Courts/Law

Twitter Pushes Back On Trump Administration

Twitter filed a lawsuit against the Department of Homeland Security and the Department of Customs and Border Protection today. Twitter seeks an injunction barring them from asking for the identity of the person behind @alt_uscis.

It’s not clear what legal reason the Trump administration is seeking to identify @alt_uscis.  The @alt_uscis bio states: “Immigration resistance . Team 2.0 1/2 Not the views of DHS or USCIS. Old fellow drank russian soup.”  It could be a now-fired USCIS employee and they are looking for a leak, or maybe they just don’t like criticism.

Anyway, it is going to put this administration (as well as social media resistance) to a test.  Keep your eyes open.

7th Circuit: LGBTQ Discrimination IS Sex Discrimination

It’s not definitive, but this is a huge step. The Seventh Circuit ruled 8-3 that a woman who was denied a job because she was a lesbian had a cause of action under Title VII.  Title VII is the civil rights law which prevents workplace discrimination on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics, yet it has never done so.

In an opinion which many critics will call “legislating from the bench”, the 7th Circuit majority in Hively v. Ivy Tech Community College of Indiana, ruled that Title VII discrimination is applicable because “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation. ‘”  This is undeniably true.  If Ms. Hively had been a man with a preference for women, there would have been no issue with her being hired.  But she is a woman.  Therefore, this has to do with gender.

The dissent argues, predictably:

[Plaintiff’s attorney] is advancing a creative new legal argument for reinterpreting Title VII, deploying the comparative method not as a method of proof (its normal and intended function) but as a thought experiment with the end of imbuing the statute with a new meaning that it did not bear at its inception.

That’s a rather typical conservative judicial interpretation (unless we are talking about the word “arms” in the Second Amendment).

Anyway, this is a big step forward, and I expect that the Supreme Court will visit this soon.  Here is the full opinion:

The HB2 Repeal: Is It As Bad As Everyone Says?

Well, I find myself in the awkward position of disagreeing with friends, colleagues, and organizations that I respect (like the ACLU, of which I have been an active member for 24 years). That’s not fun. The issue? House Bill 142.

For those living under a rock, HB142 is the bill passed by the North Carolina General Assembly and signed into law by Governor Cooper yesterday. It attempts to repeal HB2 — the heinous “transgender bathroom bill” —  and more importantly (from some people’s perspective) appease the NCAA which has threatened to ban North Carolina from holding any tournaments due to HB2.

To read some of the headlines, you would think HB142 lines up transgender people and shoots them. “The HB2 “Repeal” Bill Is an Unmitigated Disaster for LGBTQ Rights and North Carolina” screams Slate. Reverend Barber calls it “an insult to civil rights“.  The ACLU says: “there is no repeal of the anti-trans HB2, only more discrimination“.

Really? There’s actually been NO repeal AT ALL?  There’s MORE discrimination?  What am I missing?  Am I the one who is crazy?

Quite possibly. But right now, I honestly believe HB 142 is a fairly decent compromise.  And it’s quite possible that the resistance may be overplaying this victory by casting as a loss.

Those who do this are wrong in my view.  HB142 is not HB2.0.

Let’s get a few things out of the way:

First, this was always going to be a compromise bill. Republicans rule the North Carolina General Assembly.  So if you expected a civil rights bill ON TOP OF a repeal of HB2, then somebody sold you a lie.  And it wasn’t Governor Cooper. Now, it is perfectly reasonable to demand that the law protect transgender people (as well as gay, bisexual, queer, etc. people). *I* demand that. But those things do not come in a day.  They just don’t. We’re STILL working on racial inequality for crying out loud.  The exercise here — with this bill — was not to get the law to protect transgender people, but to get the law to stop discriminating against them.  So if you are in the “all or nothing, today” camp, stop reading, because I practice the art of the possible, and nothing I say going forward will please you (in fact, it will likely infuriate you).

Secondly, to those who say that HB 142 doesn’t do enough — well, of course not. Again — it is a compromise bill. I have no reason to think that Roy Cooper or Senator Jackson or the others did not hammer out the best deal possible.  Again, it wasn’t intended to resolve the issue of transgender rights for all time.

Finally, I personally could not give a damn about the NCAA and where tournaments are held. I think the loss of jobs to the state are, and should be, a concern.  Same with the loss of state “prestige”. But the bottom line for me is civil rights. For me, that overshadows everything.  That’s the yardstick I am using here to measure the success, or lack thereof, of HB142 in comparison to HB2. So please don’t question my motive. I want what the ACLU and the LGBTQ community and all lovers of civil rights want – full stop, period.

That said, HB2 is dead. Can I get an “amen”?

Bueller?

Bueller?

If you read some of these articles (or scan the headlines) you would think HB2 is not dead, or that it had been supplemented with worse stuff.  So let’s break this down and discuss what HB142 — now the law — actually does.  Because it’s short, I’ll insert the entire text:

Okay, so is HB2 repealed? Yes. It’s right there in English.  Section One. Statutory Laws 2016-3 — which is HB2 — is repealed.  Click the link. Read what HB2 was.  It was a lot!  It’s gone now.

So let’s move to the NCAA gripes, because it was in plain non-legalese English, and it will help explain what is no longer.  Here, specifically, is the reason the NCAA singled out North Carolina for the proposed ban (from the NCAA website):

The board stressed that the dynamic in North Carolina is different from that of other states because of at least four specific factors: 

  • North Carolina laws invalidate any local law that treats sexual orientation as a protected class or has a purpose to prevent discrimination against lesbian, gay, bisexual or transgender individuals. 
  • North Carolina has the only statewide law that makes it unlawful to use a restroom different from the gender on one’s birth certificate, regardless of gender identity.  
  • North Carolina law provides legal protections for government officials to refuse services to the LGBT community. 
  • Five states plus numerous cities prohibit travel to North Carolina for public employees and representatives of public institutions, which could include student-athletes and campus athletics staff. These states are New York, Minnesota, Washington, Vermont and Connecticut. 

The second and third factors are gone. HB142 wiped them out with the stroke of a pen.  The fourth factor relies on those other cities, but they will presumably permit travel to North Carolina now.

That’s not nothing.  That’s something.  That’s a victory.  Can we acknowledge that?

To be sure, it returns us to the status quo — i.e., the time Charlotte’s ordinance protecting those with non-conforming gender identity. Is the government working to protect the transgender community from discrimination?  Nope.  But now the government is not doing the actual discrimination itself, and, yes, that is big.

It’s like desegregating the public water fountains, even though the business-owned lunch counters remain segregated.  It’s NOT “nothing”; it’s NOT “worse”. It’s an improvement.

What about the NCAA’s first factor and the argument that HB142 does not allow Charlotte and other communities to pass laws protecting the transgender community (at least until 2020)?  I shake my head at that argument, and this is where I think most people have it wrong. We shouldn’t WANT local municipalities to have the power to “enact or amend an ordinance regulating private employment practices or regulating private public accommodation”.

Why not?

Because hundreds of communities in North Carolina will take the opportunity to stick it to the LGBTQ community.

What’s the point of repealing HB2 if Apex, North Carolina (for example) can turn around and pass its own version next week?  You see, not every community in North Carolina is as enlightened as Charlotte or Raleigh or Asheville.  In fact, most aren’t (drive through East Carolina one day).  And LGBTQ people are everywhere in North Carolina. Taking legislative power away from local municipalities was a feature, not a bug.

Also, it is better off if the battlefield is the state legislature — ONE state legislature — rather than hundreds of cities, town, incorporated settlements, etc.  The “resistance” lacks the resources to fight the transgender discrimination issue in every NC municipality and win. Leaving invidious prejudicial treatment to the whims of local legislatures would allow pockets of prejudice to exist for decades (see, for example, the school district in Mississippi which finally became racially desegregated this month!)

What happens in 2020, when the prohibition is lifted?  In truth, it matters little.  The provision to kick the can down the road wasn’t meant to postpone justice.  And it certainly wasn’t meant to postpone injustice.  It just acknowledges reality — that no matter what the state legislature does, it will end up in the courts, as everything does with civil rights.

Put another way — you’re not going to end discrimination against the transgender community completely until a court says so. End of story. You can’t legislate “equal protection under the law” because it is a constitutional/legal issue, not a political one.  And by 2020, these issues will have been worked out.

Yes, it is true that repealing HB2 probably killed North Carolina lawsuits against HB2 (rendered them moot).  But there are plenty of other lawsuits out there, most notably, Grimm v. Gloucester County School Board, regarding the 17 year old transgender male student in a Virginia high school. Sent back down to the Fourth Circuit from the U.S. Supreme Court a few weeks ago, it is likely to go back up as soon as the Fourth Circuit decides (both sides are likely to appeal).  And the outcome there will govern what happens in North Carolina — mostly likely in 2019.

So what do we have to be upset about?  HB2 is no more. HB2-like discrimination cannot sneak in through the back door via local legislatures.  And everything is on hold until the courts resolve this, which they were going to do anyway.  It hasn’t slowed down the litigation track.

“Justice delayed is justice denied” is a maxim used by Martin Luther King, Jr., but dates back to William Penn and even the Magna Carta. I wholly acknowledge that transgender people have every reason to be anxious and upset that the guarantee of their civil rights were not met on March 30, 2017.  I don’t know who or what led them to believe the a Democratic governor in a mostly-conservative state could deliver them their rightful legal protections in one fell swoop.

But if they are angry, then I say good.  They need to be; everyone needs to be.  But nobody should feel defeated by HB142, as many do.  The system works, albeit slowly, and if you don’t remind people every once in a while of their victories, then cynicism wins.  And when cynicism wins, corruption and prejudice is not far behind.

This goes in the win column, and we need to remain vigilant. THAT’S my point.  I ask permission to revise and extend my remarks as needed.

Redstate’s Patterico’s Analysis of the 9th Circuit Decision Against Trump

Don’t normally quote from the conservative Redstate blog, and I rarely agree with Patterico (the author) on anything.  But this analysis is so good — so spot on — that I am reprinting it in full:

As you have no doubt heard, the Ninth Circuit today issued an opinion upholding the District Court’s TRO halting much of Trump’s order on immigration. This post analyzes the decision, which can be read here. Throughout, I’ll grade my own previous predictionsabout the ruling.

My overall impression is that this is a sound legal ruling — and that Donald Trump is personally to blame for it. By allowing Steve Bannon & Co. to write the order in a sloppy and overbroad manner, and further allowing them to decide that it applied to green card holders, Trump issued an the order that was bound to fail.

Perusing Twitter tonight, I see that many people who support the policy behind the order (as I do), but who have not followed the legal arguments closely, are saying this is just another leftist Ninth Circuit decision. But the order is a unanimous “per curiam” (through the court) ruling. It was joined by a judge appointed by George W. Bush who, at oral argument, expressed skepticism towards the idea that the order was motivated by religious bias, and seemed receptive to the argument that these countries might pose a threat.

The Twitter lawyers point out that this was not a ruling on the merits — and that’s right . . . but the merits still factored into the decision. A subtle point — brought up in the oral argument but missed by many observers — is that once the District Court entered the injunction, the burden shifted to the Government to show on appeal that it was likely to win in the trial court. The Court held that the Government had failed to make that showing. This portion of the ruling, then, does relate to the merits. The Court also held that the Government failed to show irreparable injury, since the TRO put the U.S. back in the same state of affairs that had existed for years.

According to the opinion, the executive order’s principal potential flaw was that it may have deprived a substantial number of people of due process, in three ways (the following paragraph describes the states’ arguments, which the Government failed to rebut for purposes of this appeal):

First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.

The decision to interpret the order as applying to lawful permanent residents was reportedly made by Trump advisers Steve Bannon and Stephen Miller. This was clearly the most troubling aspect of the order to the judges — as well as the aspect of the order that stood out to most objective observers as the dumbest part of the order. As I said in my analysis of the oral argument: “I think even Judge Clifton would be on board with staying the executive order to the extent it applies to LPRs [lawful permanent residents].” What I didn’t predict outright was that Judge Clifton would find this enough to join an opinion upholding the entire TRO; I had expected that he would file a concurring opinion agreeing that the TRO was appropriate as applied to LPRs, but only as to LPRs.

The Government argued that the issue of the application of the executive order to LPRs was moot, because the White House counsel had interpreted the order as not covering LPRs. But the court was not convinced, noting that the White House counsel is not the President — and, since the Administration had given so many contradictory statements on this point, nobody can be certain that they won’t apply it to green card holders again:

[I]n light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings

Basically, the court said the order is clearly illegal in denying re-entry to LPRs and non-immigrant visa holders, and they aren’t going to rewrite the order (or let the White House counsel rewrite it) to conform to the law. That’s the President’s job. The court said that the Government’s different proposals for limiting the scope of the TRO still resulted in potential due process violations.

The lack of due process for LPRs was the central aspect of the opinion, and it was completely avoidable. The fault lies with Donald Trump.

As to the argument that Trump was targeting Muslims, the Court’s language seemed carefully crafted to maintain the unanimous nature of the opinion. I predicted there were two votes for a finding of possible religious discrimination, based on Trump’s repeated statements during the campaign that he wanted a Muslim ban — but Judge Clifton was clearly skeptical of this claim. The Court dealt with this by saying: “The States’ claims raise serious allegations and present significant constitutional questions” (language clearly inserted by Judges Canby and Friedland) but refused to use this as a ground to uphold the TRO, instead reserving the issue for later, after further litigation in the District Court (an evident concession to Judge Clifton to get him on board with this opinion).

This means that Donald Trump’s mouthing off about a Muslim ban wasn’t the reason for today’s decision — but it could still have legal consequences down the line.

In other aspects more of interest to lawyers than others, the court (as predicted) found standing based on the states’ proprietary interests, and treated the injunction as an appealable preliminary injunction rather than a TRO proper, because of the length of the briefing schedule. (These are also aspects I predicted correctly based on the oral arguments.)

In summary, this is a solid legal opinion and I don’t see it being reversed by the Ninth Circuit en banc or by the U.S. Supreme Court. The judges did their jobs and they did them well. They won’t get a lot of credit for this from political partisans, but they’ll get it from me.

Yup.

Redstate by the way is now a conservative blog in exile. In a world of Brietbarts and Infowars, it remains a bastion of logical reasoned conservatism.  It is a credible opposition to the progressivism that I espouse — with emphasis on the word “credible”.

Here, for posterity’s sake, is the full opinion:

NC Legislature Still At It

Despite protests, widespread criticism and a threat by the governor-elect to challenge in court any moves that he believes would unconstitutionally limit his power, the Republican-controlled North Carolina legislature is pushing through reforms that would severely limit the incoming Democratic governor’s power.

It’s insane.  One such measure, which passed the House, was that the GOP and the Democratic Party would alternate the years in which they serve as the head of the Board of Electors in each county.  The catch? The GOP will chair all 100 county boards of elections in high-turnout even-numbered years (2018, 2020, 2022, etc.).

And get this…

How indeed?  Do they think we don’t see the inherent disadvantage that one party chairs the board of elections during even-numbered years?

Fortunately, there is pushback from the Dems about the LACK of bi-partisanship.

As I write this, there are citizen protest in the gallery.  They are trying to close the gallery now.

Other measures include the partisan election of NC Supreme Court judges.  The trend in America is to move AWAY from partisan elected judges (i.e., where judges indicate their political party).  But North Carolina is to become the first state since Pennsylvania in 1921 to move back to partisan Supreme Court judge elections.

LATE UPDATE:  SB4 passes and is signed by Gov. McCrory

SB4 would create a bipartisan commission merging the current State Board of Elections, State Ethics Commission and the lobbying functions of the Secretary of State’s office, although Democrats correctly say that there is nothing “bi-partisan” about it.

Democrats said it couldn’t be called bipartisan because they weren’t involved in creating the proposal. Republicans call it bipartisan because it would create a state board and county election boards comprised of members equally split between the parties. It would also deprive the incoming Democratic administration of control of those boards; currently, the administration can appoint three of the five state members and two of the three members on each county board.

Democrats also argued that the bill is far-reaching and should be discussed in more detail in the long session next year. Republican sponsors said the ideas in the bill have been discussed in the legislature for years, and that this is a good time to make the changes because there is no impending election.

The bill would also give Gov. Pat McCrory the authority to make a one-time appointment to fill a vacancy on the state Industrial Commission for a six-year term plus the unexpired portion of the commissioner’s term. Normally, a vacancy replacement only fills out the remainder of a term.

It would also identify state Supreme Court candidates by party in primary elections.

AND MORE:

Good way to phrase it.

Another bill nearing final legislative approval would force Cooper’s Cabinet choices to be subject to Senate confirmation.

Walter Scott Follow-Up

It has been a year and a half since Walter Scott’s death.  I wrote about it here… but basically, he was running from a cop and was shot IN THE BACK As HE WAS RUNNING AWAY.  The video makes this crystal clear:

There’s even indication that the cop planted evidence on/near the body.  Yes,. look at the video.

So what happened at trial?

But despite an unarmed victim, forensics proving he was shot multiple times in the back, a police officer who made a false report, and clear video showing the entire debacle, Slager was not convicted of murder or manslaughter in his trial this week. A lone juror spared him that fate with a refusal to convict. That triggered a mistrial.

Something is horribly wrong with the system.

Fortunately, the prosecutor will retry the case.  Again.  For the THIRD time.

Even operating under a standard in which police officers get the benefit of every reasonable doubt, it seems hard to understand why the cops involved wouldn’t have been convicted of manslaughter. The fact that neither was convicted is the latest evidence that the system as it now exists does not reliably punish cops for even egregious killings.

The policy debate around policing has lately focused on the tactics and rhetoric of Black Lives Matter (while mostly ignoring its excellent Campaign Zero roadmap for policy reform). Whatever conservatives think of Black Lives Matter, it is long past time that more of them join with libertarians and liberals in an effort to address this problem: Armed agents of the state are killing American citizens at rates far higher than other developed countries, and even when videos show them killing unarmed individuals, some are somehow getting away with it.

