Tag: hit&run

On Tuesday, March 3, at 10:00 a.m., the Supreme Court heard oral arguments in Seila Law v. LLC. That case considered the constitutionality of the CFPB’s structure. (I analyzed the arguments here.) At some time that same day (I am not sure the exact time), the Fifth Circuit decided CFPB v. American Check Cashing. This case also considered the constitutionality of the CFPB’s structure. I criticized that decision as an untimely amicus brief. The panel should have held the case in abeyance until the Supreme Court decided Seila.

Last week, sua sponte, the Fifth Circuit agreed to hear American Check Cashing en banc. The panel decision was vacated. I suspect the en banc court will simply wait to see what happens in Seila, and remand to the district court–effectively a circuit GVR.

The Fifth Circuit does not have a consistent approach to resolving issues that the Supreme Court has granted review on. Consider the following four examples:

1. Whole Woman’s Health v. Paxton, No. 17-51060 (5th Cir.)

This case considered Texas’s prohibition of “dismemberment abortions.” The panel (Stewart, Dennis, and Willett) heard oral arguments on November 5, 2018. Six months later, on March 13, 2019, the panel issued an order placing the case in abeyance:

This appeal will be held in abeyance pending the disposition in the Supreme Court of a forthcoming (presumably) petition for a writ of certiorari in June Medical Services, L.L.C. v. Gee. [FN1] Once the Supreme Court disposes of June Medical, either by denying the petition or by deciding the merits, this appeal will be returned to this panel for further proceedings.

[FN1] 1 905 F.3d 787 (5th Cir. [Sept. 26,] 2018); see also June Med. Servs., L.L.C. v. Gee, 139 S. Ct. 663, 663 (2019) (mem.) (granting a stay “pending the timely filing and disposition of a petition for a writ of certiorari”).

Let’s consider the chronology.

• The Fifth Circuit decided June Medical v. Gee on September 26, 2018, before the dismemberment case was argued.
• The Supreme Court granted a stay on February 7, 2019.
• And on March 13, 2019, the panel held the dismemberment case in abeyance for June Medical.
• A petition for certiorari was filed in June Medical in April 2019.
• Cert was granted on October 4, 2019.

Did the panel act properly here? I can see two sides. Following the stay, it was very likely  that the Supreme Court would grant certiorari. Indeed, the Supreme Court’s stay order specifically referred to the “timely filing” of a cert petition. The panel may have reasonably concluded that any ruling should wait till Justices resolve the dispute from Louisiana dispute. Otherwise, their decision would simply be GVR’d by the Supreme Court.

On the other hand, there will probably be an eighteen-month gap between oral arguments in the Fifth Circuit (November 2018) and a final SCOTUS decision (June 2020). At that point, the Fifth Circuit will probably require new briefing, and perhaps another round of oral argument. And Texas’s law will have been enjoined for nearly four years. There is a cost to waiting around till the Supreme Court decides a related case.

The court could have asked the parties to opine on whether abeyance was appropriate. Specifically, the question presented in June Medical is not perfectly aligned with the question in the dismemberment case. It is entirely possible June Medical could be resolved on some ground that doesn’t affect the question before the panel. In that case, the two-year wait will have been for naught. But the court here acted sua sponte.

In any event, the panel’s sua sponte decision here places American Cash Checking in a very poor light. An eighteen-month delay is debatable. The CFPB panel couldn’t even wait four months before issuing its decision.

2. Whole Woman’s Health v. Smith, No. 18-50730 (5th Cir.)

This case concerns Texas’s law that requires burial of fetal remains. On September 5, 2018, a district court judge declared the law unconstitutional. One year later to the date, the Fifth Circuit heard oral arguments on September 5, 2019. During the oral arguments, the court asked the parties whether abeyance would be proper, but there were no written filings on the subject. On October 7, 2009, three days after cert was granted in June Medical, the panel (Barksdale, Stewart, and Costa) issued an order:

On October 4, 2019, the Supreme Court granted two petitions for writ of certiorari in June Medical Services, L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018). See Supreme Court Nos. 18-1323, 18-1460. This appeal will be held in abeyance pending the Supreme Court’s disposition of June Medical. See Whole Woman’s Health v. Paxton, Fifth Circuit No. 17-51060 (Order of March 13, 2019) (holding case in abeyance pending Supreme Court’s disposition in June Medical). After the Supreme Court decides June Medical, this appeal will be returned to this panel for further proceedings.

This post-certiorari order makes more sense than the pre-certiorari order in the dismemberment case. And the panel asked the parties about holding the case in abeyance. It would be ideal to allow for formal briefing on this issue. Again, it is possible that June Medical would not resolve the precise issue with fetal remains.

In any event, both Texas abortion cases were handled far better than the CFPB case. That panel failed to hold the case in abeyance after the precise question presented had already been argued.

