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I AM GRANDO posted:What’s her strategy, anyway? A republican will never respect a democrat, and she moved almost instantly to make herself the most hated democrat among democrats. She comes off like a complete maniac. There were reports a while back that she basically lives in a filter bubble propped up by a few staff and a lot of big-money donors who like that she's killing the things she's killing, and those people make sure she only ever hears that the American people love bipartisanship and her path to future political success is to kill all popular Democratic bills to show how much she can reach across the aisle. These same reports claimed she thought she was going to run for president in 2024 on the bipartisanship platform, so take them with a grain of salt.
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Mar 30, 2022 00:47
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Sinema probably has lots of money/assets stashed away and various jobs lined up. She is still a professor too, so while she might not be a senator anymore, she will be fine, unlike most Americans.
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Mar 30, 2022 00:56
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There's been reports that Sinema thinks that 2024 is going to be a situation where Trump is too extreme on the right, Biden is too extreme on the left (quit laughing), so some group is totally going to realize she's their best hope and she's gonna be president in 2024. Obviously, it's a completely idiotic idea, but she seems to genuinely be living in her own reality, so there's a very good chance that it is her plan.
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Mar 30, 2022 01:01
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azflyboy posted:Biden is too extreme on the left (quit laughing) I just woke up my spouse laughing
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Mar 30, 2022 01:05
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nine-gear crow posted:Joe Manchin might not be a senator in 2025, but Kyrsten Sinema definitely will not be a senator in 2025.
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Mar 30, 2022 01:15
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VitalSigns posted:Take all the heat for killing bills the party doesn't want passed, get rewarded by having the primary rigged for her. Got any sources on this ridiculous claim? For actual SCOTUS news  https://twitter.com/mkraju/status/1509139970153459718?s=21
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Mar 30, 2022 14:07
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azflyboy posted:There's been reports that Sinema thinks that 2024 is going to be a situation where Trump is too extreme on the right, Biden is too extreme on the left (quit laughing), so some group is totally going to realize she's their best hope and she's gonna be president in 2024. Would you happen to have any links handy? I'd love to learn about this in its full context
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Mar 30, 2022 17:41
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Grip it and rip it posted:Would you happen to have any links handy? I'd love to learn about this in its full context Unfortunately, I think it was in a tweet from a couple iterations of the "US current events" so I can't seem to find it again.
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Mar 30, 2022 20:45
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Kalit posted:Got any sources on this ridiculous claim? Don't trust that malfunctioning Chuck E. Cheese animatronic to do anything until after she actually does it.
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Mar 30, 2022 22:31
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While she is personally untrustworthy and you should never believe any promises she makes, the fact that she's making noises about voting for Jackson does indicate that she thinks the votes to confirm are there regardless of what she does, so it's therefore an opportunity to look moderate and playact at bucking her own party. She's the real actual Republican version of what Democrats think Manchin is for their side: someone who criticizes her party and makes a show of voting for principles over party when her vote is irrelevant but reliably votes party line whenever it actually makes a difference
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Mar 31, 2022 09:07
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I hope we get a good story on this whole thing someday. https://twitter.com/paulajanekelly/status/1509226445511479300
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Mar 31, 2022 17:51
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Lmao at the idea that stealing 2 seats de-legitimized the SCOTUS when the realize is that the SCOTUS had de-legitimized themselves by stealing a presidential election (and the Dems solidified their worthlessness by accepting it). e: The fact that those seats (among others) were given to people who directly worked for the GOP to steal said election is just a further reinforcement of how much of a joke the SCOTUS is.
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Mar 31, 2022 18:04
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Unelected philosopher-kings who can override every other element of government through selective application of their powers may in fact not be a particularly legitimate thing for a putative democracy to have, though perhaps not much moreso than the way our legislatures function.
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Mar 31, 2022 18:10
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Some strong words from Nancy! https://twitter.com/atrupar/status/1509555371580571658 Also 
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Mar 31, 2022 18:21
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I AM GRANDO posted:Unelected philosopher-kings who can override every other element of government through selective application of their powers may in fact not be a particularly legitimate thing for a putative democracy to have, though perhaps not much moreso than the way our legislatures function. Especially when there are means for the other to branches to limit the judiciary's authority, they exercise those powers, and then they do nothing when the judiciary decides to ignore those restrictions like with their Shelby County ruling.
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Mar 31, 2022 19:20
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Meanwhile, north of the border.... Opinion! Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith v Richard Vallières TL;DR: If you are part of a trafficking ring that handles C$10 million of maple syrup in some sort of Great Canadian Maple Syrup Heist, a trial court is obligated to fine you for the full C$10 million if you can't return the property, not just the C$1 million you made in personal profit. Holding / Majority Opinion (Unanimous) In 2016, V was convicted of fraud, trafficking and theft in respect of maple syrup. The stolen maple syrup, which had a market value of over $18,000,000, passed through the hands of several individuals before it was resold by V, who collected the income and paid his various accomplices. By V’s own admission, he earned $10,000,000 in income from the resale of the syrup obtained by theft or fraud and made a personal profit of nearly $1,000,000, minus certain transportation costs. Under s. 462.37(3) of the Criminal Code, the trial judge imposed a fine on V in lieu of an order for forfeiture of property that was proceeds of crime (“fine in lieu”). Because the trial judge was of the opinion that he had no choice but to impose a fine equal to the value of the property that was proceeds of crime and that had been in V’s possession or under his control, he ordered V to pay a fine corresponding to the resale value of the maple syrup obtained by theft or fraud, that is, $10,000,000, minus the amount of a restitution order. However, the Court of Appeal reduced that amount to the profit made by V, $1,000,000, minus the amount of the restitution order. It held that courts have the discretion to impose a fine that reflects the profit made from a criminal activity, provided that this penalty meets the dual objective of deprivation of proceeds and deterrence. It was of the view that the fine imposed on V by the trial judge was clearly disproportionate to the objectives of the scheme governing this type of fine and that it created a situation of double recovery in light of the fines imposed on V’s accomplices. Held: The appeal should be allowed. V must be required to pay a fine equal to the value of the property that was in his possession or under his control, that is, $10,000,000, as the trial judge found. This amount is warranted in light of the scheme for the forfeiture of proceeds of crime, under which a fine must, in principle, be equal to the value of the property of which an offender had possession or control at some point in time. Because a court does not have the discretion to limit the amount of a fine in lieu to the profit made by an offender from their criminal activities, the Court of Appeal assumed a discretion it did not have when it reduced V’s fine. Moreover, V did not prove either at trial or on appeal that there was a risk of double recovery of the $10,000,000. A fine in lieu differs from the sentence imposed for the commission of a designated offence in that its purpose is to replace the proceeds of crime rather than to punish the offender. It is therefore in the nature of a forfeiture order. The imposition of a fine in lieu may be considered where forfeiture of the property that is proceeds of crime has become impracticable. In such a case, a court may, instead of ordering the forfeiture of the property, order the offender to pay a fine equal to the value of the property, as provided for in s. 462.37(3) Cr. C. The use of the word “may” in s. 462.37(3) Cr. C. indicates that Parliament intended courts to have some discretion, but this discretion does not allow them to limit the amount of a fine in lieu to the profit made from a criminal activity. The discretion applies only to the decision whether or not to impose a fine and to the determination of the value of the property. First of all, the wording of s. 462.37(3) Cr. C. is categorical with respect to the amount of the fine: it is equal to the value of the property that is proceeds of crime. The definition of the term “property” in s. 2 Cr. C. is broad enough to capture gross income derived from the sale of property obtained by crime. Furthermore, a court that limited the scope of a fine to the profit made by an offender from their criminal activities would be