Supreme Court Finds Arkansas Statute Unconstitutional; Holds Both Same-Sex Parents’ Names Should Be On Child’s Birth Certificate

Photo via Arkansas Online

Written by Joseph Railey

ABSTRACT

In a brief per curium opinion, the Supreme Court found Arkansas’ birth certificate statute to be unconstitutional because it treated same-sex couples differently. The Court stated that the statute “denied married same-sex couples access to the ‘constellation of benefits that the stat[e] ha[s] linked to marriage.’”

DISCUSSION

The case began when two, married, same-sex couples in Arkansas decided to have a child through artificial insemination. Upon the birth of the children, each of the couples wrote in two mothers’ names on the birth certificate paperwork. However, when the couples received the birth certificates back, the State had listed only the mother who carried and gave birth to the child.

At the time, Arkansas’ birth certificate statute provided that “the mother is deemed to be the woman who gives birth to the child” and that, “[i]f the mother was married at the time of either conception or birth, . . . the name of [her] husband shall be entered on the certificate as the father of the child.” One exception to this rule is when the child is born via artificial insemination, where Arkansas allows for only the mother’s name to be listed, unless the father consents to his name being listed as well.

The trial court held that the statute conflicted with Obergefell v. Hodges, 135 S. Ct. 2071 (2015), as it “categorically prohibited every same-sex married couple . . . from enjoying the same spousal benefits which are available to every opposite-sex married couple.” The Arkansas Supreme Court, however, disagreed and held that the statute focused on the relationship between the biological mother, father, and child rather than on the “marital relationship of husband and wife.” As such, it held that the statute did not conflict with Obergefell and was, therefore, constitutional. Thereafter, the United States Supreme Court granted certiorari and reversed the Arkansas Supreme Court’s decision, remanding the case.

In its opinion, the United States Supreme Court noted the disparate treatment.

As already explained, when a married woman in Arkansas conceives a child by means of artificial insemination, the State will—indeed, must—list the name of her male spouse on the child’s birth certificate. And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman’s female spouse from her child’s birth certificate. As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school.

In Obergefell, the Court specifically addressed this issue. Where some of the petitioners in Obergefell sued to be listed as parents on their child’s birth certificates, the Obergefell Court expressly identified birth certificates as part of the “terms and conditions” of marriage.

Justices Gorsuch, Thomas, and Alito dissented, noting that summary reversal should not have been applied in this case and that the state’s arguments for only listing biological parents on a birth certificate were permissible. The justices also opined that, as the petitioners only sought relief under the state’s birth certificate registration statute (§ 20-18-401), and not the statute relating to artificial insemination (§ 90-10-201), the Court impermissibly applied that provision.

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Sources Cited

Pavan v. Smith, 198 L.Ed.2d 636 (2017).

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Ark.  Code Ann. § 20-18-401 (West 2017).

Ark. Code Ann. § 9-10-201(a) (West 2017).

Increasing the Scope of Legal Responsibility: Can Words Kill?

Written by: Emily Keable

In a rare legal ruling, a Massachusetts judge found Michelle Carter, 20, guilty of involuntary manslaughter. Carter was accused of encouraging her boyfriend, Conrad Roy, to commit suicide. Unlike many other states, Massachusetts has no law against encouraging someone to commit suicide. However, the Court still found Carter guilty of involuntary manslaughter. Carter now faces up to 20 years in prison.

At the time, the two were teenagers who both struggled with mental illnesses. Earlier on in their relationship, Carter encouraged Roy to seek help for his troubles. Eventually, however, the conversations turned to Carter’s persistent pressuring of Roy to commit suicide. Leading up to Roy’s death, text messages from Carter to Roy show her urging him to act upon his suicidal thoughts.

Beyond a conviction of involuntary manslaughter, this case carries questions of free speech. It is undisputed that Carter’s speech was “morally reprehensible.” Nevertheless, the First Amendment protects speech that is reckless, hateful, and ill-willed. Consequently, it can be argued that the First Amendment protects Carter’s speech, especially as it fails to meet the narrow exception of unprotected speech for literal threats of violence and the incitement of lawless action. ACLU attorney Matthew Segal stated this decision “is saying that what [Carter] did is killing him, that her words literally killed him, that the murder weapon was her words.”