Does the Fifth Circuit have a general rule that all abortion cases will be held in abeyance for June Medical? Nope. Two abortion cases from Mississippi were not held in abeyance at all.

3. Jackson Women’s Health Organization v. Dobbs,  No. 18-60868 (5th Cir.)

This case considered Mississippi’s prohibition on abortion after fifteen weeks. The Fifth Circuit panel heard oral arguments on October 7, 2019 (Higginbotham, Dennis, and Ho). Three days earlier, certiorari had been granted in June Medical. One of the questions presented in the Louisiana case was whether third-party standing was permissible. In the Mississippi Case, the Plaintiffs included “Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors.” This case raised the same third-party standing issues that are presented in June Medical. There were no individual plaintiffs in the Mississippi case.

The Fifth Circuit panel did not hold the case in abeyance. Instead, it resolved the case barely two months later on December 13, 2019.

Subsequently, a petition for rehearing en banc was denied. I suspect a cert petition to be filed soon enough, and ultimately, a GVR following June Medical.

Consider one more abortion case with the same name.

4. Jackson Women’s Health Organization v. Dobbs,  No. 19-60455 (5th Cir.)

This case considers Mississippi’s prohibition on abortions after a “fetal heartbeat has been detected.” The panel (King, Costa, and Ho) heard arguments on February 6, 2020 at the University of Houston Law Center. (I was unable to attend in person). This case was not held in abeyance. To the contrary, the panel issued a per curiam decision two weeks later on February 20, 2020.

***

Why were the Texas cases placed on hold while June Medical was pending, but the Mississippi case were decided so quickly? Perhaps June Medical may affect the former cases, but not the latter cases. I’m not persuaded. The Fifth Circuit’s approach is ad hoc, and not standardized. The judges should consider this issue, and come up with some coherent policy. The current regime is unfair to litigants, and fails to accord due deference for the Supreme Court. At a minimum, the parties should be offered the opportunity to brief the issue before a sua sponte abeyance order is issue.

Perhaps the Texas abortion cases got it right. Or maybe the Mississippi abortion cases got it right. But the CFPB case, without question, got it wrong. I am glad that opinion has been vacated. It should no longer serve as a precedent.

 

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From Commonwealth v. Mueller, decided Wednesday by a Pennsylvania Superior Court appellate panel:

On June 8, 2018, police conducted a traffic stop in Brookhaven Borough. During the course of the stop, Appellant, who was a bystander and not involved with the traffic stop, approached the scene. Appellant stood over the vehicle’s occupants, and Officer Hughes asked her to step back. Appellant refused to comply. Officer Hughes asked Appellant to step away from the immediate area, and he told her that she could observe from across the street. Officer Barth arrived, spoke with Appellant, and asked her to move.

Appellant began to videotape the scene with her cell phone and refused to move. Officer Barth threatened to arrest Appellant if she did not move, and Appellant moved into the intersection and obstructed traffic. Officer Barth asked Appellant to move again.

Appellant said: “This is fucking ridiculous.” Appellant subsequently walked away and went to work. The police issued a citation, charging Appellant with disorderly conduct at Section 5503(a)(3) (uses obscene language or makes obscene gesture) [for which Appellant was convicted and (a)(4) (creates hazardous or physically offensive condition by any act which serves no legitimate purpose) [for which she was acquitted]

A person is guilty of disorderly conduct under Section 5503(a)(3) if, “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [she]…uses obscene language, or makes an obscene gesture.” Where a person uses profane language or other “angry words” that are not used to describe an act of sex or to appeal to anyone’s prurient interest, this Court has found insufficient evidence to sustain a conviction under Section 5503(a)(3). See, e.g., Pennix, supra (reversing conviction under subsection (a)(3) where appellant became agitated during search of her book bag in courthouse and screamed: “Fuck you I ain’t got time for this,” “Fuck you police” and “I don’t got time for you fucking police”; while appellant’s words were disrespectful, insulting and offensive, they were not “obscene” within meaning of Section 5503(a)(3)); Commonwealth v. McCoy, 69 A.3d 658 (Pa.Super. 2013), appeal denied, 623 Pa. 761, 83 A.3d 414 (2014) (reversing conviction under subsection (a)(3) where appellant shouted “fuck the police” multiple times during funeral procession for police officer; record showed no evidence that appellant’s chant was intended to appeal to anyone’s prurient interest or to describe sexual conduct in patently offensive way).

Instantly, the record shows Appellant uttered “this is fucking ridiculous,” after police had repeatedly asked her to back away from the scene of a traffic stop. Nothing in the record indicates that Appellant intended to describe an act of sex or appeal to anyone’s prurient interest.

