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Among its orders issued on Monday, the Supreme Court did something usually unremarkable: it summarily refused to hear an appeal without comment. Most appeal requests are denied by SCOTUS, but docket 16-984 was unusual in several respects. For one, it involved a 13-year-old boy arrested, handcuffed, and taken to jail for making fake burping noises in gym class. But recently it also became a notable dissent by recently appointed Supreme Court justice Neil Gorsuch from when he had served on a Federal Circuit Court.
The facts of the case were straightforward. As summarized in the introduction to the petition for appeal:
Thirteen-year-old F.M. burped in gym class, laughed, and, after the teacher removed him from the classroom, he leaned back into the classroom while sitting in the hall. Because these acts divided the teacher's attention, Officer Arthur Acosta ("Officer Acosta") handcuffed F.M., transported him to the local juvenile detention center, and charged him with Interference with the Educational Process, N.M.S.A. 1978, § 30-20-13(D) ("Section 30-20-13(D)"). Officer Acosta handcuffed and transported F.M. even though F.M. was compliant at the time he arrested him and there was no state interest in transporting him.
Ultimately, the case ended up in the hands of a federal Tenth Circuit Court, which found in a 2-1 ruling that the policeman's qualified immunity was sufficient to summarily dismiss any action against him. Gorsuch, however, found this absurd and began his dissent:
If a seventh grader starts trading fake burps for laughs in gym class, what's a teacher to do? Order extra laps? Detention? A trip to the principal's office? Maybe. But then again, maybe that's too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal's office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that's so. Respectfully, I remain unpersuaded.
In his concise 4-page dissent, Gorsuch skewered the majority's convoluted reasoning, which seemed to spend much of its 94 pages constructing a careful path circumventing a New Mexico appellate court ruling that "interference with the educational process" required a "substantial, more physical invasion" of a school's operations. On this basis, Gorsuch concluded that the statute in question (which used identical language to the statute in the previous court case regarding colleges) obviously did not intend to criminalize minor "noises or diversions." He noted several other court cases from other states dealing with similar issues that concluded the same thing.
On this basis, he wrote that a "reasonable officer" in New Mexico should have known better.
But why did the Circuit Court come down so harshly and construct such convoluted reasoning just to let a police officer off the hook? The answer may be in the quiet sea-change in SCOTUS jurisprudence that seeks to limit almost all challenges to the "qualified immunity" given to police officers. Despite the fact that it doesn't appear in any federal statute, "qualified immunity" became de facto law after the 1982 Supreme Court ruling in Harlow v. Fitzgerald, which interpreted 42 U.S. Code § 1983 "Civil action for deprivation of rights" extremely narrowly. Over the years, this qualified immunity has expanded to the point that almost any police action -- no matter how unconstitutional or egregious -- is immune to civil action.
One recent illustrative case is SCOTUS's 2014 ruling in Plumhoff v. Rickard. After a routine traffic stop for a broken headlight, a car sped off resulting in a high-speed chase. After the car was cornered by a police patrol car, the police fired 15 shots into the car at close range, killing the driver and passenger and causing the vehicle to crash into a nearby house. SCOTUS reversed the appellate court's decision unanimously, determining that qualified immunity was still in effect. It should be noted that the doctrine of "qualified immunity" does not merely find officers non-liable for their actions; it necessitates a summary dismissal of any claims against them, preventing any actual consideration of fact in a lawsuit.
But what does this have to do with the "burping teen"? As argued in a recent Minnesota Law Review article, the Supreme Court has not only expanded its "qualified immunity" exceptions, but it has attempted to stamp out any possible dissent among lower courts. Rather than the standard jurisprudence concept of relying on citation of precedent, SCOTUS has instead chosen to quietly expand this doctrine (which it itself created in 1983), "describing it in increasingly generous terms and inexplicably adding qualifiers to precedent that then take on a life of their own." During the past 15 years, the Court has ruled in favor of the "qualified immunity" in 16 of 18 cases it chose to take. And in 6 of these cases it chose summary reversals of Circuit Court decisions, with no allowance for oral argument or briefing. (As the law review article notes, that represents about 1 of every 7 summary decisions in recent years.)
This tendency to not only reverse Circuit Court decisions (often unanimously), but often without even allowing argument, shows an unusual trend in SCOTUS jurisprudence. Even more remarkable is that through a series of rulings, SCOTUS has effectively short-circuited the process of appeals by insisting that (1) "qualified immunity" can only be denied in cases where officers violate "clearly established law," but (2) effectively limiting the determination of "clearly established law" to SCOTUS itself. Hence, if your case is not basically identical to the circumstances of a previous successful challenge to "qualified immunity" litigated by SCOTUS, lower courts are now implicitly instructed to grant immunity no matter what.