Many people are also questioning how this decision expands the very definition of manslaughter, raising questions of what this could mean for the future. One law professor told the New York Times, “Will the next case be a Facebook posting in which someone is encouraged to commit a crime? This puts all the things that you say in the mix of criminal responsibility.”

All in all, one burning question looms: whether this case will be die out as a rare decision, or whether it will set off a path of precedents that expand the boundaries of criminal laws at the expense — or question — of constitutional protections.

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Sources Cited

Katharnie Q. Seelye & Jess Bidgood, Guilty Verdict for Young Woman who Urged Friend to Kill Himself, N.Y. Times (June 16, 2017)

Denise Lavoie, What’s Next for Michelle Carter after Conviction in Texting Suicide Trial, Boston (June 19, 2017)

Robby Soave, Michelle Carter Didn’t Kill with a Text, N.Y. Times (June 16, 2017)

 

Common Sense Prevails: SEC Disgorgement Damages are Deemed a Penalty

Written by: Mike Corelli

Facts & Procedural History

In 2009, the Securities and Exchange Commission (SEC) commenced an action against Charles Kokesh for violating federal securities laws by misappropriating funds. After a jury found Kokesh had violated the federal securities laws, the District Court addressed the damages the SEC demanded. Under 28 U.S.C. § 2462, there is a five-year statute of limitations that precludes civil monetary damages from being enforced. Holding that SEC disgorgement damages were not subject to 28 U.S.C. § 2462, the District Court entered a disgorgement judgment of $34.9 million against Kokesh. The Tenth Circuit affirmed. The Supreme Court granted certiorari to determine whether 28 U.S.C. § 2462 applies to SEC disgorgement damages.

Supreme Court Decision

The Supreme Court reversed the Tenth Circuit’s decision holding that SEC disgorgement damages are subject to 28 U.S.C. § 2462. Under 28 U.S.C. § 2462, “an action, suit[,] or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years.” Thus, the Court turned to whether SEC disgorgement damages constitute a “civil fine, penalty, or forfeiture.”

In resolving whether SEC disgorgement damages are subject to 28 U.S.C. § 2462, the Court considered the definition of “penalty.” The Court defined a penalty as a punishment imposed and enforced by the State, for a crime or offense against its laws. Accordingly, this definition establishes two factors that are determinative as to what constitutes a penalty. The first factor as to whether a pecuniary damage is a penalty is whether the wrong being addressed is a wrong against the public, as opposed to a wrong against a private citizen. The second factor is whether the pecuniary damages are sought to penalize and serve as a deterrent, as opposed to compensating a victim.

With these factors guiding its analysis, the Court addressed whether the $34.9 million disgorgement judgment against Kokesh was a penalty and subject to 28 U.S.C. § 2462. First, the Court noted that the lower court’s judgment was imposed for violating public laws. Essentially, disgorgement judgments provide a remedy to the United States, not aggrieved individuals. Moreover, after these judgments are paid, the courts have discretion in how these funds are distributed. Second, the Court noted that disgorgement judgments are intended to put others on notice by serving as a deterrent. Accordingly, the Court held that SEC disgorgement damages are a penalty and are subject to 28 U.S.C. § 2462. Thus, SEC disgorgement judgments must comply with the five-year statute of limitations. The $34.9 million disgorgement judgment against Kokesh was reduced to comply with the five-year statute of limitations enumerated in 28 U.S.C. § 2462.

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Sources Cited

Kokesh v. SEC, 580 U. S. ____ (2017).

Trump’s Travel Ban: What comes next?

Written by: Conor Tallet

On January 27, 2017, President Donald J. Trump issued Executive Order No. 13769, commonly known as the “travel ban.” When the Ninth Circuit blocked it, President Trump issued a “revised travel ban”on March 6, 2017 via Executive Order No. 13780. The Department of Justice has appealed the blocking of the orders to the Supreme Court, and the question as to whether or not the Court will act remains.

The revised order reworked provisions of the first travel ban that were at issue in the Ninth Circuit. Specifically, Section 2(c) of the order temporarily suspends new visas for citizens of six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban’s stated purpose was to decrease the risk of terrorist organizations from entering into the United States. Consequently, the order explained that the six listed countries had been “significantly compromised by terrorist organizations, or contain active conflict zones.” While such a purpose may appear clear on its face, a key question in evaluating this ban has been whether it violates the Establishment Clause of the First Amendment of the Constitution.

