20 August 2014

Building permits, religious freedom, and the cardinal rule of legal journalism

I have said on many occasions that it is unforgivable for journalists to report on court decisions without, at the least, linking the reader to the text of the court's decision.

Here is an interesting article from Wisconsin that discusses the ruling in a case about several Amish families' failure to obtain building and sanitary permits, which would require the families to install smoke and carbon monoxide detectors in their homes. The Amish families believe that the installation of these electronic devices would violate their religious beliefs.

You may agree or disagree with the ultimate result, but what I really want to know is what basis the judge used to rule against the families. Unfortunately, you can't read the text of the decision without further sleuthing because the article doesn't link to it. Worse, the article doesn't even name any of the families so you wouldn't even know what parties to search for.

These articles from last December lists the names of some of the defendants: Eli Gingerich, Clemens Borntreger, Mahlon Miller Jr. and Roman Borntrager. Unfortunately, the Wisconsin's court system's webpage doesn't list any recently closed cases involving these Amish gentlemen. In fact, these four men might be a set of companion cases that haven't been decided yet.

My best guess is that the decision was in one of the Gingerich cases, but even the Wisconsin courts website doesn't have a disposition:

It is also true that these cases are at the trial level, which typically don't produce written opinions. But still, there should be some order that can be reproduced and linked for the reader.

This is the problem with legal journalism: without a link to a court opinion or order, we readers have no idea what was really decided, or even who was ruled against. This Facebook page has more information than most of the articles I've read about these cases. For shame.

Ferguson and Michael Brown's autopsy: The rush to judgment is usually wrong

A few excerpts from this article at CNN entitled "What Michael Brown's autopsy tells us":

1. "What you can tell from a second or third autopsy is limited by autopsy artifact -- changes to the evidence caused by the performance of the first autopsy."

2. "..any pathologist hired by the family, regardless of expertise, does not have access to the crime scene and other evidence. Even Baden, in the report he prepared for the Brown family, concluded that without the clothing, evidence or scene information, he had "too little information to forensically reconstruct the shooting."

3. "Already the results of Baden's limited investigation are being used to support the contention that Brown was surrendering, and that the wounds were distant range, even though Baden himself said neither."

Were Michael Brown hand's in the air?

4. "The wound at the top of the head, the frontal wounds and angled right hand and arm wounds suggest that the victim was facing the officer, leaning forward with his right arm possibly extended in line with the gun's barrel, and not above his head...The image of a person standing upright with his hands in the air when he was shot does not appear compatible with the wounds documented on that diagram." Baden's autopsy couldn't confirm that Brown's hands were in the air, either.

What about the eyewitnesses?

5. "From the perspective of a witness, it could appear that the leaning person is complying with the officer and getting down. From the perspective of the officer, he may appear to be coming at him. Partial evidence yields partial answers, and a rush to conclusions based on one isolated set of data from a second autopsy only raises more questions."

Most importantly: "That is why it is so important to be patient and wait for all the scene information to come to light." This is why you don't rush to judgment.

17 August 2014

There are no winners, reconsidered

My last post received a lot of reaction, mostly negative. Friends who I know and trust told me my comparison between Gaza and Ferguson was "ridiculous" and "tone deaf."

I don't regret making the comparison. I do regret that the comparison became the focus of the post. When readers rejected the comparison, my thesis fell flat. That's unfortunate, because I don't think anyone who read the post and rejected my comparison would actually disagree with my thesis. Here it is again, without any reference to Gaza or Ferguson:
People who use innocent civilians to shield violent behavior are cowards...They use the very presence of innocent civilians to blanket their lawlessness. [T]the response is likely to be indiscriminate enough to catch innocent people in the fray. When that happens, we all lose.
I scarcely believe that anyone would disagree with this (do you disagree? If so, please, let me know). Evaluate this statement without my comparison. Then tell me what you think.

I chose Gaza because the conflict is fresh in people's minds, but that obviously backfired. Expecting resistance about my comparison, I tried to allay those concerns:
I'm not suggesting that a violent protester in Ferguson is the same as a Hamas terrorist. As far as we know, the violence done by protesters in Ferguson has not killed anyone. The violence in Gaza is on another scale.
Obviously, that wasn't enough. I'll agree with you that my comparison was absurd. The conflict in Gaza is different by orders of a magnitude from the rioting in Ferguson. I'll go further--I understand if you think no comparison between the two is valid. But that's beside the point. Why I regret the comparison is because my post wasn't about Gaza or Ferguson. The title of my post, There are no winners, is directly in reference to innocent civilians. I intentionally used the word innocent eight times because innocent people are suffering the consequences. Police departments are responding to irregular tactics with force and militarization. Journalists are being arrested and tear-gassed in Ferguson. The police are training sniper rifles on unarmed civilians. The police fired tear-gas on people standing in their own yards.