Judge Roy Moore Is Toast

Alabama Supreme Court Chief Justice Roy Moore has been suspended from the bench for telling probate judges to defy federal orders regarding gay marriage.

The Alabama Court of the Judiciary (COJ) issued the order Friday suspending Moore from the bench for the remainder of his term.

“For these violations, Chief Justice Moore is hereby suspended from office without pay for the remainder of his term. This suspension is effective immediately,” the order stated.

The court found him guilty of all six charges of violation of canon of judicial ethics. Moore’s term is to end in 2019. Gov. Robert Bentley will name a replacement for Moore.

In its order, the COJ wanted to make sure people understood what Moore’s case was and was not about.

“At the outset, this court emphasizes that this case is concerned only with alleged violations of the Canons of Jucial Ethics,” the COJ states. “This case is not about whether same-sex marriage should be permitted: indeed, we recognize that a majority of voters in Alabama adopted a constitutional amendment in 2006 banning same-sex marriage, as did a majority of states over the last 15 years.”

The COJ also stated it is also not a case to review or to editorialize about the United States Supreme Court’s split decision to declare same-sex marriage legal nationwide.

In its 50-page order, the COJ stated it did not find credible Moore’s claim that the purpose for the Jan. 6 order was “merely to provide a ‘status update’ to the state’s probate judges.”

“We likewise do not accept Chief Justice Moore’s repeated argument that the disclaimer in paragraph 10 of the January 6, 2016, order – in which Chief Justice Moore asserted he was ‘not at liberty to provide any guidance … of the effect of Obergefell on the existing orders of the Alabama Supreme Court’ – negated the reality that Chief Justice More was in fact ‘ordering and directing’ the probate judges to comply with the API orders regardless of Obergefell or the injunction in Strawser (federal case in Alabama).”

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Breaking: Big Victory For Voter Rights — No Voter ID In Upcoming NC Elections

NC voter ID law will NOT be enforced in fall election after the U.S. Supreme Court denies stay request (in a 4-4 split — obviously, had Scalia lived, it would have been a loss for voting rights advocates, but he didn’t so……)

The stay was a request by Republican Gov. Pat McCrory and state officials to delay a permanent injunction blocking provisions in a 2013 voting law. The 4th U.S. Circuit Court of Appeals struck down several parts of the law last month, saying they were approved by legislators with intentional bias against black voters more likely to support Democrats.

The Supreme Court decision means voters won’t have to show one of several qualifying photo IDs when casting ballots in the presidential battleground state. Early voting also reverts to 17 days.

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Is This The End Of The Line For Judge Roy Moore?

Alabama Supreme Court Chief Justice Roy Moore is set for a hearing at 1:30 p.m. (2:30 EST) today on charges he violated Alabama’s ethical standards for judges.

Moore is asking the Alabama Court of the Judiciary to dismiss the ethics complaint filed by the state’s Judicial Inquiry Commission. The Judicial Inquiry Commission is asking for a summary judgment against Moore and his removal, instead of moving the matter to a trial.

The JIC alleges Moore’s January 2016 order and his conduct surrounding it encouraged Alabama’s judges to disregard clear federal law.

Moore issued an order in January to Alabama’s probate judges, concerning same-sex marriage. Moore told the probate judges a ban on issuing marriage licenses to same-sex couples was still in effect until the Alabama Supreme Court issued a ruling.

But Moore’s order came more than six months after the U.S. Supreme Court in its Obergefell decision had ruled state bans on same-sex marriage were unconstitutional.

In a response filed with the Alabama Court of the Judiciary, Moore’s attorneys argue he was simply following the law and established procedure in his order, not defying the Supreme Court.

A thematic deception that infuses the JIC brief is that the Chief Justice ordered the probate judges that they ‘had a duty, under Alabama law, not to issue same-sex marriage licenses,’” the filing argues. “The Chief Justice, however, did not on his own initiative direct the probate judges to follow Alabama marriage law.

“Instead he instructed them that ‘[u]ntil further decision by the Alabama Supreme Court’ they were still under a state-court injunction issued by that Court. He neither endorsed nor criticized that injunction. Because consideration of the effect of Obergefell on that injunction had been pending before the Alabama Supreme Court for six months, the Chief Justice considered it prudent to remind the probate judges that the injunction still remained in effect pending its review.”

Moore was removed from the bench as chief justice in 2003 after refusing a federal court order to remove a 10 Commandments monument from the state judicial building.

Moore was re-elected chief justice in 2012.

Local news earlier:

A very late update from AL.com:

Suspended Alabama Supreme Court Justice Roy Moore will go on trial next month on judicial ethics charges after the Alabama Court of the Judiciary late Monday issued an order that denied Moore’s request to dismiss the charges.

The court, in a brief one-page order, also denied a motion by the Alabama Judicial Inquiry Commission that sought an order removing Moore from the bench without a trial.

Breaking: 4th Circuit Overturns Lower Court; Finds That GOP “Intentionally” Passed “Discriminatory” Voting Rights Law

The United States Court of Appeals for the Fourth Circuit invalidated North Carolina’s stringent new voting restrictions, holding that the law violates both the United States Constitution and the Voting Rights Act. The North Carolina measure, the Fourth Circuit held, has a discriminatory impact on black voters, impermissibly burdening their voting rights under the VRA. More boldly, the court also held that the law was enacted with discriminatory intent, designed by the Republican legislature to curb black voting rights in violation of the 14th Amendment’s Equal Protection Clause. This dual finding of discriminatory impact and intent makes the Fourth Circuit’s decision the boldest judicial rejection of voting restrictions in years.

As the court explains, North Carolina passed its omnibus voting bill, SL 2013-381, almost immediately after the Supreme Court freed the state’s voting laws from federal “preclearance”—meaning that after nearly 50 years under supervision, the state was finally free to change voting laws without federal oversight. The legislature promptly “requested data on the use, by race, of a number of voting practices.” And “upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected black voters.” The new law created draconian requirements for valid voter ID, eliminating those IDs most commonly used by black voters; cut back early voting and killed same-day registration; eliminated preregistration for teenagers; and eliminated out-of-precinct voting for voters who accidentally showed up at the wrong precinct in the correct county.

Every single one of these restrictions disproportionately burdened black voters; indeed, as the Fourth Circuit writes, SL 2013-381 seemed to “target African Americans with almost surgical precision.” (Meanwhile, there is essentially no evidence that voter fraud ever occurs in North Carolina.) The evidence that the legislature enacted SL 2013-381 for precisely this purpose—to hamper black voting rights—is almost overwhelming. Indeed, the state even acknowledged that it had eliminated one early voting day, a Sunday, because it was a traditional “souls to the polls” day, when black voters were provided transportation from church to the polls. “Counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic,” the legislature said—so, in response, it did away with one of two days of Sunday voting. This, the Fourth Circuit writes, is “as close to a smoking gun as we are likely to see in modern times”:

The State’s very justification for a challenged statute hinges explicitly on race—specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.

But really, the North Carolina legislature littered its voting law with almost comically obvious smoking guns. Black voters, the court explains, are also more likely to utilize same-day registration, preregistration, and out-of-precinct voting. The legislature knew this when it enacted SL 2013-381; it had “requested a racial breakdown” of different voting methods, and, as the Fourth Circuit notes, discovered:

The legislature’s racial data demonstrated that, as the district court found, “it is indisputable that African American voters disproportionately used [same-day registration] when it was available.” … [I]n-person assistance likely would disproportionately benefit African Americans. SL 2013-381 eliminated same-day registration.

And on and on it goes—each restriction, the court persuasively explains, was crafted to crack down on voting methods favored by black voters. These “seemingly irrational restrictions unrelated to the goal of combating fraud,” the Fourth Circuit writes, can only be explained by discriminatory intent. And the legislature’s highly suspect behavior in enacting SL 2013-381—rushing it through, on party lines, as soon as it was freed of federal oversight—raises serious constitutional red flags. “Indeed,” the court writes, “neither this legislature—nor, as far as we can tell, any other legislature in the Country—has ever done so much, so fast, to restrict access to the franchise.”

As a result of the law’s discriminatory intent and impact, the Fourth Circuit concludes, each of its central provisions must be invalidated under the Equal Protection Clause and the VRA.

It is a very hard rebuke to the lower court.  Now, I know Judge Schroeder, the lower court judge who found that there was no discrimination intended when North Carolina passed its new voter laws.  He is a thorough and competent judge, and certainly no racist.  But not being a Southerner, he just doesn’t see certain things which the older Southern gentlemen of the Fourth Circuit did see.  As the Fourth Circuit wrote, “the [lower] court seems to have missed the forest in carefully surveying the many trees.  This failure of perspective lef the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

This is a HUGE win for North Carolina (the people, not the current government) with national repercussions.

It will no doubt go to the U.S. Supreme Court, where, with a 4-4 split, it will probably be upheld.

The 83 page opinion is below:

Rape Survivor Jailed

Lovely:

A bipolar rape survivor was jailed for nearly a month in Houston after she broke down while testifying against her rapist. In jail, she was allegedly abused and mistaken as a sex offender. Now she’s suing the prosecutor who sent her to jail, a jail guard who allegedly hit her, and others.

The 25-year-old woman, known as Jane Doe, was the key witness in the trial of serial rapist Keith Hendricks, who received two life sentences for raping multiple women. In court last December, she broke down during questioning and ran from the courtroom, screaming that she’d never return.

She was hospitalized and then jailed because court officials feared she would not return to finish her testimony. Doe’s mom had been told her daughter would be treated in a mental health facility, but instead she was imprisoned for 28 days at Houston’s Harris County Jail, where she stayed in the general living quarters.

The woman’s lawyer, Sean Buckley, said a jail guard punched her in the face after she hit the guard (assault charges filed against her were later dropped) and that another inmate gave her a black eye. The complaint states an inmate “repeatedly slammed her head into the concrete floor” and she “was forced to drink from a spigot attached to a dirty metal toilet,”according to the Washington Post. Some jail staff mistakenly thought she was an offender from her jail record, which wrongly listed her charges as “Arrested for aggravated sexual assault,” according to local station KPRC’s investigation. After the woman testified against Hendricks again in January, she had to wait three more days in jail before she was released on January 14, in case she was asked to give more testimony.

Prosecutors had petitioned a judge for a “witness bond,” which by Texas state law allows a witness to be held without bail to make sure they arrive in court to testify. But a former Harris County prosecutor, a legal analyst, and other attorneys told local station KPRC they’d never heard of a witness bond being used to hold a rape victim.

Buckley filed the woman’s lawsuit against Harris County, the sheriff, the jail guard who hit her, and the prosecutor who asked her to be jailed. In a statement, District Attorney Devon Anderson supported the prosecutor’s decision, though as Jezebel noted, it seemed to suggest the woman’s family agreed to the witness bond while mistakenly thinking she would receive care in a proper facility. Anderson said:

Because the DA’s Office has been notified that a lawsuit is imminent, we cannot go into details about this case… However, witness bonds are a common tool used by prosecutors and defense attorneys when the lawyer has reason to believe that the witness will be unavailable or make him or herself unavailable for trial. A judge must approve a witness bond. In this case the judge and family agreed with the decision to obtain a witness bond.

KPRC’s legal analyst Brian Wice noted perhaps the most tragic result of this case: “At the end of the day she received less due process, less protection than the rapist did.”

This country, and particularly law enforcement and the courts, needs one long seminar on how to treat people who have suffered traumatic emotional injury, whether they be soldiers or rape victims.

Why I Don’t Have Much To Say About The Hillary Email Scandal

FBI Director James Comey gave a press conference yesterday morning that sent shock waves through the political establishment.

The bottom line:

nyt_clinton_email

Shock waves indeed, but when I looked around at the political landscape when it was over, I noticed that the pieces hadn’t moved.

Hillary wasn’t indicted.  That wasn’t news.

She acted stupidly, carelessly.  That wasn’t news either.

That the right wing would go apoplectic — not terrible surprising.

I guess I would be more moved if the right wing hadn’t tried to get Hillary in jail since 1991.  Kevin Drum is right on the money when he writes:

Consider two “scandals.” The first is Benghazi. Hillary Clinton did nothing wrong. It was, essentially, a complete nothingburger. The second was Emailgate. In that one, Hillary unquestionably did things that were foolish at best and possibly criminal at worst. It was a genuine story.

But Republicans treated them both exactly the same. It didn’t matter whether Hillary actually did something wrong or not. They went after her with their usual Whitewater/Travelgate/Vince Foster level of fury, convinced that if only they yelled loudly enough the country would finally see her unmasked as the villain she really is. And they’re still doing it. James Comey has spoken, and no one reasonable thinks he’s on the take for the Clintons. But conservatives are almost unanimous in their shrieking that she is too guilty and ought to be put behind bars. Paul Ryan is now promising a probe of the probe, and idiotically calling for the director of National Intelligence to “block” Hillary’s access to classified information while she’s running for president. The only surprise here is that he isn’t demanding that Hillary’s access to classified information be blocked even if she wins.

After eight years of Bill Clinton’s presidency and now four years of Hillary Clinton’s post-cabinet career, Republicans have been crying wolf about Hillary for more than a decade. It’s pretty obvious that they’re going to continue, and that they really don’t care whether she’s actually done anything wrong. I have a feeling the public may finally be getting tired of their games.

I think this is true.

And watching Trump last night, you could see a prime example of a wingnut overplaying the hand.  Trump insisted that Comey — Republicans James Comey — was crooked and that Loretta Lynch was bribed.

And that’s when he took a gift and blew it.

How badly will this hurt Hillary?  It should hurt her badly politically.  Not fatally, but badly, if only in the short term.  I think, however, it won’t.

UPDATE: Another predictable thing — Sarah Palin word salad on Facebook:

Ironic, tragic, but not unexpected – amidst America’s Independence Day celebrations the Ruling Class put another boot on our neck to snuff liberty’s life out of We the People.  It’s a farce that “no one is above the law” and my heart goes out to all who’ve been unjustly accused and destroyed over much lesser crimes than Hillary’s…

***

Today’s FBI forgiveness of tyrants’ illegal acts illustrate purpose in why I insist Americans rise up and tear down this tyrannical system that is destroying America from within. Truly, you’re either with us or you’re against us…

***

Message to all the “Republican” elites throwing in for Hillary, boasting they’ll stay home instead of vote because their particular weakened good ol’ boy is not the GOP nominee (the R.A.T.s suffering chapped ass because their power and purse are threatened by the grassroots movement to destroy their failed politics-as-usual), Hillary thanks you. She knows she can’t win without you.

Cooper Files Response To DOJ Complaint

News-Observer:

Gov. Pat McCrory announced Thursday that his office and four outside attorneys would represent North Carolina in the federal government’s challenge of House Bill 2, hours after making a political issue of a court document filed in the case by his Democratic challenger.

An exchange of political volleys Thursday started when the Republican governor portrayed Attorney General Roy Cooper – who has said he would not defend the law – as reversing himself by responding to the complaint by the Department of Justice.

Cooper’s office had filed the response on Friday, with a deadline to respond looming and no other private attorneys representing North Carolina at the time – raising the possibility that the state could have been left unrepresented or had a judgment entered against it for lack of response. The filing asked for an extension of the deadline.

On Thursday, Cooper’s campaign called McCrory’s criticism misleading, reiterating Cooper’s opposition to the law and that he wouldn’t defend it.

McCrory’s campaign then called on Cooper to resign as attorney general “for gross incompetence.”

U.S. Attorney General Loretta Lynch and the federal Department of Justice brought the lawsuit last month, naming as defendants the state, McCrory, the state Department of Public Safety and the UNC system and its board of governors.

Put another way, McCrory was going to blow off the deadline in the DOJ lawsuit, so Cooper filed a response to the complaint.  Cooper agrees with the DOJ, so McCrory was not happy with the nature of the response.

Basically, it was a set-up.  McCrory wanted to make Cooper look bad by making Cooper stick to his guns and not defend the case.  When Cooper did file a (conceding) response, McCrory could then claim that Cooper was incompetent.

Except it really doesn’t seem that way.  It seems that Cooper saved McCrory from a default judgment.

Bad News For McCrory And HB2 Lovers

After the Fourth Circuit Court of Appeals rejected a request Tuesday to reconsider a previous ruling affirming the rights of a Virginia transgender student, Gov. Pat McCrory’s defense of HB2 has a hit a major road block.

The intermingling of the two cases in question—the pivotal Virginia case (G.G. v. Gloucester County School Board) decided in favor of transgender student Gavin Grimm, and McCrory’s HB2 defense, McCrory v. United States—charts a course for the future demise of HB2’s bathroom provision.

Here are the basic facts governing McCrory’s case in defense of HB2:

1) North Carolina falls within the Fourth Circuit’s jurisdiction, which means the Virginia ruling siding with a transgender student’s right to use their bathroom of choice applies to the Tar Heel State.

2) Grimm’s case was decided on the basis of sex discrimination prohibitions included in Title IX of the Education Amendments of 1972, a federal law that McCrory’s lawsuit against the federal government fails to address, writes Ian Millhiser.

The Justice Department’s letter concludes that HB2 violates three separate federal laws, Title VII, the Violence Against Women Reauthorization Act, and Title IX of the Education Amendments of 1972. McCrory’s complaint claims that the state is not violating the first of these two laws, but it is conspicuously silent regarding Title IX. […] McCrory’s silence regarding Title IX may be an acknowledgement that any effort to defend his states actions under Title IX is doomed.

3. Now that the Fourth Circuit has declined to rehear G.G., the only other avenue for reversal of the ruling is the Supreme Court, which seems unlikely to overturn it—if the justices even decide to take up the question.

Court Opinion: 4th Circuit Sides with Transgender High School Student Suing School Board for Access to Boy’s Bathroom

The Fourth Circuit just reversed a lower Virginia court, which had tossed a lawsuit by a transgender boy against the school district which barred his access to the boy’s room.