disregarding the nature of this order, which serves as a substitute where forfeiture of the property has become impracticable. Equivalency between the amount of the fine and the value of the property is inherent in the notion of substitution. Lastly, limiting a fine in lieu to an offender’s profit undermines and disregards what Parliament intended. The dual objective of such an order is to deprive an offender of the proceeds of their crime and to deter them, as well as potential accomplices and criminal organizations, from reoffending. Through the severity of the proceeds of crime provisions, Parliament is sending a clear message that crime does not pay and is thus attempting to discourage individuals from organizing themselves and committing profit‑driven crimes. Parliament’s decision that the fine must correspond to the value of the property is therefore deliberately harsh. At the step of determining the value of the property, the Crown’s burden is only to show that the offender had possession or control of property that is proceeds of crime and to establish the value of that property. The determination of the property’s value must be based on the evidence and not on a purely hypothetical calculation. In a situation involving the resale of property obtained by crime, the proceeds of crime are, in principle, the sum obtained in exchange for the property originally in the offender’s possession or under their control, in keeping with the definition of the word “property” in s. 2 Cr. C. An offender’s ability to pay must not be considered in determining the amount of a fine in lieu, any more than in deciding whether or not to impose such a fine. In situations involving co‑accused who had possession or control of the same property that constitutes proceeds of crime, courts may divide the value of the property between the co‑accused if there is a risk of double recovery, if apportionment is requested by the offender and if the evidence allows this determination to be made. The onus is on the offender to make the request and to satisfy the court that it is appropriate to apportion the value of the property between co‑accused. The exercise of the court’s discretion to apportion will depend on the circumstances of each case. Where the conditions giving rise to a possibility of double recovery are met, the court must apportion the value of the property between the co‑accused in order to reflect the nature of a fine in lieu, which replaces the property that cannot be forfeited, nothing more and nothing less. However, given the approximate nature of the exercise, the court retains some flexibility in deciding how the value of the property will be apportioned between the co‑accused. While the offender bears the burden of raising apportionment and establishing its appropriateness, the Crown should, to the extent possible and where the available evidence allows, mitigate the risk of double recovery by apportioning, on its own initiative, the value of the property that is proceeds of crime between the co‑accused. The Crown should discharge this duty in every case, but especially where the co‑accused are tried separately, because it has an overview of the various proceedings and can limit up front the amount it seeks as a fine in lieu in each proceeding in order to ensure that the total of the fines imposed on the co‑accused corresponds to the value of the property that is proceeds of crime. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19276/index.do Foxfire_ fucked around with this message at 00:15 on Apr 1, 2022 |
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Mar 31, 2022 20:17
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Why havent the british monarchs been killed yet lol, theyre so worthless
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Mar 31, 2022 23:31
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They were but the guy they got in to replace them sucked too and after he died they didn't have any other ideas so
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Apr 1, 2022 00:19
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They also agreed to be useless in exchange for getting to keep being monarchs and the rest of the country just kind of shrugged and dealt with other stuff and then eventually it just kind of became this quaint old tradition of theirs to keep the crown around.
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Apr 1, 2022 00:22
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VitalSigns posted:Take all the heat for killing bills the party doesn't want passed, get rewarded by having the primary rigged for her. And also the pharma donations she's raking in.
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Apr 1, 2022 00:50
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Dameius posted:They also agreed to be useless in exchange for getting to keep being monarchs and the rest of the country just kind of shrugged and dealt with other stuff and then eventually it just kind of became this quaint old tradition of theirs to keep the crown around. They also got to keep the wealth built up by centuries of royal rule and theft from people around the world. They also continue to exist of a reminder of the "glory days" of the British Empire.
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Apr 1, 2022 02:03
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Charlz Guybon posted:She's going to get primaried hard and she is absolutely going to lose it. She won't even sniff the general. If it happens, you'll be seeing something that probably won't happen again in your lifetime.
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Apr 3, 2022 09:11
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Dameius posted:They also agreed to be useless in exchange for getting to keep being monarchs and the rest of the country just kind of shrugged and dealt with other stuff and then eventually it just kind of became this quaint old tradition of theirs to keep the crown around. They own a lot of land which they lease to the government in exchange for their living expenses and maintenance of their homes. The government uses the land to grow stuff and makes a ton of money from it, far more than the keeping the royals in luxury actually costs. Also they attract tourists. Not saying it's a good system and the pensions to OBEs and whatever seems like a colossal waste but whatevs. Also the monarch does have one power.
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Apr 3, 2022 22:18
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Kalman posted:The party doesn’t want her to kill these bills, though. It's a dumb tangent, but for what it's worth I genuinely believe that Sinema and Manchin provide a lot of comfort to Democrat senators who would otherwise need to make very difficult decisions between the policy platform of the party and the needs of their donors.
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Apr 4, 2022 00:04
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Cranappleberry posted:They own a lot of land which they lease to the government in exchange for their living expenses and maintenance of their homes. The government uses the land to grow stuff and makes a ton of money from it, far more than the keeping the royals in luxury actually costs. I was being heavily facetious and of course the reality of it is way more complicated than I portrayed, but honestly peeling back that onion would be too much a derail for this thread, even if we are just waiting around to find out in just which way the SCOTUS will choose to be beyond the pale loving awful in their tortured reasoning to work backwards from their conclusions.
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Apr 4, 2022 02:12
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Evil Fluffy posted:They also got to keep the wealth built up by centuries of royal rule and theft from people around the world. They also continue to exist of a reminder of the "glory days" of the British Empire. Given how badly much of the UK voting population has mentally handled the end of empire, having a useless way to express their love of the British Empire is a very helpful thing.
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Apr 4, 2022 02:23
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Probably a dumb question, but if Dems fear they'll lose the senate this year, could they preemptively get senate confirmation for judges in case they open up? Similar to what's happening now since technically Jackson is being approved for a seat that isn't available.
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Apr 5, 2022 12:26
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Yes, they should stack the court. (Kidding aside, no that is probably not a political possibility that would fly with the center. She has a set destination in mind. Remove that and it's far more arbitrary and court-stacky)
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Apr 5, 2022 12:55
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 Opinion! From March 24th (I went out of town).HOUSTON COMMUNITY COLLEGE SYSTEM, PETITIONER v. DAVID BUREN WILSON TLDR: The Board of Trustees of the Houston Community College System (HCC) can verbally censure a member without creating a First Amendment retaliation claim. Holding / Majority Opinion (Gorsuch) After years of acrimony, the Board of Trustees of the Houston Community College System censured one of its members, David Wilson. Mr. Wilson responded by filing a lawsuit challenging the Board’s action. That suit now presents us with this question: Did the Board’s censure offend Mr. Wilson’s First Amendment right to free speech? The Houston Community College System (HCC) is a public entity that operates various community colleges in Texas. Its Board of Trustees consists of nine members, each of whom is elected from a single-member district for a 6- year term. Mr. Wilson was elected to the Board in 2013. From the start, his tenure was a stormy one. Often and strongly, he disagreed with many of his colleagues about the direction of HCC and its best interests. Soon, too, he brought various lawsuits challenging the Board’s actions. By 2016, these escalating disagreements led the Board to reprimand Mr. Wilson publicly. According to news reports, Mr. Wilson responded by promising that the Board’s action would “‘never . . . stop me.’” Nor did it. In the ensuing months, Mr. Wilson charged the Board in various media outlets with violating its bylaws and ethical rules. He arranged robocalls to the constituents of certain trustees to publicize his views. He hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her. He also filed two new lawsuits in state court. In the first, Mr. Wilson alleged that the Board had violated its bylaws by allowing a trustee