The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” Essentially, this means that the government cannot establish an official religion of the United States or pass any laws that favor or inhibit a particular religion.

The primary Establishment Clause test utilized by courts today is derived from Lemon v. Kurtzman, and the rest requires that courts analyze a government action’s purpose, effect, and entanglement with religion. If a court finds the government acted with a primary religious purpose, had the effect of advancing or inhibiting religion, or was sufficiently entangled with religion, it will strike the law down as unconstitutional in violation of the Establishment Clause. Under this Lemon test, a challenger needs to show only one of the three prongs to succeed.

Here, six Muslim individuals, and three organizations that represented Muslim clients, asserted that they would be harmed by the implementation of the revised travel ban. In turn, they filed a lawsuit in the United States District Court of Maryland seeking a preliminary injunction. The District Court granted the injunction and determined that the plaintiffs were likely to succeed on the merits of an Establishment Clause claim.

After the ruling was appealed, the Fourth Circuit upheld the Maryland District Court’s decision to block the revised travel ban on May 25, 2017, finding the ban to be in violation of the Establishment Clause. In its analysis, the Fourth Circuit employed the Lemon test and viewed extrinsic evidence on the record from the viewpoint of a reasonable observer to determine that the revised travel ban had a primary religious purpose.

One question that arose revolved around whether or not courts should be permitted to consider extrinsic evidence when assessing the purpose. In the Lemon test analysis, a court determines not only the government’s stated purpose, but also the purpose from a reasonable observer’s standpoint. Thus, in analyzing the purpose from the standpoint of a reasonable observer, it is proper for a court to take extrinsic evidence surrounding the implementation of a government action into account, just as the Fourth Circuit did in this case. However, in an age where society is constantly bombarded with information through countless avenues of communication, it is worth asking how much extrinsic evidence a court should take into consideration when attempting to determine the primary purpose of a governmental action.

In this case, the District Court of Maryland looked to President Trump’s campaign statements, rallies, interviews, and tweets in order to assess the various discussions surrounding the travel ban. More specifically, the court assessed the choice of language such as banning “Muslims” as opposed to banning “terrorists.” Thus, the Fourth Circuit determined that the abundance of extrinsic evidence on the record, “viewed from the standpoint of the reasonable observer, creates a compelling case that [the revised travel ban’s] primary purpose is religious.”

Furthermore, in this case, the Fourth Circuit held that the District Court’s use of such extrinsic evidence, in holding that the order was a violation, was proper to show a primary religious purpose disguised in terms of national security to circumvent Establishment Clause scrutiny. Accordingly, the Fourth Circuit concluded that President Trump’s statements revealed his “desire to exclude Muslims from the United States” in violation of the Establishment Clause.

On June 1, 2017, the Department of Justice filed a petition with the Supreme Court, seeking review of the Fourth Circuit’s decision.

Whether or not the Supreme Court will hear the case remains to be seen. Some experts argue that the court will likely grant certiorari and hear the appeal, saying that “[w]hen a major presidential initiative is ruled unconstitutional by a federal appeals court, a review by the Supreme Court almost always follows.” On the other hand, rulings in the Hawaii District Court, Maryland District Court, Washington District Court, Fourth Circuit, and Ninth Circuit have remained consistent, blocking both the travel ban and the revised travel ban. With consistent interpretation and no circuit splits, some experts argue that there is no reason for the Supreme Court to hear the case. Only time will tell.

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Sources Cited      

Adam Liptak, The Supreme Court’s Options in the Travel Ban Case, NY Times (Jun. 2, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 2273306 (4th Cir. 2017).

Ryan Lovelace, Will the Supreme Court Take up Trump’s Travel Ban?, Washington Examiner (Jun. 3, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. 2017).

Mississippi Man First to be Prosecuted and Sentenced Under Federal Hate-Crime Statute

Written by: Brianne Szopinski

On Monday, May 15, 2017, Joshua Vallum became the first individual to be prosecuted and sentenced for a federal hate crime after the murder of his ex-girlfriend, Mercedes Williamson. Vallum pled guilty to Williamson’s murder on December 21, 2015. In his plea, he stated that, despite earlier statements to the police indicating his unawareness of Williamson’s gender identity, he ultimately killed Williamson because she identified as transgender.