Not a final decision on the merits — the case was handed back down to the Virginia federal court.  But a good harbinger, since on other federal appeals court has weighed in on the issue.

I should also mention that my city did a good thing last night, if only symbolic:

The Winston-Salem City Council approved Monday night a resolution highly critical of much of the new House Bill 2 legislation that has set off controversy in the state and beyond over transgender restroom use and LGBT rights.

On a 6-1 vote, the council approved a resolution drawn up by Council Member Dan Besse calling on the city’s representatives in Raleigh to work toward undoing “inadequately considered and damaging legislative changes” that opponents see in the law.

The Besse resolution doesn’t mention the Charlotte restroom ordinance that provoked the General Assembly into action, one that would have given transgender people the right to use the restroom corresponding to their chosen gender identification. In fact, Besse said all along he wouldn’t ask council members to take a stand on that issue.

But Besse’s resolution does fault HB2 for taking away the ability of local governments to enact local ordinances concerning discrimination. As well, the resolution criticizes the law for preventing local governments from influencing private employer worker benefits by making the benefits a condition for getting a city contract.

The resolution carries no legal weight, but adds Winston-Salem to the growing list of N.C. cities voicing opposition to the new law.

The one Republican who voted against even has some problems with HB2:

Council Member Robert Clark, the board’s only Republican, was also the sole member to vote against the resolution. But Clark voiced concerns about some aspects of HB2 that he believes should be reconsidered, although he said he shares the concerns voiced by lawmakers about “male genitalia in female locker rooms” that were voiced when the bill was passed.

“At the same time, I recognize the difficulty a transgender person would have navigating a very private dilemma,” Clark said, adding that a third restroom might be a solution but isn’t one that has been proposed.

“We must, as a state, develop policies that protect civil rights of all persons while equally protecting the privacy rights of all as well,” Clark said.

And our AG made this point:

Besse’s resolution and Clark both took issue with the provision of HB2 that prevents someone from suing in state court for any kind of discrimination.

And one of Clark’s objections isn’t mentioned in Besse’s resolution but was pointed out as a problem with the legislation by Angela Carmon, the city attorney.

Carmon recently said the state law’s anti-discrimination measures — which do not mention sexual orientation or gender identity — could, if applied to the city’s own employment practices, put the city at odds with federal civil rights regulations that are increasingly being interpreted as covering sexual orientation and gender identity.

So. Yeah.  Good thing.

The Yahoos Get Their Day In Court

Remember that 41-day occupation of the Malheur National Wildlife Refuge that finally ended with one dude getting killed?

Yeah, it’s still a rallying cry for the lunatic right, who love to carry around the Constitution but haven’t bothered to have it read and explained to them (except by other lunatics).

Seven men are facing federal charges of conspiracy, weapon, theft and damaging government property charges in Portland, Oregon.  Five of them appeared in court Friday and not surprisingly, it was a circus.  I guess they don’t recognize the authority of the court over them.

Two sons of Nevada rancher Cliven Bundy and three other men refused to enter pleas in federal court in Las Vegas to charges in an armed confrontation with government agents two years ago.

Magistrate Judge George Foley Jr. entered not guilty pleas on behalf of each man during a sometimes contentious arraignment that featured cat-calls and cheers from about 30 Bundy backers and defendants’ family members, under watchful eyes of about a dozen U.S. marshals.

“We don’t need any outbursts,” Foley warned from the U.S. District Court bench Friday. Twice he told the restive audience, “This is not a show.”

Oh, it will be.  Here’s how I know (emphasis mine)

His brother and co-defendant, Ryan Bundy, professed to understand his rights but not the charges against him. He also said he wants to serve as his own lawyer.

Yup.  Bundy is going to put The United States Government (a federal corporation) on trial!!

“You’re out of order!  You’re out of order!  This whole country’s out of order!”

Payne told the judge it was “preposterous, sir,” to have to defend himself against federal charges in two jurisdictions at the same time.

“I don’t understand the pretense of this level of government to bring forth such charges,” he added.

Brian Cavalier finished his arraignment — “I will not be entering a plea today,” he said — by offering federal prosecutors a pocket copy of the U.S. Constitution.

Jesus wept.  Madison too.

 

Good News From Newtown

conn_school_shooting

The lawsuit survives:

BRIDGEPORT – In a shot heard around the nation’s gun makers and dealers, a Superior Court judge Thursday refused to toss out the lawsuit by the families of the Sandy Hook victims against the manufacturer of the gun used by Adam Lanza to kill the 26 school children and teachers in December 2012.

Judge Barbara Bellis ruled that the federal law protecting gun makers from lawsuits does not override the “legal sufficiency” of the claims by the Sandy Hook families that the gun used by Lanza should never have been made available for sale to civilians.

The judge ruled the lawsuit will go on and all sides are to report to her courtroom on April 19 for a status conference.

In January 2015, the families of 10 victims of the Sandy Hook tragedy filed suit against the Remington Arms Company, the maker of the Bushmaster AR-15, used by Lanza, Camfour Holding LLC, the gun’s distributor and Riverview Sales, the store where Lanza’s mother bought the gun. They claimed the gun maker and sellers knew that civilians are unfit to operate the assault rifle and yet continue selling it to civilians disregarding the threat the gun poses.

The lawsuit also alleges that Remington and the other defendants “Unethically, oppressively, immorally and unscrupulously marketed and promoted the assaultive qualities and military uses of AR-15s to civilian purchasers.”

On Dec. 11, 2015, Remington, Camfour and the gun store asked Judge Bellis to throw out the lawsuit, claiming they are immune from the families’ claims under the federal Protection of Lawful Commerce in Arms Act. A hearing on the defendants’ motion was held on Feb. 22.

PLCAA bars lawsuits against manufacturers and sellers of a product that is used in a criminal action.

However, in analyzing the federal law, Bellis points out that a federal court previously ruled that PLCAA states a lawsuit against a manufacturer may not be brought and the statement, “May not,” is not a clear statement from congress limiting the power of courts in the cases.

“The court concludes that any immunity that PLCAA may provide does not implicate this court’s subject matter jurisdiction,” Bellis ruled in her 18-page decision. “Accordingly, the defendants’ motions to dismiss, in which they claim that the court lacks subject matter jurisdiction, cannot be granted on the basis of PLCAA.”

It’s important to understand that this is a ruling on subject matter jurisdiction, i.e., whether the court has the power to decide the case at all.  It has nothing to do with the merits of the case.  Still, the PLCAA was, and still is, a huge obstacle in this lawsuit.  Nice to have it beat out once.

For THIS, I Finally Appear In Playbill

Sigh:

In a new statement provided to Playbill.com by Schwartz’s team, the composer-lyricist takes a hard line against North Carolina Governor McCrory and encourages citizens of the stage to turn their anger into activism.

It can be read in full below:

First of all, I think it’s important to remember that this is not just me, this is a collective action by a great many theatre artists, as well as those from other fields. For instance, I saw this morning that 269 authors and illustrators of children’s books are declining to attend conferences and festivals in North Carolina as long as the law is in force.

I have received a great number of responses. Not a single one was in support of the law or attempted to justify it in any way. The majority of them were supportive of the action I and my colleagues have taken, but several from North Carolina, while expressing sympathy with the goal, took exception to the means. Their arguments were twofold: that it unfairly targeted those who were already opposed to the law, that is people involved in the arts, and that it deprived people of the chance to raise the sensibilities of their audiences by exposure to works that promote tolerance. I received one particularly poignant letter from a mother who asked how she would explain it to her son, who was learning so much from his involvement in community theatre and now would be unable to do one of my shows.

While I don’t deny there is merit to these arguments, I continue to feel that the only way to bring about a quick reversal is for people in North Carolina to become angered enough that they put pressure on the governor and legislature. This may be cynical of me, but I believe that the only thing Governor McCrory and his cronies in the legislature understand is the threat they may not be re-elected. As long as they feel that the bigots in their state are going to support them, while the rest don’t consider it an important enough issue to become exercised about, they are not likely to change anything. As I wrote to one of those who responded to me, “In a democracy, I think we all have to take responsibility for the policies of the states we live in. If my home state of Connecticut were to pass such a law, I would absolutely expect consequences that would affect me, even though I would be personally opposed to it. As I have seen demonstrated in the past, the most effective way to fight legal bigotry such as HB-2 is through real consequences that bring about the anger of the electorate and threaten the re-election of the perpetrators.”

In support of this view, yesterday I heard from a local North Carolina attorney, one of those who had argued against my methods, that “the outpouring of disgust from CEOs has, I think, taken the NC General Assembly and Governor by surprise, so much so that many local newspapers are writing that a repeal of the law is no longer a question of ‘if’, but of ‘when’. To that end, I thank you and other artists who have spoken out against HB2.” I hope he’s right, not only because it will mean the end of this reprehensible law, but because it demonstrates that each individual speaking out and acting against bigotry and injustice, in whatever small way he or she can, is able to have a big cumulative effect.

One last thing: I have seen some of the news media report the intent of HB-2 as being about the use of bathrooms by transgender people, as if that were the only content of the bill. This is sloppy reporting, and a parroting of the disingenuous line of Gov. McCrory and those who passed the bill. This bill forbids any municipality in the state from passing any protections whatsoever against discrimination towards LGBT citizens. There are other heinous things in it as well. It is masquerading as only having to do with bathrooms, and the news media should not fall for it.

Thanks for your attention to this, Stephen Schwartz

The North Carolina attorney he was referring to in the highlighted paragraph above?  C’est moi.  We’ve been having a little back-and-forth on this – Stephen and I.

Look, Schwartz is not the enemy.  McCrory and his cronies are.  It’s unfortunate that Schwartz thinks that, by withholding rights from schools and non-profits, this will compel the Republicans to change their mind about HB2 or create a groundswell of outrage that Republicans will have changed forced on them.  Regrettably, neither is true.  But… this is the best weapon that Schwartz has in his Bat-utility belt, so you can’t blame him for using it.  Better than those who are not speaking out at all.

P.S.  Also made the Hollywood Reporter.

Scalia’s Absence Already Having An Impact

If Scalia was alive, this case would have ended up differently:

A case that had the potential to weaken public sector unions across the United States ended with a somewhat unexpected victory for unions on Tuesday, as the Supreme Court divided 4-4 on the question of requiring nonmembers to pay a fee to the public sector union that negotiates the collective bargain agreement that covers them as well.

The split vote in Friedrichs v. California Teachers Association means a lower court verdict in favor of the union stands.

If Justice Scalia had been around to weigh in on the anti-union side, which he assuredly would have, then all 50 states would almost certainly have magically become “right to work” states.

This shows the power that one person can have on the court.  And the significance of Obama’s current nominee.  Or indeed, the upcoming Presidential Election.

Gov McCrory Signs HB2 Into Law

Here’s why he did it:

… which kind of reminds me of when Edith Bunker of “All in The Family” couldn’t understand how a man could be in love with another man, and therefore didn’t understand the concept of gay rights.  The ordinance only defies common sense if you are blind to the problem it seeks to remedy.

Speaker Jim Moore also defended the law, saying:

“One of the biggest issues was about privacy. . . The way the ordinance was written by City Council in Charlotte, it would have allowed a man to go into a bathroom, locker or any changing facility, where women are — even if he was a man. We were concerned. Obviously there is the security risk of a sexual predator, but there is the issue of privacy.”

The final bill is attached below the fold.

Charlotte Mayor Jennifer Roberts, a Democrat, released a statement saying she was appalled by the bill’s passage.

“This legislation is literally the most anti-LGBT legislation in the country,” she said Wednesday.

So how did we get here?

North Carolina, like most states, legally permits discrimination against people based on sexual orientation or gender identity in public accommodations. In comparison, discrimination based on race and religion, for example, in public accommodations is forbidden by federal and state laws.

Charlotte was essentially trying to fix this gap in civil rights laws. By expanding the city’s existing civil rights protections, the city council hoped to make it clear that LGBTQ people should be able to go to a bar or hail a taxi without the fear of legally allowed discrimination.

And so on February 22, Charlotte came forward with an ordinance which did just that:

The changes mean businesses in Charlotte can’t discriminate against gay, lesbian or transgender customers, in addition to long-standing protections based on race, age, religion and gender. The ordinance applies to places of public accommodation, such as bars, restaurants and stores. It also applies to taxis.

The most controversial part of the ordinance would allow transgender residents to use either a men’s or women’s bathroom, depending on the gender with which they identify.

And that’s when state lawmakers jumped into action, quickly proposing the new state law which was signed by the governor yesterday.

Here’s what the state’s law does:

  1. The statute overturns and bans local laws (including Charlotte’s) that don’t conform to the state’s nondiscrimination laws for the workplace and public accommodations (hotels, restaurants, and other places that serve the public). Since the state doesn’t ban discrimination based on sexual orientation or gender identity in the workplace or public accommodations, this effectively forces all cities and counties to keep it legal to discriminate against LGBTQ people in these settings.
  2. It prohibits transgender people from using bathrooms or locker rooms in schools and government agencies based solely on their gender identity. Instead, they’re forced to use bathrooms and locker rooms based on the gender noted on their birth certificate, which can be changed through an arduous process after gender-affirming surgery but not before then. Public facilities can still build unisex single-person bathrooms to accommodate trans people, but it’s not required.

The governor and bill sponsors want the focus to be on the bathroom issue — it is something everyone can relate to — but that will involve a lot of silly fearmongering that has little basis in reality.  Sexual predators can exist regardless of the sexual orientation of the predator OR victim.  You don’t reduce incidents of sexual predators simply by discriminating against people of a certain sexual orientation.  The one has nothing to do with the other.  And in fact, we know from experience in places which permit transgender accommodation that the fears of heightened sexual assault or invasion of privacy are unfounded.

Cambridge, Mass, for instance:

Back in 1984 Cambridge enacted an ordinance that established the Human Rights Commission. The purpose of the ordinance was to protect the human rights of all citizens of the City. In 1997 this ordinance was amended to specifically include gender identity and expression. Much like the Transgender Equal Rights Bill proposal, the City of Cambridge sought to offer protection to transgender individuals from being harassed, fired from a job, denied access to a public place, or denied or evicted from housing. Since this 1997 amendment there have been no incidents or issues regarding persons abusing this ordinance or using them as a defense to commit crimes. Specifically, as was raised as a concern if the bill were to be passed, there have been no incidents of men dressing up as women to commit crimes in female bathrooms and using the city ordinance as a defense.

No incidents in almost 20 years.

But the bathroom thing is partly a diversion.  What is at stake here is LGBT rights and non-discrimination laws in a broader sense. This is the new battlefront after the gay marriage victories.

Already, two states have passed laws that preempt local non-discrimination provisions. In 2011, Tennessee passed such a law, and Arkansas passed one in 2015—both in responses to cities adopting or considering ordinances.

North Carolina’s law us like the Tennessee and Arkansas law.  This is the first time that a law has been passed at the state level which mandates that students use the bathroom corresponding to their “biological sex” or some similar phrase.  In February, South Dakota lawmakers passed a similar bill, but Republican Governor Dennis Daugaard vetoed it, saying the law did not answer any pressing need and that local authorities were better-equipped to handle the issue than state lawmakers.

The student-restroom laws in North Carolina and elsewhere raise other questions, most notably whether schools fall afoul of federal Title IX regulation and thus endanger federal funding. It would be ironic if the North Carolina’s attempt to preempt Charlotte’s ordinances was itself preempted by federal law, but that’s certainly a highly possible outcome.

The other problem with the new state law is the notion that municipalities must conform to the state’s nondiscrimination laws.  While that is generally true, “conformity to nondiscrimination laws” has never meant that municipalities had to be as discriminatory as the state.  Rather, it has always meant that municipalities must be at least as NONdiscriminatory as the state.  Put another way, the purpose of non-discrimination laws is, to stop discrimination.  If a municipality wants to do better than the state at stopping discriminating, it has always been free to do that. That’t the way it has been in every state in the country.  Charlotte WAS conforming to North Carolina’s non-discrimination laws.  AND it added a few non-discrimination laws of its own.

But the rationale of North Carolina’s new state law turns the whole idea of non-discrimination on its head.

Another rationale for the new law is the specious argument that state laws regarding non-discrimination should be consistent throughout the state — that this will somehow help intra-state commerce.  Sounds good and legal and rational…. until you actually think about it.  How is intrastate commerce affected at all if taxis can ignore LGBTQ people in Raleigh, but can’t in Charlotte?  Intrastate commerce isn’t impacted at all.  Nor is it affected if the bathroom rules are different in different municipalities.

And if Charlotte wants to prevent businesses from engaging in wage discrimination against LGBTQ workers — well, that doesn’t impact intrastate commerce either.  Yes, it makes Charlotte a more appealing place to work than Raleigh if you are a member of the LGBTQ community (or, you know, the human race), but that’s Raleigh’s problem.  It doesn’t affect THE STATE or intrastate commerce.  So this “conformity of nondiscrimination laws throughout the state” is just a bullshit rationale.

And so the next fight begins.  Personally, I am not worried about the final outcome.  I’ve been around long enough to see the arc of justice, and which way it bends.  In the 1970s and 1980s, when transgender discrimination issues started poking up, they almost universally failed.   Not so anymore.  Courts are beginning to recognize that that a person could bring a claim under Title VII’s ban on sex discrimination because an employer views an employee’s sexual orientation as “not consistent with … acceptable gender roles.”  The U.S. Department of Labor has acknowledged the ruling in Macy v Holder — so now, if you are a business that wants a government contract, fat chance of getting that contract if you discriminate on the basis of gender identity or transgender status.  [UPDATE:  I’m going to list some federal court decisions which support coverage for transgender Individuals as sex discrimination]

But it is just frustrating to have to continually have these battles for civil rights and, indeed, common decency.  I just wish the haters would get tired of losing and give it up already.

