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Florence v. Burlington – 4th & 14th Amendment Strip Search Case

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The recent Supreme Court decision of Florence v. County of Burlington (pdf) has been the subject of a lot of online outrage; mostly in the form of disbelief that the Supreme Court could believe that a strip search is Constitutionally permitted if it is conducted without regard to the crime of which the individual is suspected. On a superficial level, I get it. Hauled in for a speeding ticket and then some goon with a gun is telling you to move your testicles left or right? That can’t be right.

But, thinking about it and reading the case, I agree with the majority; the risk an individual poses to a jail population is not solely or even primarily a function of the crime with which he or she was charged. A falsely accused murderer is probably less of a danger than a never-accused murderer booked for check deception. I think the real question has to do with when and how jail should be used as a tool of the criminal justice system. But that question wasn’t anything under the control of the defendants in this case. The accused is brought to the jailer and the jailer is told to hold him. If there is a facially valid court order on the subject; that’s about the end of the jailer’s discretion. If these people are going to mix with the general population; then the same administrative procedures probably have to be applied to the low end offenders as the high end offenders. The distinction to be kept in mind is that the procedures themselves aren’t to punish the accused and the offenders in proportion to their crimes. They’re for jail administration.

Do people accused of minor crimes have a Constitutional right to be held in a jails or wings free of serious offenders? In all likelihood, this is good administrative policy; but I doubt it rises to a Constitutional right. That said, I don’t think it would be a bad idea for policy makers to keep this case in mind when they are evaluating the propriety of using jail as a tool in the criminal justice system for various purposes.

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On the Contraception Insurance Coverage Issue

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Given the outrage from the perpetual outrage machine and some of the not so perpetually outraged, I thought I should take a look at the Health and Human Services rule that has the Catholic bishops so worked up.

Apparently what is going on is this. The Affordable Care Act specifies that a group health plan and a health insurance issuer offering group or individual health insurance coverage must provide benefits for and prohibit the imposition of cost-sharing with respect to:

Evidence-based items or services that have in effect a
rating of A or B in the current recommendations of the United States
Preventive Services Task Force (Task Force) with respect to the
individual involved.

Clear as mud so far. But, basically, the Task Force was charged with recommending the most important services or items that had to be covered by group health plans without requiring cost sharing by the insured. As part of this process, the Health Resources and
Services Administration was tasked with developing comprehensive guidelines for preventive care and screenings with respect to women. (See HHS docket HHS-OS-2011-0023-0002). As part of that process:

Most commenters, including some religious organizations, recommended that HRSA Guidelines include contraceptive services for all women and that this requirement be binding on all group health plans and health insurance issuers with no religious exemption. However, several commenters asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom.

These guidelines apply to non-grandfathered group health plans and health insurance issuers. HHS didn’t go quite as far as HRSA recommended, deciding instead to offer exemptions for certain (but not all) religious institutions. The exemption applies to a religious employer that:

(1) Has the inculcation of religious values as
its purpose;
(2) primarily employs persons who share its religious
tenets;
(3) primarily serves persons who share its religious tenets;
and
(4) is a non-profit organization under section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Code. (Section 6033(a)(3)(A)(i) and (iii) refer to churches, their integrated auxiliaries, and
conventions or associations of churches, as well as to the exclusively religious activities of any religious order.

HHS explained that its intent was “to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.”

HHS did not come up with this in a vacuum. Once they decided that contraception was an important part of a woman’s health care, they looked to the States that had also made that determination to see how they handled religious exemptions. Here is a chart. Eight of those states provided more expansive religious exemptions than those adopted by the HHS rule. The remainder were similar to or more restrictive than HHS. If I’m reading the chart correctly, Colorado doesn’t allow any exemptions. Arizona, California, New York, and Oregon are less permissive with religious exemptions than the HHS rule. Arkansas, Maine, Massachusetts, Michigan, New Jersey, North Carolina, and Rhode Island have exemptions comparable to the HHS rule. And, Delaware, Hawaii, Illinois, Maryland, Missouri, Montana, and New Mexico have a more expansive exemption. Interestingly, Connecticut seems to require that, if there is a religious objection, the entity can opt to provide the required contraceptive coverage through a subcontractor or third party insurer.

