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Tag: supreme court

Supreme Court Will Hear Data Privacy Issue Between DOJ and Microsoft

depositphotos_61179679_m-2015

By Allan Lengel
ticklethewire.com

The Justice Department continues to do battle  over privacy.

Kate Conger of GIZMODO writes:

The U.S. Supreme Court has agreed to hear arguments in a critical case over data privacy, the outcome of which will likely determine how easily law enforcement can gain access to information stored in tech companies’ overseas data centers. Microsoft will go head-to-head with the Justice Department, arguing that the agency cannot use a warrant to collect emails held in Microsoft’s Ireland data center.

In 2016, the Second Circuit Court of Appeals ruled in favor of Microsoft, asserting that a 1986 law, the Electronic Communications Privacy Act (ECPA), was not intended to grant law enforcement access to internationally-stored data. The Justice Department says that this ruling has hampered its investigative abilities in the digital age. In asking the Supreme Court to consider the case, the Justice Department argued that “hundreds if not thousands” of investigations into terrorism and child pornography “are being or will be hampered by the government’s inability to obtain electronic evidence.”

Other Stories of Interest 

 

Significant Portion of Trump’s Travel Ban Set to Expire Before Reaching Supreme Court

U.S. Supreme Court

U.S. Supreme Court

By Steve Neavling
ticklethewire.com

The Justice Department is appealing an injunction on President Trump’s travel ban, even though a significant portion of the ban is set to expire by the Oct. 10 court date.

Even more, the entire ban is likely to expire by the time the justices rule on the case, the Washington Post’s Editorial Board wrote

The Justice Department is appealing a federal court’s ruling against the Trump administration’s temporary travel ban of refugees and residents of six majority-Muslim countries.

The Post wrote:

Mr. Trump’s order halts entry into the United States by citizens of the six banned countries for 90days and suspends refugee admissions for 120days. After courts blocked the ban, Mr. Trump clarified that these clocks would begin ticking as soon as the policy was allowed to go into effect. Because the Supreme Court lifted in part the lower-court injunctions against the order on June26, the refugee ban will expire in late October, and the entry ban at the end of September.

As a matter of law, the Supreme Court can’t rule on a case that no longer presents an ongoing issue. Yet the Justice Department hasn’t given any indication of awareness that the court might well dismiss the case without deciding whether the ban is legal. Not only is the department now battling over an injunction on a policy that likely expires in two weeks, but its opening brief before the Supreme Court didn’t even address the issue.

If the White House wants to keep the case alive, Mr. Trump could declare that the clock has yet to start with respect to those immigrants and refugees with “bona fide” connections to the United States, for whom the ban has remained on pause. Or he might extend the order on the grounds that the government has been unable to conduct reviews of vetting procedures — ostensibly what the halt in travel was meant to allow — without the ban fully in place. He could even issue a new ban or make the existing order permanent.

Trump Blasts His Own Justice Department Over ‘Watered Down’ Travel Ban

President Trump

President Trump

By Steve Neavling
ticklethewire.com

President Trump blasted his own Justice Department in a series of tweets Monday morning, saying his travel ban has been “watered down” in order pass legal muster.

Trump urged the Justice Department to seek a “much tougher version” of the executive order that he signed to block individuals from six-majority Muslim countries from entering the U.S.

Courts have blocked two versions of his travel ban, largely because it targets a religion.

“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Trump tweeted early Monday morning. “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”

Trump also lashed out at the courts, calling them “slow and political.”

The JusticeDepartment formally asked the Supreme Court last week to declare his executive order is constitutional.

The order before the Supreme Court is a narrower version of Trump’s controversial directive, which he signed during his first week in office.

Neil Gorsuch’s Participation In Supreme Court Could Make a Difference, Most Likely In favor of Protecting Officers

Judge Neil Gorsuch

Judge Neil Gorsuch

By Ross Parker
ticklethewire.com

The muddied area of the law in civil actions against police officers involved in a shooting is one where Justice Neil Gorsuch’s participation and vote could make a difference, most likely in favor of protecting the officers. The Supreme Court heard argument last week in County of Los Angeles v. Mendez, a Section 1983 action against the county and two LA Sheriff’s Deputies.

It is an old legal adage that bad facts make bad law. From a law enforcement perspective, the case presents that kind of context.

First the present atmosphere surrounding police shootings, particularly of minority members, particularly where a rule or policy violation is present,  is very unforgiving of split second decisions by police officers in the heat of situations reasonably perceived to be dangerous.  See The War on Cops by Heather Mac Donald. One publication has described the case as involving the question if the police can “troll you and then shoot you.”

Second the atmosphere was especially stacked where the victim was, after the fact, found to be an innocent who suffered serious injuries.