Missing The Point

The award goes to Gersh Kuntzman of the New York Daily News for writing this:

No disrespect to the jury in the Erin Andrews case, but I can’t breathe.

The Fox Sports reporter just got a $55 million award for the pain and suffering of being videotaped naked in a Nashville hotel room in 2008.

Fifty five million dollars because people got to see Erin Andrews naked on the Internet.

But Erin Andrews is still alive and, as the defendants in the case argued, is certainly thriving. She’s free to go on “Dancing with the Stars” or schmooze with NFL players. But a jury felt her pain — and treated the symptoms with cash. America, what a country.

He then goes on to note that Eric Garner, choked to death by an NYPD cop on a city street, received only $5.9 million (well, his family received it), and the family of Freddie Gray (killed by Baltimore police) received only $6.4 million.

Well, yyyyyeah, but they settled the case.  I’m not applauding or criticizing the families’ decisions to do that, but when you settle a case, you generally get a lot less.

Also, there’s no way Andrews gets $55 million.  Barrett, the guy who did that actual filming, most certainly doesn’t have the ability to pay even a fraction of the $28 million he’s on the hook for, and the hotel owners will likely appeal and try to settle for a lower amount. Add in attorney fees and other litigation expenses, and the $55 million number dwindles.  It wouldn’t surprise me if the amount she got was less than 6 million, which is peanuts to the hotel industry

And keep in mind, there is actual pain and suffering. Andrews broke down repeatedly during the trial discussing how the shame of the incident still follows her around seven years later. The video is still on the internet. People are still watching. She is still being blamed for what happened, and it’s likely that no matter what she achieves in her career, she always will be.

Her father also took the stand and talked about how much his daughter has changed since the video was released online.  “She’s terrified. She’s depressed. She cries. She’s full of anxiety. She’s a very, very changed person. She’s not the girl that we used to know at all,” he said.

It’s also crucial to remember that the jury was not tasked with comparing Andrews’ suffering to all of the great tragedies in the world. They were asked to look at the mental, emotional, and physical pain and suffering Andrews has endured, and gauge her subsequent loss of capacity for the enjoyment for life.

Why not $55 million?

Breaking: Scalia Dead at 79

Just coming over the news. Found dead at a West Texas “luxury ranch”, whatever that is.

UPDATE: Very quick initial thoughts (I will “eulogies” him later.)

The political implications of this are huge. For one thing, this Supreme Court term had many important 5-4 issues in front of the Court, or… what would have been 5-4. Immigration, climate change, even abortion… big issues. These become 4-4… which means the lower court stands (for better or for worse).

More importantly, this is the first time since Clarence Thomas 25 years ago that a President will attempt to nominate an Associate Justice with the Senate (who needs to approve) in the majority of the other party. And even with Thomas, Bush still had two years left. Obama is in his last year. Will the Republican Senate try to “run out the clock”? You bet. Will that itself be controversial? Yes, and expect that itself to be a campaign issue about weekday is wrong with Washington.

And speaking of the campaigns, this becomes a huge issue, guaranteed to motivate voters on both sides.

The political landscape, and in many ways, the future direction of the country have changed, although nobody knows which way.

For the first time in maybe ever, this election will control ALL THREE branches of government. Think about that.

The Sad Story Of Christine Mumma

mummaThe North Carolina Bar just ruled that Christine Mumma violated professional conduct rules in her quest to free an innocent man from prison.

Mumma is an attorney for the North Carolina Innocence Project (actually, The NC Center on Actual Innocence)  She was trying to free Joseph Sledge, 71, who had spent more than three decades in prison for a double homicide he did not commit.  Mumma and Sledge are pictured at the right.

The prosecutor was reluctant to release Sledge unless Mumma could find DNA matching the suspect in the double murder.  So Mumma visited the home of Marie Andrus, the woman from whom she was trying to get DNA.  Ms. Andrus’ sons (one or both of them) were suspects in the crime.

Ms. Andrus refused to give any DNA, but Mumma left the house with a water bottle, thereby obtaining the DNA.  (The full complaint is below the fold).

Yeah, it was the wrong thing to do (and Ms. Andrus has forgiven Mumma and understands), and so the disciplinary panel ruled against Ms. Mumma.

As an aside,  I should mention that Sledge was later found innocent and released early last year.

I write this with sadness.  People like Mumma deserve medals.  I can’t help but wonder if a little of this was payback from the state of NC.  I hope the consequences of this ruling today are not too harsh.  There needs to be more like Mumma.

Florida Can No Longer Lock Mentally Disabled People And Forget About Them

Fifteen years ago, J.R. — an intellectually disabled man who “functions as a seven-year old.” — was charged with sexual battery, but he was never tried because a court found him incompetent to stand trial. Instead, J.R. was involuntarily committed to a residential mental facility by a court order that contains no end date.

End of story.  You see, under Florida law, the only entity that can order people like J.R. to be released is the court that originally ordered those people to be committed. And those courts have no obligation to conduct periodic reviews of whether institutionalized people.belong in a mental institution.

J.R. for example did not get a hearing since 2005.

I think the gravity of that needs to sink in.  Obviously, there was a competency hearing of some kind, so J.R. received “due process” under the Constitution.  Yet, he is in effect incarcerated indefinitely, even though he was never convicted of a crime.  And that’s a huge constitutional problem.

Fortunately, in a decision handed down by the Eleventh Circuit federal appeals court yesterday, this is no longer permissible.

“A state must release a person who is involuntarily committed if the grounds for his commitment cease to exist,” Judge Beverly Martin explained in her opinion on behalf of a two-judge panel. That constitutional requirement, however, “is toothless if a state does not periodically review whether the grounds for commitment are met.”

Specifically, Judge Martin notes, J.R. was committed under a law that permits the institutionalization of people who lack “‘basic survival and self-care skills to such a degree that close supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being’ or would leave the person ‘likely to physically injure others if allowed to remain at liberty.’” J.R. may very well have presented a danger to others at the time of his confinement, but he has now lived more than a decade in a facility where he could learn coping and socialization skills that may eliminate that danger. He’s also been convicted of no crime.

At the very least, Martin’s opinion establishes, he should not remain confined forever because no one has bothered to look into whether his commitment can still be justified.

It’s some small progress in the law recognizing the rights of the mentally ill.

“Happy Birthday” Now In Public Domain

Finally:

A judge grants summary judgment to a filmmaker challenging Warner/Chappell’s copyright to a song more than a century old.

The world’s most popular English-language song is potentially free from copyright after a federal judge ruled on Tuesday that filmmakers challenging Warner/Chappell Music’s hold on “Happy Birthday to You” should be granted summary judgment.

According to the opinion on Tuesday from U.S. District Judge George H. King, “Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.”

The ruling means that Warner/Chappell will lose out on $2 million a year in reported revenue on the song. Unless something happens at an appellate court or unless someone else comes forward with a valid claim of ownership to the song, filmmakers like director Jennifer Nelson — who sued in 2013 over demands as much as six figures to license — will no longer have to pay to feature “Happy Birthday” in motion pictures and television shows.

The “Happy Birthday” song dates to late 19th century work by a schoolteacher named Patty Smith Hill and her sister Mildred Hill.

The Hill sisters later assigned rights to a publishing company owned by Clayton Summy. Later, copyright registrations were made by Sumny’s company on “Happy Birthday.” Warner/Chappell has been contending that the 1935 registration covered both the piano arrangement as well as nearly universally known lyrics. The melody wasn’t in contention.

Today’s opinion rejects Warner’s argument that a copyright entitles them to a presumption of validity with the judge noting that it isn’t particularly clear whether the registration included the lyrics. Furthermore, the ruling establishes that rights never properly transferred.

“Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.”

With a nod towards plaintiffs’ early contentions in the case that the song appeared in early 20th century schoolbooks, the judge adds that the Hill sisters never objected to publication until 1934 — four decades after they wrote the song. Even then, the Hill sisters asserted rights on the melody, not the lyrics.

The judge rules that plaintiffs can’t score on a claim of copyright abandonment — it would have been a triable issue — but there’s still enough in the record to give them victory on another aspect. Even if the Hill sisters still held common law rights to the lyrics when they made their later deals with Summy, the judge says there’s no plausible evidence to support the theory they gave those rights to Summy Co.

In fact, Warner may owe money to people who have paid for rights to “Happy Birthday” in the past.

The opinion is below the fold as a PDF:

The Back End Of The Kentucky Court Clerk

It looks like Kentucky County Clerk Kim Davis doesn’t want to go back to jail after all.

Kim Davis, the embattled Kentucky county clerk, at the center of the dispute over gay marriage and religious liberty, appeared to back down from the threat of more jail time Monday, saying while she still refuses to authorize marriage licenses, she will not interfere with a deputy clerk who began providing them more than a week ago.

Davis returned to work Monday, her first time in the office since her high-profile release from the Carter County Detention Center last week. Emotional and flanked by her son, Nathan, Davis read a statement outside the courthouse, bemoaning that her deputy clerks have been caught in the middle of her case.

“If any of them feels that they must issue an unauthorized license to avoid being thrown in jail, I understand their tough choice and I will take no action against them,” she said. “However, any unauthorized license they issue will not have my name, my title or my authority on it. Instead, the license will state that they are issued pursuant to a federal court order.”

Great. Fine. Wonderful. Now go away.

Breaking: Kim Davis Released

Details coming.

UPDATE – 1:00 pm:  The contempt order was lifted by a US district court judge.  Unclear if it was the same judge who gave the contempt order or if it was lifted on appeal.

UPDATE – 1:15 pm:  It was the same judge:

A federal judge ruled Tuesday that a Kentucky clerk who has refused to issue marriage licenses to same-sex couples may leave prison — as long as she doesn’t interfere with the licenses that her deputies have been granting since her incarceration last week.

U.S. District Judge David Bunning ordered Rowan County Clerk Kim Davis released, and said that if she did not follow his guidance, “appropriate sanctions will be considered.”

Davis’ attorney, Mat Staver, told NBC News that accommodation was unlikely to suffice.

“We’re back to Square One,” Staver said. “She’s been released, but there’s been no resolution.”

Bunning’s order also requires the five deputy clerks in Rowan County to file status reports every 14 days detailing their compliance with his earlier orders that the office issue licenses to same-sex couples in accordance with a June U.S. Supreme Court ruling.

Davis, 49, has repeatedly defied the courts, saying that authorizing the licenses would violate her Christian beliefs. Arguing that her religious freedom is being compromised, she has asked state officials to develop alternative ways for the licenses to be issued without requiring her to authorize them.

Bunning ordered her jailed last Thursday, and she has become a national symbol of resistance to gay Christian supporters have rallied outside the lockup daily.

Mat Staver is a terrible lawyer.  Even Fox News calls him out for his stupidity:

[Fox News host Keith] Jarrett also called out Davis’s attorney [Mat Staver], who said it was “questionable” if the Supreme Court had the “constitutional authority” to rule on same-sex marriage.

“Whether the Supreme Court has constitutional authority?” the Fox News host said. “Article III Section 2 of the Constitution gives the Supreme Court constitutional authority to decide constitutional issues!”

Jarrett added that Staver’s statement appeared to be “stunningly obtuse.”

You may recall that prior to becoming a Fox News person, Keith Jarrett was THE main guy at Court TV for many many years.

Anyway, Staver is simply wrong when he says we are at square one.  Her clerks have been issuing the licenses, and will continue to do so.  In fact:

During proceedings on Thursday, Davis was offered to avoid jail if she allowed her deputies to issue the marriage licenses. She refused, and on Friday they began issuing them. The release order requires that Davis “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” If she refuses — as she seemed to promise to do last week — she would again be held in contempt.

So basically, Davis caved.  She accepted an offer that she rejected last week.  Here’s the order:

Kentucky clerk Kim Davis ordered released from jail

UPDATE – 3:00 pm:  I suspect the lawyer is talking out of turn:

A CNN journalist at the jail reported that according to her attorneys, Davis “has not changed her mind” and intends to bring the licensing process to a halt all over again when she’s back on the job.

“The problem here is that the attorney says she has not changed her mind, that Kim Davis is adamant that as long as her name appears on those marriage licenses, she objects and she will attempt to stop those licenses from being distributed,” CNN correspondent Martin Savidge said during a live broadcast.

Well, if she “intends to bring the licensing process to a halt” then she is violating the terms of her release.  That would be VERY serious trouble for her.  Her lawyer can SAY this, but it’s easy for him to say since she will end up paying the cost.

So she’s out, and here she is with Ted Cruz and her husband, who is NOT playing Lenny in “Of Mice and Men” (that’s just the way he dresses):

UPDATE – 3:45 pm: Heaven help me….

Huckabee is on stage with her. Ted Cruz? Well, he had her picture with her (see above), but otherwise, his trip seems to be a bust.  Huckabee had staffers there a few days ago, and he has inserted himself there front and center.

Digby:

Kim Davis’ inane lawyer upon her release from jail:

“She can never recover the past six days of her life spent in an isolated jail cell.”Too bad she wasn’t free to just quit her job — the solution all the free-market wingnuts prescribe for every other complaint a worker might have against her employer. Oh wait, she was.

Huckabee Needs To Attend Just One College Level Course On The Law

As far as conservative Christians candidates go, I always thought that Mike Huckabee was a slight cut above the rest.  He doesn’t seem dogmatic, and he was governor at one time.  So you would think that he would have some sense, while also being true to his conservative principles.

But this past week he has proved to be either a guy who thinks his followers are idiots, or perhaps he is an idiot.

It’s one thing to lend support to Kim Davis, the Kentucky law clerk now in jail for contempt of court because she refuses to issue marriage licenses to same-sex couples.  But the sheer ignorance coming from Huckabee in relation to that support is amazing.

Let’s start with this Huckabee quote:

“Gavin Newsome in San Francisco as mayor, performed same-sex weddings, even though it was illegal. Did he ever get put in jail? He most certainly did not.”

Nnnnope.  Gavin defended himself:

Put another way, bans on same-sex marriage had not been adjudicated illegal, nor was their a court order telling Newsome to stop issuing same-sex marriage licenses.  Once there was a court order, he stopped.  He followed the federal court order.

Kim Davis, as Huckabee cannot seem to get through his head, is in jail for violating a federal court order on a matter that had been fully judicated.

In other words, if Newsome had continued to issue marriage licenses despite the federal court order, THEN he would be in contempt of court, and like Kim Davis, could have been fined and put in jail.

Huckabee is also one of those guys who thinks Davis is like Rosa Parks, a citizen denied her rights by the government.  In actuality, she is George Wallace standing in the doorways of the University of Alabama — someone who is acting on behalf of the government who is denying rights to citizens.

And then Huckabee also said this:

“Jeffrey Dahmer got bail, Albert DeSalvo, the Boston Strangler got bail, John Wayne Gacy got bail. Kim Davis [the Kentucky clerk], because she followed her convictions is put in jail, and is not given bail.”

Is he kidding with that remark?  Does he know what “bail” is?

It is something criminal defendants get while they are being held awaiting criminal trial.  Let’s ignore that fact that Dahmer and other serial killers didn’t get bail AFTER they were convicted.  Let’s just point out that…. Kim Davis is not getting a trial.  And she is not a criminal defendant.  Congress vested federal courts with incredible power to “punish by fine or imprisonment, or both” any individual who disobeys or resists their dictates. This is what’s known as courts’ civil contempt power, and may include orders, judgments, instructions to appear, or other rules.

It’s comparing apples to oranges.  This, I suppose, was Huckabee’s clumsy way of trying to make the point that Kim Davis is being treated worse than Jeffrey Dahmer.  What horror!!  But does anyone really buy that?  Even Davis supporters?  Davis, unlike Dahmer, can get out of jail anytime she wants to.  And she can do it without changing her beliefs.  All she has to do is (a) agree to do her job; (b) resign or (c) allow others to do her that aspect of her job.  Dahmer, on the other hand, had no control over his future.

Ted Cruz is going to visit her now in jail, too.  Prepare for more absurdity.

Meanwhile, she has filed an appeal of the contempt of court penalty.

Here’s a good read: 5 Myths About Kentucky County Clerk Kim Davis You Shouldn’t Fall For

The Brady Decision and Deflategate

The decision says that NFL commissioner Roger Goodell could not act as an impartial arbitrator.  You THINK?!?  He also says no NFL policy says players can be disciplined and suspended for awareness of others’ misconduct.

Footnote: On Twitter, the hashtag #DoYourJob relates to Kim Davis, the Kentucky law clerk who refuses to license same-sex marriages.  But with the Brady news, it’s being applied there.  Heh.

For The Black Lives Matter Files

I suspect stories like this fly under the radar an awful lot, and nobody even knows about it:

A young black man arrested by police in Portsmouth, Virginia, on the same day that one of the city’s officers fatally shot an unarmed black 18-year-old, has been found dead in jail after spending almost four months behind bars without bail for stealing groceries worth $5.

Jamycheal Mitchell, who had mental health problems, was discovered lying on the floor of his cell by guards early last Wednesday, according to authorities. While his body is still awaiting an autopsy, senior prison officials said his death was not being treated as suspicious.

“As of right now it is deemed ‘natural causes’,” Natasha Perry, the master jail officer at the Hampton Roads regional jail in Portsmouth, said of his death in an interview. Perry said there were no obvious outward signs of injury to the 24-year-old’s body.

Mitchell’s family said they believed he starved to death after refusing meals and medication at the jail, where he was being held on misdemeanour charges of petty larceny and trespassing. A clerk at Portsmouth district court said Mitchell was accused of stealing a bottle of Mountain Dew, a Snickers bar and a Zebra Cake worth a total of $5 from a 7-Eleven.

Mitchell was a chain-smoker, had bipolar disorder and schizophrenia.  None of those things, however, should have caused his death of “natural causes” at the age of 24.

Setting aside, if possible, his death (which, I am sorry, IS suspicious) why the hell is a black man in jail, without bail, for four months, for stealing $5 worth of groceries?

