|
the obvious thing to do would seem to be to limit qualified immunity to situations where the state has waived sovereign immunity. if cops don't want to be personally liable, then they can pressure their state to assume the risk. but between an innocent victim, the cops, and the state, the innocent victim is clearly the party that should least bear the cost of the illegal action regardless of what your view is on when the state vs. the police should be liable
|
#
?
Apr 16, 2018 15:36
|
|
|
|
| # ? Jun 7, 2024 06:39 |
|
|
twodot posted:Yeah, if you presuppose that when the state offers to take on liability for their employees it turns out they are actually lying about offering to take on liability, I agree things become difficult. The point is there is no law of physics that requires the state to lie about making an offer to take on liability, they have the option of making a good faith offer to take on liability and then following through on that offer. Yeah, because there's absolutely no way a state would offer something as an employee perk in order to save money in the short-term and then try to wriggle out of it later when it starts actually costing them money. That's something that never, ever happens.
|
|
#
?
Apr 16, 2018 15:51
|
|
|
Main Paineframe posted:Yeah, because there's absolutely no way a state would offer something as an employee perk in order to save money in the short-term and then try to wriggle out of it later when it starts actually costing them money. That's something that never, ever happens. the state would need to pass a law formally rescinding their waiver of sovereign immunity, the state's lawyers wouldn't be able to just yell PSYCH and unfurl a banner saying "we're immune, go gently caress yourselves"
|
|
#
?
Apr 16, 2018 15:59
|
|
|
evilweasel posted:the state would need to pass a law formally rescinding their waiver of sovereign immunity, the state's lawyers wouldn't be able to just yell PSYCH and unfurl a banner saying "we're immune, go gently caress yourselves" The state legislature will do the unfurling after tacking it onto a bill renaming a DMV or something.
|
|
#
?
Apr 16, 2018 16:00
|
|
|
Kalman posted:And if the state does take over defense, and the employee doesn't self-defend, you wind up with a situation where the employer, if there's any way to push liability to the employee, will do so (rather than pay out from their own pockets). And don't pretend that they wouldn't be able to do this because they'd want to hire employees - private employers already do this and hey, turns out that employees don't have all that much power. Okay but then the objection that the state will never be able to hire firefighters goes away, so it's fine. Like you can't assert on the one hand that no one will ever become a firefighter if QI went away because they can get hosed over, but also assert that the state will have no trouble hiring people and loving them over in that exact same way with fake indemnity insurance because employers have just that much power. VitalSigns fucked around with this message at 16:19 on Apr 16, 2018 |
|
#
?
Apr 16, 2018 16:13
|
|
|
Main Paineframe posted:Yeah, because there's absolutely no way a state would offer something as an employee perk in order to save money in the short-term and then try to wriggle out of it later when it starts actually costing them money. That's something that never, ever happens.
|
|
#
?
Apr 16, 2018 19:45
|
|
|
evilweasel posted:the state would need to pass a law formally rescinding their waiver of sovereign immunity, the state's lawyers wouldn't be able to just yell PSYCH and unfurl a banner saying "we're immune, go gently caress yourselves" I mean that's presupposing that sovereign immunity is derogable to begin with, something which I'm pretty sure isn't settled law by any means. Though honestly, SI is a prefoundation to the basic building blocks of society to the point where I'm not even sure what the world would even look like in a hypothetical world without sovereign immunity. One where laws don't hold much sway, I would imagine.
|
|
#
?
Apr 16, 2018 22:10
|
|
Cat Army 
|
The Iron Rose posted:I mean that's presupposing that sovereign immunity is derogable to begin with, something which I'm pretty sure isn't settled law by any means. sovereign immunity is absolutely waivable, basically every state has waived it by law to some degree as has the united states. a lack of sovereign immunity would just mean that the state can be sued for torts its agents commit just like anyone else.
|
|
#
?
Apr 16, 2018 22:28
|
|
|
evilweasel posted:sovereign immunity is absolutely waivable, basically every state has waived it by law to some degree as has the united states. a lack of sovereign immunity would just mean that the state can be sued for torts its agents commit just like anyone else. My apologies, I'm coming at this more from an international law/IHL perspective - but in every case where a nation-state has waived its immunity, it still retains the right to exercise that immunity because states are only bound by international law to the degree that they consent to be bound to international law. That continued consent is the key factor here, because besides optics, I'm not seeing why the state of Mississippi can't, 20 years into this program, rescind its immunity waiver whether its written into law or not? Obviously this changes due to the fact that the state of Mississippi is not a nation-state, and there is a government to enforce the law which is most certainly not true in international law, but from a fundamental rights of the state perspective I'm not sure what's changed here on a functional level.
|
|
#
?