to vote via videoconference. When his colleagues excluded him from a meeting to discuss the lawsuit, Mr. Wilson filed a second suit contending that the Board and HCC had “ ‘prohibited him from performing his core functions as a Trustee.’” All told, these two lawsuits cost HCC over $20,000 in legal fees. That was on top of more than $250,000 in legal fees HCC incurred due to Mr. Wilson’s earlier litigation. At a 2018 meeting, the Board responded by adopting another public resolution, this one “censuring” Mr. Wilson. The resolution stated that Mr. Wilson’s conduct was “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” The Board also imposed certain penalties. It provided that Mr. Wilson was “ineligible for election to Board officer positions for the 2018 calendar year,” that he was “ineligible for reimbursement for any College-related travel,” and that his future requests to “access . . . funds in his Board account for community affairs” would require Board approval. The Board further recommended that Mr. Wilson “complete additional training relating to governance and ethics.” Shortly after the Board adopted its second resolution, Mr. Wilson amended the pleadings in one of his pending state-court lawsuits, adding claims against HCC and the trustees under 42 U. S. C. § 1983. Among other things, Mr. Wilson asserted that the Board’s censure violated the First Amendment. By way of remedy, he sought injunctive and declaratory relief as well as damages for mental anguish, punitive damages, and attorney’s fees. Years of legal twists and turns followed. [Eventually the Fifth Circuit ends up deciding that he has a First Amendment claim based only on the verbal censure part. The Supreme Court takes up the question of “Does Mr. Wilson possess an actionable First Amendment claim arising from the Board’s purely verbal censure?”] The First Amendment prohibits laws “abridging the freedom of speech.” One obvious implication of that rule is that the government usually may not impose prior restraints on speech. But other implications follow too. Relevant here, no one before us questions that, “[a]s a general matter,” the First Amendment prohibits government officials from subjecting individuals to “retaliatory actions” after the fact for having engaged in protected speech. Mr. Wilson argues that the Board’s censure resolution represents exactly that kind of impermissible retaliatory action. Almost immediately, however, this submission confronts a challenge. When faced with a dispute about the Constitution’s meaning or application, “[l]ong settled and established practice is a consideration of great weight.” Often, “a regular course of practice” can illuminate or “liquidate” our founding document’s “terms & phrases.” That principle poses a problem for Mr. Wilson because elected bodies in this country have long exercised the power to censure their members. In fact, no one before us has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment. As early as colonial times, the power of assemblies in this country to censure their members was “more or less assumed.” It seems, too, that assemblies often exercised the power to censure members for views they expressed and actions they took “both within and without the legislature.” The parties supply little reason to think the First Amendment was designed or commonly understood to upend this practice. To the contrary, the United States Senate issued its first censure in 1811, after a Member read aloud a letter from former President Jefferson that the body had placed under an “injunction of secrecy.” The House of Representatives followed suit in 1832, censuring one of its own for “insulting . . . the Speaker.” Ten years later, the House reprimanded another Member after he introduced a resolution thought to be damaging to international relations. Many later examples followed these early ones….If this longstanding practice does not “put at rest” the question of the Constitution’s meaning for the dispute before us, it surely leaves a “considerable impression.” … What history suggests, we believe our contemporary doctrine confirms. Under this Court’s precedents, a plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” Some adverse actions may be easy to identify—an arrest, a prosecution, or a dismissal from governmental employment. “[D]eprivations less harsh than dismissal” can sometimes qualify too. At the same time, no one would think that a mere frown from a supervisor constitutes a sufficiently adverse action to give rise to an actionable First Amendment claim.…it seems to us that any fair assessment of the materiality of the Board’s conduct in this case must account for at least two things. First, Mr. Wilson was an elected official. In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. … Second, the only adverse action at issue before us is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. … Given these features of Mr. Wilson’s case, we do not see how the Board’s censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. As it comes to us, too, the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. At least in these circumstances, we do not see how the Board’s censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak. … In rejecting Mr. Wilson’s claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim. It may be, for example, that government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms. Likewise, we do not address today questions concerning legislative censures accompanied by punishments, or those aimed at private individuals.Nor do we pass on the First Amendment implications of censures or reprimands issued by government bodies against government officials who do not serve as members of those bodies….When the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions. But those cases are not this one. … Our case is a narrow one. It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. The Board’s censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties. Even the censured member concedes the content of the censure would not have offended the First Amendment if it had been packaged differently. Neither the history placed before us nor this Court’s precedents support finding a viable First Amendment claim on these facts. Argument and “counterargument,” not litigation, are the “weapons available” for resolving this dispute. The judgment of the Fifth Circuit is Reversed. Lineup: Gorsuch, unanimous. https://www.supremecourt.gov/opinions/21pdf/20-804_j426.pdf
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Apr 5, 2022 16:41
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Opinion! In Breyer’s opinion, the Supreme Court just totally screwed up the Federal Arbitration Act. In the rest of the Supreme Court’s opinion, whatever, lame duck. March 31 opinion, so almost caught up again. BADGEROW v. WALTERS ET AL. TLDR: You can’t go into federal court to enforce an arbitration award unless you have federal jurisdiction for that (arbitration) contract dispute (which pretty much means diversity jurisdiction). Go to state court for enforcement if you’re from the same state or the value is $75,000 or less. Holding / Majority Opinion (Kagan) The Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., authorizes a party to an arbitration agreement to seek several kinds of assistance from a federal court. Under Section 4, for example, a party may ask the court to compel an arbitration proceeding, as the agreement contemplates. And under Sections 9 and 10, a party may apply to the court to confirm, or alternatively to vacate, an arbitral award. Yet the federal courts, as we have often held, may or may not have jurisdiction to decide such a request. The Act’s authorization of a petition does not itself create jurisdiction. Rather, the federal court must have what we have called an “independent jurisdictional basis” to resolve the matter. In Vaden v. Discover Bank, 556 U. S. 49 (2009), we assessed whether there was a jurisdictional basis to decide a Section 4 petition to compel arbitration by means of examining the parties’ underlying dispute. The text of Section 4, we reasoned, instructs a federal court to “look through” the petition to the “underlying substantive controversy” between the parties—even though that controversy is not before the court. If the underlying dispute falls within the court’s jurisdiction—for example, by presenting a federal question—then the court may rule on the petition to compel. That is so regardless whether the petition alone could establish the court’s jurisdiction. The question presented here is whether that same “look-through” approach to jurisdiction applies to requests to confirm or vacate arbitral awards under the FAA’s Sections 9 and 10. We hold it does not. Those sections lack Section 4’s distinctive language directing a look-through, on which Vaden rested. Without that statutory instruction, a court may look only to the application actually submitted to it in assessing its jurisdiction. This case grows out of the arbitration of an employment dispute. [Badgerow was fired, brought an arbitration complaint, lost, sued in Louisiana state court alleging fraud, and then Walters removed to federal court and looked to confirm. Badgerow countered that the federal court had no jurisdiction.] … Courts have divided over whether the look-through approach used in Vaden can establish jurisdiction in a case like this one—when the application before the court seeks not to compel arbitration under Section 4 but to confirm, vacate, or modify an arbitral award under other sections of the FAA.1 We granted certiorari to resolve the conflict, and now reverse the judgment below. … the FAA authorizes parties to arbitration agreements to file specified actions in federal court—most prominently, petitions to compel arbitration (under Section 4) and applications to confirm, vacate, or modify arbitral awards (under Sections 9 through 11). But those provisions, this Court has held, do not themselves support federal jurisdiction. (Were it otherwise, every arbitration in the country, however distant from federal concerns, could wind up in federal district court.) A federal court may entertain an action brought under the FAA only if the action has an “independent jurisdictional basis.” That means an applicant seeking, for example, to vacate an arbitral award under Section 10 must identify a grant of jurisdiction, apart from Section 10 itself, conferring “access to a federal forum.” If she cannot, the action belongs in state court. The FAA requires those courts, too, to honor arbitration agreements; and we have long recognized their “prominent role” in arbitral enforcement. The issue here is about where a federal court should look to determine whether an action brought under Section 9 or 10 has an independent jurisdictional