Fifth Circuit Strikes Down Texas Voter ID Laws

Oh, well.  Nice try, Texas — trying to prevent minorities from voting.  Among other things, the State of Texas tried to impose Voter ID laws because (they said) illegal immigrants were voting.  Of course, there was no evidence of this.  Just the opppsite — illegal immigrants (as the Fifth Circuit noted) try to AVOID government officials since the last thing they want to do is get caught.  So they’re not going to show up at the ballot box.

Texas’ new voter ID law would have hurt poor people.  21.4% of people making under $20,000 did not have a valid ID to vote. The Justice Department had argued that the Texas law, considered one of the toughest voter ID measures in the country, would prevent as many as 600,000 voters from casting a ballot because they lacked one of seven forms of approved ID.

This is a remarkable case, because the U.S. Supreme Court actually raised the standard regarding voter ID laws.  To win, the Justice Department could not just show a “discriminatory effect”, but rather, a “discriminatory intent”.  And apparently, the DOJ succeeded here.

The full opinion is below the fold.

Adventures In Police Framing

Then:

A police officer in Alabama proposed murdering a black resident and creating bogus evidence to suggest the killing was in self-defence, the Guardian has learned.

Officer Troy Middlebrooks kept his job and continues to patrol Alexander City after authorities there paid the man $35,000 to avoid being publicly sued over the incident. Middlebrooks, a veteran of the US marines, said the man “needs a god damn bullet” and allegedly referred to him as “that nigger”, after becoming frustrated that the man was not punished more harshly over a prior run-in.

***

Middlebrooks allegedly said “the police were going to pull [Bias] aside on a routine traffic stop and [Bias] would get killed”. According to the lawsuit, which has since been filed to court in a separate ongoing case against the city, this prompted the brother-in-law to retrieve a voice recorder that Bias had been carrying around with him in an attempt to monitor alleged harassment by police, and then return to the conversation with the officer.

On the recording, Middlebrooks is heard suggesting Bias had been behaving threateningly towards his relatives. The officer said if he were in the same position, he would “fucking kill that motherfucker with whatever I had in that fucking house”.

Now:

Some of the contents of Sam DuBose’s car at the time of his death have been identified.

WLWT has confirmed through CPD’s search warrant inventory document that four bags and a jar of marijuana were in Dubose’s car at the time of the July 19 traffic stop that ended in former UC Officer Ray Tensing fatally shooting DuBose.

However, multiple sources have told WLWT officers found a little less than 2 pounds of marijuana.

No officials were immediately able to confirm the amount of marijuana found.

According to reports, the marijuana was found in the car’s center console, under the front passenger seat and on the floor behind the driver’s seat.

Police sources said the street value for the amount of marijuana found in DuBose’s car is  anywhere between $2,000 and $5,000 depending on the quality and the demand.

Police said any marijuana weighing more than two pounds is considered a felony.

Officers said the search warrant was obtained two days after the deadly shooting.

What The Judge Got Wrong (And Right) On Bill Cosby

That was a real tweet from a fictional person complaining about yesterday’s big story: Greece China The Presidential Election Bill Cosby.

It’s all that the news outlets talked about:

(CNN) Bill Cosby has admitted to getting prescription Quaaludes to give to women he wanted to have sex with, newly released documents show.

The documents, dating back to 2005, stem from a civil lawsuit filed by Andrea Constand — one of the dozens of women who have publicly accused the comedian of sexual assault. The records were made public Monday after The Associated Press went to court to compel their release.

I cosbysweatthought it was old news, to be honest.  With four dozen women making these claims?  Who didn’t think he was a rapist?  I mean, even if you assume (as I do) that some of these women are just hopping on the bandwagon and making up things just to get some money… it doesn’t erase the fact that… well, there’s a friggin bandwagon of women who have the same allegations.  Of course there’s truth there.  The question hasn’t been whether Cosby is guilty of rape; the question is how many.

I’ve never been a Cosby fan, but I certainly had nothing against him.  And when the rumors first came out, I, like most people, remained neutral (and a little saddened) by the allegations.  But at some point, it reached a critical mass, and like everyone (or so I thought), I was very saddened and disgusted.  Although… as it turns out… apparently, Cosby still had his defenders.  I wasn’t aware of that.  Hopefully, they have all shut up now.

Anyway, the reason we know about Cosby — and I mean, really know — is because a sealed deposition was made public by a judge in response to a motion by the Associated Press.  And unsealing a sealed deposition, that is very unusual.  And troubling.

There are many reasons why sealed court records (and depositions) are good things that serve a public purpose.  For one thing, they allow court cases to settle.  That unclogs the courts by quite a bit.  So having things sealed from the public encourages litigants to settle their cases rather than fight it out at taxpayer expense.

Sealed court records and depositions also allow people to continue with their lives, giving them second chances.  A good example of this is the teenage drunk driver or drug user.  Many times, after serving their “time” (community service or whatever), records of their arrest and conviction are sealed so that it won’t dog them forever.  I think society is best served by this kind of compassion.

So the practice of sealing records is a good thing.  But it only works if people believe that when something is sealed, it STAYS sealed.  I mean, if sealing a record gets me to settle a lawsuit, why would I settle if I believed that some court could come along years later and UNseal it?  For that reason, it is (and should be) a high bar for a court to come along and unseal a record.

With this in mind, I read the opinion and other documents relating to the sealed record (these documents are attached to this post, under the fold)….

… and I think the judge erred in some respects.

Essentially, the media has been reporting that the judge allowed the deposition to be unsealed because Cosby was a hypocrite — his public persona as a moralist is contradicted by his testimony in which he essentially admits to giving Quaaludes to women in order to rape them.  No, I thought to myself, if only because I believe that people are neither all “white” nor all “black”.  They are not entirely villains or entirely heroes.  Very good people can do some very VERY bad things.  We are ALL contradictions.  Hopefully our “bad” is not as bad as Cosby’s.  But the judge didn’t do it because Cosby had been bad.  He did it because Cosby was being contradictory in his “persona”.

Now, I’ve heard the phrase “Hitler liked dogs and children” as a way to say, “Well if the bad outweighs the good, what difference does it make?”  And I hear that.  I don’t think that whatever good Bill Cosby did — his charity, his work in children’s education, etc. — outweighs his crimes.  I’m just saying that he’s not a hypocrite for being both GOOD and BAD; he’s human. I’m saying we shouldn’t change the legal burden for unsealing depositions simply because he’s moral in some ways and immoral (to say the least) in other ways.

I’m not the only one to think this.  Smerconish covered this as well, and here the results of his poll are at the right.Smerconish

Let me be clear lest anything think I am a Cosby defender:  The judge said that the interests of the Associated Press outweighed the privacy interests of Cosby — but NOT because Cosby was famous, and NOT because he was guilty of rape (in fact, the judge said that Cosby is innocent until proven otherwise)…. but because Cosby was being inconsistent with his morality.  That’s the core reason why Cosby was not entitled to have the deposition stay sealed.

And I am asking the reader to THINK about that reasoning behind the decision, separate and apart from the facts (and grotesque-ness) of Bill Cosby: Should a person’s privacy be invaded by the courts because that person is “morally inconsistent”?  Because that is the precedent of this decision.  And that principle, applied elsewhere (applied to YOU, dear reader) should be troubling.

Fortunately, the judge considered other factors.  And fortunately, on those factors, I think the court got it right.  For one thing, the court noted that the deposition, which was 10 years old, was under interim seal.  The court said (correctly in my view), that if Cosby was soooooo worried about his private statements in the deposition, he would have made a motion to make sure the deposition was permanently sealed a long time ago.  But Cosby and his lawyers didn’t.

So I’m okay with the outcome, although only partially okay with the rationale.

In the end, Cosby is toast and that’s the most important thing.  The truth will out, one way or another.  And once again, we are having the much needed conversation about rape.  Sadly, it doesn’t sink in.  I actually heard Gloria Allred on CNN yesterday woman-splaining to Wolf Blitzer in an annoyed voice (I’m paraphrasing): “And guess what, Wolf?  Even if a woman says yes, and then later on passes out for ANY reason, it is NOT consent and therefore it is rape!”.  And I shook my head.  Of course Allred was annoyed — here we are in the 21st century, and people STILL have to be told these things, and it blows my mind.

SCOTUS Round-up: Three More Five-To-Four Decisions Today

Today is the last day of the SCOTUS term, and so they issued the last of their opinions.  The two biggest cases — on Obamacare and sames-sex marriage — came out at the end of last week, so a lot fewer people were paying attention this morning.  Here’s what happened:

(1)  DEATH PENALTY – The 5-4 decision in Glossip v. Gross was a win for conservatives who support the death penalty and viewed the case’s technical dispute over one state’s lethal injection methods.  The Supreme Court ruled that Oklahoma’s “drug cocktail” is not cruel and unusual punishment, despite the fact that it has resulted in some botched execution.  Scalia was especially snarky in his concurrence, starting with “Welcome to Groundhog Day” as he noted repeated attempts to abolish the death penalty for good.  He also said that those who seek abolition of the death penalty “reject the Enlightenment”.  (Odd!)

(2)  ENVIRONMENT – The Supreme Court in Michigan v. Environmental Protection Agency ruled 5-4 against EPA regulations to limit mercury emissions and other pollutants at power plants.  Substituting its judgment for the EPA’s the Supreme Court said the EPA’s decision to impose the regulations was not reasonable or necessary since it did not take into account the costs to utilities to make these changes.  Happy breathing, everybody!

CIrTeTxWEAEYP2U(3)  GERRYMANDERING – In a win for liberals (Kennedy siding with the liberal four), The Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission upheld Arizona congressional districts drawn by an independent commission and rejected a constitutional challenge from Republican lawmakers. The outcome preserves efforts in 13 states to limit partisan influence in redistricting. Most notably, California uses an independent commission to draw electoral boundaries for its largest-in-the-nation congressional delegation.

The Arizona case stemmed from voter approval of an independent commission in 2000. The legislature’s Republican leaders filed their lawsuit after the commission’s U.S. House map in 2012 produced four safe districts for Republicans, two for Democrats and made the other three seats competitive. Democrats won them all in 2012, but the Republicans recaptured one last year.

CIrN-hRWcAE46YlJustice Ruth Bader Ginsburg wrote for the court that there is “no constitutional barrier to a state’s empowerment of its people by embracing that form of lawmaking.” In dissent, Chief Justice John Roberts accused the majority of approving a “deliberate constitutional evasion.”  The justices have been unwilling to limit excessive partisanship in redistricting, known as gerrymandering. A gerrymander is a district that is intentionally drawn, and sometimes oddly shaped, to favor one political party.

Republicans employed an enormously successful strategy to take advantage of the 2010 census, first by winning state legislatures and then using that control to draw House districts to maximize their power. One measure of their success: In 2012, Republicans achieved a 33-seat majority in the House, even though GOP candidates as a group got 1.4 million fewer votes than their Democratic opponents.

Chief Justice got a little snippy by inserting “what chumps” into the opinion (see right).

UPDATE – LATE IN THE DAY 5-4 RULING is good for pro-choice advocates:

The U.S. Supreme Court agreed Monday afternoon to put a hold on court rulings that have reduced the number of abortion clinics in Texas.

Four of the court’s conservatives — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito — dissented.

A state law passed in 2013 required clinics providing abortion services to meet the same standards as ambulatory surgical centers, and it required doctors providing the services to have admitting privileges at nearby hospitals.

Women’s groups asked the Supreme Court to put an emergency hold on the effect of the law while they prepare an appeal to challenge its constitutionality. They say the law, which takes effect Wednesday, would force all but nine abortion clinics in the state to close.

“Overall, there would be a net reduction in abortion facilities of more than 75% in a two-year period,” they argue in their court filings. And the clinics that remain open would find it hard to expand their services.

So for now, enforcement of the Texas law is on hold and will remain so until the court decides whether to hear the full appeal.

UPDATE – EVEN LATER IN THE DAY 5-4 RULING is good for pro-choice advocates in North Carolina:

RALEIGH — A federal appeals court must reconsider whether North Carolina can issue “Choose Life” license plates.

The U.S. Supreme Court on Monday ordered the 4th Circuit Court of Appeals to reconsider its ruling last year that the state could not issue a license plate with an anti-abortion slogan unless it also issued a plate with the opposite point of view.

The order to rehear the case came after the justices ruled 5-4 last week that Texas could refuse to issue Confederate battle flag plates. In that ruling, the Supreme Court said plates are government property and don’t have to offer both sides of the debate.

The American Civil Liberties Union sued when lawmakers voted to offer the “Choose Life” plates in 2011. The appeals court said governments must offer both sides of the debate.

The ACLU said it was disappointed in the Supreme Court’s ruling and again asked the North Carolina General Assembly to offer a plate with a message supporting abortion rights.

“This case has always been about more than specialty license plates; it asks whether the government should be allowed to provide a platform to one side of a controversial issue while silencing the other,” ACLU of North Carolina Legal Director Chris Brook said in a statement.

Supreme Court Rules 5-4 To End The Sanctity Of Marriage

46 years ago this weekend, police in New York City raided a gay bar called the Stonewall Inn.

Obviously, this is the end (we hope) of a remarkable civil rights story (despite my snarky headline).  Here’s the opinion.

Reactions are about what you expect.  I will update as the day goes on.  But the important thing is that about 3 million gay people just won the right to become married.

The dissents are interesting.  They all take pains to say, “Hey, I’m happy about the result!  Seriously!  Go celebrate!”, just before launching rather odd objections.

The main dissent is by Chief Justice Roberts, but all of them take great pains to say, essentially, “Hey *I* don’t have a problem with gay marriage”.  The thing they object to, universally in dissent, is that the court should not decide.  They would rather have this worked out in a democratic fashion.

I think Kennedy, writing for the majority, dispenses with this.  First of all, it has come up through the courts.  There is a split in the circuits.  It IS a legal question.  And the Constitution supersedes democracy.  End of story.  If I had a bone to pick about the majority opinion, it is this: Once again, Justice Kennedy did not spell out what constitutional test he was applying to a claim of gay equality.  It simply discussed a series of court precedents, and his own recitation of notions of liberty, without saying what burden those challenging the bans had to satisfy before winning the right to equality.

The dissents also mischaracterize the majority opinion, saying things like “the majority views bans on gay marriage as unwise“.  No, the majority views same-sex marriage bans as UNCONSTITUTIONAL and a violation of the 14th Amendment.  The majority is not substituting its preference for that of legislatures — they are doing what upper level courts often do, i.e., decide whether something is constitutional or not.

Ironically, while the dissent says the majority is acting extra-judicially, many of the dissents arguments have little to do with the actual law (instead, they argue policy, democracy, etc.)

Breakdowns and reactions below the fold

Billy Flynn Out Of Prison

Billy Flynn is out of jail.

billy_flynn

Nope.  Not that one.  This one:

william-flynn-800

Or… as he looks today….

William Flynn (serving a 28 years-to-life prison term ,for killing Pamela Smart's husband).  (AP Photo/Cheryl Senter, File Pool)

Billy Flynn is the convicted shooter in the Pamela Smart (pronounced “Smaht”) case. As a teenager, Billy shot and killed Gregg Smart in 1990. Gregg was the husband of Pamela Smart, with whom Billy was having an affair. Pamela was an audio-visual school instructor/aide at Billy’s high school at the time. Flynn pleaded guilty to shooting and killing Gregg Smart, and his testimony was key in convicting Pamela for orchestrating the crime. Also released today was Patrick Randall, who held Smart down while Flynn shot him in the head.

The murder was made into a TV movie with Helen Hunt, and the feature film “To Die For”, starring Nicole Kidman, was loosely based on those events.

Pam Smart maintains her innocence to this day.  As late as 2014, in the HBO documentary Captivated: The Trials of Pamela Smart, she blamed the media coverage for her conviction (I’ve seen the documentary — Smart’s argument is entirely unconvincing and full of holes).

Dr. Eleanor Pam, spokeswoman for Pamela Smart, has issued a statement about the releases:

“Bill Flynn and Patrick Randall are leaving prison today, years in advance of their scheduled release date. Over and over they have been rewarded for their expressions of contrition for killing Gregory Smart. But it is one thing to say you are remorseful and another to be remorseful.

Pamela Smart, on the other hand, has been condemned and punished for her failure to admit any role in the murder of her husband. This is widely interpreted as a failure to take responsibility for her actions. And so she is dismissed and reviled, deemed ineligible for forgiveness or mercy. But how can anyone take responsibility for an crime they did not commit? This is the cruel dilemma of all innocent people.

Does anyone believe that Pamela Smart would rather spend the rest of her life in prison simply because she is prideful and stubborn? Nonsense! The truth matters even more than does her freedom as she has demonstrated for 25 years. Pamela Smart will continue to assert her innocence until she is finally heard and believed.”

Pam Smart’s press statement shows the duplicity of Pam Smart.  It suggests that she, too, could be out on the streets, if only she had shown remorse.  But no, she argues, she is interested in the truth.  Except for one thing…. Pam was sentenced to life in prison without the possibility of parole.  So her only way out isn’t by remorse, but by a finding of innocence.

Which isn’t going to happen.

Anyway, I like this story.  Always have.

This Can’t Possibly Be A Thing

The Wall Street Journal:

A budget advanced by Kansas legislators would eliminate funding for state courts if a judge strikes down a controversial law passed last year.

Republican senators and representatives agreed Monday on a two-year judicial budget that would self-destruct if any court blocks or overturns a 2014 law that stripped the Kansas Supreme Court of some administrative authority, giving local courts control over their own budgets and leadership.

A lawsuit pending in Shawnee County District Court, in northeastern Kansas, says the 2014 law violates the Kansas Constitution. The bill approved Monday says that if the law is “stayed or is held to be invalid or unconstitutional,” the other provisions including funding for the courts, “are hereby declared to be null and void.”

The legislation provides for $208 million for fiscal 2016 and fiscal 2017 combined and is expected to pass in the Republican-controlled legislature as early as this week. A spokeswoman for Gov. Sam Brownback, a Republican, declined to comment.