Typically, prosecutions for hate crimes are handled by individual states, as opposed to the federal government. However, the state of Mississippi, where the crime took place, does not have a statute protecting individuals from hate crimes based on their gender identity. Therefore, the government brought federal charges against Vallum under a federal hate crime statute: the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009. Section (a)(2) of the statute criminalizes behavior in which an individual commits or attempts to commit violent acts against another when motivated by certain characteristics of the victim (i.e., actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability). Because Congress passed section (a)(2) of the Act under its Commerce Clause power, the government must establish that the alleged hate crime occurred in or affected interstate or foreign commerce.

Here, the government alleged that Vallum murdered Williamson based on her actual or perceived gender identity. Although previously in a relationship, Vallum and Williamson broke up in 2014. Prosecutors in the case alleged that Vallum knew that Williamson identified as a transgender female during the course of their relationship. On May 28, 2015, Vallum allegedly murdered Williamson after his friend discovered that Williamson identified as transgender. The government alleged that Vallum persuaded Williamson to enter his car at her home in Alabama, drove her to Mississippi, assaulted, and ultimately stabbed her. Prosecutors believe that, despite already knowing Williamson’s gender identity, Vallum murdered Williamson due to fear of retribution from other members of his gang, the Almighty Latin Kings and Queens Nation. Vallum allegedly believed that his own life was in danger because other gang members knew about his sexual relationship with a transgender individual.

Vallum was sentenced to 49 years in prison and a $20,000 fine in the Southern District of Mississippi. The charges against Vallum and the sentence imposed drew mixed reactions from various civil rights groups across the country. Some groups approved of the government’s commitment to protect individuals against discrimination based on gender identity. Others acknowledged the problems associated with enhanced-sentencing statutes, stating that these laws do not protect against or prevent hate crimes, as they only punish perpetrators after the crimes are committed. Nevertheless, as hate crimes continue to be committed across the country, it is likely that this will not be the last invocation of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.

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Sources Cited

Emanuella Grinberg, Transgender Hate Crime Guilty Plea in Federal Court is a First, CNN (Dec. 23, 2016, 6:24 AM), http://www.cnn.com/2016/12/22/politics/mississippi-transgender-hate-crime/index.html.

Ralph Ellis, Emanuella Grinberg, & Janet DiGiacomo, Mississippi Man Sentenced for Hate Crime Killing of Transgender Woman, CNN (May 16, 2017, 6:39 AM), http://www.cnn.com/2017/05/15/us/transgender-hate-crime-murder-sentence-mississippi/.

Anti-Defamation League, Hate Crime Laws – The ADL Approach 4 (2012), https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/Hate-Crimes-Law-The-ADL-Approach.pdf.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, U.S. Dep’t of Just., https://www.justice.gov/crt/matthew-shepard-and-james-byrd-jr-hate-crimes-prevention-act-2009-0 (last updated Aug. 6, 2015).

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249 (2012).

Autumn Callan, Mississippi Man Sentenced in First US Transgender Hate Crime Conviction, Jurist (May 16, 2017, 3:38 PM), http://www.jurist.org/paperchase/2017/05/mississipi-man-sentenced-in-first-us-transgender-hate-crime-conviction.php.

United States Supreme Court Reverses and Remands Case of Alleged Racial Bias

–by Taylor J. Hoy

Citation: Pena Rodriguez v. Colorado, 580 U.S. ____ (2017); Pena-Rodriguez v. People, 350 P.3d 287 (Colo. 2015).

Abstract: Pena-Rodriguez examines Colorado’s interpretation of Colorado Rule of Evidence (“CRE”) 606(b) as it applies to affidavits that claim jurors made racially biased statements during deliberations.

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During trial, the jury found petitioner, Miguel Angel Pena-Rodriguez guilty on one count of sexual contact without consent and two counts of harassment. Two weeks following the conviction, two jurors informed petitioner’s counsel that “some of the other jurors expressed a bias towards [Petitioner] and the alibi witness because they were Hispanic.” In a motion for a new trial, Petitioner submitted affidavits from two jurors, M.M. and L.T., alleging that juror H.C. made several racially biased statements during deliberations. Ultimately, the trial court denied petitioner’s motion based on the contention that CRE 606(b) barred further inquiry into juror members’ bias during deliberations.