Apr 16, 2018 22:34
|
|
|
The Iron Rose posted:My apologies, I'm coming at this more from an international law/IHL perspective - but in every case where a nation-state has waived its immunity, it still retains the right to exercise that immunity because states are only bound by international law to the degree that they consent to be bound to international law. That continued consent is the key factor here, because besides optics, I'm not seeing why the state of Mississippi can't, 20 years into this program, rescind its immunity waiver whether its written into law or not? International law is nonsense, don't assume it has any relevance to real law. If a state has waived immunity, it can't rescind that waiver retroactively. It could rescind prospectively, but it's like waiving your Miranda rights—you can't go back after the fact and say "actually I didn't mean it."
|
|
#
?
Apr 16, 2018 22:36
|
|
|
There's nothing preventing a state from adopting its own version of the FTCA. I'm pretty sure some have, but I'm too lazy to try to find them.
|
|
#
?
Apr 17, 2018 04:40
|
|
|
KernelSlanders posted:There's nothing preventing a state from adopting its own version of the FTCA. I'm pretty sure some have, but I'm too lazy to try to find them. I believe every state allows suits against it under certain conditions phrased in an [Initial]TCA, yes. Conditions and limits vary wildly (including straight damage caps).
|
|
#
?
Apr 17, 2018 04:47
|
|
|
The Trump news today is gonna be goooooooood https://mobile.twitter.com/businessinsider/status/986254212060282880 https://mobile.twitter.com/jimsciutto/status/986252077109309442 The case is Sessions v. Dimaya. Kagan wrote the opinion with the other three liberal justices signing on to it, while Gorsuch concurred.
|
|
#
?
Apr 17, 2018 15:59
|
|
|
Main Paineframe posted:The Trump news today is gonna be goooooooood Gorsuch: The Secret Liberal would be a hilarious outcome
|
|
#
?
Apr 17, 2018 16:10
|
|
|
axeil posted:Gorsuch: The Secret Liberal would be a hilarious outcome A true conundrum; the fifth vote I'd like to have, wrapped up in an opinion that I'd rather do anything than read.
|
|
#
?
Apr 17, 2018 16:21
|
|
|
Main Paineframe posted:The Trump news today is gonna be goooooooood Are we absolutely sure that's what he was saying in his opinion though?
|
|
#
?
Apr 17, 2018 16:23
|
|
|
 Opinions! SESSIONS, ATTORNEY GENERAL v. DIMAYA Brief Background: [Under immigration law, any alien convicted of an "aggravated felony" is virtually certain to be deported. The definition of aggravated felony includes a "crime of violence", which is itself defined to include, as a catchall, "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The question is if that catchall "residual" clause is unconstitutionally vague.] Holding: Three Terms ago, in Johnson v. United States, this Court held that part of a federal law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does. The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. Such an alien is also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. Accordingly, removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here. The INA defines “aggravated felony” by listing numerous offenses and types of offenses, often with crossreferences to federal criminal statutes. According to one item on that long list, an aggravated felony includes “a crime of violence (as defined in section 16 of title 18 . . . ) for which the term of imprisonment [is] at least one year.” The specified statute, 18 U. S. C. §16, provides the federal criminal code’s definition of “crime of violence.” Its two parts, often known as the elements clause and the residual clause, cover: “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or “(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Section 16(b), the residual clause, is the part of the statute at issue in this case. To decide whether a person’s conviction “falls within the ambit” of that clause, courts use a distinctive form of what we have called the categorical approach. The question, we have explained, is not whether “the particular facts” underlying a conviction posed the substantial risk that §16(b) demands. Neither is the question whether the statutory elements of a crime require (or entail) the creation of such a risk in each case that the crime covers. The §16(b) inquiry instead turns on the “nature of the offense” generally speaking. More precisely, §16(b) requires a court to ask whether “the ordinary case” of an offense poses the requisite risk. ... Twice, Dimaya was convicted of first-degree burglary under California law. Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under §16(b). “By its nature,” the Board reasoned, the offense “carries a substantial risk of the use of force.” Dimaya sought review in the Court of Appeals for the Ninth Circuit. While his appeal was pending, this Court held unconstitutional part of the definition of “violent felony” in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e) [in a case named Johnson]...Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague, and accordingly ruled in Dimaya’s favor. Two other Circuits reached the same conclusion, but a third distinguished ACCA’s residual clause from §16’s. We granted certiorari to resolve the conflict. ... [W]e long ago held that the most exacting vagueness standard should apply in removal cases...To salvage §16’s residual clause, even for use in immigration hearings, the Government must instead persuade us that it is materially clearer than its now-invalidated ACCA counterpart [under the void-for-vagueness standard applicable to criminal laws]. ... Johnson effectively resolved the case now before us. For §16’s residual clause has the same two features as ACCA’s, combined in the same constitutionally problematic way. ... “In the first place,” Johnson explained, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a hypothesis about the crime’s “ordinary case.” ... Compounding that first uncertainty, Johnson continued, was a second: ACCA’s residual clause left unclear what threshold level of risk made any given crime a “violent felony.” ... As the Court again put the point, in the punch line of its decision: “By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause” violates the guarantee of due process. ... Section 16’s residual clause violates that promise in just the same way. To begin where Johnson did, §16(b) also calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk. The Government explicitly acknowledges that point here...Nothing in §16(b) helps courts to perform that task, just as nothing in ACCA did. ... And §16(b) also possesses the second fatal feature of ACCA’s residual clause: uncertainty about the level of risk that makes a crime “violent.” In ACCA, that threshold was “serious potential risk”; in §16(b), it is “substantial risk.” See supra, at 2, 4. But the Government does not argue that the latter formulation is any more determinate than the former, and for good reason. ... Johnson tells us how to resolve this case...We accordingly affirm the judgment of the Court of Appeals. Lineup: Kagan, joined by (1) Ginsburg, Breyer, Sotomayor and Gorsuch as to Parts I (factual and legal background), III (application of Johnson), IV-B (response to Roberts' dissent), and V (conclusion) and (2) Ginsburg, Breyer, and Sotomayor as to Parts II (history of why the criminal standard for vagueness is used in deportation cases) and IV-A (response to Thomas' dissent) (note: those last two parts do not have either a majority or a plurality). Concurrence by Gorsuch. Dissent by Roberts, joined by Kennedy, Thomas, and Alito. Dissent by Thomas, joined by Kennedy and Alito as to Parts I-C-2 (void for vagueness must be challenged as applied to the challenger and it is not vague for residential burglary), II-A-1 (the categorical approach to looking at a statute should be abandoned to save the constitutionality of the aggravated felony deportation law), and II-B (we should abandon the categorical approach anyway). Notes From Other Opinions: Gorsuch: Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up. The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more. ... [F]irst in Johnson and now again today JUSTICE THOMAS has questioned whether our vagueness doctrine can fairly claim roots in the Constitution as originally understood. See, e.g., post, at 2–6 (dissenting opinion); Johnson, supra, at ___–___ (opinion concurring in judgment) (slip op., at 6–18). For its part, the Court has yet to offer a reply. I believe our colleague’s challenge is a serious and thoughtful one that merits careful attention. At day’s end, though, it is a challenge to which I find myself unable to subscribe. Respectfully, I am persuaded instead that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution. ... With the fair notice standard now in hand, all that remains is to ask how it applies to the case before us. And here at least the answer comes readily for me: to the extent it requires an “ordinary case” analysis, the portion of the Immigration and Nationality Act before us fails the fair notice test for the reasons Justice Scalia identified in Johnson and the Court recounts today. ... Any lingering doubt is resolved for me by taking account of just some of the questions judges trying to apply the statute using an ordinary case analysis would have to confront. Does a conviction for witness tampering ordinarily involve a threat to the kneecaps or just the promise of a bribe? Does a conviction for kidnapping ordinarily involve throwing someone into a car trunk or a noncustodial parent picking up a child from daycare? These questions do not suggest obvious answers. Roberts: [T]he Court too readily dismisses the significant textual distinctions between §16(b) and the ACCA residual clause. See also ante, at 2 (opinion of GORSUCH, J.). Those differences undermine the conclusion that §16(b) shares each of the “dual flaws” of that clause. ... There are three material differences between §16(b) and the ACCA residual clause in this respect. First, the ACCA clause directed the reader to consider whether the offender’s conduct presented a “potential risk” of injury. Forced to give meaning to that befuddling choice of phrase—which layered one indeterminate term on top of another—we understood the word “potential” to signify that “Congress intended to encompass possibilities even more contingent or remote than “a simple ‘risk.’” As we explained in Johnson, that made for a “speculative” inquiry “detached from statutory elements.”