I’ll just leave it at that for now. I might get into a more general discussion about morality and contraception later.

Update I recalled that the Supreme Court had recently decided a case that had something to do with a religious organization’s duty as an employer to abide by the employment laws that apply to everyone else and the special privileges it enjoys with respect to such laws because of its status as a religious organization. It wasn’t necessarily on point, but it gave me the overview on how the Court thinks of such things. The case was Hosanna-Tabor Evangelical Lutheran Church v. EEOC. The court there recognized a ministerial exception allowing churches to choose their ministers in violation of the Civil Rights Acts.

But, in the context of this contraception issue, I thought these paragraphs were fairly useful:

The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of a ministerial exception. In Smith, two members of the [*15] Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted).

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

(Emphasis added). I’d say that the HHS rule is focused on physical acts and, by providing an exception for churches themselves – as opposed to their less inherently religious activities like hospitals – is attempting to steer away from the faith and the mission of the church itself. The valid and neutral law is one of general applicability that prescribes activity that some churches proscribe. Seems like the kind of thing allowed under Smith.

SOPA: More Deck Chair Rearranging

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SOPA and today’s protest against it reminds me of something I wrote back in 1995 concerning increasingly draconian efforts to impose old copyright laws on new technology. It was published in the Indiana Law Journal in 1996:

In a sense, the Task Force’s attempt to tighten the reins is quite understandable. As noted above, copyright law attempts to protect expression by proxy through its embodiment in the physical world. The embodiment of expression in the physical world is becoming more and more tenuous, however, as digital technology grows. The capability to convey expression from one person to another is fast approaching direct exchange of thought without embodiment of an intermediate physical form. Or, at the very least, if the previous description seems too transcendental, the intermediate form of expression is becoming “liquid” where previous and current copyright law deals with a solid.

One can view the Task Force’s recommendation as akin to attempting to hold on to a melting object; one clutches it more tightly in a vain attempt to prevent it from falling to the ground. As John Perry Barlow puts it:

Since we don’t have a solution to what is a profoundly new kind of challenge, and are apparently unable to delay the galloping digitization of everything not obstinately physical, we are sailing into the future on a sinking ship.

This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as without.

Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stern warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial.

The legal efforts attempting to reconcile digital technology with copyright law reflect a larger problem. It has always been the case that new technology creates unforeseen difficulties. In fact, Lewis Mumford suggested that the invention of the clock by and for the use of the monasteries led to their undoing. The new technology made it possible to abstract time in humans’ minds and, once abstracted, time could be controlled and regimented. Control and regimentation led to the rise of capitalism which in turn led to the decline of religion and the monasteries. While this description is something of an oversimplification, the main point is straightforward. New technology is created in pursuit of purposes which are consistent with the status quo, but aside from the original goals, the new technology also creates possibilities which challenge the status quo. Once these possibilities are available, humans naturally explore them and disrupt the established order with these new possibilities. The law can recognize this and embrace the new possibilities with as little disruption as possible, or the law can futilely attempt to barricade that which is new, different, and disruptive.

The video and musical recording industries have benefited from the development of digital technology. The technology allowed a cleaner and more refined sound and picture. But those industries will learn, if they have not already, that in addition to providing better pictures and sounds, digital technology allows nearly unlimited dissemination of works without any deterioration in quality. Interested parties, such as the established recording and movie industries and the authors of the Green Paper, would like to keep the intended benefits of digital technology–the improved picture and sound quality–while squelching the unintended disseminatory possibilities of the new technology.

This course of action is almost certain to fail. The law needs to adapt and embrace new technology, not become more rigid and try to withstand it. As the Court recognized in Sony:

From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment–the printing press–that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.

Furthermore, the Supreme Court noted,

“The fortunes of the law of copyright have always been closely connected with freedom of expression, on the one hand, and with technological improvements in means of dissemination, on the other. Successive ages have drawn different balances among the interest of the writer in the control and exploitation of his intellectual property, the related interest of the publisher, and the competing interest of society in the untrammeled dissemination of ideas.”