So basically, the GOP-dominated Kansas state legislature is saying to the Kansas Supreme Court, “If you don’t decide the case the way we want you to, we will defund you.”

That’s a SERIOUS threat to checks and balances.  Let’s hope this doesn’t spread to other states…..

Woman Sues Gays

Our favorite lawsuit:

An Auburn woman claiming to be an ambassador for God and his son, Jesus Christ, is suing all homosexuals.

Sylvia Driskell, 66, asked an Omaha federal judge to decide whether homosexuality is a sin.

Citing Bible verses, Driskell contends “that homosexuality is a sin and that they the homosexuals know it is a sin to live a life of homosexuality. Why else would they have been hiding in the closet?”

Driskell wrote in a seven-page petition to the court that God has said homosexuality is an abomination. She challenged the court to not call God a liar.

“I never thought that I would see a day in which our great nation or our own great state of Nebraska would become so compliant to the complicity of some people(’s) lewd behavior.”.

The Battle For Same Sex Marriage: A Timeline Graph

I love this graph from an article in today’s New York Times.  It shows what states did for and against the idea of same-sex marriage.

SSMovertime

You can see that the anti-SSM movement got out ahead of the issue in the mid 1990s by enacting laws banning same-sex marriage.  I have no way of proving this, but I think that by making same-sex marriage an issue, it became, well, an issue.  And that motivated same-sex marriage proponents to organize and lobby and take the issue to the courts.  Once Massachusetts ruled that same-sex bans were unconstitutional in 2003, the floodgates opened.

I don’t think the floodgates opened because the notion of same-sex marriage became fashionable or popular.  I think they opened because once people started to examine and think about the issue, there was simply no constitutional (or even moral) reason for the government to discriminate against homosexual love.

But yeah.  If you had asked me in 1995 if there would be such a thing as legally-recognized gay marriage in this country, I think I would have answered “someday, but not in my lifetime.”  It is the great civil rights issue of my generation, and I really believe it will be over in June.

Free Range Parents: What Is Neglect And What Isn’t?

There’s a good chance you’ve heard about the Meitiv kids (especially if you have children of your own or friends with children). The kids, ages 10 and 6, were walking home from a park a mile from their house in Maryland when they were spotted by a zealous citizen-protector, reported to the police, picked up 3 blocks from home, and detained for over five hours. In the end, they were handed over to their parents, but only after plenty of panic on both the kids’ and parents’ parts. And, as it turns out, that wasn’t really the end. The parents found themselves under investigation for neglect.

Insane? I think so. Unusual? Nope.

In an article run this weekend by the Washington Post, there are more examples of clashes between parents who believe their kids deserve some autonomy and child protective services workers who are charged with taking every potential threat to a child’s safety seriously:

In Austin, Kari Anne Roy, 38, a children’s author, was investigated for neglect after her children walked the dog one day in August and her 6-year-old lagged behind, playing on an outdoor bench a few houses down the street.

In Port St. Lucie, Fla., Nicole Gainey, 35, a mother of two, was arrested for letting her 7-year-old son walk alone to a park and play there, about half a mile away from their home in the town where she grew up.

One of most the most publicized recent cases involved Debra Harrell in North Augusta, S.C., who allegedly allowed her 9-year-old daughter to play at a park while she worked at a McDonald’s as a shift manager.

The “Free-Range Kids” website has still more examples — and statistics to suggest that allowing a child to walk to and from a playground may actually be less of a threat to that child’s safety than the everyday act of buckling her into a car.

But even though hundreds of thousands of parents find themselves embroiled in the child welfare courts each year (many deservedly so, some not), child welfare law itself is not all that well developed. It can be very difficult to know what’s legal and what’s not.

For the sake of randomness, let’s use Iowa to focus a bit. Iowa criminalizes both neglect and child endangerment. Neglect is a felony that’s committed when a parent “knowingly or recklessly exposes” a child “to a hazard or danger against which such person cannot reasonably be expected to protect such person’s self.” Child endangerment is committed when a parent “knowingly acts in a manner that creates a substantial risk to a child or minor’s physical, mental or emotional health or safety”; if the child is not harmed by the offending conduct, the crime is only a misdemeanor. That language is broad enough to apply to practically anything: teach your ten-year-old to cook and he might start a grease fire that he doesn’t know how to put out.

Anyway, that’s Iowa’s criminal code. Even more conduct is included in the broad definition of “child abuse” in the context of Iowa’s civil child welfare system. Abuse includes “the failure on the part of a person responsible for the care of a child to provide for the adequate food, shelter, clothing, medical or mental health treatment, supervision, or other care necessary for the child’s health and welfare when financially able to do so or when offered financial or other reasonable means to do so.” The statute goes on to explain that “failure to provide for the adequate supervision of a child means the person failed to provide proper supervision of a child that a reasonable and prudent person would exercise under similar facts and circumstances and the failure resulted in direct harm or created a risk of harm to the child.”

Would a reasonably prudent person allow a child to walk a mile to a park? Does such a walk create a risk of harm to the child? These are fuzzy questions that give the state leeway to act as the state (for “the state” here, read “a social worker”) sees fit.

Over at the Volokh Conspiracy, law professor Ilya Somin notes that the application of child welfare laws is subject to some (seemingly) robust constitutional constraints: there’s case law providing that the Fourteenth Amendment protects the rights of parents to raise their children as they see fit and that it also, in the words of Justice O’Connor’s plurality opinion in Troxel v. Granville, creates a “presumption that fit parents act in the best interests of their children.”

But the reality facing most parents in court is that that “presumption” isn’t actually a thing. Take the experience documented in a well-publicized essay on Salon last year: the author left her four-year-old unattended in a car for a few minutes on a mild day, the police were called, she found herself charged with a crime along the lines of the ones excerpted from the Iowa criminal code above. She told her lawyer: “It doesn’t sound to me like I committed the crime I’m being charged with. I didn’t render him in need of services. He was fine. Maybe I should plead ‘not guilty,’ go to trial.” He warned her that “juvenile courts are notorious for erring on the side of protecting the child” and suggested that fighting the case might lead her to lose her child. Faced with that possibility she, of course, folded. Anyone would.

And there is a class and race component to this.  Low-income neighborhoods have a higher presence of police and social workers, raising the odds that parents there get reported. These parents are also far less likely to benefit from the presumption that they are making good decisions for their kids.

The answer is not a brighter legal line on the right age to range freely—kids really are too different for that—but a more collaborative child-welfare model. We should not be taking kids away from situations where reasonable minds honestly disagree about parenting decisions.  Rather, we should reserve punishment for those extreme situations where it’s below the standard that any parent should be treating this child.

Boston Marathon And Memory Lane

The Boston Marathon is happening right now, and like last year, I’m sure I’m not the only one holding my breath, and hoping for a safe run.  Then again, with all the security, it’s probably the safest place on the planet right now.

Anyway, here’s how I covered it two years ago.

By the way, two years ago this week, Glenn Beck set out on a crusade to blow the lid off the government conspiracy that was covering up the fact that Abdul Rahman Ali Alharbi, a Saudi national who was injured in the Boston Marathon bombing, was really an al Qaeda “control agent” who was responsible for financing and orchestrating the entire attack.

In the days following the attack, Beck began warning that “this is a turning point in America history,” claiming that his The Blaze network had discovered that the government and the media were engaged in a cover-up of the truth behind the bombing, infamously giving the government three days to come clean before his network broke one of the biggest stories in history:

When those three days passed without the government admitting to this supposed cover-up, Beck then dedicated all of his coverage to reporting that Alharbi, who was briefly considered a “person of interest” by investigators before being completely cleared, had received a “212 3B” designation during the investigation, which Beck claimed meant that he was terrorist who must be deported.

For Beck, that was evidence that Alharbi was really an al Qaeda control agent who had financed the entire operation and recruited the Tsarnaev brothers to carry out the attack.

When other reporters investigated Beck’s claims and dismissed them, Beck grew more and more outraged about what he saw as an ongoing cover-up, proclaiming that the burden of proof rested upon the government to disprove his claims and boldy declaring that anyone who dared to try and refute his allegations would only wind up looking like a fool.

Shortly thereafter, Beck’s crusade was essentially derailed when he interviewed a former INS special agent who undercut much of his case by pointing out that the “212 3B” theory under which Beck had been operating “doesn’t make sense.”

After that, Beck more or less dropped the issue publicly, though he continued to insist that Alharbi was the “money man” behind the attack and that there was a conspiracy afoot to cover it up.

In 2013, Alharbi sued Beck for defamation and slander.  Beck tried to get the suit dismissed on the ground that Alharbi was a public figure by virtue of the fact that he attended the Boston Marathon and “by behaving suspiciously at the Marathon finishing line when the bombs detonated, thereby causing his detention and a background check by law enforcement”.  Late last year, a federal judge rejected Beck’s argument to have the lawsuit dismissed, saying that attending a sports event does not turn a private person into a public figure.

As of now, the lawsuit is going forward.

Bad Evidence

Say WHAT?!?:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

It doesn’t mean that everyone convicted on the basis of hair evidence was actually innocent, although several of them have been exonerated.  Others have already been put to death.  But man…. that’s really embarrassing.

Trouble Brewing In Them Thar Hills

There is a dispute regarding property rights to gold mine in Oregon between the owners and the Bureau of Land Management (BLM).

If only we had a mechanism to resolve land disputes in this country.

Oh yes.  The court system.

But the allure of an armed conflict with federal agents has still proved irresistible to self-styled militia members who have flocked to Oregon to stir up trouble.  At issue is a disagreement over how to interpret records of the mines’ ownership:

(BLM spokesman) Jim Whittington said it boils down to there being two different types of rights to the land: mining rights and surface rights. He said the two men involved in the dispute own the mining rights to the land, but not the surface rights. The BLM’s records, Whittington said, show that the surface rights at the Sugar Pine Mine were ceded to the agency in 1961 by the party that owned the claim at that time. He said the BLM in March served the Sugar Pine Mine with two letters saying as much.

Co-owners Rick Barclay and George Backes have argued, however, that they still possess the surface rights on the Sugar Pine Mine claim. Barclay said Thursday night on local television station KDRV that the BLM had served him with a “cease and desist letter” despite having showed him no proof that the agency retained the surface rights to his land.

“It’d be like somebody coming to your house saying ‘This is mine now. You got 14 days to take your house out and 30 days to take down your fences and everything you own,'” Barclay told the news station. “The average person’s going to say well, where’s your proof? I want my day in court before they destroy or force me to remove any of my property from my mine.”

Whittington said that the agency does not plan to take such drastic action.

“We’re not at all disputing that there’s a valid mining claim there,” he told TPM, adding that the dispute over who owns surface rights on the Sugar Pine Mine claim could be hashed out through what it likely to be a lengthy administrative appeal process.

Barclay, being suspicious of the federal agency, told KDRV that he’d enlisted the help of a local chapter of the Oath Keepers, a loose-knit national organization of current and former military and law enforcement officers who pledge to defend the Constitution against government overreach, to provide security on the property while he goes through the appeal process.

A call for volunteer personnel on the Josephine County Oath Keepers’ website quickly made the rounds this week among self-styled militia members on Facebook and YouTube:

Mary Emerick, a spokeswoman for the Josephine County Oath Keepers, has been fielding phone calls from interested volunteers from all over the country. At least one activist was turned away from the property because he had outstanding issues with law enforcement, Emerick told TPM in a phone interview.

“I am aware that people are just literally getting in their cars,” she said. “However, we also know that some of those people are on sort of a list and are not going to be welcomed at the camp.”

Since both sides of the dispute are anticipating a lengthy administrative hearing — and these things can last months or ever years — the gun nuts might actually get bored and leave Oregon since there isn’t any actual action to shoot at.

But you never know.

The Indiana “Religious Freedom” Law Isn’t Like Past Laws

Last, week, Indiana Gov. Mike Pence stirred up controversy when he signed a “religious freedom” bill into law.  The law has businesses and civil rights groups up in arms and threatening — or in some cases pledging — to boycott the state.  Critics assert the law could be used by individuals and businesses to discriminate on the basis of religion — particularly against the LGBT community of lesbian, gay, bisexual and transgender individuals.

Pence has been trying to use the “nothing to see here” and “everybody’s doing it” defenses to the new law, which is why he’s loath to get into the law’s details and admit that the statute he signed is not just like the federal Religious Freedom Restoration Act and not just like most other states’ RFRAs.

At the Atlantic, Garret Epps has a good simple description of how the Indiana statute differs from most precedents:

[T]he Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.

So Indiana is trying to create a genuinely plenary zone of sanctioned discrimination, including every kind of entity and protecting discriminators from legal action from any direction. The first point carries it beyond SCOTUS interpretation of the federal RFRA in the Hobby Lobby case as covering “closely held” corporations, but not all for-profits. And the second means Indiana isn’t just protecting religious folk against the all-powerful government, but against the very targets of their discrimination.

Bad Cop

This is a long post, but it warrants it.

It is an of just how bad our police are, even in a liberal city like Seattle.  Many of these examples appear to involve racism, white cops misusing their authority over African-Americans. Examples are often dismissed by police supporters over some ambiguity or another. What makes the following example so compelling is not the extremes of violence (none take place) but the clarity of the power dynamic, and the clarity of how easy it is for cops to misuse the power granted to them.

Arrested for Having a Golf Club

We learn that 70-year-old Air Force veteran (twenty years of service) and retired Seattle bus driver William Wingate had a daily habit of walking and using a golf club like a cane. He typically took a walk to pick a newspaper. Wingate was not unknown in the neighborhood. He had no arrest record. He was not using drugs. He wasn’t even wearing a hoodie. The day was sunny and clear, the video in focus and the audio clear.

But Seattle Police Department (SPD) officer Cynthia Whitlatch pulled over her patrol car, got out, and yelled at Wingate to drop his golf club. The incident was caught on her vehicle’s dash-cam video recording system. Unlike some recorded incidents, where what happened before the encounter was not recorded, in this case we have a full 1:40 on tape of nothing happening.

Officer Whitlatch insists that the recording instead would show Wingate swinging his golf club at her and hitting a stop sign with it. According to the Seattle Police Department, there exists no video to back up this claim.

Nonetheless, Whitlatch, standing behind her car, shouts at Wingate to drop his golf club 17 times, and claims that “it is a weapon.”

“You just swung that golf club at me,” Whitlatch yells.

“No, I did not!” exclaims Wingate.

“Right back there,” Whitlatch says back. “It was on audio and video tape.”

You be the judge.

The Video

(The action begins at 1:40 on the video, but the fact that nothing happens prior to that is important to understanding how wrong this all is)

If you don’t see the embedded video, it is also online here.

Welcome to the Judicial System

Eventually, she tells him he’s going to be arrested and charged with obstruction. She calls for backup. A second officer arrives and Wingate promptly hands over the golf club. Nonetheless, the officers went on to handcuff him. Police walked him down the street to the East Precinct, where the desk sergeant approved the decision to book Wingate into jail on harassment and obstruction charges.

While still handcuffed, Wingate had difficulty stepping up and into the back of the paddy wagon. On video, an officer can be seen sliding a stool toward the back of the vehicle, using his foot. Wingate spent the night in jail.

The next day, city prosecutors filed misdemeanor charges of unlawful use of a weapon against Wingate based solely on the arresting officer’s incident report. In that report, the officer stated she was “fearful of being assaulted by him.”

Wingate agreed to a plea agreement after being told by a public defender “If you sign this stipulated order of continuance, it will all be over, basically.”

Finally, a rational head entered the story. Two months after the arrest a municipal judge dismissed the case following public outcry that attracted both social media and a private lawyer.

Maybe It Was All Just a Mistake?

So maybe Officer Whitlatch just made a mistake. You know, pressure of the moment. Maybe on a bright sunny day she thought she saw an elderly African-American man swing a golf club at her, when no such thing happened. Maybe. But, as prosecutors say when they bring up a suspect’s past history in court, let’s look at the record.

Officer Whitlatch was one of 126 police officers who sued the government last year, at both the federal and city level, to block the Department of Justice–ordered use of force policies. The SPD is under a federal consent decree and is being forced to address the DOJ’s concerns over racial bias and its finding that Seattle police routinely and unconstitutionally use excessive force. Officer Whitlatch and the others claimed in their suit that the new policy will result in citizens and officers being “killed.” They said the regulations require cops to “under-react to threats of harm until we have no choice but to overreact.”

Whitlatch’s ex-girlfriend, who claims she spoke up because both she and her father were police officers, claims Whitlatch made racist comments about black people she’d encountered while on patrol and, in the spring of 2005, stole marijuana from police evidence that the couple then smoked together.

About one month after she arrested Wingate for his golf club, Officer Whitlatch took to Facebook to share some thoughts. While protests raged in Ferguson, Missouri over the police shooting death of African-American Michael Brown, Whitlatch wrote she was tired of “black peoples paranoia” and wrote of “chronic black racism that far exceeds any white racism in this country.”

The Next Steps

The next part is as predictable as day following night.

– Officer Whitlatch remains employed by the police department, albeit on desk duty. Whitlatch was not disciplined. She received counseling from her supervisor, a course of action that the department believes to be “an appropriate resolution.”

– The Seattle Police Department insists racial bias played no role in the incident.

– Wingate is suing the city for $750,000 claiming violations of his civil rights. Should he prevail, the taxpayers will foot the bill for the settlement.

Dear Concord NH Police Department

Bearcat

Seriously?  You need that armored vehicle?  It costs $258,000.  Just sayin'.
"Groups such as the Sovereign Citizens, Free Staters and Occupy New Hampshire are active and present daily challenges," the application stated. In addition to organized groups, it cited "several homegrown clusters that are anti-government and pose problems for law enforcement agencies."

Wow, that's a lie.