...Section 16(b), on the other hand, asks about “risk” alone, a familiar concept of everyday life. It therefore calls for a commonsense inquiry that does not compel a court to venture beyond the offense elements to consider contingent and remote possibilities. ... Second, §16(b) focuses exclusively on the risk that the offender will “use[ ]” “physical force” “against” another person or another person’s property. Thus, unlike the ACCA residual clause, “§16(b) plainly does not encompass all offenses which create a ‘substantial risk’ that injury will result from a person’s conduct.” ... Third, §16(b) has a temporal limit that the ACCA residual clause lacked: The “substantial risk” of force must arise “in the course of committing the offense.” Properly interpreted, this means the statute requires a substantial risk that the perpetrator will use force while carrying out the crime. ... The more constrained inquiry required under §16(b)—which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender “grave uncertainty about how to estimate the risk posed by a crime.” And the provision’s use of a commonplace substantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.” That should be enough to reject Dimaya’s facial vagueness challenge. Thomas: I continue to harbor doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause—and those doubts are only amplified in the removal context. I am also skeptical that the vagueness doctrine can be justified as a way to prevent delegations of core legislative power in this context. But I need not resolve these questions because, if the vagueness doctrine has any basis in the Due Process Clause, it must be limited to cases in which the statute is unconstitutionally vague as applied to the person challenging it. ... Even under Murray’s Lessee, the vagueness doctrine is legitimate only if it is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.” That proposition is dubious. Until the end of the 19th century, “there is little indication that anyone . . . believed that courts had the power under the Due Process Claus[e] to nullify statutes on [vagueness] ground[s].” ... Even assuming the Due Process Clause prohibits vague laws, this prohibition might not apply to laws governing the removal of aliens...in this country, the notion that the Due Process Clause governed the removal of aliens was not announced until the 20th century. ... Instead of a longstanding procedure under Murray’s Lessee, perhaps the vagueness doctrine is really a way to enforce the separation of powers—specifically, the doctrine of nondelegation....I agree that the Constitution prohibits Congress from delegating core legislative power to another branch. But Congress does not “delegate” when it merely authorizes the Executive Branch to exercise a power that it already has. And there is some foundingera evidence that “the executive Power,” Art. II, §1, includes the power to deport aliens. ... If the vagueness doctrine has any basis in the original meaning of the Due Process Clause, it must be limited to case-by-case challenges to particular applications of a statute. That is what early American courts did when they applied the rule of lenity. And that is how early American courts addressed constitutional challenges to statutes more generally. ..This Court’s precedents likewise recognize that, outside the First Amendment context, a challenger must prove that the statute is vague as applied to him....In my view, §16(b) is not vague as applied to respondent. When respondent committed his burglaries in 2007 and 2009, he was “sufficiently forewarned . . . that the statutory consequence . . . is deportation.” ... Even taking the vagueness doctrine and Johnson at face value, I disagree with the Court’s decision to invalidate §16(b). The sole reason that the Court deems §16(b) unconstitutionally vague is because it reads the statute as incorporating the categorical approach—specifically, the “ordinary case” approach from ACCA’s residual clause. Although the Court mentions “[t]wo features” of §16(b) that make it vague—the ordinary-case approach and an imprecise risk standard—the Court admits that the second feature is problematic only in combination with the first. Ante, at 8. Without the ordinary-case approach, the Court “do[es] not doubt” the constitutionality of §16(b). But if the categorical approach renders §16(b) unconstitutionally vague, then constitutional avoidance requires us to make a reasonable effort to avoid that interpretation. And a reasonable alternative interpretation is available: Instead of asking whether the ordinary case of an alien’s offense presents a substantial risk of physical force, courts should ask whether the alien’s actual underlying conduct presents a substantial risk of physical force. ... In other words, §16(b) must require immigration judges to look beyond the elements of an offense to determine whether it involves a substantial risk of physical force. But if the elements are insufficient, where else should immigration judges look to determine the riskiness of an offense? Two options are possible, only one of which is workable. The first option is to consult the underlying facts of the alien’s crime and then assess its