After receiving affirmation from both the Colorado State Court of Appeals and the Supreme Court of Colorado, the Supreme Court of the United States granted a petition for writ of certiorari in the matter.

In its decision on March 6, 2017, the Court focused on whether CRE 606(b) may bar evidence of racial bias to prove a violation of the Sixth Amendment right to an impartial jury. The majority held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” The no-impeachment rule assures “jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.” The Court said that trial courts must find a “showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Furthermore, to succeed, statements must show that the “racial animus was a significant motivating factor in the juror’s vote to convict.” Here, the statements made by juror H.C. were “egregious and unmistakable in their reliance on racial bias.”

Justice Kennedy, writing on behalf of the majority, focused the opinion on the importance of the jury as the central foundation of our justice system and democracy and the right to a fair and impartial jury. In ordering the decision, he highlighted the importance of confronting egregious cases, amplifying the need to make strides to overcome race-based discrimination as a nation and mature as a legal system, and understanding and implementing lessons of history.

Justice Thomas and Justice Alito wrote separate dissents. Justice Thomas dissented because the Court’s decision is incompatible with the text of the Amendment and the decision to curtail or abandon the no-impeachment rule should be left to the political process. Justice Alito’s dissent, also signed by Chief Justice Roberts and Justice Thomas, argued that the Court’s decision is well-intentioned, but feared that it would be difficult to limit the Court’s ruling. “Although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

U.S. Supreme Court Limits Police Officer Liability

–by Kim Newton

Sources: White v. Pauly, 137 S. Ct. 548 (2017); U.S. Const. amend. IV

Abstract: On January 9, 2017 the Supreme Court unanimously held that an officer’s failure to shout a warning before firing a gunshot in an ongoing confrontation does not constitute a violation of the Fourth Amendment right to be free from the excessive use of force.

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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”

–U.S. Const. Amend. IV

Facts and Procedural History

On a rainy evening near Santa Fe, New Mexico, two women observed a reckless, swerving vehicle driven by Daniel Pauly and called 911. Officers Truesdale and Mariscal responded to the incident first and determined there was insufficient probable cause to arrest Daniel, who had already left the scene. Therefore, the two officers proceeded to the address registered to the license plate, belonging to Daniel and Samuel Pauly. They hoped to “(1) get his [Daniel’s] side of the story, (2) make sure nothing else happened, and (3) find out if he was intoxicated.”

When police arrived, they saw people moving inside the house and found Daniel Pauly’s matching truck parked outside. The brothers heard the officers outside and yelled, “Who are you?” and “What do you want?” The officers responded, “Hey, (expletive), we got you surrounded. Come out or we’re coming in,” followed by “open the door, State Police, open the door.” The Pauly brothers claimed the police never identified themselves and the brothers armed themselves with a handgun and a shotgun.

During the verbal confrontation, Officer White arrived at the scene. He began walking toward the front door when he heard one brother yell, “we have guns.” Officer White then drew his gun and took cover behind a stone wall nearby. Shortly after, Samuel opened the front window and pointed his gun in Officer White’s direction. After Officer Mariscal missed a shot, Officer White shot and killed Samuel.

Samuel Pauly’s estate and the surviving Daniel Pauly sued the officers, arguing the fatal shot violated the Fourth Amendment right to be free from excessive use of force. The officers argued they were entitled to qualified immunity because a reasonable person would have known there was no constitutional violation.

The District Court denied the officers’ motion for summary judgment, and the U.S. Court of Appeals for the Tenth Circuit affirmed, reasoning that reasonable officers should have known that their conduct would cause the Pauly brothers to defend their home in a manner that could result in the use of deadly force. Furthermore, Officer White arrived to the scene later and only heard “we have guns.” Therefore, the court reasoned that the fatal shot was unreasonable because any reasonable officer would have known a warning was required.

Supreme Court Decision

The Supreme Court vacated the judgment and remanded for further proceedings, holding

“[f]or purposes of qualified immunity, clearly established law should not be defined at a high level of generality. As explained decades ago, the clearly established law must be particularized to the facts of the case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”

The Court reasoned that an officer who arrives late to an ongoing police action could reasonably assume that the proper procedures, such as officer identifications and warnings, had already been followed. For Officer White, the Fourth Amendment did not require him to second-guess the earlier steps of his colleagues. Therefore, there was no violation.