These are just the immediate results in Ferguson, but we have seen other results from the over-militarization of police forces: a flash bang thrown into the crib of a two-year old boy; SWAT teams invading the wrong homes; Occupy protesters were pepper sprayed as they sat on the ground. Sleepy small towns are acquiring armored vehicles. The capabilities that the feds had at Ruby Ridge or Waco two decades ago are now in the hands of police departments all over the country. Check out Radley Balko's work at the Washington Post  or his book Rise of the Warrior Cop for more on this subject.

This problem won't go away. What's happening in Ferguson right now is happening in small bits and pieces in cities and towns all over the country. It's time we faced the issue head on instead of burying our heads in the sand.

15 August 2014

2014 Philadelphia Eagles projected 53-man roster

Last updated: Aug 15 2014

QB (3): Foles, Sanchez, Barkley
RB (4): McCoy, Sproles, Polk, Tucker
WR (6): Maclin, Cooper, Matthews, Huff, Smith, Maehl
TE (3): Celek, Ertz, Casey
C (2): Kelce, Vandervelde (back surgery), Molk
G (2): Mathis, Herremans
T (4): Peters, Barbre, Kelly, Tobin (L. Johnson/susp does not count against 53-man roster)

DL (7): Thorton, Logan, Cox, Curry, Hart, Square, Allen
LB (9): Barwin, Kendricks, Ryan, Cole, Smith, Graham, Goode, Braman, Acho
CB (5): Fletcher, Williams, Boykin, Carroll, Watkins
S: (5) Allen, Jenkins, Wolff, Maragos, Reynolds

P: Jones
PK: Henery
LS: Dorenbos


Aug 15 2014: Backup center Julian Vandervelde recently had back surgery. There is no timetable for his return, but it seems unlikely he would be on the opening game roster. David Molk will benefit from Vandervelde's injury. No other changes in the last ten days.

Aug 5 2014: The most likely player on my projected final roster that may not actually make the final roster is RB Matthew Tucker. If the Eagles only take 3 RBs, Tucker would be the casualty.

If Tucker gets cut, I'd expect his spot to be replaced with an additional offensive lineman or defensive lineman. Offensive line additions could be David Molk (who might replace Vandervelde) or Andrew Gardner. Backup offensive linemen is definitely a weak spot.

I'd love to find spots for WR/TE Trey Burton, RB Henry Josey, and DE Alejandro Villanueva but they'll probably end up on the practice squad.

14 August 2014

There are no winners

I've been spending a lot of time over the last month or so thinking about the Israel-Gaza conflict. Specifically, I've been wondering how to respond to irregular warfare. When Hamas militants launch rockets from beside a school or hospital, how should Israel respond? Do you expect them to just ignore the threat of rockets? War is a nasty business. No matter how hard they try, Israel's response is unlikely to be considered reasonable or proportionate. If Israel counter-attacks the rocket launch site, they may (and probably will) kill innocent civilians at the hospital or school. Hamas is violating all sorts of international norms here by subjecting their own innocent civilians to the horrible violence of war. Israel, too, seems to have been indiscriminate in some of their attacks. Whether the overreach comes from Hamas or Israel, it is innocent civilians who suffer.

Much can be said about the ongoing violence between protesters and police in and around Ferguson, Missouri. Let's say you have a group of 100 protesters. 95 of these protesters have no violent intent. They're content to wave signs, chant slogans, and yell at the police. But five of those protesters have sinister motives. They're not at the front of the crowd but interspersed among the peaceful protesters. From the perspective of the police, they see rocks, bricks or Molotov cocktails thrown from the crowd. How should the police respond? You can imagine that they're going to try to disperse the demonstration. They may try to break it up and/or respond with teargas. 95 peaceful protesters are going to bear the brunt of the force for the actions of a few bad apples. Whether the overreach comes from the few violent protesters or the police, it is innocent civilians who suffer.

A few obvious points here:

I'm not suggesting that a violent protester in Ferguson is the same as a Hamas terrorist. As far as we know, the violence done by protesters in Ferguson has not killed anyone. The violence in Gaza is on another scale. The analogy here is not a moral equivalence between terrorists and violent protesters but that the irregular tactics are essentially the same.