The deputies were seeking a parole violator in 2010 when they knocked and announced their identity at a house in Los Angeles and then entered and searched it. In violation of the 4th Amendment, they lacked either an arrest or search warrant. Finding no one, two of them were sent to check a dilapidated shack in the backyard behind the house. Without announcing their identity or purpose, they opened the door with guns drawn. Not knowing who they were, Mendez picked up a BB gun he used to kill rats but did not point it at the officers. The deputies opened fire with 15 shots wounding Mendez and his pregnant girlfriend. Mendez later had to have his leg amputated because of his injuries.

The “Provocation” Rule

At the conclusion of the federal bench trial, the judge sustained liability and awarded the plantiffs $4 million in damages. The 9th Circuit Court of Appeals upheld the judgment under the alternative theories that the officers had provoked the threatening situation and that their constitutional violation, under the circumstances, was the proximate cause of the excessive force causing the injuries.

The “provocation” rule is opposed by law enforcement because it ignores principles of qualified immunity and focuses on events prior to the reasonableness of the officers’ action at the time of the shooting. Such a rule would, they argue, encourage police to hesitate and thus result in increased danger to both them and the subjects. The legal analysis has been widely discredited by other appellate courts.

Plaintiffs argue that it is unfair to shield officers from liability for unreasonably dangerous situations which they created or contributed to by their own actions.

The wide gap in views on what legal principles and analysis should be employed by the parties and lower courts was reflected by the apparent attitudes by the 8 Justices during oral argument last week. Even the fundamentals of the law in this area are confusingly uncertain.

The case could very well end up in a 4-4 tie between the Justices who support a finding that an unconstitutional entry satisfied proximate cause for the injury (likely Kagan, Sotomayor, Breyer, and Ginsburg)  and those who could discern no proximate cause between any constitutional violation and the result (likely Roberts, Alito, Thomas and Kennedy). A tie would uphold the 9th Circuit’s affirmance of liability and damages. Of course predicting individual votes in a murky area of the law is a perilous course taken only by the most stalwart of columnists (who have nothing to lose).

Ominously the 13 Amicus Curiae briefs are split almost equally divided in their support of the two sides of the case.

Almost Justice Gorsuch’s disciplined and conservative approach could bring clarity in this area. Of course it is likely to be a clarity very unhelpful to the victims of police shootings.

U.S. Supreme Court to Decide Whether Mexican Nationals Can Sue Over Border Patrol Shootings

Border PatrolBy Steve Neavling
ticklethewire.com

The Supreme Court will begin hearing arguments today in a case involving a Border Patrol agent who fatally shot an unarmed 15-year-old across the border with Mexico.

The big legal question: Can the family of the teenager sue an agent for damages in the U.S.?

The shooting occurred between El Paso and Juarez. There have been 42 cross-border shootings between 2005 and 2013, marking a big increase over previous time periods, NPR reports. 

NPR wrote:

In June 2010, Sergio Hernández and his friends were playing chicken, daring each other to run up the incline on the U.S. side and touch the fence, according briefs filed by lawyers for the Hernández family.

At some point U.S. border agent Jesus Mesa, patrolling the culvert, arrived on a bicycle, grabbed one of the kids at the fence on the U.S. side, and the others scampered away. Fifteen-year-old Sergio ran past Mesa and hid behind a pillar beneath the bridge on the Mexican side.

As the boy peeked out, Agent Mesa, 60 feet or so away on the U.S. side, drew his gun, aimed it at the boy, and fired three times, the last shot hitting the boy in the head.

Although agents quickly swarmed the scene, they are forbidden to cross the border. They did not offer medical aid, and soon left on their bikes, according to lawyers for the family.

Supreme Court to Decide Whether Killed Mexican Teen Has Constitutional Protections

Border PatrolBy Steve Neavling
ticklethewire.com

The U.S. Supreme Court is expected to decide whether a Mexican teenager is permitted to sue the Border Patrol agent who shot him.

“This raises fundamental questions about the reach of protection under the Constitution,” Deepak Gupta, a lawyer working on behalf of the teenager’s family,”  told the Dallas Morning News.  “It’s hard to understate how fundamental it is.”

In the summer of 2010, Sergio Hernandez, then 15, was allegedly throwing rocks at Border Patrol officers along the border between El Paso and Juarez.

Agent Jesus Mesa Jr. fired at Hernandez, killing him.

The central question in the court case: Does a Mexican have constitutional protections against the use of deadly force by federal officers – a protection afforded to Americans?

A Border Patrol lawyer says Hernandez does not have constitutional protections.

“To say he did would create a very litigious border,” Ortega said. “We’d be, in effect, expanding the jurisdiction of the Constitution of the United States into sovereign areas.”

Supreme Court’s November Cases and the Continued Search for the Evolving Standards of Decency in Criminal Punishment

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

US_Supreme_Court

By Ross Parker
ticklethewire.com

With only a pair of criminal cases on the Oral Argument docket in November, the Court will primarily focus on civil and administrative cases. One of the criminal cases, Beckler v. United States, involves a question of interest probably only to some prosecutors and judges: whether the career offender sentencing guidelines defining a “crime of violence” warranting a sentence enhancement is unconstitutionally vague. The Court last year invalidated a similar clause (violent felony) in the Armed Career Criminal Act on that ground.