riskiness. This approach would provide a definitive answer in every case. And courts are already familiar with this kind of inquiry. ... The second option is to imagine the “ordinary case” of the alien’s crime and then assess the riskiness of that hypothetical offense. But the phrase “ordinary case” does not appear in the statute. And imagining the ordinary case, the Court reminds us, is “hopeless[ly] indetermina[te],” “wholly ‘speculative,’” and mere “guesswork.” Because courts disfavor interpretations that make a statute impossible to apply, see A. Scalia & B. Garner, Reading Law 63 (2012), this Court should reject the ordinary-case approach for §16(b) and adopt the underlying-facts approach instead. ... The Court’s decision today is triply flawed. It unnecessarily extends our incorrect decision in Johnson. It uses a constitutional doctrine with dubious origins to invalidate yet another statute (while calling into question countless more). And it does all this in the name of a statutory interpretation that we should have discarded long ago. Because I cannot follow the Court down any of these rabbit holes, I respectfully dissent. https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf ANDREW KISELA v. AMY HUGHES Brief Background: The issue before us, however, is...how a federal habeas court is to find the state court’s reasons when the relevant state-court decision on the merits, say, a state supreme court decision, does not come accompanied with those reasons. For instance, the decision may consist of a one-word order, such as “affirmed” or “denied.” What then is the federal habeas court to do? [Wilson was sentenced to death, is bringing an ineffective assistance of counsel claim, the Georgia Supreme Court denied an appeal application with no explanation.] Holding: We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed. ... [F]ederal habeas law employs a “look through” presumption. That conclusion has parallels in this Court’s precedent. In Ylst v. Nunnemaker, a defendant, convicted in a California state court of murder, appealed his conviction to the state appeals court where he raised a constitutional claim based on Miranda. The appeals court rejected that claim, writing that “‘an objection based upon a Miranda violation cannot be raised for the first time on appeal.’” The defendant then similarly challenged his conviction in the California Supreme Court and on collateral review in several state courts (including once again the California Supreme Court). In each of these latter instances the state court denied the defendant relief (or review). In each instance the court did so without an opinion or other explanation. Subsequently, the defendant asked a federal habeas court to review his constitutional claim. The higher state courts had given no reason for their decision. And this Court ultimately had to decide how the federal court was to find the state court’s reasoning in those circumstances. Should it have “looked through” the unreasoned decisions to the state procedural ground articulated in the appeals court or should it have used a different method? In answering that question Justice Scalia wrote the following for the Court: “The problem we face arises, of course, because many formulary orders are not meant to convey anything as to the reason for the decision. Attributing a reason is therefore both difficult and artificial. We think that the attribution necessary for federal habeas purposes can be facilitated, and sound results more often assured, by applying the following presumption: Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion ‘fairly appear[s] to rest primarily upon federal law,’ we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.” Since Ylst, every Circuit to have considered the matter has applied this presumption, often called the “look through” presumption, but for the Eleventh Circuit—even where the state courts did not apply a procedural bar to review. That is not surprising in light of the fact that the “look through” presumption is often realistic, for state higher courts often (but certainly not always, see Redmon v. Johnson, 2018 WL 415714 (Ga., Jan. 16, 2018)) write “denied” or “affirmed” or “dismissed” when they have examined the lower court’s reasoning and found nothing significant with which they disagree. Moreover, a “look through” presumption is often (but not always) more efficiently applied than a contrary approach—an approach, for example, that would require a federal habeas court to imagine what might have been the state court’s supportive reasoning. The latter task may prove particularly difficult where the issue involves state law, such as state procedural rules that may constrain the scope of a reviewing court’s summary decision, a matter in which a federal judge often lacks comparative expertise. ... [T]he State argues that the “look through” approach shows disrespect for the States. See Brief for Respondent 39 (“Wilson’s approach to summary decisions reflects an utter lack of faith in the ability of the highest state courts to adjudicate constitutional rights”). We do not believe this is so. Rather the presumption seeks to replicate the grounds for the higher state court’s decision. Where there are convincing grounds to