Justice Ginsburg’s Concurrence

Justice Ginsburg wrote a separate concurrence to highlight remaining questions of fact. Namely, whether Officers Truesdale and Mariscal “adequately identified themselves” as police officers; when Officer White arrived at the scene; what he may have witnessed; and whether he had adequate time to identify himself and order Samuel Pauly to drop his weapon before the fatal shot. She cautioned that a different outcome might be required based on evidence suggesting that Officer White was on the scene during the first threats to invade the home.

New York Court of Appeals Holds That Skin Color Is a Cognizable Class Under Batson Analysis

–by Robert Carpenter

Citation: People v. Bridgeforth, 2016 N.Y. Lexis 3859 (Dec. 22, 2016) (internal citations omitted).

Abstract: In a matter of first impression, the New York Court of Appeals held that skin color was a cognizable class for Batson based challenges to peremptory strikes.

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On December 22, 2016, the New York Court of Appeals held that a trial court had committed reversible error by not seating a juror. In so doing, the Court established skin color as a classification upon which a challenge to peremptory strikes could be successfully based.

The defendant in the case was charged with multiple counts of robbery. During voir dire, the prosecutor used peremptory challenges to exclude multiple potential jurors. Defense counsel alleged that the prosecutor lacked valid reasons for the strikes, other than the fact that all those excluded were “dark-skinned women.” The record indicates that the excluded group included African-American women, Guyanese women, and “a dark complexioned Indian-American woman.” The prosecutor immediately supplied reasons for the challenges for all those excluded except for the Indian-American woman. Even with no reason for the challenge, the Indian-American woman was not seated as a juror.

The Court began by reviewing how New York analyzes challenges to peremptory strikes. The Court noted that New York has adopted the framework used by the Supreme Court case Batson v. Kentucky, 476 U.S. 79 (1986). The Batson framework requires the movant to establish a prima facie case of peremptory strikes being used to discriminate. After that the non-moving party must put forth a non-discriminatory reason for the strike. Finally, the Court decides whether the stated reason was legitimate or a pretext for discrimination.

The Court then considered whether skin color implicated equal protection concerns. For guidance, the Court looked to the New York Constitution’s equal protection clause, which prevents discrimination against “race, color, creed or religion.” The Court concluded that the distinction between “race” and “color” meant that the two concepts were unique. The Court also cited several academic articles that had found the existence of “colorism.” With all of these factors in mind, the Court found that Batson should be extended to include challenges based on skin color.

After finding skin color to be a cognizable classification for Batson, the Court noted that this decision did not conflict with past decisions that found Batson challenges could not be based on the exclusion of minorities. The Court stated that skin color required only a narrow showing while minority status could include a varied group of people.

In applying the new Batson classification to the case, the Court first held that the trial court did not reach an ultimate conclusion on the prima facie case of discrimination necessary under Batson analysis. This meant that the issue was not moot and reviewable on appeal. The Court then concluded that the defendant had successfully established a prima facie case of discrimination based on skin color.

The Court then considered whether the prosecutor had put forth a non-discriminatory reason for the strike. The Court cited several cases showing that failing to recall a non-discriminatory reason is insufficient under the second stage of Batson analysis. After finding that the defendant had succeeded in establishing a prima facie case of discrimination and that the prosecutor had failed to put forth a non-discriminatory reason, the Court held that the trial court committed reversible error by not seating the juror.

One Judge concurred that the trial court committed reversible error by not seating the juror but believed the court erred in establishing a new Batson classification.

The concurring judge argued that the majority had misapplied New York mootness doctrine. Where the majority concluded that the issue of Batson analysis was not moot because the trial judge never made a final ruling on the classification, the concurring judge disagreed. The judge noted that the prosecutor articulated non-discriminatory reasons for four of the five excluded persons before the trial judge made a ruling on the prima facie case of discrimination. The judge concluded that the immediate response by the prosecutor mooted the issue. The judge would have held that it was error to exclude the one juror for which no reason was articulated but would not have addressed the Batson argument.

The concurring judge also criticized the majority’s conclusion that the judge did not make an ultimate decision. The judge argued that by not seating the juror, the judge made an ultimate decision even if it was not stated on the record.