basis. An obvious place is the face of the application itself. If it shows that the contending parties are citizens of different States (with over $75,000 in dispute), then §1332(a) gives the court diversity jurisdiction. Or if it alleges that federal law (beyond Section 9 or 10 itself) entitles the applicant to relief, then §1331 gives the court federal-question jurisdiction. But those possibilities do Walters no good. He and Badgerow are from the same State. And their applications raise no federal issue. Recall that the two are now contesting not the legality of Badgerow’s firing but the enforceability of an arbitral award. That award is no more than a contractual resolution of the parties’ dispute—a way of settling legal claims. And quarrels about legal settlements—even settlements of federal claims—typically involve only state law, like disagreements about other contracts. So the District Court here, as Walters recognizes, had to go beyond the face of the Section 9 and 10 applications to find a basis for jurisdiction. It had to proceed downward to Badgerow’s employment action, where a federal-law claim satisfying §1331 indeed exists. In other words, the court had to look through the Section 9 and 10 applications to the underlying substantive dispute, although that dispute was not before it. Could the court do so? In Vaden, this Court approved the look-through approach for a Section 4 petition, relying on that section’s express language. Under Section 4, a party to an arbitration agreement may petition for an order to compel arbitration in a “United States district court which, save for [the arbitration] agreement, would have jurisdiction” over “the controversy between the parties.”3 That text, we stated, “drives our conclusion that a federal court should determine its jurisdiction by ‘looking through’ a §4 petition to the underlying substantive controversy”—to see, for example, if that dispute “‘arises under’ federal law.” To show why that is so, we proceeded methodically through Section 4’s wording. “The phrase ‘save for [the arbitration] agreement,’” we began, “indicates that the district court should assume the absence of the arbitration agreement and determine whether [the court] ‘would have jurisdiction . . .’ without it.” But “[j]urisdiction over what?” “The text of Section 4,” we continued, “refers us to ‘the controversy between the parties.’” And that “controversy,” we explained, could not mean the dispute before the court about “the existence or applicability of an arbitration agreement”; after all, the preceding save-for clause had just “direct[ed] courts” to assume that agreement away. The “controversy between the parties” instead had to mean their “underlying substantive controversy.” “Attending to the language” of Section 4 thus required “approv[ing] the ‘look through’ approach” as a means of assessing jurisdiction over petitions to compel arbitration. The opposite view was not merely faulty; it was “textual[ly] implausib[le].” But Sections 9 and 10, in addressing applications to confirm or vacate an arbitral award, contain none of the statutory language on which Vaden relied. Most notably, those provisions do not have Section 4’s “save for” clause. They do not instruct a court to imagine a world without an arbitration agreement, and to ask whether it would then have jurisdiction over the parties’ dispute. Indeed, Sections 9 and 10 do not mention the court’s subject-matter jurisdiction at all.4 So under ordinary principles of statutory construction, the look-through method for assessing jurisdiction should not apply. “[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act,” we generally take the choice to be deliberate. We have no warrant to redline the FAA, importing Section 4’s consequential language into provisions containing nothing like it. Congress could have replicated Section 4’s look-through instruction in Sections 9 and 10. Or for that matter, it could have drafted a global look-through provision, applying the approach throughout the FAA. But Congress did neither. And its decision governs. Nothing in that conclusion changes because a jurisdictional question is before us. The federal “district courts may not exercise jurisdiction absent a statutory basis.” And the jurisdiction Congress confers may not “be expanded by judicial decree.” … Walters contests that view of the statute…First, Walters says, the language in Section 4 that Vaden construed does not in fact authorize the use of the look-through jurisdictional method. In his view, that sentence is only a capacious “venue provision,” serving to “expand[] venue to the limits of [federal] jurisdiction” (and thus to give an applicant a broad choice among federal courts possessing jurisdiction). Second, Walters claims that Section 6 provides the basis for an FAA-wide look-through jurisdictional rule. Under Section 6, any FAA application “shall be made and heard in the manner provided by law for the making and hearing of motions.” That provision, Walters claims, requires use of the look-through approach because “[f]ederal courts have jurisdiction over motions when they have jurisdiction over the underlying action.” So to recap Walters’s theory: Section 4 does not establish any jurisdictional rule for applications to compel in particular, while Section 6 establishes the look-through jurisdictional rule for all kinds of FAA applications. But Walters’s understanding of Section 4 does not comport with what it says. The language of that provision never mentions “venue”; it refers only to “jurisdiction.” That is a signal, sharp and clear, that the section provides a jurisdictional rule. And even suppose (against all odds) that Congress had meant to state the venue rule Walters proposes without ever using the word “venue.” In that event, Congress could have simply permitted filing the petition in any district court with jurisdiction (or even more simply—because a court can never act without jurisdiction—in any district court). Given that (in Walters’s view) the jurisdictional rule comes from another provision, Congress would not have needed to (again) spell out its content. But spelling out the rule’s content—by describing the look-through method—is exactly what Section 4 does. That description can serve one purpose only: to establish jurisdiction where it would otherwise not exist. And that is how Vaden understood Section 4. Our decision, like the relevant text, never once referred to venue. Instead, we spoke, throughout the opinion, of the way Section 4 provides for jurisdiction. … Walters’s theory fares no better in construing Section 6’s mention of motions to prescribe a look-through rule for the whole FAA. Here, Walters commits the opposite of his fault in reading Section 4: He now reads a provision containing no express reference to jurisdiction in fact to set out a jurisdictional rule. There may be rare contexts in which courts can, without such a reference, “infer that Congress has expanded our jurisdiction”—but this is not one. … Walters’s more thought-provoking arguments sound not in text but in policy. Here, Walters—now joined by the dissent—preaches the virtues of adopting look-through as a “single, easy-to-apply jurisdictional test” that will produce “sensible” results…we cannot find much relevance in his ideas, even if plausible, about the optimal jurisdictional rule for the FAA. “It is not for this Court to employ untethered notions of what might be good public policy to expand our jurisdiction.” However the pros and cons shake out, Congress has made its call. We will not impose uniformity on the statute’s non-uniform jurisdictional rules. The result, as Walters laments, is to give state courts a significant role in implementing the FAA. But we have long recognized that feature of the statute. “[E]nforcement of the Act,” we have understood, “is left in large part to the state courts.” As relevant here, Congress chose to respect the capacity of state courts to properly enforce arbitral awards. In our turn, we must respect that evident congressional choice. For the reasons stated, we reverse the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Lineup: Kagan, joined by Roberts, Thomas, Alito, Sotomayor, Gorsuch, Kavanaugh, and Barrett. Dissent by Breyer. Dissent (Breyer) When interpreting a statute, it is often helpful to consider not simply the statute’s literal words, but also the statute’s purposes and the likely consequences of our interpretation. Otherwise, we risk adopting an interpretation that, even if consistent with text, creates unnecessary complexity and confusion. That, I fear, is what the majority’s interpretation here will do. I consequently dissent. The question presented arises in the context of the Federal Arbitration Act (FAA). 9 U. S. C. §1 et seq. The question is technical and jurisdictional: How does a federal court determine whether it has jurisdiction to consider a motion to confirm or vacate an arbitration award? The FAA contains several sections that seem to empower a federal court to take certain specified actions related to arbitration proceedings. These include Section 4, which gives “any United States district court” the power to “order” parties to a written arbitration agreement to “proceed” to arbitration; Section 5, which gives “the court” the power to “designate and appoint an arbitrator”; Section 7, which gives “the United States district court for the district” in which an arbitrator is sitting the power to “compel the attendance” of witnesses whom the arbitrator has “summoned”; Section 9, which gives “the United States court in and for the district within which” an arbitration award “was made” the power to enter an “order confirming the award”; Section 10, which gives “the United States court in and for the district wherein the [arbitration] award was made” the power to “make an order vacating the award”; and Section 11, which gives “the United States court in and for the district wherein the [arbitration] award was made” the power to “modif[y] or correc[t] the award.”