Indeed, earlier this year Bloomberg reported a story with the headline "Supreme Court Has Had Enough with Police Suits," after the most recent summary reversal -- just because the facts were "unique":
The justices made it clear that they wanted to send a message. [...] And the opinion referred to several occasions "in the last five years" in which the Supreme Court has reversed lower courts on the qualified immunity issue. There's little doubt of the message to the lower courts: The Supreme Court wants fewer lawsuits against police to go forward.
In an era where police misconduct seems to be getting more attention all the time, why are we not hearing more reporting about this quiet revolution in Supreme Court jurisprudence that has effectively made it impossible to make police accountable for their actions?
Returning to our "burping boy" case, perhaps we can read Gorsuch's dissent in a new light. Were the Circuit Court judges simply trying to find a way to grant immunity just to avoid another smackdown by SCOTUS? In his conclusion, Gorsuch comes close to accusing his colleagues of manufacturing an argument that they don't actually believe is just: "Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands..." He then goes on to say that he doesn't believe the law is "quite as much of a[n] ass as they do."
Because of his prior involvement with the case, Gorsuch was forced to recuse himself from consideration of the SCOTUS appeal. But if his dissent was sincere, maybe his voice will remain one dissenting voice among the otherwise unanimous Supreme Court justices who now allow for almost no possibility of personal culpability for police negligence, incompetence, or abuse.
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Chelsea Manning has been freed from the Fort Leavenworth military prison, according to a US Army spokesperson:
In January she tweeted that she wanted to move to Maryland after being released, a state where she previously lived. On Monday she tweeted: "Two more days until the freedom of civilian life ^_^ Now hunting for private #healthcare like millions of Americans =P".
Manning will remain on active army duty while her military court conviction remains under appeal. She will have healthcare benefits but will be unpaid, the army says. An online campaign set up by her attorney has raised $150,000 (£115,725) to pay for her living expenses for the first year after her release. If the appeal is denied, she could be dishonourably discharged from the army, US media say.
The mentioned Chelsea Manning Welcome Home Fund. Also at NPR, NYT, and CNN.
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President Donald Trump disclosed highly classified information to Russia's foreign minister about a planned Islamic State operation, two U.S. officials said on Monday, plunging the White House into another controversy just months into Trump's short tenure in office.
The intelligence, shared at a meeting last week with Russian Foreign Minister Sergei Lavrov and Russian Ambassador Sergei Kislyak, was supplied by a U.S. ally in the fight against the militant group, both officials with knowledge of the situation said.
The White House declared the allegations, first reported by the Washington Post, incorrect.
[...] One of the officials said the intelligence discussed by Trump in his meeting with Lavrov was classified "Top Secret" and held in a secure "compartment" to which only a handful of intelligence officials have access.
After Trump's disclosure of the information, which one of the officials described as spontaneous, officials immediately called the CIA and the National Security Agency, both of which have agreements with a number of allied intelligence services around the world, and informed them what had happened.
http://www.reuters.com/article/us-usa-trump-russia-idUSKCN18B2MX
Also at The Washington Post and The New York Times.
[Update.] According to Ars Technica, President Trump then proceeded to Tweet information about this meeting:
Statements from President Trump on Twitter and from White House National Security Advisor Lt. Gen. H.R. McMaster did not directly contradict details initially reported by the Washington Post late on Monday. McMaster said that no sources or methods were exposed in the conversation. However, the unnamed officials cited in the Post report were concerned that Trump's citing of the exact location "in the Islamic State’s territory where the US intelligence partner detected the threat" could expose the source. Tuesday morning, Trump tweeted:
As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining....
— Donald J. Trump (@realDonaldTrump) May 16, 2017
...to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.
— Donald J. Trump (@realDonaldTrump) May 16, 2017
Trump also lashed out at the intelligence community for leaking about his actions:
I have been asking Director Comey & others, from the beginning of my administration, to find the LEAKERS in the intelligence community.....
— Donald J. Trump (@realDonaldTrump) May 16, 2017
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WikiLeaks announced Friday it is prepared to pay $100,000 for any tapes of conversations between President Donald Trump and former FBI Director James Comey. The message was sent out from its Twitter account just hours after Trump sent out his own tweet apparently warning Comey not to leak information to the media because of tapes he has of their meetings.
Update: U.S. lawmakers ask Trump to turn over any Comey tapes. Background on Comey's firing.
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Attorney General Jeff Sessions said Friday that he has directed his federal prosecutors to pursue the most severe penalties possible, including mandatory minimum sentences, in his first step toward a return to the war on drugs of the 1980s and 1990s that resulted in long sentences for many minority defendants and packed U.S. prisons.
[...] In the later years of the Obama administration, a bipartisan consensus emerged on Capitol Hill for sentencing reform legislation, which Sessions opposed and successfully worked to derail.
