• July 13, 2016

    by Jim Thompson

    Partisan Justice, a new ACS study conducted by independent researchers at Emory University School of Law, finds that the upward spiral of big money fundraising and aggressive politics in state judicial elections pressures judges to become partisan actors who favor their own party in deciding election disputes.

    In Huffington Post, Zeba Blay reflects on the year since Sandra Bland’s senseless death, concluding that the #SayHerName campaign, which seeks to bring attention to the black women who have died after police encounters, is as important as ever.

    Kenneth Jost at Jost on Justice says police departments must “make meaningful changes in their policies and practices to protect and serve all, without regard to race.”

    In a huge victory for same-sex couples, the Court of Appeals of Maryland last Thursday ruled “that non-biological and non-adoptive parents who help raise children are eligible for recognition as ‘de facto’ parents with full parental rights,” reports Lou Chibbaro Washington Blade

  • July 12, 2016
    Guest Post

    by Katherine A. Macfarlane, Associate Professor of Law, University of Idaho College of Law, @KatAMacfarlane

    *A longer version of this essay is forthcoming in the Yale Law Journal Forum

    Utah v. Strieff declined to apply the exclusionary rule to evidence seized during an arrest that followed an unconstitutional stop. Strieff will impact civil rights plaintiffs’ ability to recover damages pursuant to 42 U.S.C. § 1983 for both unconstitutional stops and the law enforcement conduct that follows such stops. Section 1983 damages for the kind of unconstitutional stop at issue in Strieff will likely be nominal. The Court assumed that Section 1983 actions were suitable replacements for the exclusionary rule’s deterrent effect. But, actions that result in nominal damages are inadequate proxies for the kind of disincentive the exclusionary rule provides.  

    The defendant in Strieff was stopped by narcotics detective Douglas Fackrell after Strieff exited a home Fackrell was surveilling for drug dealing. Following the stop, Fackrell learned that Strieff was subject to an arrest warrant. Strieff was arrested, and meth and drug paraphernalia were found on his person. The Court declined to exclude the evidence seized incident to Strieff’s arrest. Though Fackrell’s original stop was unlawful, it was “sufficiently attenuated” by the arrest warrant. Justice Sotomayor dissented, arguing that the evidence should have been excluded. She emphasized that though Streiff was white, suspicionless stops disproportionately victimize people of color. Justice Kagan’s dissent explained that before Strieff, an officer who lacked reasonable suspicion for a stop might have paused to consider the risk of rendering relevant evidence inadmissible. Now, that same officer has no reason to hesitate. Strieff himself argued that without the exclusionary rule’s ability to prevent suspicionless stops, “police will engage in dragnet searches,” stopping people for no reason to discover outstanding arrest warrants. The Court rejected this argument, concluding that the civil liability imposed by Section 1983 deters any such action. 

    The existence of Section 1983 civil liability does not necessarily deter unconstitutional stops or dragnet searches for arrest warrants. 

    Strieff will limit the damages available to individuals who suffer unconstitutional stops. Before Strieff, an unconstitutional stop would typically lead to exclusion of drugs found incident to the arrest that followed the stop. Without key drug evidence, prosecuting someone like Strieff for drug possession was futile. But following Strieff, defense counsel will not be able to exclude evidence like the drugs found on Strieff. If the incriminating evidence is admitted, a conviction becomes more likely. Strieff himself conditionally pleaded guilty to possession while reserving his right to appeal his suppression motion denial. 

  • July 11, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    On Tuesday, March 29, 2016, the impact of Justice Antonin Scalia’s death was apparent when the Supreme Court, by a 4-4 tie, gave public employees unions a huge victory. For decades, foes of unions have wanted the Supreme Court to declare unconstitutional the requirement that non-union members must pay their share of the union dues that go to support the collective bargaining activities of the union. After Friedrichs v. California Teachers Association was argued on January 11, it seemed certain that there were five votes against the unions.   But Justice Scalia’s death on February 13 occurred before the Court released its opinion and the Court was left deadlocked 4-4.

    In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union. But the Court held that non-union members can be required to pay the share of the union dues that support the collective bargaining activities of the union. Non-union members benefit from the union in terms of their wages, their hours, and their working conditions. The Court explained that they should not be able to be free riders and benefit without paying their “fair share.” But the Court held that non-union members do not need to pay the part of the dues that support the union’s political activities. The Court explained that it would be impermissible compelled speech in violation of the First Amendment to force non-union members to support political activities with which they disagree. Both government entities and unions have relied on this for decades in entering into thousands of contracts governing the workplace. 

