversed the District Court judge and found that the facts did support an equal protection claim based on the fact that boys were required to cut their hair short and girls had no apparent hair length rule:

This is a case of disparate treatment rather than disparate impact; the hair-length policy, being applicable only to boys teams, draws an explicit gender line. The intent to treat boys differently from girls is therefore evident from the one-sided nature of the policy.
. . .
The hair-length policy applies only to male athletes, and there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. Why, then, must only members of the boys
team wear their hair short?

Update Bob Cook, writing at Forbes, has an article with a lot more detail about the background of this case.

Corporate Religion

Cases are coming down the line analyzing whether businesses purchasing insurance plans and providing them to employees as compensation can, based on religious objections, get out of the Obamacare mandate that the plans include birth control. (See, e.g.).

Sometimes, the business in question is a corporation, and a question that has to be addressed is whether a corporation can be said to have bona fide religious beliefs. And, of course they cannot. The corporate form is a government construct designed to shield individuals from personal responsibility for their actions in order to encourage economic activity. [Insert standard rant about how libertarians can be anti-government and pro-personal responsibility and tolerate the existence of the corporate form.] Because the corporation, as an entity, is entirely a government created legal fiction; it does not legally have any qualities not provided for under the law — moral belief is not such a quality.

Then, the question becomes, when do the moral beliefs of individual owners become relevant to the legal rights of the corporation? That’s a closer question; but I’d suggest that if the corporate form shields an individual owner from a creditor of the corporation; that shield also forms a barrier to the owner’s moral concerns. If it’s a shield, it’s a barrier — you can’t let the Holy Ghost through one direction without individual liability coming through the other way.

ACLU/PPIN challenge state law imposing new requirements on Lafayette Planned Parenthood

On August 22, 2013, ACLU-Indiana filed suit (PDF) on behalf of Planned Parenthood Indiana challenging SB 371. SB 371 changed the definition of “abortion clinic” to include a facility where RU-486 is dispensed. Making that change, means that the facility has to include physical requirements imposed on facilities where surgical procedures are performed even if no surgical procedures are performed at the particular clinic.

As a practical matter, this legislation is directed at the Lafayette Planned Parenthood which provides access to RU-486 but doesn’t provide surgical abortions. Because of the legislation, it has to have – by January 1, 2014 – a procedure room that is at least 120 square feet, scrub facilities, and recovery rooms; among other requirements. The complaint alleges that the Lafayette Planned Parenthood currently consists of rented space with a waiting room and receptionist area, four examination rooms, a patient and employee restroom, four small offices, storage areas, and a staff break room.

Because the facility does not provide surgical services, the complaint argues that these new requirements impose a substantial burden with no rational basis. The complaint argues that Commissioner of Health is allowed to grant waivers of regulatory requirements for good cause shown doing so will not adversely affect health, safety, and welfare of the patient; except that the Commissioner is not permitted to grant waivers in the case of abortion clinics (including, now, clinics that dispense RU-486).The complaint argues that, because the burdens imposed on the Lafayette clinic that are relevant only to clinics that perform surgical abortions, it is a violation of the substantive due process guarantees of the Fourteenth Amendment and, further argues, that because it imposes burdens on the Lafayette clinic that aren’t applied to physicians offices and because the Department of Health can grant waivers for other procedures but not abortions, it violates the Equal Protection Clause of the Fourteenth Amendment.

The State has several weeks before it has to file its response.

More on VRA: Judge Posner eviscerates doctrine of “equal sovereignty”

I generally feel better when I’m the company of Judge Posner. I’m not always on board with his conclusions, but he’s an awfully smart guy. He hits harder than I did on the majority’s notion of “equal sovereignty” in yesterday’s case striking down a key provision of the Voting Rights Act.

On this concept of “equal sovereignty,” used to justify striking down the VRA because it treated the old Confederacy more harshly than other states in terms of flexibility for changing voting procedures, Judge Posner says, “This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.”

He points out, for example, that some states, like Utah were admitted to the union only on the condition that they outlaw polygamy. Other states did not have their status in the union conditioned on the state of their polygamy laws. Judge Posner is skeptical of the states rights rhetoric from the majority:

That evidence—the record before Congress—should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for “states’ rights.” One doubts that this actually is a primary value for any of the justices. The same conservative majority that decided Shelby had rejected a more cogent argument for states’ rights when it held three years ago in McDonald v. City of Chicago that the Second Amendment—a provision of the Constitution designed to secure state autonomy—specifically, the right of states to maintain their own little armies, the militias, against federal abolition—creates rights against states’ limiting gun ownership. It seems that the court’s regard is not for states’ rights in some abstract sense but for particular policies that a majority of justices strongly favors.

Section 3 of DOMA Struck Down by SCOTUS

Last October, I put up a post about the Second Circuit decision in the case of Windsor v. United States. Today, the United States Supreme Court, in a 5-4 decision, affirmed (pdf) the Second Circuit.