California Egg Production Laws Survive Lawsuit

–by Caitlin Lomazzo

Citations: Mo. ex rel. Koster v. Harris, 2016 U.S. App. LEXIS 20613 (2016); Mo. v. Harris, 2014 U.S. Dist. LEXIS 89716 (2014); Cal Health & Saf Code § 25990; 3 CCR 1350 § 1350(a–d).

Abstract: On October 19, 2016, the Ninth Circuit Court of Appeals reviewed a lower court’s dismissal of a suit brought by five states and the Governor of Iowa. The suit alleged injuries caused by California state laws and regulations that governed egg production. The court affirmed that the states did not have parens patriae standing, but it remanded the case for dismissal without prejudice.

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In 2014, five states (Missouri, Nebraska, Oklahoma, Alabama, Kentucky) and the Governor of Iowa, Terry Branstad, filed a complaint in the Eastern District of Northern California. The Plaintiffs asked the court to overturn California laws and regulations related to egg production, namely California’s Assembly Bill 1437 (“AB1437”) and California Code § 1350(d)(1). AB1437 provided that “a shelled egg shall not be sold or contracted for sale for human consumption in California” if the egg seller “knows or should have known that the egg is a product of an egg-laying hen that was confined on a farm or place” out of compliance with Proposition 2, a voter initiative that says a farmed animal must not live in conditions that prohibit “[l]ying down, standing up, and fully extending his or her limbs; and [t]urning around freely” for at least the majority of the day. The second item, a set of food safety regulations by the California Department of Food and Agriculture, included minimum cage size requirements.

The Plaintiffs argued the court should strike down the laws, known collectively as the “Shell Egg Laws,” based on their violation of the Commerce Clause or preemption by a federal statute. They also asked the court to bar the state’s enforcement of the laws. The district court determined the Plaintiffs lacked parens patriae standing to sue and dismissed the case with prejudice. It also denied leave to amend the complaint. The Plaintiffs appealed the decision.

The Ninth Circuit reviewed the Plaintiffs’ standing arguments on appeal. A plaintiff state that seeks to establish parens patriae standing must fulfill certain requirements in addition to the Article III standing requirements. It must demonstrate it has “an interest apart from the interests of particular private parties” that will impact “a sufficiently substantial segment” of the state’s population. The interest must also constitute a “quasi-sovereign interest.”

In its decision, the Ninth Circuit did not reach the second question of whether the states had quasi-sovereign interests because it determined that the Plaintiffs had failed to prove they had separate interests that would impact “a sufficiently substantial segment” of their respective populations. The court determined that harms to egg farmers alone would not support parens patriae standing and emphasized that egg farmers could obtain complete relief without state intervention if they filed their own suits. It also noted that price changes that might impact consumers could not constitute a harm to justify standing. Lastly, it determined that the Shell Egg Laws would not single out eggs based on their states of origin and thereby disadvantage certain states’ economies. Because the states could not prove discrimination, they could not establish parens patriae standing on that basis.

In addition to upholding the decision to dismiss the case, the Ninth Circuit also upheld the lower court’s decision to deny the Plaintiffs leave to amend their complaint. The states could not add descriptions of recent occurrences to the complaint they filed years ago and thereby establish parens patriae standing. Moreover, the states sought to modify the complaint to include price changes that would impact consumers of eggs or egg-containing products who did not purchase items directly from egg farmers. The court determined that price changes, which had, if anything, a tenuous relationship to the Shell Egg Laws, could not establish standing. Because the amendments would not save the complaint for lack of parens patriae standing, the Ninth Circuit affirmed the lower court’s denial of leave to amend.

The Plaintiffs had not described injuries that would establish parens patriae standing, but the Ninth Circuit determined that the Plaintiffs could theoretically establish standing if they demonstrated other, actual injuries that occurred after California implemented the laws and regulations in 2015. Therefore the Ninth Circuit remanded the case with instructions to dismiss without prejudice.

Fourth Amendment Further Whittled Away by Utah v. Strieff

–by Jordan Charnetsky

Source: Utah v. Strieff, 136 S. Ct. 2056 (2016); Brown v. Illinois, 422 U.S. 590 (1975).

Abstract: On June 20, 2016, the United States Supreme Court ruled that evidence obtained after an unlawful stop was admissible where, even though there was a short temporal proximity between the unlawful stop and the discovery of the evidence, the presence of an outstanding arrest warrant for the respondent and lack of flagrant police misconduct favored admission of the evidence.