The Commonwealth agrees the evidence was insufficient to sustain the conviction under Section 5503(a)(3). Accordingly, we reverse Appellant’s conviction and vacate the judgment of sentence. {Due to our disposition, we do not have to consider Appellant’s challenge under the First Amendment.}

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3/30/1875: U.S. v. Cruikshank argued.

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Most judges balk at the prospect of jury nullification—the right and power of juries to bring “not guilty” verdicts when defendants violate laws that jurors consider unjust or wrongly applied. Some of them get extremely mad when a fellow judge endorses the practice in his own courtroom.

That’s exactly what happened in December 2019, when a divided three-judge panel of the U.S. 2nd Circuit Court of Appeals rebuked U.S. District Judge Stefan Underhill for telling prosecutors and defense attorneys that before them was a “shocking case” that “calls for jury nullification.”

The prosecution that shocked Underhill was a dubious federal “child pornography” charge growing out of a state statutory rape case. A U.S. Attorney’s Office press release alleged that defendant Yehudi Manzano, 31, “sexually assaulted a 15-year-old female victim in Connecticut, video recorded the assault with his cell phone, and uploaded the video to his Google account.” Yet “the only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents,” Norman Pattis, Manzano’s attorney, says.

How did the feds get jurisdiction in what would normally be a state criminal case? “Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the [federal child pornography] statute,” Judge Underhill marveled.

Charging Manzano in federal court is no small thing. According to the same press release, “the charge of production of child pornography carries a mandatory minimum term of imprisonment of 15 years…and the charge of transportation of child pornography carries a mandatory minimum term of imprisonment of five years.” Such a sentence would be in addition to the one to 20 years in state prison faced by Manzano for having sex with a 15-year-old who was incapable, under Connecticut law, of consenting to the relationship.

Manzano’s attorneys argued that their client should be allowed to inform the jury of the potential sentence and argue for jury nullification. Judge Underhill agreed.

“I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government,” Underhill said in court in response to the defense’s motion to be allowed to argue for nullification. “I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way.”

Prosecutors promptly filed an emergency motion seeking a “writ of mandamus” that would bar Judge Underhill from permitting the defense to inform the jury of the potential sentence and to argue in favor of nullification. Two of the three appeals court judges hearing the case sided with the prosecution.

“Our case law is clear: ‘it is not the proper role of courts to encourage nullification,'” Judge Richard J. Sullivan wrote in a ruling joined by Judge Denny Chin. “As a practical matter, there is no meaningful difference between a court’s knowing failure to remove a juror intent on nullification, a court’s instruction to the jury that encourages nullification, and a court’s ruling that affirmatively permits counsel to argue nullification.”

The appeals court did not bar Underhill from allowing sentencing information to be presented to the jury, since there are potentially grounds other than nullification that could justify its introduction.

Judge Barrington D. Parker opposed the writ of mandamus regarding both sentencing and jury nullification. “An especially unsettling aspect of this case is that the record the prosecution presented to the District Court and to this Court is barren of anything that would explain, much less justify, the prosecutors’ decision to file the most serious child pornography charges available to them against a man who made a single video which no one else ever saw and which he then attempted to erase,” Parker argued in his dissent.

“Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted,” Parker continued. “But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so.”

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The Iranian government is encouraging residents to download an app it claims can test people for the coronavirus by asking them a series of questions. But activists note that you can’t really diagnose the virus that way, and upon questioning the Health Ministry said it did not develop the app, the Ministry of Information and Communications Technology did. Critics say the app is just another way for the government to snoop on citizens.

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From the N.Y. Daily News (Rocco Parascandola, Ellen Moynihan & John Annese):

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I’ll post links there to interesting new items, from both our blog and elsewhere.

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Michael, Will, Orin, and I will enjoy a couple of drinks and talk about what’s been going on—perhaps about constitutional law in time of epidemics, force majeure clauses in contracts, distance learning and teaching and how much of it might continue after all this is over, or, basically, whatever else we feel like talking about on a Tuesday night. We’d love it if you join the Zoom session, and ask questions via chat. (If it’s too late for you where you live, we expect that we’ll record the session and post the video online.)

We have no idea how well this will work technically, though so far Zoom has been good to us. But “it is an experiment, as all life is an experiment,” and if we screw up this time, we’ll try to do better the next.

I’ll post the link to the session Tuesday, but for now I just wanted to give you a heads up about this so you can pencil it in, if you’re interested.

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The Bureau of Prisons (BOP) confirmed late Saturday night that a federal inmate has died from COVID-19—the first known death of an inmate in the federal prison system.

Reuters reports that Patrick Jones, 49, an inmate at a low-security federal prison in Oakdale, Louisiana, died from complications after contracting COVID-19. According to the latest numbers from the BOP, 14 inmates and 13 staff members are infected with the virus.