    In recent years, the five most conservative justices on the Court – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito – have limited Abood and indicated a likely desire to overrule it. For example, in Harris v. Quinn, in 2014, Justice Alito, writing for these five justices, referred to Abood as an “anomaly” and inconsistent with the First Amendment. The Court did not go so far as to overrule Abood, but certainly suggested that the majority would be willing to do so in a case that directly presented that issue to the justices.

    Friedrichs v. California Teachers Association was filed in federal district court in Orange County, California with the goal of it being a vehicle for the Supreme Court to overrule Abood and hold that non-union members do not have to pay their “fair share” of the union dues that go to support collective bargaining. The federal district court and the federal court of appeals obviously cannot overrule a Supreme Court precedent and dismissed the lawsuit. But the Supreme Court granted review on the question of whether it should overrule Abood and the many decisions based on it.

  • July 11, 2016
    Guest Post

    by Atiba R Ellis, Professor, West Virginia University College of Law @atibaellis

    *This post is part of the ACSblog Symposium on Policing and Race Relations

    When ACS asked me to write this blog, I had in mind a commentary that compared and contrasted the three views of policing and the nature of the leeway allowed the police in targeting high crime areas. But then, in the course of three days, we learned of the deaths of Alton Sterling and Philando Castile, the views expressed in Utah v. Strieff took new context.

    The targeting by the police can have lethal consequences. In the unsettling and graphic video of the shooting of Alton Sterling and the similarly graphic video of the aftermath of the shooting of Philando Castle, we see those consequences clearly. These videos show us the consequences immediately. At least one commentator called Sterling’s death a “modern day lynching.”

    None of this denies that responsible policing does exist. As the recent shootings of police officers in Dallas remind us, most police abide by the law and put their lives on the line to protect our freedoms. Indeed, the officers killed in Dallas died protecting a peaceful protest of the deaths of Sterling and Castle.

    But it is important to draw a distinction between lawful policing and police abuse that occurs with near impunity, especially when such abuse is disproportionately directed at communities of color. And it is important to critique legal doctrines, as the one extended in Strieff, which reinforce this impunity and contribute to the disproportionate state-sanctioned abuse of communities of color.

    To understand this, we must understand the world in which this abuse takes place. When men of color die at the hands of police for activities as innocuous as selling CDs or reaching for one’s registration during a police stop, it comes as no surprise that those living in communities of color feel targeted. The deaths of Mr. Sterling and Mr. Castle follow a long list of high-profile deaths at the hands of the police, including Eric Gardner, Tamir Rice and Sandra Bland. The investigative data, sociological data and lived experience in African American communities show that black men are at greater risk of being shot by police than other demographic categories. Thus, in this world, it comes as little surprise that communities of color feel that law has few bounds when it comes to the lives and deaths of Black and Brown bodies.

  • July 11, 2016
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago

    *This post originally appeared in Huffington Post

    In a radio address to America in 1931, George Bernard Shaw startled his audience with the following proposition: “Every person who owes his life to civilized society, and who has enjoyed . . . its very costly protections and advantages, should appear at reasonable intervals before a properly qualified jury to justify his existence,” which, Shaw added, should be “summarily and painlessly terminated if he fails to justify it.” 

    I do not advocate such a program. But every one of us who enjoys the hard-bought protections and advantages of our system of self-governance has a responsibility to justify his or her existence under it. Abner J. Mikva, who passed away on the Fourth of July at the age of 90, would clearly have passed this test with flying colors.

    The Hon. Abner J. Mikva grew up in Milwaukee during the Depression. After serving as a navigator in World War II, he attended college and then entered the University of Chicago as a law student in 1948.

    In his application for admission to law school, Ab declared: “I am fired up with an ambition and a desire to do well in a field of endeavor in which I can apply my reasoning powers as well as the formal education I have acquired. The logical answer is law.” Ab emphasized, however, that although “my plans for applying the training of law are not yet crystallized, I have a desire to enter public service.”

    Inspired by the idealism of Democratic reform candidates Adlai Stevenson and Paul Douglas, who were running for Governor and Senator respectively in Illinois in 1948, Ab, a first-year law student, decided to volunteer to do some election work in Chicago’s 8th Ward. This led to an exchange with a ward committeeman that demonstrated the conflicting worlds of an entrenched political organization and an idealistic young liberal: 

    “Who sent you?” asked the committeeman.
    “We don’t want nobody nobody sent. We ain’t got no jobs.”
    “I don’t want a job,” said Ab.
    “We don’t want nobody that don’t want a job. Where are you from anyway?”
    “University of Chicago.”
    “We don’t want nobody from the University of Chicago in this organization.”