...This case directly concerns jurisdiction under Sections 9 and 10, but the Court’s reasoning applies to all the sections just mentioned. At first blush, one might wonder why there is any question about whether a federal court has jurisdiction to consider requests that it act pursuant to these sections. The sections’ language seems explicitly to give federal courts the power to take such actions. Why does that language itself not also grant jurisdiction to act? The answer, as the Court notes, is that we have held that the FAA’s “authorization of a petition does not itself create jurisdiction.” “Rather, the federal court must have what we have called an ‘independent jurisdictional basis’ to resolve the matter.” We made clear how this works in Vaden v. Discover Bank, 556 U. S. 49 (2009), a case involving Section 4. As just noted, Section 4 gives a district court the power to order parties (who have entered into a written arbitration agreement) to submit to arbitration. We held “that a federal court should determine its jurisdiction by ‘looking through’ a §4 petition to the parties’ underlying substantive controversy.” The court asks whether it would have jurisdiction over that controversy, namely, whether that underlying substantive controversy involves a federal question or diversity (a dispute between parties from different States with a value of more than $75,000). If so, then the federal court has jurisdiction over a Section 4 petition asking the court to order the parties to resolve that controversy in arbitration. The Vaden Court gave two reasons for adopting this “look-through” approach. The first, as the majority today emphasizes, was textual. Section 4 says that a party seeking arbitration may petition for an order compelling arbitration from “any United States district court which, save for [the arbitration] agreement, would have jurisdiction . . . in a civil action . . . of the subject matter of a suit arising out of the controversy between the parties.” The words “save for [the arbitration] agreement,” we reasoned, tell a court not to find jurisdiction by looking to the petition to enforce the agreement itself, but instead to the underlying controversy between the parties. The second reason, which the majority today neglects, was practical. To find jurisdiction only where the petition to enforce an arbitration agreement itself established federal jurisdiction, we explained, would result in “curious practical consequences,” including unduly limiting the scope of Section 4 and hinging jurisdiction upon distinctions that were “‘totally artificial.’” Today, the majority holds that this look-through approach does not apply to Section 9 or 10 because those sections lack Section 4’s “save for” language. This reasoning necessarily extends to Sections 5, 7, and 11 as well, for those sections, too, lack Sections 4’s “save for” language. (“Without [Section 4’s] statutory instruction, a court may look only to the application actually submitted to it in assessing its jurisdiction”). Although this result may be consistent with the statute’s text, it creates what Vaden feared—curious consequences and artificial distinctions. It also creates what I fear will be consequences that are overly complex and impractical. … First, consider Section 5. That section says that, upon application of one of the parties to an arbitration agreement, “the court shall designate and appoint an arbitrator.” What happens when the look-through approach shows that the underlying controversy raises a federal question, but the application to appoint an arbitrator raises no federal question and does not establish diversity? A party could ask a federal judge to order arbitration under Section 4, but they could not then ask that same (or any other) federal judge to appoint an arbitrator for that very same arbitration under Section 5. … Second, consider Section 7. It says that “upon petition the United States district court for the district in which” an arbitrator is sitting “may compel the attendance” of persons whom the arbitrator has “summoned.” Suppose that the underlying substantive controversy does not qualify for federal jurisdiction, meaning that a federal court would not have jurisdiction to order arbitration under Section 4. If arbitration proceeds by other means, can a federal judge nonetheless compel the attendance of a witness at that arbitration, based on diversity jurisdiction, if a request to do so shows that the summoned witness lives out of State? If there are two witnesses, one in State and one out of State, can the federal judge compel the attendance of the second, but not the first? Why would Congress have wanted parties to toggle between federal and state court when seeking judicial enforcement of summons issued during a single arbitration? And at a more basic level, who are the relevant parties to a Section 7 request when determining, for diversity purposes, whether the Section 7 dispute is between citizens of different States? The arbitrator and summoned witness? The parties in arbitration? Only the “summoning” party and the witness? And assume that a federal court finds it does have jurisdiction over a Section 7 request, even though the underlying controversy involves neither a federal question nor diversity. “Why would Congress have wanted federal courts to intervene to enforce a subpoena issued in an arbitration proceeding involving a controversy that itself is not important enough, from a federalism standpoint, to warrant federal-court oversight?” Moreover, diversity jurisdiction requires not only that the relevant parties be from different States but also that the amount in controversy exceed $75,000. How does a federal judge determine whether summoning a witness is itself worth $75,000? By examining the value of what the witness might say? By accounting for travel expenses?As courts have recognized, there is “very little case law to guide [them] in determining whether enforcement of an arbitration subpoena against a third party will enable someone to recover more than $75,000 in an arbitration dispute with a different party.” These and other jurisdiction-related questions do not arise if a federal judge can simply follow Vaden’s principle for all FAA motions: Look through the motions and determine whether there is federal jurisdiction over the underlying substantive controversy. Third, consider now Sections 9 and 10, the FAA sections directly before us, along with Section 11. Section 9 gives “the United States court in and for the district within which [an arbitration] award was made” the power to issue “an order confirming the award.” Section 10 gives the same court the power to “vacat[e]” the award for certain specified reasons. And Section 11 gives that court the power to “modif[y] or correc[t] the award.” Where the parties’ underlying dispute involves a federal question (but the parties are not diverse), the majority holds that a party can ask a federal court to order arbitration under Section 4, but it cannot ask that same court to confirm, vacate, or modify the order resulting from that arbitration under Section 9, 10, or 11. But why prohibit a federal court from considering the results of the very arbitration it has ordered and is likely familiar with? Why force the parties to obtain relief—concerning arbitration of an underlying federal-question dispute—from a state court unfamiliar with the matter? Or suppose that a party asks a federal court to vacate an arbitration award under Section 10 because the arbitrator “refus[ed] to hear evidence pertinent and material to the controversy.” To determine at least one important aspect of diversity jurisdiction—the amount in controversy—must the court not look to the underlying dispute? The same question arises with respect to a Section 11 motion to modify an arbitral award on the ground that it “is imperfect in matter of form not affecting the merits of the controversy.” The majority says that these and other problems require only that the parties bring their FAA requests to state courts. But we cannot be sure that state courts have the same powers under the FAA that federal courts have. The FAA says nothing about state courts; it only explicitly mentions federal courts. See §7 (“United States district court”); §9 (“the United States court”); §10 (same); §11 (same). We have never held that the FAA provisions I have discussed apply in state courts, and at least one Member of this Court [Thomas] has concluded that they do not apply there. State courts have reached similar conclusions. Relatedly, the majority also notes, correctly, that Section 9, 10, and 11 disputes about the enforceability of arbitral awards “typically involve only state law.” It thus makes sense, the majority says, that these disputes would belong primarily in state court. But the same can be said for Section 4 disputes about the enforceability of arbitration agreements. These, too, typically involve only questions of state law. That the dispute does not implicate federal questions thus does not explain why Congress would have wanted more federal court involvement at the Section 4 stage than during the later stages. It may be possible to eliminate some of these problems by using a federal-question lawsuit or Section 4 motion as a jurisdictional anchor. If a party to an arbitration agreement files a lawsuit in federal court but then is ordered to resolve the claims in arbitration, the federal court may stay the suit and possibly retain jurisdiction over related FAA motions. Similarly, some courts have held that if a federal court adjudicates a Section 4 motion to order arbitration, the court retains jurisdiction over any subsequent, related FAA motions. But, as Vaden points out, to turn jurisdiction over these later motions on the presence or absence of a federal lawsuit or Section 4 motion is to turn jurisdiction on a “‘totally artificial distinction’”—particularly when the very purpose of arbitration is to avoid litigation. I relate these practical difficulties in part to illustrate a more fundamental point. The majority has tried to split what is, or should be, a single jurisdictional atom—a single statute with connected parts, which parts give federal judges the power to facilitate a single arbitration proceeding from start to finish: to order arbitration; appoint an arbitrator; summon witnesses; and confirm, vacate, or modify an arbitration award. The need for simplicity, comprehension, workability, and fairness all suggest that these interrelated provisions should follow the same basic jurisdictional approach, namely, as Vaden explains, the look-through approach. … The majority’s main point is straightforward: The text of the statute compels the result. As the majority rightly points out, we cannot disregard the statutory text or “overcome a clear statutory directive.” A statute that says it applies only to “fish” does not apply to turnips. The majority also rightly points out that the “save for” language setting forth the look-through approach appears only in Section 4, and does not appear in any of the later sections. That fact, however, does not produce the “clear statutory directive” upon which the majority relies. Nothing in the text prohibits us from applying Section 4’s look-through approach to the succeeding sections. The statute does not say that Section 4’s jurisdictional rule applies only to Section 4, or that the same look-through approach does not apply elsewhere. Nor does any other section provide its own jurisdictional rule that would suggest Section 4’s rule should not apply there. Moreover, when we consider Section 4’s text setting