"The Free State movement and Occupy New Hampshire have no history of violence, so it's very unclear why any police department would need to use an armored vehicle when addressing these groups," says Devon Chaffee, executive director of the NHCLU. "But we all agree that we want the police and we want our communities to be safe, and what this conversation is about is really what type of equipment and tactics are most appropriate to achieve that goal. I think this application has sparked a very important conversation."

I have concerns….

 

That Didn’t Take Long

TPM:

Texas is wasting no time capitalizing on the Supreme Court’s ruling on the Voting Rights Act.

Shortly after the high court issued a sweeping 5-4 decision Tuesday striking down a centerpiece of the historic 1965 law, Texas Attorney General Greg Abbott vowed to immediately implement a controversial voter ID law in the Lone Star State that was blocked last year by the now-gutted preclearance provision of the Voting Rights Act.

“With today’s decision, the State’s voter ID law will take effect immediately,” Abbott said, according to the Dallas Morning News. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

The provocative move is the first in what could be a series of clashes between the Justice Department and state and local governments after the Supreme Court’s ruling. The court invalidated the section of the law specifying which state and local governments (all with a history of racial discrimination) are required to receive federal pre-clearance before making any changes to their voting laws. Texas was one of those states.

Shortly after the Supreme Court handed down its decision, U.S. Attorney General Eric Holder warned in a televised speech that the Justice Department will take “swift enforcement actions” against any efforts to exploit the ruling and enact discriminatory voting laws. But the DOJ will have one less tool to do so.

Abbott fired off a series of tweets promising to move forward with the voter ID law, one of which declared that “Eric Holder can no longer deny [voter ID] in [Texas].”

 

DOMA and Prop 8: A Prediction

This week — probably Thursday — the Supreme Court of the United States (SCOTUS) will release its opinion on two cases dealing with same-sex marriage.

One case challenges the constitutionality of the Defense of Marriage Act (DOMA).  Section III of DOMA prevents the federal government from treating same-sex couples (those legally married under state law) as "married" for the purpose of federal law . For example, someone who is legally married to a person of the same sex cannot currently receive spousal Social Security benefits should his or her spouse die.  This is, according to DOMA opponents, unconstritutional discrimination.

The second case concerns Prop 8 in California.  Prop 8, as you recall, was a statewide referendum banning gay marriages in California, passed by the people of California.  The district court and the appeals court both held that Prop 8 violates both the U.S. and California Constitutions.  There was also the thorny issue that some same-sex couples in California had already become married in that state before Prop 8 passed.

Both cases, taken together, give the Supreme Court a chance to address gay marriage.  Months ago, I gave a summary of possible outcomes:

Taken together, I suspect there are five possible outcomes:

(1)  SCOTUS will kick the can down the road.  It is possible, though I suspect unlikely, that both cases will be disposed of on issues other than the merits.  For example, there is a standing issue in the Prop 8 case ("standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place).  Conceivably, the court could rule on that, and never reach the merits.  The DOMA case has a standing issue as well.

(2)  SCOTUS would allow each state to decide whether or not to allow same-sex marriages, and force the federal government to accept it only where states accept it.  

(3)  SCOTUS would allow each state to decide whether or not to allow same-sex marriages, but the federal government does not have to accept it.  Basically, a ruling like this would say that same-sex marriages are not protected by the U.S. Constitution, and the federal government can discriminate.  This is essentially what we have now.

(4)  SCOTUS finds that same-sex marriages are protected by the U.S. Constitution, and therefore ALL states must recognize same-sex marriages.  The best of all outcomes.

(5) SCOTUS finds that the U.S. Constitution (14th Amendment) bars states from allowing same-sex marriage.  The worst of all outcomes.

Now it is time to stick my neck out and make predictions, which will, most assuredly, be wrong.  So here I go…..

In 1954, with Brown v. Board of Education, the Supreme Court lay down a landmark decision that laid to rest, with all finality, the issue of segregated schools.  No way, the Court said, and there was no wiggle room.  Not just for Topeka, Kansas (where the case arose), but everywhere.  Nothing was left to the states but to implement integration, with "all due haste".

I don't see that happening with same-sex marriage… with this Court.  It tends to be timid about making the sweeping apply-to-all-states kind of decisions.  It is very sensitive to its unelected status, and will want to avoid making "activist" decisions, even though the Constitution might demand it (as it did in Brown).  So it will, if at all possible, try to make its ruling as narrow as possible.  Scratch #4 and #5 above.

The smart money says, and I agree, that DOMA will fall.  Most say 5-4; I say 6-3.  I think you get Justice Kennedy and maybe Chief Justice Roberts voting with the "liberals": Justices Ginsburg, Breyer, Sotomayor and Kagan.  

There's little question that DOMA discriminates: it treats opposite-sex couples differently than same-sex couples.  That's undeniable.

It should be pointed out to the lay reader that "discrimination" isn't, in constitutional parlance, necessarily a bad thing.  After all, every single law discriminates.  A law against child molestation discriminates against, well, child molesters.  

So the key question, or one of them anyway, is whether the discrimination affects a "suspect class" of people.  Without getting too deep in the weeds, a "suspect class" is any group (a) that has been the subject of invidious discrimination, hostility, in the past, (b) that possesses an immutible trait and (c) whose distinguishing characteristic does not prevent them from becoming meaningul members of society.  Groups based on race fall into a suspect class.  Presumably, so do homosexuals, although the Supremes have not specifically said so.

The counterargument regarding DOMA is this: it doesn't discriminate based on sexual orientation.  After all, where DOMA says that marriage is between "one man and one woman", it is indifferent to the sexual orientations of either.  That is what I call "the cute argument" ("Hey, gay men can still marry women, so where's the discriminiation?!?") and watch for Scalia to breathe life into that.

Anyway, once you've got the general sense of what level of discrimination we're talking about, then the court will ask, "Is there any rational basis for this discrimination?" or "What is the important objective that the government is trying to achieve that accounts for this discrimination?"  In other words, it will look at the government interest.

And that's where the DOMA case crumbles.  There simply is no federal government interest in discriminating between same-sex couples and opposite-sex couples.  You know who says so?  The federal government.  The Obama Administration.  They're not even there in the Supreme Court to defend DOMA.  (It is being defended by a handful of Republicans in Congress).

Okay.  So DOMA flies by the wayside.  What about Prop 8?

That's trickier.

But my prediction is that the Supreme Court will "punt" the issue down the road as much as it can.  To the extent that they make a decision at all, I feel that they will limit it to California, and not all the states… even if all the states have provisions similar to that in the California constitution.

There are several ways that SCOTUS can "punt" this.  For one, they can resolve the case on the standing issue, and never reach the merits of whether or not Prop 8 violates the state and federal constitution.  "Standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place.  Like the federal government in the DOMA case, the State of California is not showing up to defend the results of Prop 8.  Who is?  A conglomeration of right wing groups opposed to same-sex marriage.  That is unusual.

The lower courts found that the plaintiffs in Prop 8 had standing.  The Supreme Court might disagree.  But if it does, what happens?  Does Prop 8 get reinistated, because "the will of the people" said it should?  Maybe.

But I think what is more likely to happen is that SCOTUS will rule that the plaintiffs have standing.  Even then, however, they will still avoid the tough question, and decide in favor of defendants for one reason, and one reason alone — that it is unconstitutional to take away a "right" once it has been given.

Remember, there was a time when same-sex couples could get married in California.  This was before Prop 8.  Then Prop 8 came along and stripped that right away.

This narrowly drawn opinion will probably win 5-4.  Justice Kennedy, as always, is seriously in play.  Kennedy stands as the author of Lawrence v. Texas and Roemer v. Evans — two key Supreme Court decisions overturning state laws on sexual orientation. Lawrence invoked privacy protections to invalidate sodomy laws, while Roemer struck down a Colorado constitutional amendment that would have prohibited antidiscrimination laws protecting gays.  On the other hand, Kennedy is also likely to be reluctant to overturn a sizable majority of state laws in one blow.

Chief Justice Roberts, I believe, is also in play.  Just as he did when he voted in favor of Obamacare, he may want to side with the majority only so he can write a narrow narrow opinion.

But whether it is Roberts or Kennedy (or both), I predict the result will allow SCOTUS to allow same sex marriage in California, but not allow that precedent to spread to other states which clearly do not want same sex marriage.  In doing so, the court will avoid having to answer THE salient question: "Does banning same sex marriage violate the federal constitution?"

So, a victory for California, but not the country.  For the rest of the country, the battle returns to state legislatures.

This half-ruling will leave open many questions, most notably, issues regarding full faith and credit between the states.  For example, if a same sex couple legally marries in Massachusetts, and moves to North Carolina, can a state-run North Carolina hospital deny visitation rights to one half of the same-sex couple, even though the law says it must allow it for opposite-sex couples?

Those kind of questions will not be answered this week.  Again, as I say, the Court will kick it all down the road and only address those questions when it absolutely HAS to.

For those of you who read the transcripts of Prop 8 (or saw the play "8"), I don't think there will be much discussion about the facts that came from that case (or rather, the lack of facts showing that same-sex couples make terrible parents).  Scalia is most likely to throw this crap in there, and possibly even insert "evidence" that wasn't raised at trial.  Yes, he's just that bad a justice.

Supreme Court Preview: Same-Sex Marriage Cases

Two cases will be heard by the Supreme Court this week, starting tomorrow, which will have an impact (even if it is a wash) on same-sex marriage throughout the country.

The first case is a 2008 ballot initiative in California known as Proposition 8, which defines marriage in the state constitution as a legal union of one man and one woman. The second case is a challenge to the 1996 federal Defense of Marriage Act (DOMA), which for purposes of federal benefits also defines marriage as a union of one man and one woman.

Lawyers challenging the measures argue that Prop. 8 and DOMA violate the rights of same-sex couples by treating them like second-class citizens. “With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to qualify to be called a marriage,” writes Washington lawyer Theodore Olson in his brief seeking to overturn Prop. 8.

On the other side, lawyers counter that it is proponents of same-sex marriage who are seeking to change an institution that has existed throughout history as the symbolic joining of male and female. Preservation of this tradition is not discrimination, they say.

“Providing special recognition to one class of individuals does not demean others who are not similarly situated,” writes Washington lawyer Charles Cooper in his brief urging the court to uphold Prop. 8. “It is simply not stigmatizing for the law to treat different things differently, or to call different things by different names.”

Lurking in the background with both of the cases is a separate issue: “standing”.  “Standing” means whether or not the party in the lawsuit has the right to be there.  DOMA is a federal law, which means that the federal government — the Obama Administration — should be defending its constitutionality.  Prop 8 is a California law, which means that the California government — the Brown administation — shold be defending its constitutionality.

But both Obama administration and the Brown administration (as well as the previous Schwartzenager administration) have concluded that DOMA/Prop 8 are indeed constitutional, and chose not to defend them.  So who is defending DOMA before the Supreme Court?  The Republicans in Congress have hired lawyers to do it.  And who is defending Prop 8?  Special interest lawyers paid by groups like Focus on the Family.

And there rests an issue, in both cases, as to whether the party defending the law has “standing”.

But setting standing aside, the most basic question at the heart of the debate over same-sex marriage is whether the US Constitution protects a fundamental right to marry regardless of sexual orientation.

Gay marriage proponents say it clearly does. Supporters of traditional marriage counter that the Supreme Court has never recognized such a right. They cite a 40-year-old precedent, Baker v. Nelson, that upheld a Minnesota law restricting marriage to one man and one woman.

But that’s not the precise issue before the court. The justices have agreed to examine whether same-sex couples are entitled – under the Constitution’s equal protection provisions – to be treated equally when it comes to marriage and the benefits of marriage.

And even if the court says, yes, same-sex couple should be treated equally, there still remains a question of whether or not that actually means it must be called marriage.

And a question of whether that should apply to ALL the states.

In looking to devine where the court will go, the most considered case is Lawrence v. Texas, decided eight years ago.  That case involved a Texas law which prohibited sodomy, but only homosexual sodomy.   “Swing” justice Kennedy ultimately decided that violeted equal protection and discriminated against homosexuals.  In writing the opinion in Lawrence, Kennedy took great pains to say the case had no bearing on same-sex marriage.  In his dissent, Scalia wrote “don’t believe that”, arguing that once you establish gays as a class to be protected under the law, then same-sex marriage is the next thing to be allowed.

And he may be right.

To prevail at the high court, supporters of California’s Prop. 8 and DOMA must be able to offer a persuasive justification for treating gay and lesbian couples differently from heterosexual couples.

Because of the Lawrence decision, they can’t argue that society views homosexual conduct as immoral. That argument is off the table.

Instead, proponents of the traditional view of marriage argue that the government is entitled to grant preferential treatment to couples of the opposite sex to encourage what it considers the ideal arrangement for raising children: two biological parents in a stable home, providing male and female role models for their own children.

Traditional marriage supporters contend that the institution would be irrevocably eroded to the detriment of biological fathers and mothers – and children – if same-sex marriages are permitted. Such views are influenced by religious beliefs, biblical teachings, and people’s own sense of morality.

Gay marriage proponents counter that same-sex couples are ca-pable of raising well-adjusted children in stable, loving homes just as well as married heterosexual couples. Male-female procreation can’t be a qualification for marriage, they say, because infertile couples and the elderly are allowed to wed with no inquiry into their ability or propensity to make babies.

Lawyers for same-sex couples want Kennedy to take up where he left off in the Lawrence decision and establish heightened civil rights protections for gay and lesbian Americans like those for African-Americans and women.

In contrast, lawyers supporting traditional marriage are seeking to channel that part of Kennedy that found it necessary to write the disclaimer in the Lawrence decision.

One of their strongest arguments is that it is not the right time for the high court to intervene in the same-sex marriage debate. Gays and lesbians are beginning to achieve political success at the state and national level, but the vast majority of states still maintain the traditional definition of marriage. There is no critical mass of states seeking change.

By the time the high court declared bans on interracial marriage unconstitutional in the Loving case in 1967, all but 16 states had already repealed their anti-miscegenation laws. In 1960, all 50 states had anti-sodomy laws. By 2003 when the high court declared such laws invalid in the Lawrence decision, 37 states had already repealed their sodomy laws. Only 13 still had them on the books.

Contrast that with the current landscape for same-sex marriage. Nine states, and the District of Columbia, recognize it – but 41 do not. “I’m unaware of Justice Kennedy ever having voted to strike down the laws of 41 states,” Carpenter says.

Still, with so many variables (including the issue of standing), there are any number of possible outcomes.  Perhaps the court will ultimately let one (or both) cases turn on the standing issue, and not reach the same-sex/equal protection issue at all.  Maybe they strike down Prop 8 in California for reasons limited to that state (gays were given the right to marry before Prop 8 passed), but not let it spread to other states.  Or maybe they will say that ANY state which forbids gays to marry is violating the U.S. Constitution.

Anyway, the circus starts tomorrow, and court-watrcher will be paying close attention to the kinds of questions that are asked, especially by Kennedy and Roberts.

 

Jersey Boys Case: No Copyright Infringement

This blog used to do a lot more law stuff — not so much anymore.  But I wanted to point to a case which highlights my interest in copyright law. 

Today, the Ninth Circuit ruled against SOFA Entertainment in its lawsuit against Dodger Productions, the producers of "Jersey Boys".

In Jersey Boys, a 7-second clip of Ed Sullivan (from the old Ed Sullivan Show) introducing The Four Seasons is used.  SOFA Entertainment asserted in court that this was copyright infringement.  Dodger productions, the defendants, asserted that the clip fell within the "fair use" doctrine.

The clip is shown at the end of the first act. Bob Gaudio stands to the side of the stage and addresses the audience:

“Around this time there was a little dust-up called The British Invasion. Britannia’s ruling the air waves, so we start our own American revolution. The battle begins on Sunday night at eight o’clock and the whole world is watching.”

As Gaudio speaks, the rest of the band is seen on a CBS studio stage preparing for their performance on The Ed Sullivan Show. Just after Gaudio finishes his lines, the clip is shown on screen hanging over the center of the stage. Ed Sullivan assumes his “signature pose” and introduces the band to his studio and television audiences:

“Now ladies and gentlemen, here, for all of the youngsters in the country, the Four Seasons . . . .”

As he concludes, Sullivan turns and, with an extended arm and open palm, directs the theater audience’s attention to the stage. The screen goes dark, and the actors perform a rendition of the song “Dawn.” When the song ends, Gaudio resumes his position at the edge of the stage and addresses the audience again:

"We weren’t a social movement like The Beatles. Our fans didn’t put flowers in their hair and try to levitate the Pentagon. Maybe they should have. Our people were the guys who shipped overseas . . . and their sweethearts. They were factory workers, truck drivers. The kids pumping gas, flipping burgers. The pretty girl with circles under her eyes behind the counter at the diner. They were the ones who really got us, and pushed us over the top."

In finding for Dodger, the 9th Circuit considered the four "fair use" factors:

(1) Purpose and Character of the alleged infringing use.

Interestingly, the 9th circuit followed the trend of courts and focussed this factor on whether the use was “transformative",  holding that it was.  The court concluded that the use was incorporated into the musical as a “historical anchor”  pointing to “an important moment in the band’s career".

(2) The Nature of the Copyrighted Work

On this second factor, the Court rejected SOFA’s claim that Sullivan’s “trademark gesticulation and style” were themselves entitled to copyright protection, going on to hold that it was actually “doubtful” that the brief clip is entitled to copyright protection.

(3) The Amount and Substantiality of the Portion Used

Here is where SOFA’s case really falls apart.  In fact, the plaintiff even conceded that the clip used was not quantitatively significant, but instead argued that it included “one of the central and most beloved parts of the Ed Sullivan Show”.  The Court didn’t buy it, holding that the footage didn’t contain any “qualitatively significant expression”.

(4) Impact on the Market for the Original

The court kept it brief, finding that this factor favored a finding of Fair Use because  ”Jersey Boys is not a substitute for the Ed Sullivan Show”, essentially ignoring the argument that SOFA’s business is founded on obtaining fees for licensing content from its extensive library.  (Sofa had presented almost no evidence on this point in its pleadings).