In a two-page memo to federal prosecutors across the country, Sessions overturned former attorney general Eric H. Holder's sweeping criminal charging policy that instructed his prosecutors to avoid charging certain defendants with offenses that would trigger long mandatory minimum sentences. In its place, Sessions told his more than 5,000 assistant U.S. attorneys to charge defendants with the most serious crimes, carrying the toughest penalties.
More at Washington Post, Fox News, Huffington Post, The Hill
Memorandum on Department Charging and Sentencing Policy - US Department of Justice PDF
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A press release, dated 11 May, posted to the White House Web site (archived copy) announces (all links and party affiliations were added by the submitter):
[...] the issuance of an executive order forming the bipartisan Presidential Commission on Election Integrity. The President also named [Republican] Vice President Mike Pence as Chairman and Kansas Secretary of State [Republican] Kris Kobach as Vice-Chair of the Commission.
Five additional members were named to the bipartisan commission today:
Connie Lawson [Republican], Secretary of State of Indiana
Bill Gardner [Democratic], Secretary of State of New Hampshire
Matthew Dunlap [Democratic], Secretary of State of Maine
Ken Blackwell [Republican], Former Secretary of State of Ohio
Christy McCormick, Commissioner, Election Assistance Commission
[...]
The Commission on Election Integrity will study vulnerabilities in voting systems used for federal elections that could lead to improper voter registrations, improper voting, fraudulent voter registrations, and fraudulent voting. The Commission will also study concerns about voter suppression, as well as other voting irregularities. The Commission will utilize all available data, including state and federal databases.
Secretary Kobach, Vice-Chair of the Commission added: "As the chief election officer of a state, ensuring the integrity of elections is my number one responsibility. The work of this commission will assist all state elections officials in the country in understanding, and addressing, the problem of voter fraud."
Additional Commission members will be named at a later time. It is expected the Commission will spend the next year completing its work and issue a report in 2018.
According to Wikipedia's biography of Mr. Kobach (citation style changed by submitter):
Kobach has come to prominence over his hardliner views on immigration, as well as his calls for greater voting restrictions and a Muslim registry.[cite][cite][cite] Kobach regularly makes false or unsubstantiated claims about the extent of voter fraud in the United States.[cite]
As Secretary of State of Kansas, he has implemented some of the strictest voter ID legislation in the nation and has fought to remove nearly 20,000 properly registered voters from the state's voter rolls.[cite] After considerable investigation and prosecution, Kobach secured six convictions for voter fraud; all were cases of double voting and none would have been prevented by voter ID laws.
additional coverage:
- Washington Post
- ABC News
- Chicago Tribune (editorial)
- Los Angeles Times
- Atlanta Journal Constitution blog
- New York Times
- Kansas City Star
- The Nation
- American Civil Rights Union press release
- Rhode Island Public Radio
- Project Veritas
- Observer
- ABC News
- Fox News (archived copy)
- KCUR-FM
- NBC News
related stories:
Kansas Secretary of State Finally Convicts an Immigrant of a Voting Irregularity
Former Colorado GOP chairman charged with voter fraud
Hundreds of Texans may have voted improperly
Donald Trump is Filling Out His Transition Team
Hacking Voter Registration Data in Indiana
Study Finds Texas Voter Photo ID Requirement Discourages Turnout
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The new, temporary FBI Director Andrew G. McCabe says that employees loved Comey:
Acting FBI Director Andrew McCabe Thursday rejected assertions by the White House that FBI employees had lost faith in James Comey and that the bureau's probe into Russian election meddling was one of its most minor concerns. "I hold Director Comey in the absolute highest regard. I have the highest respect for his considerable abilities and his integrity," McCabe told members of the Senate intelligence committee. He said Comey, who was fired by President Donald Trump on Tuesday, enjoyed "broad support within the FBI and still does to this day." He added, "The majority, the vast majority of FBI employees enjoyed a deep, positive connection to Director Comey."
Furthermore, he will inform the Senate of any interference with the Russia investigation:
Acting FBI director Andrew McCabe vowed Thursday that he would tell the Senate Intelligence Committee if the White House tried to interfere with the bureau's probe of possible coordination between the Kremlin and the Trump campaign to influence the 2016 presidential election — though he asserted that there had "been no effort to impede our investigation to date."
Meanwhile, President Trump has undermined the White House's messaging on Comey's firing, saying that he planned to fire "showboat" and "grandstander" James Comey regardless of any recommendation from Attorney General Jeff Sessions or Deputy Attorney General Ron Rosenstein. The President also insists that he is not under FBI investigation.
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from the paying-the-price-for-freedom-of-the-press dept.
[Public News Service of West Virginia Reporter Daniel Ralph Heyman] has been arrested and charged with "disruption of government services" in the state capitol for "yelling questions" at visiting Health and Human Services secretary Tom Price and White House senior advisor Kellyanne Conway.