Digital technology is a significant new means to disseminate information and it is time for copyright law to change accordingly. It is time for the law to recognize properly the media which it attempts to govern. If the law remains unchanged– attempting to govern as solid that which is essentially liquid–it will have to create an unnecessary and inexcusable scarcity of access to copyrighted works in order to work. This is so because current copyright law is premised upon a need (a need which is becoming less pronounced) for works to manifest themselves tangibly before communication between people is possible. Therefore, an artificial scarcity would arise in large part from precarious balancing acts which try to pay homage to the old ways, but which also attempt to recognize the new possibilities.

A concrete example of such a balancing act is a policy which allows the public to access a public digital library only from existing physical libraries. Such access would allow at least a slight improvement in the collections of existing libraries; it would make it at least theoretically possible for the public to have access to digital works by means of a computer terminal in the physical library; it would prevent the obsolescence of existing libraries by making them a legal requisite to digital library access; and inconvenient access would encourage the purchase of one’s own physical copy of the work. Unfortunately, these access requirements would also create inexcusable waste and unnecessary scarcity. The waste would arise from the inefficient movement of people to gain access. Direct distribution of digital works to the home would be just as cost effective, if not more so, than a more centralized method of distribution, such as a library or software store. Creating an informational bottleneck at the physical library would in turn create an unnecessary deprivation of knowledge for those without the time, inclination, or transportation necessary to reach a physical library capable of accessing the requisite information.

On a side note, I can’t believe it’s been sixteen years.

Supreme Court Federalism Cases

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Jon Kuhl, writing for “The Thicket” at State Legislatures has a post entitled Supreme Court Takes on Federalism Cases: Big Impact on States. He identifies three U.S. Supreme Court cases with a federalism angle: One is the 800 lb gorilla, a challenge to the Affordable Care Act; one is a challenge to Arizona’s illegal immigration law; and one is a challenge to a Texas redistricting plan that allegedly undermines the voting rights of Latinos and African Americans.

Filed Under: Law

Juror Innumeracy

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I have before expressed my concern regarding the innumeracy of the American public generally and jurors specifically. In a recent opinion (pdf) from the Indiana Court of Appeals, we are faced with the prospect of a jury that struggled with a simple percentage multiplier but are, nonetheless, asked to embrace the legal fiction that they understood all of the damage calculations put forth as evidence and rendered a verdict accordingly.

This was a personal injury case where comparative fault applies. The jury is asked to calculate the Plaintiff’s total damages, to calculate the Defendant’s percentage of fault, and to multiply the two things to come up with the damage award to the Plaintiff.

Here, the jury apportioned fault as 62% to the Defendant and 38% to the Plaintiff. Then, it stated that the Plaintiff’s total damages, without regard to fault, was $207,600. But, when asked to multiply the two things together, it came up with $336,300.

The court sent the jury back to come back with a verdict that made sense. Whereupon the jury came back with a verdict form that struck out the $336,300 and replaced it with $128,712. The court accepted that verdict and entered judgment in favor of the Plaintiff for that amount.

Afterward, a juror approached counsel for the Plaintiff, saying, “This is bullshit, all of us wanted [the Plaintiff] to get $336,300.” So, the Plaintiff attempted to have the verdict set aside and get testimony from the other jurors to determine what they “really” meant. The Court of Appeals explained that verdicts couldn’t be challenged in this fashion. If we allowed this kind of interrogation of jurors, we’d never see the end of litigation. (Also, I suspect, we’d find that a good number of jurors would have a good deal of trouble articulating the basis of their calculations.)

Most of the explanations for why the jury in question (and, particularly, the juror who approached counsel for the Plaintiff) did what it did are not reassuring. I’m still pretty comfortable with jurors determining liability — most folks have a decent sense of what’s fair and what’s not; and when presented with a binary choice of liable or not liable approach the task fairly.

But, when asked to put a dollar amount on pretty vague notions like pain and suffering and on somewhat challenging concepts like future earnings and the present value of money, I’m not confident the general public is up to the task. This is particularly true given the years of blank stares I’ve seen in collection cases when attempting to explain the concept of interest.

