Constitutional Law

By now, plenty of government and corporate decisionmakers grew up when privacy rights were already much more nostalgia than anything else. Too many people under forty have endured school metal detectors; rampant observation cameras in retail outlets and restaurants, and on the streets (only thirty years ago, such technology was too cumbersome and expensive to be rampant); limited privacy on the Internet; reverse tracking of their movements through their cellphone and GPS usage; and rampant drug testing even to obtain a job as a store cashier.

Even twenty years ago, I listened in deep discomfort as a then-recent college graduate told me that to participate in team sports, she was required not only to provide a urine test(s), but to be observed totally naked when providing the urine sample, lest she be hiding someone else's urine somewhere. She seemed to have very much accepted that this is the way life is, as if to do in Rome what Romans do; but this was not always the way things were, and if our society is to have democratic protections, we should be participating in the making of society’s rules and norms from the get-go.  

Counter the foregoing college athlete's acquiescence to drug testing against the American soldier who faced court-martial proceedings for refusing to be observed giving a urine sample. She had no problem giving a sample, but was unwilling to be watched, unclothed, while emitting human waste. Her response about her ability to deal with incarceration over her refusal was that she had a stack of National Geographics waiting to be read, anyway. (Beware that civilian jails likely will only allow reading material that is purchased from the commissary or mailed from the publisher or distributor).

Enter Colorado parolee Chad M. Thomas, who allegedly and unsuccessfully tried to fool the mandatory parolee urine testing by arriving with a Whizzinator, which at once is a male organ prosthetic available in various flesh tones, plus a contraption to keep clean urine (obtained from drug-free people) heated to body temperature. Were drug testing for parolees, probationers and pretrial supervisees private, the prosthetic part of the Whizzinator would have been unnecessary. Instead, Mr. Thomas’s parole agent apparently felt there was monkey business amiss. Unfortunately for Mr. Thomas, he allegedly offered the parole agent a bribe to let him use and discard the Whizzinator, which elevated the problem from a potential return to prison for a parole violation, to a felony charge of bribery.

Had Mr. Thomas merely provided his own urine sample -– even if it would test dirty –- while armed with a lawyer to advocate that he was back on the road with drug education (of course, said advocacy is not always provided from public funds for indigent defendants until closer in time to the parole violation hearing), his situation would not be so dire.

On January 27, 2010, the Fourth Circuit essentially said that to meet the execution exemption for being mentally retarded, one must assemble the smarts and evidence to prove mental retardation. This 2-1 Fourth Circuit opinion sets the bar too high for proving mental retardation to avoid capital punishment. Walker v. Kelly, __ F.3d _ (4th Cir., Jan. 27, 2010). Jon Katz

While I was applying to law schools, my father recognized that I was not hip on a traditional corporate law firm path, even though I ended up working for a traditional corporate law firm during my third year in law school and two years thereafter. He knew I was big on civil liberties and civil rights, and told me about a lawyer in his office building in Bridgeport who practiced such law.

I eagerly called the man, whose following words rang the clearest with me: "If you want to practice civil rights law, you will have to shovel a lot of sh*t along the way." I never asked what he meant. Because his focus apparently was more on civil rights lawsuits against discriminatory practices and negligent police, I figured that at the least he meant that the big bucks come in fits and spurts when practicing such law, and that the number of potential legal employers in this area are very finite.

I accepted the challenge. I saw law school in many ways as learning the language of the enemy, meaning those in power who urinate on civil liberties, whether intentionally or not; and the language of those who help maintain oppressive status quos whether their motivation be to get along in the "mainstream", to pay their bills, or to oppress people.

