Articles Posted in Constitutional Law

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Sause, pro se, filed suit (42 U.S.C. 1983) against Louisburg, Kansas, police officers, the current mayor, and a former mayor, alleging that officers visited her apartment in response to a noise complaint, gained admittance, and engaged in abusive conduct before citing her for disorderly conduct and interfering with law enforcement. She alleged that at one point she knelt and began to pray but an officer ordered her to stop; another officer refused to investigate her complaint that she had been assaulted by residents of her apartment complex and threatened to issue a citation if she reported this to another police department; that the police chief failed to investigate the officers’ conduct; and that the mayors were aware of unlawful conduct by police officers. She asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The Tenth Circuit affirmed dismissal, citing qualified immunity. The Supreme Court reversed. The First Amendment protects the right to pray but there are circumstances in which an officer may lawfully prevent a person from praying. Here, the officer’s order to stop praying allegedly occurred during the course of investigative conduct that implicates Fourth Amendment rights; the First and Fourth Amendment issues are inextricable. It is unclear whether the officers were in Sause’s apartment based on her consent or had some other ground consistent with the Fourth Amendment, or whether their entry or continued presence was unlawful. Nor does her complaint state what the officers wanted her to do when she was allegedly told to stop praying. Without these answers, it is impossible to analyze Sause’s free exercise claim. Although Sause raised only a First Amendment argument on appeal, that claim and the issue of qualified immunity demanded consideration of the ground on which the officers were present and any legitimate law enforcement interests that might have justified an order to stop praying. View "Sause v. Bauer" on Justia Law

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North Carolina redistricted state legislative districts. Plaintiffs alleged that the General Assembly racially gerrymandered their districts in an ostensible effort to comply with the Voting Rights Act; 28 districts comprised majorities of black voters. The Supreme Court affirmed judgment for the plaintiffs but vacated the district court’s remedial order, which directed the General Assembly to adopt new districting maps, shortened by one year the terms of the legislators currently serving the gerrymandered districts, called for special elections in those districts, and suspended two provisions of the state Constitution. On remand, the district court ordered the General Assembly to draw remedial maps. The General Assembly complied, directing its map drawers to make “[r]easonable efforts . . . to avoid pairing incumbent members” and not to use “[d]ata identifying the race of individuals or voters.” The plaintiffs argued that four legislative districts still segregated voters on the basis of race and objected to redrawing five districts in Wake and Mecklenburg Counties, which did not violate the Constitution, and did not abut a district violating the Constitution, so that the revision of the borders constituted mid-decade redistricting in violation of the North Carolina Constitution. The district court appointed a Special Master to redraw the lines of the districts and ultimately adopted the Master’s recommended reconfiguration; the court credited the Master’s submission that his “‘remedial districts were drawn not with any racial target in mind, but in order to maximize compactness, preserve precinct boundaries, and respect political subdivision lines,’” and that the map was the product of “‘explicitly race-neutral criteria.’” The Supreme Court first rejected an argument that gerrymandering claims ceased to exist when the General Assembly enacted remedial plans and repealed the old plans. It is the segregation of the plaintiffs, not the legislature’s line-drawing, that gives rise to their claims. The court did not abuse its discretion by arranging for the Special Master to draw up a remedial map instead of giving the General Assembly another chance nor by adopting the Special Master’s recommended remedy. While the 2017 legislature instructed its map drawers not to look at race, the district court engaged in detailed, fact-finding and found sufficient circumstantial evidence that race was the predominant factor governing the shape of the districts. The court’s allowance that the Special Master could “consider data identifying the race of individuals or voters to the extent necessary to ensure that his plan cures the unconstitutional racial gerrymanders,” does not amount to a warrant for “racial quotas.” The Court affirmed with respect to four districts but reversed with respect to districts in Wake and Mecklenburg Counties, which was unrelated to racially gerrymandered districts. View "North Carolina v. Covington" on Justia Law