The other case, Moore v. Texas, involves yet another 8th Amendment Cruel and Unusual Punishment issue on the permissible medical standards for intellectual disability regarding a defendant’s fitness for execution.  The case involves another question which will probably not be resolved because of the absence of a Justice to fill Antonin Scalia’s seat. That question is whether long term solitary confinement on death row is itself unconstitutional as cruel and unusual.

In 1980 Bobby James Moore, age 20, shotgunned a grocery clerk to death in a robbery attempt. He was convicted and sentenced to death. Since that time he has spent more than 35 years in solitary confinement in a 60 square foot iron cell for 22 and ½ hours a day. He has no TV or association with other inmates. The medical and psychological effect of this kind of incarceration has been studied extensively, and some of the results show a deterioration ranging from mild mental disability to psychosis. In short some experts consider this to be a modern version of torture.

But can the time expended on repeated postponements caused by the defendant’s own pursuits in the Byzantine appeals process in capital cases be equated with government “torture?”

It is a gruesomely fascinating exercise to trace the evolution of torture as a means to punish. Four thousand years ago the Code of Hammurabi codified punishments for particular crimes. Various penalties were prescribed, including an “eye for an eye,” ripping tongues out for false testimony, and skinning perpetrators alive.

A few centuries later the ancient Hebrews employed crucifixion, being thrown off cliffs, stoning, being burned alive, and being sawn in half. The classical Greeks used the Rack, the Wheel, and an early version of the Iron Maiden as forms of punishment. In their time the Romans imposed punishments of whipping, strappado, and a very inventive one involving being placed in a bag with poisonous snakes and dropped into the water. Trials by ordeal were encouraged by the Roman Catholic Church during the Middle Ages, as well as water boarding and mutilation by various specially designed tools.

During the 1700s almost all forms of torture were abolished in most European countries, but as late as a decade ago Human Rights Watch and the United Nations reported that dozens of countries still use torture as punishment. Today over three dozen nations have abolished the death penalty, but about 60 countries still include the ultimate punishment. Some of them, however, use it sparingly.

Read more »

Parker: The Supreme Court’s November Cases and the Continued Search for the Evolving Standards of Decency in Criminal Punishment

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

US_Supreme_Court

By Ross Parker
ticklethewire.com

With only a pair of criminal cases on the Oral Argument docket in November, the Court will primarily focus on civil and administrative cases. One of the criminal cases, Beckler v. United States, involves a question of interest probably only to some prosecutors and judges: whether the career offender sentencing guidelines defining a “crime of violence” warranting a sentence enhancement is unconstitutionally vague. The Court last year invalidated a similar clause (violent felony) in the Armed Career Criminal Act on that ground.

The other case, Moore v. Texas, involves yet another 8th Amendment Cruel and Unusual Punishment issue on the permissible medical standards for intellectual disability regarding a defendant’s fitness for execution.  The case involves another question which will probably not be resolved because of the absence of a Justice to fill Antonin Scalia’s seat. That question is whether long term solitary confinement on death row is itself unconstitutional as cruel and unusual.

In 1980 Bobby James Moore, age 20, shotgunned a grocery clerk to death in a robbery attempt. He was convicted and sentenced to death. Since that time he has spent more than 35 years in solitary confinement in a 60 square foot iron cell for 22 and ½ hours a day. He has no TV or association with other inmates. The medical and psychological effect of this kind of incarceration has been studied extensively, and some of the results show a deterioration ranging from mild mental disability to psychosis. In short some experts consider this to be a modern version of torture.

But can the time expended on repeated postponements caused by the defendant’s own pursuits in the Byzantine appeals process in capital cases be equated with government “torture?”

It is a gruesomely fascinating exercise to trace the evolution of torture as a means to punish. Four thousand years ago the Code of Hammurabi codified punishments for particular crimes. Various penalties were prescribed, including an “eye for an eye,” ripping tongues out for false testimony, and skinning perpetrators alive.

Ross Parker

Ross Parker

A few centuries later the ancient Hebrews employed crucifixion, being thrown off cliffs, stoning, being burned alive, and being sawn in half. The classical Greeks used the Rack, the Wheel, and an early version of the Iron Maiden as forms of punishment. In their time the Romans imposed punishments of whipping, strappado, and a very inventive one involving being placed in a bag with poisonous snakes and dropped into the water. Trials by ordeal were encouraged by the Roman Catholic Church during the Middle Ages, as well as water boarding and mutilation by various specially designed tools.

During the 1700s almost all forms of torture were abolished in most European countries, but as late as a decade ago Human Rights Watch and the United Nations reported that dozens of countries still use torture as punishment. Today over three dozen nations have abolished the death penalty, but about 60 countries still include the ultimate punishment. Some of them, however, use it sparingly.

Read more »