I got sidetracked along the way to try to build a marketable resume. For my first law school summer, in 1987, I law clerked in the regulations division of the then-named Federal Home Loan Bank Board, during the eye of the storm of the Savings and Loan scandal. From 1988 to 1991, I worked at a 25-lawyer Washington, D.C., law firm on often high-stakes litigation and regulatory issues for financial institutions and transportation companies. At both of these places I found some amazing teachers and learned more about not stereotyping anybody merely for the work they do. In fact, one morning in the middle of the Iran-Contra hearings -- when I would pass by Oliver North's lawyer's office each morning from the subway -- a particularly brilliant lawyer at the FHLBB attacked Reagan's claim not to have known a thing about Iran-Contra with a mocking "I didn't knoooooooooooooooooooooooooooowwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww" followed by another lawyer's jokingly warning her that one of Reagan's political appointee lawyer-supervisors was approaching.

At the law firm where I worked from 1988-91, I learned powerful advocacy from Irv Margulies -- a Reagan appointee himself, as a former Commerce Department general counsel -- and Randy Shields, who worked with him at Commerce. They taught me advocacy in the real world that cannot be learned in law school. I know nothing about either of them that is not completely mainstream.

I shoveled sh*t at the Federal Home Loan Bank Board and my first law firm to find the diamonds of learning indispensible regulatory research methods at the FHLBB, before it was made easier to do online; and to learn how to pen persuasively positions that might not initially entice me, but that start making sense as I get deeper and deeper into the research, analysis and writing. While at the FHLBB, I kept reminding myself that there are more enjoyable places to be, and that I would get to those places, despite the then-sparse summer job choices for first-year law students. While at my first law firm, I asked myself what the hell I was doing there when I learned that one of the associates had the distasteful task of advising a transportation client about how to implement or justify a drug-testing program, and what the hell I was doing there when assigned to advocate for a company accused of sex discrimination.

I finally moved to work that fits more with my values, interests and ideals, in criminal defense, and, as a bonus, on behalf of indigent people who have little to no luxury of choosing among paid lawyers. My next five years, at the Maryland Public Defender's Office, were much more up my alley, yet my previous two less exciting jobs helped make me a better criminal defense advocate and better writer. My two years after the public defender's office at a plaintiff's personal injury law firm helped me bridge the gap between advocating from my office and law firm library at my first law firm, to slugging it out in the courtrooms and deposition rooms. By the time I added adult entertainment, libel defense and political activist defense to my practice as a self-employed lawyer, all the learning from my previous work all came together to make it much easier for me to advocate and respond to injunctive actions, to slug it out before administrative courts, to quickly learn about new areas of law and new courthouses, and to transcend dreading the potentially eye-glazing droning of many an appellate court opinion to instead find ways to use each court opinion, statute, shred of legislative history, constitutional provision, regulation, and piece of evidence to my clients' benefit.

Such a transcending perspective makes rather irrelevant those who warn prospective law students about the many people who hate law school and hate the practice of law. I know of people who hate jazz music, too, no matter how bizarre that might strike me. Such a perspective makes it easier to plow through law school studies, make sure that a legal brief follows the font size and word count of a court's local rules, and to put in the time and effort to deliver excellence to clients not merely because they are clients but because the lawyer is driven to deliver excellence.

No matter how glorious it may be to successfully brief and argue such exciting cases as Miranda, Loving, and Melendez-Diaz, what matters most to clients is getting good results by any lawful and ethical means necessary, even if it is through the less sexy approach of proving a standing issue and that Younger (401 U.S. (1971)) federal abstention should not apply.

Law students concerned with social justice might get disenchanted with the suspension from reality and compassion that seems rampant in so many law school classes, casebooks, administrations, faculties, and student bodies, particularly in those law schools heavily populated by students intent on a corporate law career. Fortunately, such groups as the National Lawyers Guild -- at least in the Washington, D.C. area -- help match law students to practicing lawyer mentors to help keep the students on the path of succeeding through the law school bootcamp to get to the light at the end of the tunnel. At law schools themselves, fellow law students and law professors with hearts and humanity will be found to provide similar support.