Neither am I defending the police's tactics. I'm not sure there is a "right way" to do things. I'm no expert, so someone else with actual law enforcement experience can surely weigh in on why I am completely wrong about this. But if I were in a position of authority, I'd regroup and refocus on doing a better job of identifying the few individuals who are instigating violence. If they're already doing this, it's not coming across in any of the news articles I've been reading. Then again, maybe that's the point: finding the few bad apples in Ferguson may be as difficult as finding the few Hamas terrorists among the larger groups of innocent Gaza civilians. 

People who use innocent civilians to shield violent behavior are cowards, whether they are Gaza terrorists or rabble-rousing rock throwers on the streets of Ferguson, Missouri. They use the very presence of innocent civilians to blanket their lawlessness. When Israel responds, or when the police respond, the response is likely to be indiscriminate enough to catch innocent people in the fray. When that happens, we all lose.

13 August 2014

Card catalog history

This card catalog is located at the University of Maryland's McKeldin Library. Of course, it's not actually in use anymore. It's there as a historical exhibit. A museum piece. Do you feel old yet?

02 August 2014

Law in Plain English: Kansas v. Nebraska and Colorado

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogKansas v. Nebraska and Colorado

Argument: TBD (Aud.)

Bridge across the Republican River near Riverton, Nebraska
Background: In an original action, Kansas sought a remedy both for Nebraska’s breach in 2006 of the 1943 Republican River Compact and for what Kansas claimed is Nebraska’s likely continued breach of that Compact in the future. Kansas argued that Nebraska’s conduct also violated a prior decree of the Court approving an earlier settlement among the parties. Nebraska, in turn, both opposed Kansas’ claims and asserted a counterclaim seeking to correct what it claims is a mistake in the accounting procedures used under the terms of that earlier settlement agreement. A Special Master appointed by the Court recommended that the Court declare Nebraska to have breached the 1943 Compact by consuming a total of 70,869 acre-feet of water in excess of its Compact allocation in 2005 and 2006; that the Court enter judgment against Nebraska and in favor of Kansas in the amount of $5,500,000; that the Court otherwise deny Kansas’claims for relief; and that the Court order the accounting procedures used by the states reformed to correct a mistake.

Documents filed with the Special Master are available here.

Issue: The question before the Court is whether Nebraska violated a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado; if so, what relief is appropriate to remedy the violation.

Holding: TBD

01 August 2014

Law in Plain English: Oneok Inc. v. Learjet, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogOneok Inc. v. Learjet, Inc.

Argument: TBD (Aud.)

Background: Learjet and other retail buyers of natural gas sued Oneok and other natural gas traders for state and federal anti-trust claims, alleging that they manipulated the price of natural gas by reporting false information to price indices published by trade publications. The district court ruled for the defendants, finding that the state law anti-trust claims were pre-empted by the Natural Gas Act, 15 U.S.C. § 717 et seq. (NGA). The Ninth Circuit reversed, finding that Congress had carefully divided up the regulatory power over the natural gas industry. It did not envisage federal regulation of the entire natural gas field to the limit of constitutional power. Rather, it contemplated the exercise of federal power only as specified in the NGA. Congress has previously limited the jurisdiction of the Federal Energy Regulatory Commission (FERC), and in this case the panel determined that the state law anti-trust claims arose out of transactions outside of FERC's jurisdiction. As a result, the NGA did not preclude these claims.

Issue: The question before the Court is whether the Natural Gas Act, which occupies the field as to matters within its scope, preempts state-law claims challenging industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions.

Holding: TBD

Law in Plain English: Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogKellogg Brown & Root Services, Inc. v. United States ex rel. Carter

Argument: TBD (Aud.)

Background: In 2011 (after several previous attempts and amendments), former employee Benjamin Carter filed a qui tam (whistleblower) action under the False Claims Act (FCA), alleging that KBR falsely billed the United States for services performed in Iraq in 2005. The district court ruled that the complaint was filed outside of the FCA's six year statute of limitations. The court also found that another substantially similar complaint had been filed before Carter's, and was therefore the court did not have jurisdiction to hear the case pursuant to the FCA's first-to-file bar (a provision to prevent parasitic lawsuits based upon previously disclosed fraud). The Fourth Circuit reversed, finding that the Wartime Suspension of Limitations Act tolled the statute of limitations while the United States was engaged in combat in Iraq even if war was not formally declared. Additionally, the panel found that, while Carter's claim was properly denied by the district court pursuant to the first-to-file bar, dismissing the claim with prejudice was erroneous because Carter could re-file his claim later if the other complaint was dismissed (as it later was).

Issue: The questions before the Court are (1) whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling; and (2) whether, contrary to the conclusion of numerous courts, the False Claims Act’s so-called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “one case- at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing.

Holding: TBD