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Facts

Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The amount of people Officer Fackrell observed making brief visits to the residence made him suspicious of possible drug dealing activity. Officer Fackrell observed respondent Edward Strieff leave the residence and proceeded to detain and question Strieff. Officer Fackrell was then informed by a police dispatcher that Strieff had an outstanding arrest warrant. Officer Fackrell proceeded to arrest Strieff, searched him, and found drug paraphernalia and methamphetamine on his person. At trial, Strieff moved to suppress the evidence, arguing that it was obtained through an unlawful search and seizure.

Procedural History

The trial court ruled that the methamphetamine and drug paraphernalia obtained during the lawful search of Strieff incident to arrest justified the admission of that evidence for trial, even though Detective Fackrell did not have enough evidence to conduct an investigatory stop. The Utah Court of Appeals affirmed.

The Utah Supreme Court subsequently reversed and held that the evidence should have been suppressed because the warrant that was the basis for the arrest was discovered during an unlawful investigatory stop. The Utah Supreme Court further reasoned that only a voluntary act of a defendant’s free will would sufficiently break the connection between the illegal search and the discovery of the evidence.

Issue

Whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed when the warrant was discovered during an unlawful investigatory stop.

Discussion

The Supreme Court reversed and held that the evidence Officer Fackrell seized incident to Strieff’s arrest was admissible based on the application of the attenuation factors from Brown v. Illinois.

The Supreme Court has at times required courts to exclude evidence obtained by unconstitutional police conduct to enforce the Fourth Amendment’s prohibition against unreasonable searches and seizures. The exclusionary rule does not apply when the costs of the exclusion outweigh its deterrent benefits, even when there is a Fourth Amendment violation.

The Court has previously recognized three exceptions to the exclusionary rule, the third of which, the attenuation doctrine, is at issue here. Under the attenuation doctrine, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.

The Court first addressed a threshold question of whether the attenuation doctrine applies in situations not involving an independent act of a defendant’s free will. The Court said that since the doctrine evaluates a causal link between the government’s unlawful act and the discovery of evidence, these situations often have nothing to do with a defendant’s action. The attenuation doctrine therefore also applies in situations when there is no independent act of a defendant’s free will.

Next, the Court had to determine whether the discovery of a valid arrest warrant was a sufficient intervening circumstance to break the causal chain between the unlawful stop and the discovery of the drug-related evidence. The Court applied the three-factor test articulated in Brown v. Illinois, which examines: (1) the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how close in time they occurred; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

The first factor here favors suppression of the evidence, as the Court has not deemed this factor to favor attenuation unless substantial time passes between an unlawful act and when the evidence was obtained. Officer Fackrell discovered the evidence mere minutes after an illegal stop, therefore this factor favors suppression of the drug evidence.

The second factor here strongly favors admission of the evidence. The Court reasoned that because the warrant was valid, it predated Officer Fackrell’s investigation, and was entirely unconnected to the stop. Officer Fackrell’s arrest of Strieff was purely a ministerial act that was compelled by the pre-existing warrant. After the discovery of Strieff’s warrant, Officer Fackrell was authorized to arrest Strieff and thus the search incident to the arrest was lawful. The discovery of the warrant was a valid intervening circumstance between the unlawful stop and the then lawful arrest and search.

The third factor also strongly favored admission of the evidence. The purpose of the exclusionary rule is to deter police misconduct and the third factor reflects that purpose by favoring exclusion only when the police misconduct is purposeful or flagrant. The Court determined that Officer Fackrell’s actions were at most negligent. He made two mistakes. First, he failed to observe when Strieff entered the residence. This would have allowed Officer Fackrell to determine whether Strieff was a short-term visitor. Second, since Officer Fackrell did not know whether Strieff was a short-term visitor, Officer Fackrell should have asked, rather than demanded, to speak with Strieff. The Court determined that while Officer Fackrell’s decision to make the stop was misled, his conduct thereafter was lawful and did not rise to the level of purposeful or flagrant misconduct.

The Court held that the drug evidence Strieff possessed was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. The Court reasoned that the proximity of the illegal stop to the discovery of the evidence was outweighed by the intervening circumstance of the outstanding arrest warrant, and by the lack of evidence that Officer Fackrell’s illegal stop was purposeful or flagrant misconduct.