This week's D.C. Circuit ruling in ANSWER Coalition v. D.C., __ F.3d _ (D.C. Cir., Dec. 15, 2009), is a case in point about the need to be ready to do unglamorous work on the road to fighting for civil liberties. This appellate ruling overturns the trial court dismissal of a First Amendment and Due Process lawsuit against the District of Columbia's postering regulatory scheme, with the appellate opinion focusing on legal standing to sue and on Younger federal abstention principles. Neither line of court cases will excite people at a cocktail party, unless they also litigate similar issues. However, they are among the most important Constitutional principles to understand for those bringing civil liberties challenges against governments.

I have written about this postering/ANSWER Coalition case before, here and here. The video of D.C.'s oppressive postering laws and oppressive police enforcement helps bring to life why lawyers fighting for civil liberties need to be ready to shovel sh*t on the path to victory, lest they instead fall into the sh*t and reek of sh*t in the courtroom. 

Corporations repeatedly invade customers' privacy for profit -- and perhaps sometimes out of a feeling of patriotism, as well -- and the government invades privacy in the face of a population that does not stand up resolutely and united enough against such invasions.

How often and resolutely do communications companies stand up to government subpoenas for information about their customers? How often do such companies instead look at the money they can charge to satisfy a subpoena or government information request?

A December 1, 2009, Wired online article suggests that such communications companies as Cox, Yahoo, Verizon and Comcast are more happy to satisfy government information requests on their customers than to protect their customers' privacy.

Google, Yahoo!, Hotmail, Gmail, FaceBook, Twitter -- and the list goes on -- offer a bevy of "free" online services. However, in life -- and particularly online -- free lunches are a fiction.  

ADDENDUM: Thanks to a fellow listserv member for posting the above-reference December 1 Wired article. 

Robert L. Ord owns a Virginia-based private security company. As the D.C. Circuit tells it:

"In 2007, the Virginia Circuit Court of Orange County appointed appellant Robert Ord a Special  Conservator of the Peace (SCOP). That order authorized Ord to carry firearms while acting in the course of his duties. It also designated him a 'Qualified Law Enforcement Officer' with respect to certain provisions of Virginia and federal law, including the federal Law Enforcement Officers Safety Act of 2004. Known as LEOSA, that statute allows officers to carry concealed firearms notwithstanding contrary state law. See 18 U.S.C. § 926B."

Ord v. D.C., _ F.3d _ (D.C. Cir., Dec. 4, 2009).

Perhaps still smarting over its loss in the landmark Second Amendment case of District of Columbia v. Heller, 128 S. Ct. 2783 (2008) -- or perhaps, as a possibility suggested by Ord, the D.C. government wanted to protect off-duty police officers' corner of the lucrative private armed security market -- the D.C. Attorney General's Office officials vacillated between saying the OAG would not go forward on an arrest warrant for violating the D.C. law against carrying a firearm without a license, then saying a few hours later that it might, and then finally declaring a nolle prosequi (a dismissal without prejudice to recharging the alleged crime) shortly before a hearing on Ord's motion to quash the arrest warrant.

The United States District Court for the District of Columbia dismissed Ord's lawsuit filed to avert further enforcement action and to collect damages, treating "his suit as a preenforcement challenge and, finding that [Ord] failed to demonstrate that he faces a genuine and imminent risk of prosecution, dismissed it for lack of standing."

Subsequent to the District Court's dismissal, the D.C. Circuit in Ord said:

The District of Columbia’s position with regard to Ord’s standing has evolved during this litigation. In the district court, it “ma[de] much ado about the fact that the Office of the Attorney General declared a nolle prosequi of the Information in support of the warrant” and insisted that this action negated any inference of a credible and imminent threat of future prosecution. Ord, 573 F. Supp. 2d at 93. On appeal, however, the District of Columbia now agrees with Ord that “his showing regarding the likelihood that [future] prosecution [will] occur [is] sufficient” because “Ord’s allegations that the District applied for an arrest warrant against him [are] sufficient to show . . . a special priority.” Appellee’s Br. 24.

Ruling 2-1, Ord found Ord has standing to sue, saying: 

A Lexis search of appellate opinions shows no judge calling anybody a nutball or whackjob.