Civil liberties groups, criminal justice advocates, and families of inmates have been begging the Justice Department to get elderly and at-risk inmates out of federal prisons, saying the effects of outbreaks inside prison walls could be catastrophic. There are roughly 20,000 inmates over the age of 55 in the federal prison system.

On Thursday, Attorney General William Barr announced that he was directing the Bureau of Prisons to expand home confinement for at-risk inmates, but civil liberties groups say the Justice Department guidelines will exclude wide swaths of inmates.

Jones’ death is a grim portent, but how he ended up in prison also tells a story about the innumerable failures of the drug war and the criminal justice system.

Jones was sentenced in 2007 to 27 years in federal prison for possession of crack cocaine with intent to distribute within 1,000 feet of a junior college.

According to an October letter from Alison Looman, a lawyer who assisted Jones in preparing a 2016 clemency petition, Jones “essentially raised himself on the streets, without family support.”

“A product of incest, his grandmother died when he was 6 and he shuffled between relatives and the street for the rest of his childhood (in one painful chapter, his mom kicked him out when he was 11),” Looman wrote.

In 2007, Jones and his wife were both charged by federal prosecutors with possession of crack cocaine with intent to distribute after a police officer found several bags of the drug in their apartment in Temple, Texas.

Jones’ wife pleaded guilty. Jones, on the other hand, took his case to trial and lost. He was sentenced to 360 months in federal prison under a drug-free school zone enhancement. (These zones often apply in private residences, whether or not school is in session or minors are involved.)

As Reason has reported, drug-free school zone charges are rarely used in actual cases of dealing drugs to minors. Rather, they’re used by prosecutors as leverage to squeeze guilty pleas out of defendants, and as punishment when a defendant turns down a deal and invokes his or her constitutional right to a jury trial.

Jones’ wife, who testified against him, received a significant downward departure from federal sentencing guidelines and was sentenced to three years in prison. Although police only found 21 grams of cocaine in their apartment, Jones was ultimately sentenced for 425 grams of sales based on her testimony.

Defense attorneys and civil liberties groups call this phenomenon “the trial penalty” and attribute the extraordinary decline in criminal trials to it. In federal courts, more than 95 percent of all cases end in plea deals.

There is no parole in the federal prison system, and, buried under a nearly 30-year-sentence, Jones didn’t have many legal escape hatches left. He applied for clemency under Barack Obama’s large-scale clemency initiative, which was intended to grant relief to federal inmates serving long sentences for nonviolent drug crimes, but he was one of thousands of inmates whose petitions were denied.

Another glimmer of hope appeared in late 2018, when Congress passed the FIRST STEP Act, a criminal justice reform bill that made reductions to crack cocaine sentences retroactive.

Jones was eligible and applied for a sentence reduction. “His primary goal in requesting a sentencing reduction is to try and be there for his son, who he has not seen or been able to provide support for since his son was three years old,” his petition said.

However, federal prosecutors opposed Jones’ petition, and a judge denied it in December, citing Jones’ criminal history—a non-violent burglary spree when he was 17 years old and a single arrest for three drug sales to an undercover police officer.

There were many points along the way in Jones’ case where a small deviation in the way the criminal justice system normally operates could have possibly led to a different outcome, but that didn’t happen.

On March 11, Jones filed an appeal of the denial of his petition for a sentence reduction. Eight days later, he was transported to a local hospital with a persistent cough. Nine days after that, he was dead.

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Writers in the Washington Post and the New York Times now agree with many other sources that masks may be useful in combatting COVID-19, perhaps because masks reduce the probability that the wearer will infect others or, at least by discouraging touching of the face, the probability that someone else will infect the wearer.

Meanwhile, writers in the Washington Post and the New York Times are beginning to describe how the economy might restart in the not-so-distant future. Neither mentions the word “mask.”

At this point, we don’t know for sure how well masks work, and there is a danger that masks could provide a false sense of security. If masks in fact greatly reduce transmission, however, then mask mandates will likely be part of the solution. A mask mandate is a much lesser intrusion on liberty than stay-at-home orders.

Surgical masks are not yet widely available, but apparently even DIY masks have some utility, allegedly helping to explain why the Czech Republic has modestly flattened the curve. The CDC could help at this point by encouraging everyone who must be in public or at work to wear at least a DIY mask, while still warning that the measure is not a replacement for social distancing. That might help people get used to the idea. More broadly, the government could help by focusing on mask production. For example, the federal government could promise to buy billions of surgical masks in the event manufacturers are unable to find buyers; the worst case scenario is that the national stockpile is replenished for the next pandemic.

In the longer term, more analysis would be helpful. Perhaps we’ll learn more as some countries, states, and municipalities adopt mask mandates, or as masks become more popular in some areas than other. Some form of random experimentation would be especially helpful. For example, once health care providers have enough surgical masks for themselves, the government could distribute masks in randomly selected municipalities and compare growth of COVID-19 infection rates.

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