forth the look-through approach, we “consider not only the bare meaning of the word[s] but also [their] placement and purpose in the statutory scheme.” Various aspects of the FAA’s text and structure suggest that Section 4’s jurisdictional rule should apply throughout. Section 5, for example, which grants the power to appoint an arbitrator, simply refers to “the court.” Those words, most naturally read, refer to the same court to which the immediately preceding section—Section 4—refers: a “United States district court” with jurisdiction as determined by the look-through approach. Requests under the FAA’s various sections are also generally described in the text as “applications” or “motions.” See §4 (“application”); §5 (same); §9 (same); §10 (same); §11 (same); see also §6; §12 (“motion to vacate, modify, or correct”); §13 (“application to confirm, modify, or correct”). This implies that the requests are all constituent parts of one broader enforcement proceeding, not standalone disputes meriting individual jurisdictional inquiries. … And, more importantly, all the sections describe connected components of a single matter: a federal court’s arbitration-related enforcement power. One can read these sections as a single whole, with each section providing one enforcement tool, and one section—Section 4—providing both an enforcement tool and a jurisdictional rule applicable to the entire toolbox. Read this way, the FAA provides one set of complementary mechanisms through which a federal court might facilitate a single arbitration—but only when the underlying substantive controversy is one that, jurisdictionally speaking, could be brought in a federal court had the parties not agreed to arbitrate. There is no language in any of the sections that states, or suggests, that we cannot interpret the Act in this way. In brief, the text does not prevent us from reading the statute in a way that better reflects the statute’s structure and better fulfills the statute’s basic purposes….The FAA’s legislative history reinforces the view of the statute that I have just described. The Senate Report on the bill that became the FAA refers to the FAA’s general purposes. It makes clear Congress’ hope to avoid procedural complexity. It refers to parties’ “desire to avoid the delay and expense of litigation.” Proponents of the bill thought it would successfully serve that purpose because it would provide “very simple machinery”; “simplify legal matters”; offer “speedy” and “plain justice”; and allow “no opportunity for technical procedure.” These general purposes support a simplified jurisdictional rule. The language of the House Report suggests more. It suggests that the bill created a single jurisdictional procedure, not a set of different procedures with distinct jurisdictional rules. The Report says that the bill “provides a procedure in the Federal courts for” enforcement of arbitration agreements. “The procedure,” the Report continues, “is very simple, . . . reducing technicality, delay, and expense . . . .” That singular procedure, the Report explains, encompasses not only the initial request for a federal court to order arbitration under Section 4, but subsequent requests to vacate or modify an arbitration award under Sections 10 and 11 as well. … Together, this history reinforces the interpretation of the statute that I would adopt. It suggests that Congress intended a single approach for determining jurisdiction of the FAA’s interrelated enforcement mechanisms, not one approach for the mechanism provided in Section 4 and a different approach for the mechanisms provided in all other sections. In this dissent I hope to have provided an example of what it means to say that we do not interpret a statute’s words “in a vacuum.” Abramski v. United States, 573 U. S. 169, 179 (2014). Rather, we should interpret those words “with reference to the statutory context, structure, history and purpose[,] . . . not to mention common sense.” Ibid. (internal quotation marks omitted). Here, these considerations all favor a uniform look-through approach. And the statute’s language permits that approach. Interpretation of a statute must, of course, be consistent with its text. But looking solely to the text, and with a single-minded focus on individual words in the text, will sometimes lead to an interpretation at odds with the statute as a whole. And I fear that is what has happened in this case. I suggest that by considering not only the text, but context, structure, history, purpose, and common sense, we would read the statute here in a different way. That way would connect the statute more directly with the area of law, and of human life, that it concerns. And it would allow the statute, and the law, to work better and more simply for those whom it is meant to serve. With respect, I dissent. https://www.supremecourt.gov/opinions/21pdf/20-1143_m6hn.pdf
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Apr 5, 2022 22:21
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Grip it and rip it posted:Would you happen to have any links handy? I'd love to learn about this in its full context Which is very obviously a stupid fantasy land idea, because she's disliked by everyone, but well  ulmont posted:BADGEROW v. WALTERS ET AL.
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Apr 6, 2022 01:48
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Zero_Grade posted:I believe it's probably referring to this:https://twitter.com/Amy_Siskind/status/1481733475057156099 Well at least we'll have the pleasure of watching her worldview shatter when she never passes 2% support
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Apr 6, 2022 12:44
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Meatball posted:Well at least we'll have the pleasure of watching her worldview shatter when she never passes 2% support Ah, the Kamala Harris approach to entering the White House.
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Apr 6, 2022 14:13
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Zero_Grade posted:I believe it's probably referring to this:https://twitter.com/Amy_Siskind/status/1481733475057156099 We got any "Dissent by Sotomayor, joined by Thomas" yet?
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Apr 6, 2022 17:41
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Rust Martialis posted:We got any "Dissent by Sotomayor, joined by Thomas" yet? Not since 2016, no. https://www.supremecourt.gov/opinions/15pdf/14-1096_5hdk.pdf
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Apr 6, 2022 17:58
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Rust Martialis posted:We got any "Dissent by Sotomayor, joined by Thomas" yet? We’ve had “Dissent by Thomas, joined by Breyer, Sotomayor, and Kagan” in Arthrex and TransUnion. (Both last term; I haven’t looked at this term because I’m lazy and there isn’t a stat pack from SCOTUSBlog yet.) I think those two cases are the only cases in the previous 3 terms where Thomas and Sotomayor have both been dissenters.
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Apr 6, 2022 17:59
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ulmont posted:Not since 2016, no. https://www.supremecourt.gov/opinions/15pdf/14-1096_5hdk.pdf Gorsuch would sign onto that dissent so fast.
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Apr 6, 2022 18:02
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Opinion! From April 4th, and now I’m caught up. This one was delayed 2 days to spite one of you; they know what they did. THOMPSON v. CLARK ET AL. TLDR: You don’t need an affirmative indication of innocence (acquittal or dismissal by a judge for insufficient evidence) to maintain a malicious prosecution case, you just need to have your prosecution end without a conviction. Holding / Majority Opinion (Kavanaugh) Larry Thompson was charged and detained in state criminal proceedings, but the charges were dismissed before trial without any explanation by the prosecutor or judge. After the dismissal, Thompson alleged that the police officers who initiated the criminal proceedings had “maliciously prosecuted” him without probable cause. Thompson sued and sought money damages from those officers in federal court. As relevant here, he advanced a Fourth Amendment claim under 42 U. S. C. §1983 for malicious prosecution. To maintain that Fourth Amendment claim under §1983, a plaintiff such as Thompson must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution. This case requires us to flesh out what a favorable termination entails. Does it suffice for a plaintiff to show that his criminal prosecution ended without a conviction? Or must the plaintiff also demonstrate that the prosecution ended with some affirmative indication of his innocence, such as an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient? We conclude as follows: To demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under §1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction. Thompson satisfied that requirement in this case. We therefore reverse the judgment of the U. S. Court of Appeals for the Second Circuit and remand for further proceedings consistent with this opinion. Larry Thompson lived with his fiancée (now wife) and their newborn baby girl in an apartment in Brooklyn, New York. In January 2014, Thompson’s sister-in-law was also staying there. The sister-in-law apparently suffered from a mental illness. One day that January, the sister-in-law called 911 and claimed that Thompson was sexually abusing his one-week-old baby daughter. Two Emergency Medical Technicians promptly responded. When the EMTs arrived at the family’s apartment, Thompson asked the EMTs why they were there and denied that anyone had called 911. The EMTs left and informed the police of the situation. The EMTs and four police officers then returned to the apartment. When they arrived, Thompson told them that they could not come in without a warrant. The police officers nonetheless entered and, after a brief scuffle, handcuffed Thompson. The EMTs followed the officers into the apartment and examined the baby. After finding red marks on the baby’s body, the EMTs took the baby to the hospital for evaluation. The marks turned out to be a case of diaper rash. The medical professionals found no signs of abuse. Meanwhile, the police officers arrested Thompson for resisting their entry into the apartment. Thompson was taken to a local hospital and then to jail. While Thompson was in custody, one of the police officers prepared and filed a criminal complaint charging Thompson with obstructing governmental administration and resisting arrest. Thompson remained in custody for two days. A judge then released him on his own recognizance. Before trial, the prosecution moved to dismiss the charges, and the trial judge in turn