believe the silent court had a different basis for its decision than the analysis followed by the previous court, the federal habeas court is free, as we have said, to find to the contrary. In our view, this approach is more likely to respect what the state court actually did, and easier to apply in practice, than to ask the federal court to substitute for silence the federal court’s thought as to more supportive reasoning. Finally, the State argues that the “look through” approach will lead state courts to believe they must write full opinions where, given the workload, they would have preferred to have decided summarily. Though the matter is empirical, given the narrowness of the context, we do not believe that they will feel compelled to do so—at least not to any significant degree. The State offers no such evidence in the many Circuits that have applied Ylst outside the procedural context. For these reasons, we reverse the Eleventh Circuit’s judgment and remand the case for further proceedings consistent with this opinion. Lineup: Breyer, joined by Roberts, Kennedy, Ginsburg, Sotomayor, and Kagan. Dissent by Gorsuch, joined by Thomas and Alito. Notes From Other Opinions: Gorsuch: After a state supreme court issues a summary order sustaining a criminal conviction, should a federal habeas court reviewing that decision presume it rests only on the reasons found in a lower state court opinion? The answer is no. The statute governing federal habeas review permits no such “look through” presumption. Nor do traditional principles of appellate review. In fact, we demand the opposite presumption for our work—telling readers that we independently review each case and that our summary affirmances may be read only as signaling agreement with a lower court’s judgment and not necessarily its reasons. Because I can discern no good reason to treat the work of our state court colleagues with less respect than we demand for our own, I would reject petitioner’s presumption and must respectfully dissent. Even so, some good news can be found here. While the Court agrees to adopt a “look through” presumption, it does so only after making major modifications to petitioner’s proposal. The Court tells us that the presumption should count for little in cases “where the lower state court decision is unreasonable” because it is not “likely” a state supreme court would adopt unreasonable reasoning. Ante, at 9. In cases like that too, the Court explains, federal courts remain free to sustain state court convictions whenever reasonable “ground[s] for affirmance [are] obvious from the state-court record” or appear in the parties’ submissions in state court or the federal habeas proceeding. Ibid. Exactly right, and exactly what the law has always demanded. So while the Court takes us on a journey through novel presumptions and rebuttals, it happily returns us in the end very nearly to the place where we began and belonged all along. ... Today, petitioner invites us to adopt a novel presumption that AEDPA, traditional principles of appellate review, and Georgia practice all preclude. It’s an invitation that requires us to treat the work of state court colleagues with disrespect we would not tolerate for our own. And all to what end? None at all, it turns out. As modified by the Court, petitioner’s presumption nearly drops us back where we began, with only trouble to show for the effort. Respectfully, I would decline the invitation to this circuitous journey and just affirm. https://www.supremecourt.gov/opinions/17pdf/16-6855_c18e.pdf UNITED STATES, PETITIONER v. MICROSOFT CORPORATION Brief Background: The Court granted certiorari in this case to decide whether, when the Government has obtained a warrant under 18 U. S. C. §2703, a U. S. provider of e-mail services must disclose to the Government electronic communications within its control even if the provider stores the communications abroad. Holding: The parties now advise us that on March 23, 2018, Congress enacted and the President signed into law the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), as part of the Consolidated Appropriations Act, 2018, Pub. L. 115–141. The CLOUD Act amends the Stored Communications Act, 18 U. S. C. §2701 et seq., by adding the following provision: “A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.” No live dispute remains between the parties over the issue with respect to which certiorari was granted...This case, therefore, has become moot. Following the Court’s established practice in such cases, the judgment on review is accordingly vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit with instructions first to vacate the District Court’s contempt finding and its denial of Microsoft’s motion to quash, then to direct the District Court to dismiss the case as moot. Lineup: Per Curiam. https://www.supremecourt.gov/opinions/17pdf/17-2_1824.pdf [internal citations inconsistently omitted throughout]
|
|
#
?
Apr 17, 2018 16:42
|
|
|
FAUXTON posted:Are we absolutely sure that's what he was saying in his opinion though? Yes - the concurrence is actually readable.
|
|
#
?
Apr 17, 2018 16:44
|
|
|
ulmont posted:Yes - the concurrence is actually readable. Still reads like a high school research paper though.
|
|
#
?