I wonder if it would be worth exploring a more bifurcated process where juries still make liability determinations; but where maybe professional panels make damage calculations. You could keep the panels and juries separate such that liability determinations and percentages would be decided independently of total damage calculations.

Gannett Loses First Amendment Suit Against Wisconsin Interscholastic Athletic Association

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I don’t have time at the moment to read the entire case, but it might be of interest to some readers of this blog. The Seventh Circuit upheld judgment against Gannett and in favor of the Wisconsin Interscholastic Athletic Association (WIAA) on a First Amendment Claim.

The WIAA required a license to stream post-season tournament events. Gannett said that, because WIAA is a government entity, a license couldn’t be required because of First Amendment restrictions.

Gannett’s theory that coverage and broadcast are identical is both analytically flawed[.] Simply put, streaming or broadcasting an event is not the same thing as reporting on or describing it. In addition, Gannett overlooks the importance of the distinction between state-as-regulator and state-as- proprietor, which in turn leads it to fail to appreciate the fact that tournament games are a performance product of WIAA that it has the right to control.

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Torture Lawsuit Against Secretary of Defense Allowed to Proceed

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The 7th Circuit issued an opinion in the case of Vance v. Rumsfeld (pdf) which has some fairly startling allegations. Judge Hamilton wrote the 81 page decision, joined by Judge Evans. Judge Manion dissented.

The procedural posture of the case was review of a trial court’s decision with respect to a motion to dismiss. At this stage, the reviewing court is required to regard the allegations in a complaint as true and determine whether, even if true, the allegations are legally sufficient to sustain a claim.

According to the complaint, the plaintiffs were U.S. citizens working for an independent contractor in Iraq called “Shield Security Services.” My take on this is that they were mercenaries on the military payroll in Iraq. They suspected their employer of acting improperly by bribing local officials and of trading alcohol to soldiers in exchange for ammo and weapons, then turning around and either using those weapons or selling them to the locals. The plaintiffs got in touch with the FBI and other government officials and started whistle blowing. At some point, their Green Zone credentials got revoked, leaving them stuck at the Shield Security Services compound in the “Red Zone.” Eventually, the U.S. military “rescued” them, only to keep them locked up in a couple of camps and subjected to torture of various kinds (e.g. sleep deprivation).

They sued Donald Rumsfeld, the United States, and unnamed defendants — they wanted to sue the soldiers who tortured them, but are not yet able to determine the names of these individuals. The government defendants moved to dismiss the lawsuit, but the district court found that the plaintiffs had stated a claim and that Rumsfeld did not have immunity under the facts alleged. The 7th Circuit agreed, and the case may now proceed.

Rumsfeld could be personally liable if the plaintiffs can prove their allegations that he devised and authorized policies that permitted the use of torture in their interrogation and detention. The plaintiffs adequately pled the “kind of active and intentional disregard for their treatment” necessary to establish liability. Secretary Rumsfeld created the policies that authorized and led to their torture. He acted with deliberate indifference by not ensuring that the detainees were treated in a humane manner despite his knowledge of widespread detainee mistreatment. The allegations go on to suggest that Secretary Rumsfeld continued to condone the unconstitutional practices even after Congress mandated otherwise.

The 7th Circuit engaged in an extensive consideration of governmental immunity claims before rejecting them. Especially interesting was the claim of immunity as to claims against military personnel in a war zone:

The unprecedented breadth of defendants’ argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants’ theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom. We disagree and conclude that the plaintiffs may proceed with their Bivens claims.

The 7th Circuit went on to observe:

(

a) that civilian claims against military personnel are permissible; (b) that claims based on abuse of prisoners are permissible; (c) that the Constitution governs the relationship between U.S. citizens and their government overseas; and (d) that claims against current and former cabinet officials are permitted. We then conclude that Congress has not indicated any bar to claims under these circumstances. In fact, Congress has acted to provide civil remedies to aliens who are tortured by their governments. It would be extraordinary to find that there is no such remedy for U.S. citizens tortured by their own government.