However, a Lexis search does show at least two dozen occasions where appellate opinions have included the phrase "little green men", including yesterday's opinion from the D.C. Circuit.

 Bill of Rights. (From the public domain.)

Everyone supports free expression that they agree with. However, if we want our own speech rights protected, we must support robust free expression rights for all, even for expression that makes us heave, hurl, and heave some more.

Much speech is deceptive. I remember being more than irritated bothering to show up at a law school afternoon "happy hour" only to learn that there was ice cream and no beer. If the organizers wanted to make a point that alcohol was not needed for happiness, they could have said so in the announcement flyers.

For years, pro-life/anti-choice (choose  your description) groups have operated pregnancy centers, making no effort to tell women seeking abortion counseling that visitors would instead be urged to carry their pregnancy to term and take the adoption option if needed. I oppose laws penalizing abortions, while wishing more women would choose the option of not aborting. However, if they want an abortion, that is their choice, and they need no deceptive luring to anti-abortion centers.

The government has no right to tell a pregnancy center that they must post a sign that they assist neither with abortions nor birth controls. Imagine if the government had told Edward Hopper to place an American flag in the background of his paintings, or Joseph Kosuth to post a "Buy America" sign on his on-point "3 Chairs" exhibit. Clearly that would be a First Amendment violation. So is any law requiring "pregnancy centers" to post that they do not help with abortions or birth control

Yesterday, the Maryland Daily Record interviewed me on just such a proposed law -- in Charm City/Baltimore -- involving anti-choice "pregnancy centers". (Unfortunately, the article is only available to subscribers.) The Daily Record (partially mis-)quoted me as follows:

University of Maryland School of Law professor Mark Graber ... compared Baltimore’s bill to the requirement that tobacco companies put health warnings on cigarette packages.

For Silver Spring solo practitioner Jon Katz, those cigarette warnings go too far, and Baltimore’s bill does too.

“I do believe that the language of the First Amendment is clear enough, both that government should be taking a very hands-off approach on speech and also about requiring people to speak,” he said.

Pregnancy resource centers can cause problems for women seeking abortion or birth control, but “the First Amendment means nothing if we don’t have reprehensible speech [I believe I said "protect reprehensible speech],” Katz added.

The best response to the centers would be to spread the word via the Internet, the media and even pickets that the centers are “fraudulent,” he said.

As to the foregoing Baltimore bill, let the Bill of Rights take precedence.

Over a year ago, I argued to a Virginia District Court judge that a statutory sentencing provision was unconstitutional. He thought about it, and then said that he had concluded that my Constitutional argument had to be argued in the Circuit Court through a de novo appeal. In Virginia and Maryland, the District Court sentence provides no cap on the sentence in Circuit Court if the de novo appeal results in a conviction, which can make the stakes high sometimes to proceed with such an appeal.

I have heard some prosecutors in Maryland also argue in court that the District Court judge has no authority to decide whether a law is unconstitutional. In those instances, the judge denied my objection without saying whether they thought they had no such jurisdiction.

Many things that prosecutors and police do make me displeased about paying taxes that pay the salaries of some of them. Prosecutors who make the foregoing arguments fall in that category.

The foregoing issue was discussed recently on a criminal defense lawyers listserv. One of the listserv members gave an opinion that when the state legislature gives a court subject matter jurisdiction over a proceeding or subject, the Supremacy Clause of the United States Constitution empowers the court to rule that a law violates the U.S. Constitution. That makes sense, and I hope that judges will so agree, whether they happen to be federal, state or municipal judges. Of course, a deeper debate might be involved about the power of administrative law judges to rule statutes and regulations unconstitutional, but administrative law judges are not real judges, but instead are part of the executive branch of government, at least where I practice law.

Following is critical language from [William] Marbury v. [James] Madison, 5 U.S. 137, 178-79 (1803) that underscores that judges are empowered to rule on the Constitutionality of a statute or regulation:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

Marbury v. Madison, 5 U.S. at 178-79.

 Bill of Rights (From public domain.)

