26 June 2015

Law in Plain English: Johnson v. United States

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.

SCOTUSblogJohnson v. United States

Argument: Nov 5 2014 (Aud.)

Background: Pursuant to an undercover investigation, the FBI determined that Samuel Johnson (a felon) illegally possessed an AK-47 and a .22 caliber semi-automatic rifle. Johnson was later arrested while attending a meeting with his probation officer. Among other charges, Johnson was indicted with being an armed career criminal in possession of a firearm. The Armed Career Criminal Act (ACCA) provides a mandatory 15-year sentence for those who have been convicted of three "violent felon[ies.]" Johnson pleaded guilty, but reserved the right to challenge the applicability of the ACCA based upon a review of his prior convictions. On appeal, Johnson alleged that a prior conviction for possession of a short-barreled shotgun did not constitute a "violent felony." The Eighth Circuit disagreed, finding that possession of a short-barreled shotgun presented a serious risk of physical injury to another because it is roughly similar to the listed offenses within the ACCA, both in kind as well as the degree of risk for harm posed. As a result, the conviction was considered a violent felony and Johnson's conviction as an armed career criminal was affirmed.

Issue: The question before the Court is whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

Holding: In an 8-1 decision, the Supreme Court ruled that imposing an increased sentence under ACCA’s residual clause violates due process.

Law in Plain English: Same Sex Marriage Cases

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.

SCOTUSblogObergefell v. Hodges (consolidated with Tanco v. Haslam, DeBoer v. Snyder, Bourke v. Beshear)

Argument: Apr 28 2014 (Aud.)


Background: James Obergefell and John Arthur are from Ohio, and were married in Maryland. When Arthur died, Ohio would not list Obergefell as his spouse on their death certificates. Obergefell sought an injunction to require the State to list him as a spouse on the certificate. The district court concluded that the Fourteenth Amendment protects a fundamental right to keep existing marital relationships intact, and that the State failed to justify its law under heightened scrutiny. The court likewise concluded that classifications based on sexual orientation deserve heightened scrutiny under equal protection, and that Ohio failed to justify its refusal to recognize the couples’ existing marriages. Even under rational basis review, the court added, the State came up short. The Sixth Circuit reversed, finding that the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment does not require States to expand the definition of marriage to include same-sex couples. Further, the court found that the Constitution does prohibit a State from denying recognition to same-sex marriages conducted in other States.

Issue: The questions before the Court: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Holding: In a 5-4 decision, the Supreme Court ruled that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

25 June 2015

Law in Plain English: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, 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.

SCOTUSblogTexas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.

Argument: Jan 21 2015 (Aud.)

Background: The Inclusive Communities Project (ICP) is a non-profit organization that assists low-income, predominately African-American families who are eligible for the Dallas Housing Authority’s Section 8 Housing Choice Voucher program in finding affordable housing in predominately Caucasian, suburban neighborhoods. ICP filed suit action against the Texas Department of Housing and Community Affairs (TDHCA) alleging that TDHCA's allocation of Low Income Housing Tax Credits (LIHTC) in Dallas resulted in a disparate impact on African-American residents under the Fair Housing Act (FHA). The district court held that ICP had proven that the allocation of tax credits resulted in a disparate impact on African-American residents. The Fifth Circuit remanded the case to the district court to apply the burden-shifting approach found in HUD regulation 24 C.F.R. § 100.500 for claims of disparate impact under the FHA. First, a plaintiff must prove a prima facie case of discrimination by showing that a challenged practice causes a discriminatory effect. If the plaintiff makes a prima facie case, the defendant must then prove “that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests....” If the defendant meets its burden, the plaintiff must then show that the defendant’s interests “could be served by another practice that has a less discriminatory effect.”

Issue: The question before the Court is whether disparate-impact claims are cognizable under the Fair Housing Act.

Holding: In a 5-4 decision, the Supreme Court ruled that disparate-impact claims are cognizable under the Fair Housing Act.

23 June 2015

You can be outraged over the shooting, but your flag drama is meh

Reactive politics is easy. It's very popular now to call for the removal of the Confederate flag from flying over South Carolina's state house. Why wouldn't it be? It came in reaction to the terrible church shooting last week. But the Confederate flag is no more or lessoffensive now than it was last week, depending upon your point of view. The shooting doesn't somehow make it worse; unless you're willing to admit that you were OK with the flag last week.

If you didn't really spend any time prior to this week really caring about whether the Confederate flag flew over South Carolina's state house, then you're a participant in reactive politics. Great job standing up now. What about last week, last month, or last year (or before)?