Apr 17, 2018 16:56
|
|
|
ulmont posted:Yes - the concurrence is actually readable. Sorry I meant readable as shorthand for "intelligible" or "comprehensible" or "not an intractable morass of vowels and consonants haphazardly arranged into disjointed nouns, verbs, and the occasional adjective."
|
|
#
?
Apr 17, 2018 17:56
|
|
|
FAUXTON posted:Sorry I meant readable as shorthand for "intelligible" or "comprehensible" or "not an intractable morass of vowels and consonants haphazardly arranged into disjointed nouns, verbs, and the occasional adjective." I quoted some of it. It's much less word salad than prior Gorsuch opinions.
|
|
#
?
Apr 17, 2018 18:06
|
|
|
ulmont posted:I quoted some of it. It's much less word salad than prior Gorsuch opinions. You're right, I checked out after the first sentence but upon further review I'm impressed.
|
|
#
?
Apr 17, 2018 20:11
|
|
|
White voters seek protection under the Voting Rights Act in case against Dallas County. This seems both doomed to fial and tailored for the appeals process.
|
|
#
?
Apr 17, 2018 20:13
|
|
|
Main Paineframe posted:The Trump news today is gonna be goooooooood  Golly.
|
|
#
?
Apr 17, 2018 20:18
|
|
|
Dameius posted:White voters seek protection under the Voting Rights Act in case against Dallas County. This seems both doomed to fial and tailored for the appeals process. I mean it does look like they packed a district but thats legal up to a certain line that the supreme court is going to reset any week now. It doesn't appear to be a particularly extreme gerrymander.
|
|
#
?
Apr 17, 2018 20:24
|
|
|
Main Paineframe posted:The case is Sessions v. Dimaya. Kagan wrote the opinion with the other three liberal justices signing on to it, while Gorsuch concurred. Gorsuch signed on to most of the opinion. The opinions are a bit of a clusterfuck. Kagan, joined by: (1) Ginsburg, Breyer, Sotomayor and Gorsuch as to Parts I (factual and legal background), III (application of Johnson), IV-B (response to Roberts' dissent), and V (conclusion) and (2) Ginsburg, Breyer, and Sotomayor as to Parts II (history of why the criminal standard for vagueness is used in deportation cases) and IV-A (response to Thomas' dissent) (note: those last two parts do not have either a majority or a plurality). Concurrence by Gorsuch. Dissent by Roberts, joined by Kennedy, Thomas, and Alito. Dissent by Thomas, joined by Kennedy and Alito as to Parts I-C-2 (void for vagueness must be challenged as applied to the challenger and it is not vague for residential burglary), II-A-1 (the categorical approach to looking at a statute should be abandoned to save the constitutionality of the aggravated felony deportation law), and II-B (we should abandon the categorical approach anyway).
|
|
#
?
Apr 17, 2018 20:34
|
|
|
So basically we know that "crime of violence" is struck from immigration jurisprudence, and that the void for vagueness doctrine intersects with civil sanctions *somehow,* with that somehow different from how it does in the criminal context but we don't know how.
|
|
#
?
Apr 17, 2018 22:18
|
|
|
Only the second, catch-all clause was at issue, so people can still be deported for "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another". It's the second clause about "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" that's struck down. From the summary (thanks, ulmont!), it sounds like the conservatives felt:
Question: if this case is actually about a burglary, why is it being considered under this second clause in the first place? Isn't any sort of burglary going to be at least be an "attempted use... of physical force against the person or property of another"? rjmccall fucked around with this message at 23:34 on Apr 17, 2018 |
|
#
?
Apr 17, 2018 23:31
|
|
|
rjmccall posted:Question: if this case is actually about a burglary, why is it being considered under this second clause in the first place? Isn't any sort of burglary going to be at least be an "attempted use... of physical force against the person or property of another"? The court says in footnote 3 that the California burglary statute at issue is broad enough to apply to a dishonest door to door salesman.
|
|
#
?
Apr 17, 2018 23:42
|
|
|
Isn't this kind of something we already knew about Gorsuch? I thought I remembered SOMETHING about him disapproving of leaving ambiguity up to the interpretation of the executive.
|
|
#
?
Apr 17, 2018 23:59
|
|
|
reignonyourparade posted:Isn't this kind of something we already knew about Gorsuch? I thought I remembered SOMETHING about him disapproving of leaving ambiguity up to the interpretation of the executive. He doesn't believe in Chevron deference, but that's a separate issue.
|
|
#
?