[...] "The above defendant was aggressively breaching the secret service agents to the point where the agents were forced to remove him a couple of times from the area walking up the hallway in the main building of the Capitol," the complaint states. It adds Heyman caused a disturbance by "yelling questions at Ms. Conway and Secretary Price."
The misdemeanor carries a possible fine of $100 and up to six months in jail.
[...] The American Civil Liberties Union of West Virginia called the charges "outrageous" and said the arrest was "a blatant attempt to chill an independent, free press."
"Freedom of the press is being eroded every day, " it said in a statement. "We have a president who calls the media 'fake news' and resists transparency at every turn."
The statement said this is a "dangerous time in the country."
Price and Conway were in West Virginia to discuss opioid addiction in the state, which has the highest drug overdose death rate in the nation.
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FBI Director James Comey Sacked
The Washington Post reports that:
FBI Director James B. Comey has been dismissed by the president [...] a startling move that officials said stemmed from a conclusion by Justice Department officials that he had mishandled the probe of Hillary Clinton's emails.
Previously:
Clinton Told FBI She Relied on Others' Judgment on Classified Material
FBI Recommends No Prosecution for Clinton
F.B.I. Director James Comey Is Fired by Trump
President Trump has fired FBI Director James Comey:
President Trump has fired the director of the F.B.I., James B. Comey, over his handling of the investigation into Hillary Clinton's emails, the White House said Tuesday.
[...] Under the F.B.I.'s normal rules of succession, Mr. Comey's deputy, Andrew G. McCabe, a career F.B.I. officer, becomes acting director. The White House said the search for a new director will begin immediately.
I never liked Comey (see this cluster of stories), but I doubt there will ever be an FBI Director I like.
Related:
We're Stuck With Comey
Earlier in the day...
FBI Director Comey Misstated Huma Abedin Evidence at Last Week's Hearing
ProPublica reports that most of FBI Director James Comey's testimony to Congress last Wednesday related to Huma Abedin's mishandling of classified emails was inaccurate, and that FBI officials are privately acknowledging the mistake(s) but are still considering their next move:
FBI director James Comey generated national headlines last week with his dramatic testimony to the Senate Judiciary Committee, explaining his "incredibly painful" decision to go public about the Hillary Clinton emails found on Anthony Weiner's laptop.
Perhaps Comey's most surprising revelation was that Huma Abedin — Weiner's wife and a top Clinton deputy — had made "a regular practice" of forwarding "hundreds and thousands" of Clinton messages to her husband, "some of which contain classified information." Comey testified that Abedin had done this so that the disgraced former congressman could print them out for her boss. (Weiner's laptop was seized after he came under criminal investigation for sex crimes, following a media report about his online relationship with a teenager.)
The New York Post plastered its story on the front page with a photo of an underwear-clad Weiner and the headline: "HARD COPY: Huma sent Weiner classified Hillary emails to print out." The Daily News went with a similar front-page screamer: "HUMA ERROR: Sent classified emails to sext maniac Weiner."
The problem: Much of what Comey said about this was inaccurate. Now the FBI is trying to figure out what to do about it. FBI officials have privately acknowledged that Comey misstated what Abedin did and what the FBI investigators found. On Monday, the FBI was said to be preparing to correct the record by sending a letter to Congress later this week. But that plan now appears on hold, with the bureau undecided about what to do.
[...] According to two sources familiar with the matter — including one in law enforcement — Abedin forwarded only a handful of Clinton emails to her husband for printing — not the "hundreds and thousands" cited by Comey. It does not appear Abedin made "a regular practice" of doing so. Other officials said it was likely that most of the emails got onto the computer as a result of backups of her Blackberry.
Also at Washington Post (alternate analysis), The Hill, The New York Post, and USA Today.
Original Submission #1 Original Submission #2 Original Submission #3
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Environmental Protection Agency Administrator Scott Pruitt has chosen to replace half of the members on one of its key scientific review boards, the first step in a broader effort by Republicans to change the way the agency evaluates the scientific basis for its regulations.
The move could significantly change the makeup of the 18-member Board of Scientific Counselors, which advises EPA's key scientific arm on whether the research it does has sufficient rigor and integrity. All of the members being dismissed were at the end of serving at least one three-year term, although these terms are often renewed instead of terminated.
EPA spokesman J.P. Freire said in an email that "no one has been fired or terminated," and that Pruitt had simply decided to bring in fresh advisers. The agency informed the outside academics on Friday that their terms would not be renewed.
[...] These moves came as a surprise to the agencies' outside advisers, with several of them taking to Twitter to announce their suspensions.
Members of EPA's Board of Scientific Counselors had been informed twice — in January, before Barack Obama left office, and then more recently by EPA career staff members — that they would be kept on for another term, adding to their confusion.
We cannot allow Beijing's air quality to beat ours.
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