Mississippi fans in stands with Confederate flags during a sporting event in 1993.Photo by Patrick Murphy-Racey/Sports Illustrated/Getty Images
Reactive politics takes no courage. It's the mob mentality. This doesn't mean the act itself is worthless. If you want to get rid of the Confederate flag over South Carolina, go for it (although I hope you agree that legislators in South Carolina should make that decision). But don't delude yourself as if you're doing something brave by standing up against the flag.  Courage means perseverance despite difficulty and pain. Chances are you're not putting yourself in any danger by opposing the Confederate flag, especially from the confines of your desk chair.

Much the same is this Internet rant about a man and his neighbor's Confederate flag. He starts off:
While I was out jogging this morning, I passed a neighbor’s house that I have passed every day for almost three years. Usually I stroll right on by without giving it a second thought. Today, though… today was different. I stopped in my tracks and blankly stared until a car honked at me to move out of the way....This house flies a Confederate flag.
Of course. A man who claims to study culture admits that the flag didn't matter to him last week or any other time during the last three years. But it matters now. Reactive politics. How easy to rant. But really, this paragraph captures it for me:
And what about my neighbor? In a perfect world, I would ring his doorbell and have a reasonable discussion with him about how what he’s doing is offensive and ahistoric and I’d love to correct his understanding of the entire mess. But the sad fact is, he’s not alone, either.
So instead of trying to make the world a better place and engaging his neighbor in conversation, he turns to the Internet and calls the man (and presumably anyone else who flies the flag) a racist and a traitor. How courageous, friend! Great job standing up for...what? And way to go on wanting to "correct his understanding of the entire mess." As if the flag has only one exact, factual, historic meaning that he needs explained to him. And you're the one to do it! How convenient. How pompous. And the idea that you can label another man without actually talking to him about his views (when you admit that talking to him is the right thing to do) is not only weak, but it's anathema to constructive dialog.

I know what you might be thinking. Even though you might not have voiced your opinion on the Confederate flag before, you've always thought it was offensive. And the shooting gave you reason to voice your opinion. Fine, I have no problem with that. Whether you want to oppose the Confederate flag now is not my issue. I take aim at those who attach some magical self-importance to their view now that's newsworthy and convenient, as if they're doing something bold. Sorry, you're just not.

Bold are those who stand up for causes when they're not newsworthy or convenient. When it wasn't the outrage of the week. When it was a proactive position, not a reactive one.

By the way, have you ever read the words to Maryland's official state song? You wouldn't be the first one to raise an eyebrow at that one.

What will next week's faux outrage be?

18 June 2015

Law in Plain English: Reed v. Town of Gilbert, Arizona

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.

SCOTUSblogReed v. Town of Gilbert, Arizona

Argument: TBD (Aud.)

Click image to visit ADF website
Background: Good News Community Church placed several signs around the area of its church announcing the time and location of its services. The Town of Gilbert, Arizona notified the Church that its signs were violating Gilbert's sign ordinance because the signs were displayed outside the statutorily-limited time period. The ordinance required that signs could not be erected without a permit, but that three categories of signs were exempted from the permit requirement: 1) temporary directional signs relating to qualifying events (no greater than six feet in height and six square feet in area; only to be displayed for 12 hours before and one hour after an event; not placed in the public right-of-way); 2) political signs (up to 32 square feet in size; erected at any time, but taken down within ten days after an election; may be placed in the public right­-of-way); and 3) ideological signs (not limited in time or number; may be placed in the public right-of-way). The district court found that the ordinance was not a content-based regulation; was a reasonable time, place, and manner restriction; and (on remand) did not favor some noncommercial speech over other commercial speech. The Ninth Circuit affirmed.

Issue: The question before the Court is whether the Town of Gilbert's mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code's differential treatment of petitioners' religious signs.

Holding: In a 9-0 decision, the Supreme Court ruled that the Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny. Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.

12 June 2015

The OPM breach was really, really bad. The OPM response is really, really bad.

The breach was apparently discovered sometime last year (!) when a vendor was doing a product demo on the production network. The idea that a vendor was doing a sales presentation on their production network is terrifying. Nothing to see here!

So far, we're hearing that at least 4 million (but potentially as many as 14 million?!) government employees were affected. Also, not much mention of government contractors, although the second link above speculates on that (OPM says: "No contractors were affected unless they previously held Federal civilian positions."). I'm not comfortable with their confidence, so still waiting for that shoe to drop. I personally haven't heard a peep from Booz Allen. I expect we'll hear more about this soon.