dismissed the case. The prosecutor did not explain why she sought to dismiss the charges, nor did the trial judge explain why he dismissed the case. After the criminal prosecution ended, Thompson brought suit for damages under 42 U. S. C. §1983 against the police officers who had arrested and charged him. Thompson alleged several constitutional violations, including a Fourth Amendment claim for “malicious prosecution.” Thompson asserted that the officers “maliciously prosecuted” him and “subjected him to an unlawful, illegal and excessive detention” in violation of his Fourth Amendment rights. [Thompson lost because Second Circuit precedent required some affirmative evidence of innocence to win. He appealed.] The Courts of Appeals have split over how to apply the favorable termination requirement of the Fourth Amendment claim under §1983 for malicious prosecution. In addition to the Second Circuit, some other Courts of Appeals [3rd, 10th] have held that a favorable termination requires some affirmative indication of innocence. By contrast, the Eleventh Circuit has held that a favorable termination occurs so long as the criminal prosecution ends without a conviction. This Court granted certiorari to resolve the split. In 1871, Congress passed and President Grant signed the Civil Rights Act of 1871. Section 1 of that Act, now codified at 42 U. S. C. §1983, created a species of federal tort liability for individuals to sue state and local officers for deprivations of constitutional rights. In this case, Thompson sued several police officers under §1983, alleging that he was “maliciously prosecuted” without probable cause and that he was seized as a result. He brought a Fourth Amendment claim under §1983 for malicious prosecution, sometimes referred to as a claim for unreasonable seizure pursuant to legal process. This Court’s precedents recognize such a claim. … The narrow dispute in this case concerns one element of the Fourth Amendment claim under §1983 for malicious prosecution. To determine the elements of a constitutional claim under §1983, this Court’s practice is to first look to the elements of the most analogous tort as of 1871 when §1983 was enacted, so long as doing so is consistent with “the values and purposes of the constitutional right at issue.” Here, as most of the Courts of Appeals to consider the question have determined, the most analogous tort to this Fourth Amendment claim is malicious prosecution. That is because the gravamen of the Fourth Amendment claim for malicious prosecution, as this Court has recognized it, is the wrongful initiation of charges without probable cause. And the wrongful initiation of charges without probable cause is likewise the gravamen of the tort of malicious prosecution. In American courts as of 1871, the malicious prosecution tort generally allowed recovery against an individual who had initiated or caused the initiation of criminal proceedings despite having “no good reason to believe” that criminal charges were “justified by the facts and the law.” The malicious prosecution tort protected against “injury to the person, as connected with false imprisonment” and against “a wrong to character or reputation.” American courts described the elements of the malicious prosecution tort as follows: (i) the suit or proceeding was “instituted without any probable cause”; (ii) the “motive in instituting” the suit “was malicious,” which was often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice; and (iii) the prosecution “terminated in the acquittal or discharge of the accused.” That third requirement—a favorable termination of the underlying criminal prosecution—is the focus of the parties’ dispute in this case. In accord with the elements of the malicious prosecution tort, a Fourth Amendment claim under §1983 for malicious prosecution requires the plaintiff to show a favorable termination of the underlying criminal case against him. The favorable termination requirement serves multiple purposes: (i) it avoids parallel litigation in civil and criminal proceedings over the issues of probable cause and guilt; (ii) it precludes inconsistent civil and criminal judgments where a claimant could succeed in the tort action after having been convicted in the criminal case; and (iii) it prevents civil suits from being improperly used as collateral attacks on criminal proceedings. The parties to this case disagree about what a favorable termination entails. In particular, does it suffice for a plaintiff to show that his prosecution ended without a conviction? Or must the plaintiff also show that his prosecution ended with some affirmative indication of innocence, such as an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient? To resolve that disagreement, we must look to American malicious prosecution tort law as of 1871. In most American courts that had considered the question as of 1871, the favorable termination element of a malicious prosecution claim was satisfied so long as the prosecution ended without a conviction. As one influential New York decision explained, when the individual was “convicted in the suit or proceeding complained of,” he could not maintain an action for malicious prosecution. But when the individual was not convicted, the “question is, whether the prosecution instituted by the defendant can be said to have been terminated, disposed of, or, as the books usually say, at an end.” The “technical prerequisite is only that the particular prosecution be disposed of in such a manner” that it “cannot be revived.” On that point, American courts as of 1871 were largely in agreement…Several courts explicitly added, moreover, that a favorable termination did not require an acquittal or a dismissal accompanied by some affirmative indication of innocence. In the words of one court, it “is not to be understood, that an action, for a malicious prosecution, will not lie, unless the party has been acquitted by a jury on trial.” “On the contrary, a person may have his action after a bill rejected by the grand jury, or even where no bill has been preferred, if there is a final end of the prosecution, and the party discharged.” The parties to this case have identified only one court that required something more, such as an acquittal or a dismissal accompanied by some affirmative indication of innocence. In 1863, the Rhode Island Supreme Court concluded, “with reluctance,” that “‘the termination must be such as to furnish prima facie evidence that the action was without foundation.’” But Rhode Island stood as an outlier on that question. … Against that body of precedent and historical practice, respondent Clark contends that American courts as of 1871 had not settled on any particular favorable termination rule. But the cases and treatises that respondent latches onto addressed a separate issue—not whether the prosecution had terminated in the defendant’s favor, but whether the prosecution had terminated at all. … Respondent also seizes on a comment in the American Law Institute’s 1976 Second Restatement of Torts (as have most of the Courts of Appeals that have sided with respondent’s position on this issue). The comment in the Second Restatement opined that, for purposes of a malicious prosecution claim, a criminal case terminates “in favor of the accused” when the prosecution ends in a way “as to indicate the innocence of the accused.” But respondent’s reliance on the 1976 Restatement is flawed because the Restatement did not purport to describe the consensus of American law as of 1871, at least on that question. The status of American law as of 1871 is the relevant inquiry for our purposes. And in the overwhelming majority of American jurisdictions that had considered the issue as of 1871, a plaintiff alleging malicious prosecution did not need to show that his prosecution had ended with some affirmative indication of innocence. Because the American tort-law consensus as of 1871 did not require a plaintiff in a malicious prosecution suit to show that his prosecution ended with an affirmative indication of innocence, we similarly construe the Fourth Amendment claim under §1983 for malicious prosecution. Doing so is consistent, moreover, with “the values and purposes” of the Fourth Amendment. The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed. … In sum, we hold that a Fourth Amendment claim under §1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff need only show that the criminal prosecution ended without a conviction. Thompson has satisfied that requirement here. We express no view, however, on additional questions that may be relevant on remand, including whether Thompson was ever seized as a result of the alleged malicious prosecution, whether he was charged without probable cause, and whether respondent is entitled to qualified immunity. On remand, the Second Circuit or the District Court as appropriate may consider those and other pertinent questions. We reverse the judgment of the U. S. Court of Appeals for the Second Circuit and remand for further proceedings consistent with this opinion. It is so ordered. Lineup: Kavanaugh, joined by Roberts, Breyer, Sotomayor, Kagan, and Barrett. Dissent by Alito, joined by Thomas and Gorsuch. Dissent (Alito) Homer described the mythical chimera as a “grim monster” made of “all lion in front, all snake behind, all goat between.” Today, the Court creates a chimera of a constitutional tort by stitching together elements taken from two very different claims: a Fourth Amendment unreasonable seizure claim and a common-law malicious-prosecution claim. The Court justifies this creation on the ground that malicious prosecution is the common-law tort that is most analogous to an unreasonable seizure claim. And because a common-law malicious-prosecution claim demanded proof of a favorable termination, the Court holds that its new creation includes that element. But this Court has never held that the Fourth Amendment houses a malicious-prosecution claim, and the Court defends its analogy with just two sentences of independent analysis and a reference to a body of lower court cases. I cannot agree with that approach. The Court’s independent analysis of this important question is far too cursory, and its reliance on lower court cases is particularly ill-advised here because that body of case law appears to have been heavily influenced by a mistaken reading of the plurality opinion in Albright v. Oliver, 510 U. S. 266 (1994). … The Fourth Amendment prohibits “unreasonable searches and seizures.” And a Fourth Amendment claim based on an unreasonable seizure has two indispensable elements: (i) there must have been a “seizure,” i.e., an arrest or some other use of “‘physical force’ or a ‘show of authority’ that ‘in some way restrain[s] the liberty’ of [a] person,” and (ii) the seizure must have been “unreasonable,” which means, in the case of a full-blown arrest, that the officers making the arrest must have lacked probable cause. Malicious prosecution, on the other hand, requires proof that “(i) the suit or proceeding was ‘instituted without any probable cause;’ (ii) the ‘motive in instituting’ the suit ‘was malicious . . . ; and (iii) the prosecution ‘terminated in the acquittal or discharge of the accused.’” A comparison of the elements of the malicious-prosecution tort with the elements of a Fourth Amendment unreasonable-seizure claim shows that there is no overlap. That is, a plaintiff suing for unreasonable seizure need not prove any of the elements of common-law malicious prosecution, and a plaintiff suing for common-law malicious prosecution need not prove any of the elements required to establish an unreasonable seizure. Start with the elements of an unreasonable-seizure claim. Such a claim does not require proof that there was a “prosecution”—i.e., a criminal proceeding that is initiated by the filing of charges in the form of a criminal complaint, information, or indictment—while a malicious-prosecution claim obviously requires a prosecution.