The issue was whether Section 3 of the Defense of Marriage Act (DOMA) was Constitutionally permissible in a case where a lesbian couple had married in Canada and had a marriage recognized in their home state of New York. When one member of the couple died, leaving her entire estate to her wife, because of DOMA, the tax bill was $363,000 more than it would have been for a heterosexual married couple. (The marital exemption in the federal tax code was not available to same sex couples.)

The five member majority for the Supreme Court were Justices Kennedy, Ginsburg, Sotamayor, Breyer, and Kagan joined. In dissent were Justices Roberts, Scalia, Alito, and Thomas. The decision begins with a discussion of the issue of standing. Standing refers to the ability of a person to bring an action in court. Courts don’t want to be in the position (and sometimes, under Article III are not permitted to be) of giving advisory opinions to parties on the same side or to people who have no stake in the litigation. So, for example, I can’t sue the government because I don’t like how it’s treating the Smiths down the road. Here, the Government decided after losing at the District Court that it wasn’t going to defend the constitutionality of DOMA. But, at the same time, it has never issued the tax refund. An organization called BLAG (Bipartisan Legal Advisory Group), part of the U.S. House of Representatives, stepped up to appeal the decision when the Attorney General would not. The court pointed out that there are a couple of flavors of “standing” — jurisdictional and prudential. If the lack of standing is jurisdictional; the court takes the position that Article III deprives them of the power to consider a case. If the lack of standing is prudential, good judicial practice gives them the discretion not to consider a case. (In my opinion, these distinctions end up being fairly arbitrary and applied haphazardly depending on whether court wants to reach the merits or not.)

In any event, the Court decided that there was sufficient standing to overcome both jurisdictional and prudential concerns — there was concrete adversity, inasmuch as the U.S. still retained the tax money and would have to give it back. And, with BLAG participating, the adversaries were contesting the matter vigorously enough to ensure that the positions and issues of both sides were well represented. This matter of standing becomes important because of the decision on the Proposition 8 (pdf) case out of California where proponents stepped in to advocate for Prop 8 after the State of California decided it was no longer interested in doing so. Unlike this case, the Court decided that proponents of Prop 8 didn’t have standing to challenge the District Court’s decision that it was unconstitutional. (Generally, citizens don’t have a particular interest recognized under Article III giving them the authority to litigate on behalf of legislation where the State declines to do so.) The Supreme Court did not endorse the merits of the lower court decision, but it stands for now and Proposition 8 is unenforceable. (Interesting split on the Prop 8 case by the way – the majority were Justices Roberts, Scalia, Breyer, Ginsburg, and Kagan while the minority were Justices Kennedy, Alito, Thomas, and Sotamayor.)

Back to the DOMA case, and on the merits, the Court begins with the presumption that marriage is primarily a state issue and noted the evolving view of same sex marriage in New York and other states. If a state recognizes a marriage between two individuals of the same gender, does it violate the Constitution for the United States to second guess that recognition? The majority said that it does. The Court reasoned that, while the federal government has limited authority to regulate marriage in furtherance of federal policy, DOMA goes further than that limited authority. It adds a directive applicable to over 1,000 federal laws and regulations directed to a class of persons that 12 states (including New York) have sought to protect. This mass of regulations goes too far in stepping on States’ more substantial interest in regulating marriage.

This paragraph seemed central to the Court’s reasoning, but I have to say, I didn’t quite follow it or get a sense it was premised on much in the way of prior authority:

Against this background DOMA rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.

(Slip opinion at page 18). This part, however, was clear enough, “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.” And, by doing so, the court held, the Federal Government violated the due process and equal protection clauses of the U.S. Constitution under the Fifth and Fourteenth Amendments.

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.
. . .
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

(Slip opinion at 20-21). And, while anchoring the decision on a State’s right to define marriage; it goes on to take a very dim view of treating gays differently than heterosexuals; making me wonder how this plays out if a federal law attempts to limit a State’s ability to define marriage in a way that discriminates. (This feels a little like an opinion written by committee; as if the beginning part about State’s rights was from the more conservative wing of the majority and now we’re entering into passages designed to win the approval of the more liberal wing.)

DOMA in structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

Again, when a state DOMA case comes along, I don’t see how you reconcile that language about the federal DOMA’s lack of legitimate purpose and high minded prose about human dignity with the competing language about a state’s right to regulate marriage.

That means, I think, Indiana’s “defense of marriage” act and anticipated state constitutional amendment are more vulnerable to attack under the federal Constitution than I would have anticipated. The clock is ticking on that state Constitutional amendment. It might get ratified by a majority in a referendum if it takes place in 2014. Beyond that, the demographics seem to be rapidly moving against support for such a measure.

Update A line from Justice Scalia’s dissent:

The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex marriages.

I’m pleased with the outcome; but Justice Scalia does a fairly good job of pointing out that the majority’s analysis isn’t all that it could be. Certainly, I would not anticipate success if I submitted a brief with an argument that looked like the court’s opinion. On the other hand, when he favors the outcome, Justice Scalia has shown himself content to go a little easier on the analysis if it leads somewhere unfavorable.