The Drug Enforcement Administration revoked Novelty, Inc's, registration to distribute list I chemical products.  Novelty, Inc., v. DEA, et al., _ F.3d _ (D.C. Cir. June 22, 2009). Putting aside the questionable company name if it wants to be taken seriously by straight-faced government regulators, such a revocation clearly was devastating to Novelty, Inc. and its employees' payroll.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Novelty, Inc's petition for review from the DEA's revocation. Judges Tatel and Henderson voted for the denial. Judge Janice Rogers Brown -- who got 43 Senate no votes against her 1995 judicial nomination by Bush II -- fired off a blistering dissent that perhaps underlines Clint Bolick's pre-confirmation assertion in Reason (10/27/03) that "Brown is strikingly libertarian in her writings and decisions, which is one reason she has outraged both liberals and conservatives during her distinguished career."Novelty, Inc.  

Judge Brown's concluding paragraph of her dissent says it all:

"No, old-fashioned law will not save Novelty and the jobs of its employees. It does not matter that no Novelty executive has ever been convicted of a crime. It does not matter that notwithstanding Novelty’s millions of sales, the best evidence the DA can point to of diversion is one—one!—instance from over six years ago. It does not matter that the DEA inspected Novelty’s records for years and never peeped about a problem before deciding to bring down the full weight of the Executive Branch on Novelty’s head. It also is irrelevant that Novelty has credibly offered to overhaul its internal processes to comply with the DA’s whims. When an agency has gone rogue, and when judicial review is gutted, the only thing left is the Law of the Jungle, the weak versus the strong. And in this war of all against all, who can withstand the might of the
federal government?"

Thanks to Judge David Tatel for at least acknowledging serious DEA-based problems that led to the revocation of Novelty, Inc.'s registration:

"I agree with Judge Henderson that Novelty’s other objections to the Deputy Administrator’s decision are without merit. The Deputy Administrator correctly concluded that even if DEA agents violated the First Amendment [prohibiting Novelty, Inc., from videotaping the DEA inspection] during their inspection of Novelty’s warehouse, the exclusionary rule is inapplicable to administrative proceedings of the kind at issue here. See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998) (“[W]e have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.”). Novelty complains that the Deputy Administrator failed to articulate the level of tolerable risk, but the Raber letter gave perfectly adequate guidance. Finally, neither Novelty’s complaint that the Deputy Administrator conducted a biased campaign of enforcement against independent distributors of list I chemicals nor its complaint of unconstitutional prejudgment bias finds support in the record. Especially given the Deputy Administrator’s rejection of much of the government’s evidence, my concerns with her reasoning fall short of the level at which “a disinterested observer may conclude that [the Deputy Administrator] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it,” Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (internal quotation marks omitted)."

Deeply disturbing, Congress over many decades -- backed by the Supreme Court and the federal circuit courts -- has delegated too much lawmaking and adjudicative authority to federal agencies. Were Judge Brown placed on the Supreme Court, she perhaps would require substantial effort to give full stare decisis effect to Supreme Court cases granting such sweeping legislative and judicial authority to federal agencies. So would I, but the closest I will ever get to the Supreme Court bench is sitting in the lawyers' observation gallery. Jon Katz

NOTE: Following is a reprint of what I wrote for July 4 in 2007 and reprinted in 2008:

Whenever I look around on July 4, the scene is long on fireworks, beer, and merrymaking, and too short on discussion of what Independence Day is all about.

The Declaration of Independence was hardly signed by a bunch of pacifists. The signers must have realized that the bloodshed among the warring sides would lengthen and intensify with the signing of the Declaration of Independence, and it did. Violence begets violence, and the rampant violence that led to Britain's surrender did not take place in a vacuum. Instead, it has fed into all subsequent American wars and smaller military actions. The United States' repeated victories in wars (and the Vietnam War probably would not have dragged on so long were it not to become America's first war defeat) likely has made the United States all the more militaristic and cocksure militarily. 