Apr 18, 2018 00:27
|
|
|
ulmont posted:The court says in footnote 3 that the California burglary statute at issue is broad enough to apply to a dishonest door to door salesman. https://codes.findlaw.com/ca/penal-code/pen-sect-459.html quote:Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code , floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code , any house car, as defined in Section 362 of the Vehicle Code , inhabited camper, as defined in Section 243 of the Vehicle Code , vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code , or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises. Cleaned up... quote:Every person who enters any house... with intent to commit grand or petit larceny or any felony is guilty of burglary So... yeah I guess if you enter a house with intent to use their phone to commit wire fraud thats burglary in California.
|
|
#
?
Apr 18, 2018 01:13
|
|
|
What did Dimaya actually do? Just your run‐of‐the mill kick down the door, run off the the TV while no one is home?
|
|
#
?
Apr 18, 2018 01:22
|
|
|
hobbesmaster posted:https://codes.findlaw.com/ca/penal-code/pen-sect-459.html The "or any felony" bit seems weird. By that definition, entering a house while possessing a small amount of heroin would be "burglary". And there's nothing about ownership of the house, so any felony committed in your own home with locked doors (or even intend to commit) would also burglary?
|
|
#
?
Apr 18, 2018 01:31
|
|
|
Stickman posted:The "or any felony" bit seems weird. By that definition, entering a house while possessing a small amount of heroin would be "burglary". But if the inhabitants were on vacation and an earthquake struck, it’s not burglary if you liberate their TV. 
|
|
#
?
Apr 18, 2018 01:34
|
|
|
Stickman posted:The "or any felony" bit seems weird. By that definition, entering a house while possessing a small amount of heroin would be "burglary". The common law crime of burglary is breaking and entering of a dwelling of another person at night to commit a felony. This was to limit the scope of the criminal offense and also to allow for the defense of necessity and other such mitigating reasons. Each state has codified their own burglary statute, but most start at the common law and branch out from there. California appears to do what most places do and that's remove the requirement that the action occur at night and greatly expands the location to cover more than just a dwelling, but the core tenant is the same. Basically breaking into someone else's building with the intent to steal or commit a serious crime. Burglary does not require force in most (if not all) jurisdictions as most places do not require that the place being burgled be occupied.
|
|
#
?
Apr 18, 2018 16:07
|
|
|
Platystemon posted:What did Dimaya actually do? It's not in the Supreme Court opinion or the 9th Circuit opinion below, because it wasn't generally relevant to the question they were deciding, but I assure you it must have not involved any violence or Thomas would have mentioned it in his dissent.
|
|
#
?
Apr 18, 2018 16:45
|
|
|
Mr. Nice! posted:The common law crime of burglary is breaking and entering of a dwelling of another person at night to commit a felony. This was to limit the scope of the criminal offense and also to allow for the defense of necessity and other such mitigating reasons. Each state has codified their own burglary statute, but most start at the common law and branch out from there. California appears to do what most places do and that's remove the requirement that the action occur at night and greatly expands the location to cover more than just a dwelling, but the core tenant is the same. Basically breaking into someone else's building with the intent to steal or commit a serious crime. Burglary does not require force in most (if not all) jurisdictions as most places do not require that the place being burgled be occupied. Thanks, that's good to know. It's too bad that common usage has drifted away from its legal meaning enough to cause confusion! It's still weird to me that there's no ownership clause in Cali's law - just entering when the doors are locked.
|
|
#
?
Apr 18, 2018 17:35
|
|
|
Stickman posted:Thanks, that's good to know. It's too bad that common usage has drifted away from its legal meaning enough to cause confusion! It's still weird to me that there's no ownership clause in Cali's law - just entering when the doors are locked. My mom changed the house locks on my stepdad when he was out of town to make a point once. He owned the house. If he’d broken in (she eventually let him in once her point was made) you’d probably want that to be crime. May also apply to a foreclosure if title hasn’t fully passed yet.
|
|
#
?
Apr 18, 2018 20:02
|
|
|
|
| # ? Jun 7, 2024 06:39 |
|
|
The California law isn't limited just to dwellings, either - it covers pretty much any closed structure, including sheds, warehouses, cargo containers, railroad cars, airplanes, and even outhouses.
|
|
#
?
Apr 18, 2018 23:28
|
|