After the breach, OPM contracted with an identity theft company called CSID to provide ID theft protection for all affected government employees. Then, CSID sent the employees a shady looking email from csid.com and as of today, many people still think the email is a phishing attempt. Users were told to delete any email claiming to notify them of the breach. At the same time, OPM published on its website for employees to expect the email from csid.com, and the FTC claims the emails are legit. You can't make this shit up.

Here is Teri Centner's blog post which nicely summarizes the issue.


Here is the announcement from OPM telling users to expect an email from opmcio@csid.com.


Here is the FTC page authenticating the CSID emails.

08 June 2015

Law in Plain English: Zivotofsky v. Kerry

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.

SCOTUSblogZivotofsky v. Kerry

Argument: Nov 3 2014 (Aud.)

Background: Section 214(d) of the Foreign Relations Authorization Act (2003) requires the Secretary of State to record "Israel" as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian requests. The Secretary has not enforced this provision, believing that it impermissibly intrudes on the President's exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. The parents of Menachem Zivotofsky (a United States citizen born in Jerusalem), filed a lawsuit seeking a permanent injunction ordering the Secretary to issue a passport listing "Israel" as their son's place of birth. Ruling in favor of the Secretary, the Court of Appeals for the District of Columbia Circuit found that the President held exclusive power to determine whether to recognize a foreign nation. Section 214(d) was not the neutral regulation of the form and content of a passport (as Congress has the power to do under its immigration powers), but rather an attempted legislative articulation of foreign policy, enacted to alter United States foreign policy toward Jerusalem. As a result, Section 214(d) impermissibly intruded on the President's recognition power and was unconstitutional.

Issue: The question before the Court is whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

Holding: In a 6-3 decision, the Supreme Court ruled that the President has the exclusive power to grant formal recognition to a foreign sovereign. Because the power to recognize foreign states resides in the President alone, §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem.

01 June 2015

Law in Plain English: Mellouili v. Holder

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.

SCOTUSblogMellouli v. Lynch

Argument: Jan 14 2015 (Aud.)

Background: Moones Mellouli, a citizen of Tunisia and a lawful permanent resident of the United States, pleaded guilty in July 2010 to violating a Kansas misdemeanor drug paraphernalia statute. Mellouli had been stopped for DUI and police found four Aderrall pills in his sock; the sock was the "drug paraphernalia." The Board of Immigration Appeals (BIA) found that he was removable because his conviction was a conviction “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i). Mellouli argued that he was not removable because the state court record of conviction did not identify the controlled substance underlying his state paraphernalia conviction, and therefore the government failed to prove that the conviction related to a federal controlled substance, as § 1227(a)(2)(B)(i) requires. The Eighth Circuit denied his petition, finding that there was a nearly complete overlap between the definition of controlled substance in 21 U.S.C. § 802 and in the statutes of States such as Kansas that adopted the Uniform Controlled Substances Act. It was therefore reasonable for the BIA to conclude that any drug paraphernalia conviction in these States was, categorically, a violation of a law “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i).

Issue: The question before the Court is whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

Holding: In a 7-2 decision, the Supreme Court ruled that Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i). The categorical approach historically taken in determining whether a state conviction renders an alien removable looks to the statutory definition of the offense of conviction, not to the particulars of the alien’s conduct. The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA has long applied the categorical approach to assess whether a state drug conviction triggers removal under successive versions of what is now §1227(a)(2)(B)(i). The BIA announced and applied a different approach that, in this case, finds no home in §1227(a)(2)(B)(i)’s text and leads to consequences Congress could not have intended. 

Law in Plain English: Elonis v. United States

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.

SCOTUSblogElonis v. United States

Argument: Dec 1 2014 (Aud.)

Background: After being fired from his job, Anthony Elonis made several posts on Facebook threatening former co-workers, his wife (who had a protection from abuse order against him), and federal law enforcement officers (who had visited him earlier that day to ask about his previous posts) (click here to read some of Elonis's threats). At trial, Elonis was convicted under 18 U.S.C. § 875(c) for "transmit[ing] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injury the person of another ... " The Third Circuit affirmed, finding that Elonis's Facebook threats were not protected by the First Amendment if a reasonable person would regard the statements as threatening.

Issue: The questions before the Court are (1) whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

Holding: In an 8-1 decision, the Supreme Court ruled that the Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.