…An unreasonable-seizure claim also does not require “malice.” The Court has “almost uniformly rejected invitations to probe subjective intent” in Fourth Amendment cases.…Finally, the validity of an unreasonable-seizure claim is not dependent on the outcome of any prosecution that happens to follow a seizure. … Turning now to the elements of malicious prosecution, we see that all of those may be established without proving either of the two elements that the constitutional text and our precedents require in order to establish an unreasonable seizure. First, the tort of malicious prosecution does not require a seizure within the meaning of the Fourth Amendment. There are cases in which defendants charged with nonviolent crimes agree to appear for arraignment and are then released pending trial on their own recognizance. These defendants are prosecuted, and they may bring a common-law suit for malicious prosecution if the other elements of that tort can be shown, but they are not seized. … Second, since a malicious-prosecution claim does not require a seizure, it obviously does not require proof that the person bringing suit was seized without probable cause. The claim does demand proof that the person bringing suit was prosecuted without probable cause, but probable cause at the time of arrest is a different question from probable cause at the time at which a prosecution is initiated. … In light of the differences between these two claims, it is apparent that a Fourth Amendment unreasonable-seizure claim is not analogous to a claim for malicious prosecution. Much more analogous are the common-law torts of false arrest and false imprisonment, which protect against “[e]very confinement of the person,” including one effected by “forcibly detaining [someone] in the public streets.” The Court does not make a serious effort to justify its analogy between unreasonable seizure and malicious prosecution. Instead, the Court largely relies on the fact that “most of the Courts of Appeals to consider the question” have drawn that analogy, but the Court ignores contrary lower court authority. But in any event, we should not decide this important question without independent analysis, and the Court’s own cursory analysis is erroneous. The Court claims that the “gravamen” of petitioner’s Fourth Amendment claim is the same as that of a malicious-prosecution claim: the “wrongful initiation of charges without probable cause.” But what the Court describes is not a Fourth Amendment violation at all. As explained, that Amendment protects against “unreasonable searches and seizures”—not the unreasonable “initiation of charges.” In fact, “the specific provisions of the Bill of Rights neither impose a standard for the initiation of a prosecution” nor “require a pretrial hearing to weigh evidence according to a given standard.” The Court also says that the initiation of charges must be “wrongful,” but it is not clear what that means. If that term simply refers to the lack of probable cause, then the Court has failed to capture the “gravamen” of malicious prosecution because that tort requires not just that the defendant initiated charges “without probable cause” but also—as the name of the tort suggests—that this was done with “malice.” If, on the other hand, the Court uses the term “wrongful” to require “malice,” then the claim it has endorsed is even more incompatible with the Fourth Amendment, which almost always imposes a purely objective standard. … The Court relies on certain lower court decisions that accepted the strange concept of a Fourth Amendment malicious-prosecution claim, but that line of cases developed in large part because of a misunderstanding of the tersely worded plurality opinion in Albright, 510 U. S. 266. Instead of simply accepting that misreading, we should explain what Albright actually decided and what the plurality said. … when the case was argued in this Court, the only claim that Albright pressed was that his prosecution without probable cause violated substantive due process. He did not advance either a Fourth Amendment claim or a malicious-prosecution claim. This Court affirmed the dismissal of Albright’s substantive due process claim, and while no opinion gained majority approval, both the four Justices who joined the plurality opinion and the three justices who concurred in the judgment agreed that substantive due process does not include the right to be free from prosecution without probable cause. That is all that Albright actually decided. The terse plurality opinion did make comments about the Fourth Amendment and malicious prosecution, and those comments have led to confusion in the lower courts. But a careful reading of the plurality opinion shows that it in no way suggested that the Fourth Amendment protects against malicious prosecution…the plurality did not even hint that such a claim could be brought under the Fourth Amendment. The plurality’s only two references to malicious prosecution appeared in the portion of the opinion that set out what had occurred in the lower courts. Footnote 3 recounted that Albright’s complaint contained a common-law malicious-prosecution claim but that this claim had been dismissed without prejudice and that this issue was not before the Court. Footnote 4 then observed that there was an “‘embarrassing diversity of judicial opinion’” in the lower courts as to whether a malicious-prosecution claim was actionable under §1983, and the footnote added that substantive due process did not “furnish the constitutional peg on which to hang such a ‘tort.’” But the plurality opinion did not suggest that the Fourth Amendment could provide such a “peg,” and neither did any other Justice who concurred in the judgment. [some weaseling about what Justice Kennedy said in a footnote here.] … Instead of clarifying the law regarding §1983 malicious-prosecution claims, today’s decision, I fear, will sow more confusion. The Court endorses a Fourth Amendment claim for malicious prosecution that appears to have the following elements: (1) the defendant “initiat[ed]” charges against the plaintiff in a way that was “wrongful” and “without probable cause,” (2) the “malicious prosecution resulted in a seizure of the plaintiff,” and (3) the prosecution must not have ended in conviction. This tort has no precedent in Fourth Amendment law. It is markedly different from the common-law tort of malicious prosecution, and its dimensions are uncertain. First, it is not clear why this tort requires both a seizure and a prosecution. As noted, the two do not always go together, and if the aim is to permit the victims of malicious prosecution to sue under §1983, it is not clear why detention should be required. … Second, where the person bringing suit under §1983 is arrested and then prosecuted, it is not clear whether both the arrest and the prosecution must have been done without probable cause and without a legitimate law enforcement purpose. … Third and most important, it is not clear what the Court means when it says that the “gravamen” of the claim is “wrongful initiation of charges without probable cause.” Since the Court refers repeatedly to “malicious prosecution,” one might think that this requires a guilty mental state, but in a footnote, the Court raises the possibility that the constitutional tort it recognizes may require nothing more than the absence of probable cause. If that turns out to be so, it is hard to see even the slightest connection between the Court’s new tort and common-law malicious prosecution [hold on to this, we’ll come back to it]. Malice is the hallmark of a malicious-prosecution claim. Even if a prosecution is brought and maintained without probable cause, a malicious-prosecution claim cannot succeed without proof of malice. And if the Court’s new tort has nothing to do with malicious prosecution, what possible reason can there be for borrowing that tort’s favorable-termination element? Instead of creating a new hybrid claim, we should simply hold that a malicious-prosecution claim may not be brought under the Fourth Amendment. Such a holding would not leave a person in petitioner’s situation without legal protection. Petitioner brought Fourth Amendment claims against respondents for false arrest, excessive force, and unlawful entry, but after trial a jury ruled against him on all those claims.Petitioner could have also sought relief under state law. New York law appears to recognize a malicious-prosecution tort with an element very much like the favorable-termination element that the Court adopts today, but petitioner chose not to bring such a claim. [So the current state “malicious-prosecution” torts “have nothing to do with common-law malicious prosecution”? I have questions.] For these reasons, I would affirm the judgment below, and I therefore respectfully dissent. https://www.supremecourt.gov/opinions/21pdf/20-659_3ea4.pdf
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Apr 6, 2022 22:46
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That's a good decision to reach but it's unfortunate that the cops are just going to be able to claim QI and the SCOTUS, if this gets back to them, will go "yeah that works, tough poo poo guy whose rights were violated. This voodoo bullshit the courts created for their own interests trumps your petty 4A claims."
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Apr 7, 2022 00:24
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Jackson confirmed with Romney, Collins, and Murkowski joining the Democrats
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Apr 7, 2022 19:28
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