By now, the United States government thrives on control backed by force, the threat of force, and punishment, not only through military might, but also through an overgrown and overbearing criminal "justice" system of police, laws, money, prosecutors, courts, and prisons;  an overgrown national security system that leaves us little privacy, security, or sufficient liberty; and an overgrown spying and "intelligence" system.

Fortunately, a strong movement continues in favor of civil liberties and government by the governed rather than the reverse. The movement includes the American Civil Liberties Union, fearless and skilled criminal defense and Constitutional lawyers, and the drug legalization movement.

July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle. Jon Katz.

Thanks to listserv members for bringing my attention to the following material on Judge Sonia Sotomayor, looking at her performance as a judge and as a lawyer:

- "A View of Judge Sonia Sotomayor from Cyberspace," by Arthur Bright.

- "Sotomayor Sides With the Cops - And persuades a Republican judge to go along with her," by Emily Bazelon.

When Bill Clinton was elected president, I was happy to be seeing George Bush I leave the presidential palace, but did not have high hopes for
Bill Clinton -- including consideration of his detour to attend an execution during the presidential campaign -- but had higher ones than I had for Bush I. My expectations became my views of Bill Clinton's presidency to this day.

I have had the same views right up to today about Barack Obama. He is a great improvement over George Bush II, but I am not holding my breath for him to do any better than Bill Clinton in Clinton's rather centrist approach (at best) to criminal defendants' rights, civil liberties, and immigrants' rights, among other important social justice items.

Similarly, just as I expected Bill Clinton to do less damage with federal court appointments than his predecessor, I anticipated the same from Obama, but did not expect better. From what I know so far about Supreme Court nominee Sonia Sotomayor, she is no better a pick than Clinton's nominations of Justices Ruth Bader Ginsburg and Stephen Breyer; the latter two seem to have excellent legal and general minds and generally to take great care in their written opinions. On the one hand, the elimination of discrimination based on gender, race, ethnicity, and religion is of course critical, and a predominantly all-white male Supreme Court involves insufficient diversity benefits. On the other hand, just as Obama and everyone currently sitting on the Supreme Court do not deviate too far from preserving heavy power in government, corporations, and the wealthy, it does not appear that Sotomayor will be any different in that regard, particularly if the claim is true that she has not deviated much from stare decisis coming from her own Second Circuit.

It seems that Obama engaged in a well-choreographed, tightly-controlled search for and announcement of Justice Souter's replacement, rather than risking the appearance of dissent among the more liberal organizations and individuals who backed and donated to his presidential campaign. In a democratic and open government, I would wish to see all presidents welcome real public input before making a final Supreme Court nomination. Hope springs eternal.

Here are some additional items and links to consider:

- I doubt Judge Sotomayor will be a good enough friend to free expression, and plan to review her opinions in this area. For instance, as addressed by a great First Amendment lawyer I know, her opinion in Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006). -- rejecting vagueness and overbreadth challenges to a parole condition banning possession of "pornographic material", when "pornographic material" is not a term of legal art -- gives cause for pause about whether she has a sufficient grasp of the First Amendment and related court opinions to sufficiently protect First Amendment rights.

- Sotomayor is a former prosecutor. She apparently has never represented a criminal defendant, and it appears that she has never represented an individual as a client, beyond any claim that crime victims are the clients of prosecutors. SexCrimes says she did not favor criminal defendants much more than her peers in 2008; that leaves her other years on the bench to examine.

- Here is a May 27, 2009, New York Times overview of some of Judge Sotomayor's "notable" court opinions and articles.

- Jonathan Turley likely will provide important reading throughout the confirmation process.

- Sentencing Law and Policy posts some links on Judge Sotomayor.

- Crime and Consequences addresses Judge Sotomayor's treatment of the AEDPA.

- TalkLeft repeatedly blogs on Judge Sotomayor. Jon Katz.

If a cop is going to arrest a reporter and news camera operator for covering something as non-political and non-controversial as an overturned truck from the opposite side of the highway, imagine what the same cop will do under the cover of the night passing by people doing "oink, oink" pig sounds. That is, unless the cop gets demoted to a desk job.