In evaluating whether the case could proceed, the 7th Circuit found it significant that the plaintiffs claim was not a general dispute with detention or interrogation policies of the U.S. military, but rather a narrow claim that their treatment was “contrary to explicit statutory law and stated military policy, because they claim they were subjected to interrogation techniques that were not authorized by the applicable Army Field Manual.”

Judge Manion dissented with an opinion that I have not yet had the opportunity to read.

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Innumeracy and the Jury System

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Yesterday, after a four day jury trial, my client won a case that has been consuming a lot of my time over the past few years — not to mention occupying a good bit of office space with 8 or 9 bankers boxes full of documents. My satisfaction in this is tempered a good bit by the fact that our co-defendants, good people, got hit by a big verdict that confirms my notion that the American public is largely innumerate.

The verdict amount was not at all supported by the evidence. I’m biased because I have gotten so close to the case, but I don’t think I’m just being cranky. Using the Plaintiff’s numbers, the verdict had to be based on, among other things, a multiplier that the witness characterized as “a wild guess,” a loan that was used for a lot of other expenses in addition to the one that was the subject of the lawsuit, and futures price fluctuations that can’t remotely be characterized as any of the defendants’ fault.

I’m glad my client won, but it’s hard to have a lot of faith in the system when the numbers just don’t add up. It will go up to the Court of Appeals, but they are bound by a body of law committed to the legal fiction that juries understand the instructions and the relevant facts.

It was a breach of contract case, and the facts arguably supported an inference that there was a breach. But the damages attributable to that breach as opposed to other factors simply weren’t even 25% of what the verdict amount was. That’s the kind of thing that makes a lawyer cautious and inclined to pay more than a claim is worth for a settlement just to avoid uncertainty and exposure to jackpot justice.

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National Day of Prayer Challenge Dismissed Under “Sticks & Stones” Theory of Standing

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The Freedom From Religion Foundation brought a legal challenge against President Obama and White House Press Secretary Robert Gibbs for their compliance with 36 U.S.C. 119 which provides:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

President Obama issued such a proclamation, and the Plaintiffs sought an injunction. The Seventh Circuit found that the Plaintiffs lacked standing to bring their suit because, essentially, neither the law nor the proclamation imposed any duty on them. The President is free to suggest that they pray, and the Plaintiffs are free to ignore him.

Works for me. I’m happy we have gadflies like the Freedom From Religion Foundation challenging the government, making sure it doesn’t get too far out of bounds. I also don’t think the government has any particular place making suggestions as to when, how, or whether I pray. But, that said, the legal system is not well-suited to address issues of this nature. I’m happy enough with the result of this decision. I’m guessing my reaction would be different if it involved a public school where attendance was required. But, then, if those were the facts, it’s altogether possible the 7th Circuit’s decision would be different.

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Trouble Still Brewing for the Mortgage Industry

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Diana Olick, writing for CNBC, has an article entitled Foreclosure Fraud: It’s Worse Than You Think. I’ve touched on this a little bit before, but the problem faced by big time mortgage holders is that they cut corners and didn’t get their paperwork right.

The issues are securitization, modernization and a whole lot of cut corners. Real estate law requires real paper transfer of documents and titles, and a lot of the system went electronic without much regard to that persnickety rule. Mortgages and property titles are transferred several times in the process of a home purchase from originators to securitization sponsors to depositors to trusts. Trustees hold the note (which is the IOU on the mortgage), the mortgage (the security that says the house is collateral) and the assignment of the note and security instrument.

As a creditor’s rights attorney, I’m not terribly excited by the prospect of debtors skipping out on their obligations; but creditors have to realize that, if they can’t prove that they, in fact, own the debt in question, they’re in a whole lot of trouble.

I’m not a scholar of legal history, but what reading I’ve done suggests that real estate law is really the fountainhead of the common law. The crown needed a system to resolve land disputes between his nobles (or, at times, a fig leaf for taking that land). The result has been something like 800 years of real estate law. My sense is this means that real estate jurisprudence tends not to be as forgiving when your “i”s aren’t dotted and your “t”s aren’t crossed. Clouding the chain of title by zipping electronic assertions of ownership here and there is going to come back to bite mortgage holders.

Filed Under: Law