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Beaudreaux shot and killed Drummond in 2006. Esho and Crowder were witnesses. The next day, Crowder told the police that he knew the shooter from school, but did not know his name. Esho described the shooter, but did not know his name. Seventeen months later, Crowder was arrested for an unrelated crime. While Crowder was in custody, police showed him a middle-school yearbook with Beaudreaux’s picture and a photo lineup including Beaudreaux. Crowder identified Beaudreaux. Officers interviewed Esho the next day, showing him a display with a recent picture of Beaudreaux and pictures of five other men. Esho tentatively identified Beaudreaux, saying his picture “was ‘closest’ to the gunman.” Later that day, an officer found another photograph of Beaudreaux that was taken “closer to the date” of the shooting. Beaudreaux looked different in the two photographs. Hours after the first interview, officers showed Esho a second six-man photo lineup, with the older picture of Beaudreaux, in a different position in the lineup. Esho said that the second picture was “very close.” He again declined to positively state that Beaudreaux was the shooter. At a preliminary hearing, Esho identified Beaudreaux as the shooter. At trial, Esho explained that it “clicked” when he saw Beaudreaux in person based on “the way that he walked.” At no time did any investigator or prosecutor suggest to Esho that Beaudreaux was the one who shot Drummond. At trial, Esho and Crowder both identified Beaudreaux as Drummond’s shooter. The jury found Beaudreaux guilty. Beaudreaux’s conviction was affirmed. Beaudreaux's second state habeas petition claimed that his attorney was ineffective for failing to move to suppress Esho’s identification testimony. The California Court of Appeal summarily denied the petition; the California Supreme Court denied review. The Ninth Circuit reversed a denial of federal habeas relief, 28 U.S.C. 2254. The Supreme Court reversed. The Ninth Circuit did not consider reasonable grounds that could have supported the state court’s summary decision, and it analyzed Beaudreaux’s arguments without any meaningful deference to the state court. View "Sexton v. Beaudreaux" on Justia Law

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If a union is designated as the exclusive representative of Illinois public sector employees it represents even those who do not join; individual employees may not be represented by another agent or negotiate directly with their employer. Nonmembers are required to pay an “agency fee,” a percentage of the full union dues to cover union expenditures attributable to activities “germane” to the union’s collective bargaining activities, but may not cover the union’s political and ideological projects. The union sets the agency fee annually and sends nonmembers notices explaining the basis for the fee. Janus, a state employee represented by a public-sector union, challenged the constitutionality of the state law authorizing agency fees. The Seventh Circuit affirmed the dismissal of his suit. The Supreme Court reversed, overruling its 1977 holding, “Abood,” as inconsistent with First Amendment principles. Illinois law compelled nonconsenting workers to subsidize the speech of other private speakers and cannot be justified by asserted interests in “labor peace,” which can readily be achieved through less restrictive means, or in avoiding “the risk of free riders,” because unions are willing to represent nonmembers without agency fees. Interests in bargaining with an adequately funded agent and improving the efficiency of the workforce do not suffice; unions can be effective without agency fees. The union speech at issue does not cover only matters of private concern but covers critically important public matters such as the state’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights. The government’s proffered interests must, therefore, justify the heavy burden of agency fees on nonmembers’ First Amendment interests. They do not. The uncertain status of Abood, known to unions for years; Abood's lack of clarity; the short-term nature of collective-bargaining agreements; and the ability of unions to protect themselves if an agency-fee provision was crucial to operations, undermine the force of reliance on that decision. States and public-sector unions may no longer extract agency fees from nonconsenting employees. View "Janus v. State, County, and Municipal Employees" on Justia Law

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President Trump lawfully exercised the broad discretion granted to him under section 1182(f) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f), to issue Proclamation No. 9645, suspending the entry of aliens into the United States, and the Proclamation does not violate the Establishment Clause. The Proclamation sought to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat,and placed entry restrictions on the nationals of foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. The Supreme Court held that section 1182(f) entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions; Trump fulfilled section 1182(f)'s sole prerequisite that the President find that the entry of the covered aliens would be detrimental to the interests of the United States; even assuming that some form of inquiry into the persuasiveness of the President's findings was appropriate, plaintiffs' attacks on the sufficiency of the findings could not be sustained; the Proclamation comports with the remaining textual limits in section 1182(f); plaintiffs failed to identify any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation's vetting system; and plaintiffs' argument that the President's entry suspension violates section 1152(a)(1)(A) ignored the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Finally, the Court applied rational basis review and held that plaintiffs, although they have standing to challenge the exclusion of their relatives, have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause where the Proclamation was expressly premised on legitimate purposes and said nothing about religion. The Court drew a distinction between whether it must consider not only the statements of a particular President, but also the authority of the Presidency itself. The Court concluded that the Government has set forth a sufficient national security justification to survive rational basis review. View "Trump v. Hawaii" on Justia Law