Full opinion here (PDF)

More On Scalia And The Voting Rights Act

From TPM:

In expressing his deep skepticism Wednesday for the constitutionality of a centerpiece of the Voting Rights Act, Justice Antonin Scalia questioned the motivations of Congress for repeatedly reauthorizing it since it was initially passed in 1965.

I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia said during oral arguments in Shelby County v. Holder. “They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful — the Voting Rights Act. Who is going to vote against that in the future?

At issue was the constitutionality of Section 5 of the 1965 law, which requires state and local governments with a history of racial discrimination to pre-clear any changes to their voting laws with the Justice Department prior to enacting them.

Congress has renewed the law four times, most recently in 2006 for a period of 25 years. The margin of victory was 99-0 in the Senate and 390-33 in the House.

Scalia attributed the repeated renewal of Section 5 to a “perpetuation of racial entitlement.” He said, “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

***

Scalia signaled that he fears Section 5 will be repeatedly reauthorized into perpetuity, regardless of whether it’s justified, unless the courts step in.

“This is not the kind of question you can leave to Congress,” he said.

So…,. Justice Scalia thinks it is bad for Senators to vote against the Voting Rights Act; they'll look bad.  And apparently, he's coming to the rescue.

I'm absolutely appalled by this.  He's a judge; not a political commentator.  His job is to follow the law, not speculate about why a Senator may or may not vote for it.  This IS the kind of question you leave to Congress, and for whatever reason, they have voted overwhelmingly to renew the Voting Rights Act.  Political pressure?  So be it.  Judges are not supposed to usurp the political process.

Can you imagine of judges started ignoring the law, or overturning laws, simply on the rationale that "senators don't really want to vote for this law — they just felt compelled to satisfy their constituents"?  Yes!  It's the people that are supposed to be at the heart of democracy.  Not judges.

Maybe this is a better way to put it:

Compare and contrast.

1. Justice Scalia today regarding the voting rights act: "This is not the kind of question you can leave to Congress."

2. The United States Constitution, Amendment XV: "SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation." (My emphasis.)

 

Dumb Lawsuit of the Day, Or Is It?

One should always be careful when mocking a lawsuit.  Several years ago, late-night comics joined the rest of the nation in mocking a woman who sued for McDonald's for "hot coffee".  On its face, the suit sounded ridiculous, but in reality, it was not.

So with that caveat in mind, I turn your attention to this:

Retired Ohio teacher Maria Waltherr-Willard is suing her school district, claiming it discriminated against her because of her disability — a debilitating phobia of young children.

Waltherr-Willard, 61, claims in her lawsuit against the Mariemont school district that for 35 years, she taught Spanish and French to high school students in the system. But when she helped fight the district's decision to cut French class in favor of an online course, officials retaliated by reassigning her to younger students at a middle school in 2009, ignoring her hypertension, specific phobia and general anxiety disorder, Waltherr-Willard says, according to Cincinnati.com.

She claims that district officials were previously sympathetic and aware of her medically diagnosed pedophobia.

While the public and a number of commentators have taken to ridicule the teacher and her lawsuit, Dr. Caleb Adler, associate professor of psychiatry and behavioral neuroscience at the University of Cincinnati, says it's a serious phobia, as the illness causes Walterr-Willard to experience stress, anxiety, chest pains, vomiting, nightmares and high blood pressure when she's near young children.

I don't doubt that pedophobia is a serious phobia.  And I am sympathetic to her allegations (if they hold up) that the school district retaliated against her.  I mean, they shouldn't retalitate against her because she stood up and tried to preserve a French course.

But… really?

Does it make sense that someone with fear of children would choose teaching as a profession?  And should any employer be obligated to hire and maintain employment for someone who can't do their job because of a disability?  Does a firemen with a fear of fire have a legitimate claim against the city who hires him?

Something isn't quite right here.

The Crazy Conservatives On The Supreme Court Have No Sense Whatsoever

Okay.  Imagine this.

You are a 35 year old man.  One March day, you are a passenger in your family's SUV.  Your pregnant wife is driving, and your 4-year-old son is in the back seat.  You are driving to a Sunday dinner.

Suddenly, you're stopped by a New Jersey state trooper.  Since you are the vehicle's registered owner, the officer runs your identification and discovers a bench warrant for an outstanding fine.  But you have already paid the fine.  In fact, you have a letter attesting to that fact, since you have been stopped on several previous occasions.

Nevertheless, you are handcuffed and arrested and taken to the county jail.  Once there, you are subjected to an invasive strip and visual body-cavity search.  You're told to wash with disgusting soap, and them turn around, lift your genitals, squat, etc.  

Then, after six days in the county lockup, you are transferred to a Newark correctional facility, where you are subjected to another more intrusive search before being placed in the general prison population.  Fortunately, you are freed the next day, when a magistrate confirms what you have been saying all along — that you had already paid the damn fine.

So now your ordeal is over, and you are understandably pissed.  You sue the state for the invasive and embarassing strip searches.  Think you'll get justice?

The 5-4 divided court found two county prisons "struck a reasonable balance between inmate privacy and the needs of the (correctional) institution."

The conservative majority concluded a "reasonable suspicion" standard could be applied when conducting examinations of newly admitted prisoners.

That's refering to today's decision out of the United States Supreme Court.  The majority was the usual suspects — Alito, Roberts, Scalia, and Thomas — with Kennedy swinging (as he is prone to do) to the right to complete the majority.

I swear, if these five stay on the court longer, this country is going to go back to the stone age.

Great Quotes From The 9th Circuit’s “Prop 8” Opinion

I think Judge Stephen Reinhardt enjoyed himself writing this opinion, given the way he (subtly) sticks it to the Prop 8 supporters:

1. "[M]arriage is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name 'registered domestic partnership' does not."

2. "We are regularly given forms to complete that ask us whether we are 'single' or 'married.' Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, 'Will you marry me?', whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see 'Will you enter into a registered domestic partnership with me?'. Groucho Marx's one-liner, 'Marriage is a wonderful institution…but who wants to live in an institution?' would lack its punch if the word 'marriage' were replaced with the alternative phrase. So too with Shakespeare's 'A young man married a man that's marr'd,' Lincoln's 'Marriage is neither heaven nor hell, it is simply purgatory,' and Sinatra's 'A man doesn't know what happiness is until he's married. By then it's too late.'"

3. "Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie."

4. "In order to explain how rescinding access to the designation of 'marriage' is rationally related to the State's interest in responsible procreation, Proponents would have had to argue that opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of 'marriage.' We are aware of no basis on which this argument would even be conceivably plausible."

5. "There is a limited sense in which the extension of the designation 'marriage' to same-sex partnerships might alter the content of the lessons that schools choose to teach. Schools teach about the world as it is; when the world changes, lessons change. A shift in the State's marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them. But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particular governor on the ground that students would learn about his holding office."

Baum Law Firm Closes

Never heard of the law firm of Steven J. Baum?

Well, that law firm, located near Buffalo, represents banks and mortgage servicers when they attempt to foreclose on homeowners and evict them from their homes.  It is the biggest law firm of its type in the State of New York.

The firm has been denounced by consumers and consumer advocates for participating in "robo-signing" and allegedly improper foreclosures, with critics saying it helped speed up foreclosures to benefit its lender clients by allegedly authorizing the "assignment" or transfer of mortgages from one lender to another when critics say it lacked authority to do so.  It's been vilified by advocates, other attorneys, politicians and even judges for submitting sloppy and allegedly fraudulent paperwork that is riddled with legal errors, including faulty affidavits and notarizations.

You would think that a law firm facing such allegations (and a $2 million fine to boot) would clean up its act.  But no.  About a month ago, the law firm had an office Halloween party.  And the employees of the the law firm dressed up as — wait for it — people being foreclosed on.  Here are a couple of pictures:

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As you can see, the law firm employees showed an appalling lack of compassion toward the homeowners — invariably poor and down on their luck — that the Baum firm had brought foreclosure proceedings against.

In response to this obvious callousness, the two major lenders for home ownership, Fannie Mae and Freddie Mac (themselves not exactly enjoying a wave of public support) decided to “evict” the law firm of Steven J. Baum from its referral list.  That's right, Baum people — no more business for you!

And the results are so so sad.  From the Buffalo News:

This month, Fannie Mae and Freddie Mac, the mortgage- finance companies operating under U.S. conservatorship, dropped Steven J. Baum PC from their lists of law firms eligible to handle foreclosures. Servicers including Bank of America Corp. and Ally Financial Inc. also stopped using the firm, which last month agreed to pay the U.S. $2 million and change its practices to resolve a probe of faulty foreclosure filings.

“Disrupting the livelihoods of so many dedicated and hardworking people is extremely painful, but the loss of so much business left us no choice but to file these notices,” Steven J. Baum, who owns the firm, said in the statement.

Payback is a bitch, huh?

To the 67 people employed by the Baum firm… don't let the door hit your ass on the way out.

And Kudos to New York Times columnist Joe Nocera for his work on putting a spotlight on these guys.

HBO Documentary Looks At The “Hot Coffee” Case

You've all heard about the klutzy woman who sued McDonald's because her coffee was hot when she spilt it on herself?  And how she won?

That story is used repeatedly to show that lawyers are bad people who create frivilous and stupid lawsuits.

A couple of years ago, I discussed the "McDonald's coffee" case, exposing it for what it actually was: a very serious lawsuit about a very serious injury.  Not that it changed the tide.  It didn't.

Fortunately, this might:

Hot Coffee, a superb new HBO documentary directed by Susan Saladoff, points out that this politically potent narrative consists of half-truths and outright falsehoods. Liebeck’s suit and the jury’s decision were in fact far from unreasonable, and the misleading narrative about the case has helped corporate interests and their political allies make it more difficult for corporations to be held accountable in court.

Saladoff’s film lays out the real story in lucid detail, and no matter how many times the suit was used in Jay Leno monologues there was nothing funny about it. Liebeck was not careless, but spilled the coffee when she, as a passenger in a parked car, took the lid off the cup. The spill did not cause a trivial injury, but severe burns that required multiple operations and skin grafts to treat. McDonald’s, which served its coffee at 180 degrees, had received more than 700 complaints from customers, constituting a clear warning, but it nonetheless required its franchises to serve it at that temperature without warning customers.

Nor was Liebeck greedy or especially litigious. Her initial complaint requested only about $20,000 to cover her medical bills and other related expenses, and she took McDonald’s to court only after the corporation offered a paltry $800 settlement. The headline-generating $2.7 million Liebeck was awarded in punitive damages (selected because it approximated two days worth of the revenues McDonald’s makes by selling coffee) was reduced on appeal to less than $500,000. (The case was later settled for an undisclosed amount.) The Liebeck suit was a thoughtful attempt to seek appropriate redress for a serious harm, not about a clumsy woman trying to wring millions from an innocent corporation.

Sounds like good TV.

Breaking: Walker Opinion On Prop 8 Upheld

WSJ:

SAN FRANCISCO—A federal judge has upheld a gay judge's ruling to strike down California's same-sex marriage ban.

Chief U.S. District Judge James Ware said Tuesday that former Chief Judge Vaughn Walker did not have to divulge whether he wanted to marry his own gay partner before he declared last year that voter-approved marriage ban was unconstitutional.

Lawyers for backers of the ban argued at a hearing Monday that Judge Walker should have recused himself or disclosed his relationship because he and his partner stood to personally benefit from the verdict.

Lawyers for two gay couples called the effort to disqualify Judge Walker frivolous, offensive and unfortunate.

Judge Walker publicly revealed after he retired in February that he is in a 10-year relationship with a man.

As predicted.

UPDATE:  Opinion here.

Today in Prop 8 News

Just to recap.

Prop 8 was a California ballot initiative that banned same sex marriages in California.  Well-funded by out-of state bigots (like the Mormons), it narrowly passed in 2008.

But then Prop 8 was challenged in state court for being unconstitutional.  But the California courts upheld Prop 8.

After the California Supreme Court upheld the voter initiative, another suit, Perry v. Schwarzenegger, was filed in a Federal District Court in San Francisco. On August 4, 2010, U.S. District Chief Judge Vaughn R. Walker overturned Proposition 8 as being unconstitutional.  He also stayed his own ruling; the voter initiative was to remain in effect pending appeal.

The case is kicking around the Ninth Circuit Court of Appeals.  The particular issue is standing.  You see, the State of California refused to support Prop 8, so the people who are defending it are citizens groups.  And there is a question as to whether citizen groups have standing to defend a proposition.

In the meantime, however, another suit was filed to attack Perry v. Schwarzenegger collaterally.  Specifically, on April 25, supporters of Proposition 8 filed a motion in district court to vacate Walker's decision in Perry. Walker, who is now retired, has admitted that he is gay.  Prop 8 supporters argue that Walker should have recused himself or disclosed his relationship status, and that unless he "disavowed any interest in marrying his partner", he had "a direct personal interest in the outcome of the case".

The hearing on that motion was yesterday; a decision is expected today.

As a preview, let me say this:

The Prop 8 supporters have a very weak argument.  First of all, black judges can hear cases involving discrimination; women judges can hear cases that may have an impactg on womens' rights.  This has always been the case.  The Prop 8 supporters are weilding an argument that, if it succeeds, would change the face of the law forever.  You simply can't ASSUME that a judge is impartial simply because he is a member of a group that MIGHT be affected by the outcome of a case.  Even the folks at Fox grasp this:

 

The other reason why the Prop 8 supporters are likely to lose today is because Judge Walker wrote a 138 page opinion.  And guess what it doesn't say?  It doesn't say:

I am siding with the anti-prop 8 people because I am gay.

That's right.  He actually gave 138 pages of reasons why Prop 8 was unconstitutional. 

And the Prop 8 people lost because they were TERRIBLE in court.  Look at page 11 of the opinion. It reads:

At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was "not the legally relevant question," id, but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know." Id at 23. Despite this response, proponents in their trial brief promised to "demonstrate that redefining marriage to encompass same-sex relationships" would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that"responsible procreation is really at the heart of society's interest in regulating marriage." Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention,proponents' counsel replied, "you don't have to have evidence of this point." Tr 3037:25-3040:4.

Now look at page 38 of Judge Walker's opinion. Here Judge Walker is noting the paucity of the evidence supporting Prop 8. Keep in mind that side is called the "Proponents" (as in, the Proponents of Prop 8). Judge Walker wrote:

Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. Proponents informed the court on the first day of trial, January 11, 2010, that they werewithdrawing [here the judge lists four witnesses]. Doc #398 at 3. Proponents' counsel stated in court on Friday, January 15, 2010, that their witnesses United States District Court because they "were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever." Tr 1094:21-23. The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated.

This is why the Prop 8 team was routed at trial. It wasn't Judge Walker's evil gay bias.  It was because the proponents of Prop * failed — miserably — in court.

So I expect today's decision to be a slam-dunk win for the anti Prop 8 (pro- same sex marriage) crowd).

UPDATE:  The transcript from yesterday's hearing on the motion to vacate indicates that the Prop 8 lawyers (once again) didn't have very good arguments and were taken to town by the presideing judge (Judge Ware).  An example:

Judge Ware: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?

Charles Cooper (attorney for the Prop. 8ers):  The fact that he has publicly announced that he is and has been in a relationship with another person? [laughter]

Judge: So if you are in a ten year relationship with another person, that is for purposes of marriage? You would concede that you could be in a long term relationship without being in it for purposes of marriage?

Cooper: Yes.

Judge:  What distinguishes it?

Cooper:  Very fact that two individuals are in kind of relationship Walker has…

Judge: What distinguishes between two?

Cooper: There are platonic friendships that do not lead to marriage. [laughter]

Judge:  What do you mean, ‘platonic'?

Cooper: Non-intimate, non-sexual. Clear understanding of media reports…

Judge:  You are saying that length of relationship alone converts to marriage relationship?

Cooper:  Yes. Bespeaks commitment.  All of these have been used interchangeably.  The plaintiffs take pains to say they are in long term relationships.

Judge: The plaintiff’s relief was not to stay in a long-term relationship.  Nothing threatened their long term relationship. Neither they nor Walker were threatened. The plaintiffs sought to change relationship. What fact would you cite to the court to show that Walker sought to change his relationship?

Cooper: [Stumbles…] There are several points I would make that a reasonable person with knowledge that Judge walker would be expected to have an interest in marrying his long time partner.  Judge Walker similarly situated for purpose of marriage just as plaintiffs.

Another excerpt:

Judge Ware: You keep saying that Walker has an interest in getting married. Is that what you are saying?

Cooper:  If he has an interest in marriage, …

Judge: You repeated it again.  I hear me. I recognize my voice. I’m not sure you hear yours.

Cooper:  Let’s back up. The ten year relationship means he was bound to disclose. Also, he must disclose that he is similarly situated to plaintiffs.

Judge:  You’ve raised the disclosure question many times.  You seem to say that judge is required to disclose. In a case where race is involved, sometimes disclosure not made because race is obvious. We are bound by our past, which is largely irrelevant. 

If a female judge has suffered rape or sexual assault and is hearing a case on rape or sexual assault, must she disclose?

Cooper: That’s a tough question.  I don’t see how her direct interest would be affected.

Judge: That’s not the question. Would a reasonable person object?

Cooper:  It is closer call whether or not reasonable person in possession of all facts whether judge’s impartiality disclosed.

Judge: You would have me rule that judges disclose intimate details of their past such as being abused as child and should not be presumed capable of fulfilling their duty.

Cooper:  A judge would have to disclose if the parties think its’ relevant. It’s a broad standard, and includes information that the judge might believe himself would not rise to meritorious recusal. The cases are quite clear. The judge’s responsibility quite broad.

Judge:  In this case, Judge Walker need not to have disclosed orientation.

Cooper: That is true. We have made that clear from beginning when first news reports surfaced.