Former El Paso police sergeant Raul Ramirez went on a power trip last April, manhandled the reporter and cameraperson, and arrested them, while letting the onlooking civilians to continue to watch the scene. His misdeeds were caught on camera and audio. How many people has he manhandled worse when he thought nobody was videotaping, watching, or witnessing?

Mr. Ramirez was demoted over a previous police abuse incident. For his mistreatment of the reporter and cameraperson, the police chief this month concluded that he "somewhat overreacted." Is that not like being a little bit pregnant?

The First Amendment guarantees press freedom and freedom of expression. Raul Ramirez either did not know that, did not give a crap, or both.  Were the police not here for the purpose of serving the public, rather than the other way around?

What juror who sees the above-posted video of this incident is not going to downgrade his or her reliance on the truthfulness and judgment of Mr. Ramirez next time he testifies?

Isn't this video enough to convince many more people finally to join my call to shrink and improve the police function and the rest of the criminal justice system, by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentencing, eliminating the death penalty, and eliminating per se rules of intoxication based on minimum blood alcohol levels? I'll drink to that. Jon Katz

ADDENDUM: Of course, the recently-revealed Birmingham, Alabama, police brutality tape is even more stomach turning.

Daniel Crabtree was found in violation of federal probation in part based on audiotapes that his girlfriend surreptitiously recorded of Crabtree's phone conversations with others.

Two days ago, the Fourth Circuit reversed Crabtree's probation violation ruling, writing in part that: 

"In our view, the issue is resolved by the language of [18 U.S.C.] § 2515 itself. Section 2515 states, in its entirety, that 'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.' 18 U.S.C.A. § 2515. The statute seems to clearly and unambiguously prohibit the use in court of improperly intercepted communications; we simply see no gaps or shadows in the language that might leave lurking a clean-hands exception. Because the statute is clear and unambiguous, our inquiry typically would start and stop with its plain language. See, e.g., Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54  (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." (citations and internal quotation marks omitted)).'"

U.S. v. Crabtree, _  F.3d _ (4th Cir., May 19, 2009).  Jon Katz

On May 8, 2009, the D.C. Circuit issued a detailed ruling on exemptions 1 and 3 of the Freedom of Information Act. Larson, et al. v. Dept. of State, et al.

Larson describes the two FOIA exemptions as follows:

"Exemption 1 protects matters 'specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . in fact properly classified pursuant to such Executive order.' 5 U.S.C. § 552(b)(1). Exemption 3 covers matters 'specifically exempted from disclosure by statute,' provided that such statute leaves no discretion on disclosure or
'establishes particular criteria for withholding or refers to particular types of matters to be withheld.' Id. § 552(b)(3)."

Larson (emphasis added).

The Larson FOIA litigation was filed because "plaintiffs in this case each independently sought information about past violence in Guatemala from government agencies pursuant to FOIA."

ADDENDUM: See my other FOIA blogposts here.

Larson upheld the trial court's denial of FOIA disclosure, summarizing its reasoning as follows:

"We affirm summary judgment for the defendant agencies, agreeing with the district court that the DOS responded appropriately to Holdenried’s request, that the affidavits of the NSA and the CIA were sufficient to support their reliance on FOIA Exemptions 1 and 3, and that in camera review was not necessary to reach this decision. The withheld materials at issue in this case are precisely the sort of documents and information intended to be protected from public disclosure by Exemptions 1 and 3. We deny the plaintiffs’ request for judicial notice of
articles relating to Guatemala and government secrecy because those articles are irrelevant to our inquiry; taking notice of them
would not affect our opinion."

The FOIA's language might put civil libertarian readers into ecstasy upon first reading it. However, court opinions over the decades show that the FOIA often does not deliver good results without needing lawyers to duke it out in court; and even then good results do not always come. The frequent need for FOIA litigation shuts out those who do not have the funds to pay a lawyer or the ability to find a public interest or pro bono lawyer.