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The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) regulates pro-life centers that offer pregnancy-related services. Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number. The stated purpose is to ensure that state residents know their rights and what services are available. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving care from licensed professionals. In a case under the First Amendment, the Ninth Circuit affirmed the denial of a preliminary injunction. The Supreme Court reversed, holding that the licensed notice requirement likely violates the First Amendment. Content-based laws “are presumptively unconstitutional" and may be justified only if narrowly tailored to serve compelling state interests. The notice is a content-based regulation, requiring a particular message. Speech is not unprotected merely because it is uttered by professionals. The notice is not limited to “purely factual and uncontroversial information about" services. Nor is it a regulation of professional conduct that incidentally burdens speech; it applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought. Other facilities, including general clinics providing the same services, are not subject to the requirement. If states could choose the protection that speech receives simply by requiring a license, they would have a powerful tool to impose “invidious discrimination of disfavored subjects.” Assuming that California’s interest in providing low-income women with information about state-sponsored service is substantial, the licensed notice is not sufficiently drawn to promote it but is “wildly underinclusive,” applying only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” while excluding other types clinics that also serve low-income women and could educate them about the state’s services. California could also inform the women about services “without burdening a speaker with unwanted speech,” most obviously through a public-information campaign. The unlicensed notice also unduly burdens protected speech. A disclosure requirement cannot be “unjustified or unduly burdensome,” must remedy a harm that is “potentially real not purely hypothetical,” and can extend “no broader than reasonably necessary.” California has not demonstrated any justification that is more than “purely hypothetical.” View "National Institute of Family and Life Advocates v. Becerra" on Justia Law

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In 2011, Texas adopted a new congressional districting plan and new districting maps for the state legislature. The Equal Protection Clause forbids “racial gerrymandering,” but Texas is also subject to section 2 of the Voting Rights Act (VRA), which is violated when a state districting plan provides “less opportunity” for racial minorities “to elect representatives of their choice.” Texas was also subject to section 5, which barred it from making any districting changes unless it could prove that they did not result in retrogression with respect to the ability of racial minorities to elect the candidates of their choice. The plan was challenged in a Texas district court. Texas submitted the plans for preclearance to the District of Columbia Circuit. For the upcoming primaries, the Supreme Court instructed the Texas court to start with the 2011 plans and make adjustments required by the Constitution and the VRA. The Texas court adopted new interim plans, which, after the D.C. Circuit denied preclearance, were used for the 2012 elections. The state repealed the 2011 plans and enacted the Texas court’s plans with minor modifications. After the Supreme Court’s 2013 "Shelby County" holding, Texas, no longer covered by section 5, obtained a vacatur of the preclearance order. The Texas court allowed a challenge to the 2013 plans and held that challenges to the 2011 plans remained live. Texas conducted its 2014 and 2016 elections under the 2013 plans. In 2017, the Texas court found defects in several districts in the 2011 federal congressional and State House plans; invalidated multiple Congressional and House Districts in the 2013 plans, holding that the Legislature failed to cure the “taint” of discriminatory intent allegedly harbored by the 2011 Legislature; held that three districts were invalid because they had the effect of depriving Latinos of the equal opportunity to elect their candidates of choice; found that HD90 was a racial gerrymander; and gave the state attorney general three days to respond. Assuming jurisdiction under 28 U.S.C. 1253, the Court concluded that the orders qualify as interlocutory injunctions; the short time frame the attorney general was given indicated that the court did not intend to allow the elections to go ahead under the plans it had condemned. The Texas court erred in requiring the state to show that the 2013 Legislature purged the “taint” attributed to the never-used plans enacted by a prior legislature. The “good faith of [the] state legislature must be presumed.” The 2011 Legislature’s intent and the court’s interim plans, weighed with other evidence, “is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination.” The Court reversed as to the three districts in which the Texas court relied on section 2’s “effects” test but affirmed that HD90 is a racial gerrymander. For a section 2 “effects” claim, a plaintiff must establish a geographically compact minority population sufficient to constitute a majority in a single-member district, political cohesion among the members of the minority group, bloc voting by the majority to defeat the minority’s preferred candidate, and that the district lines dilute the votes of the minority group. View "Abbott v. Perez" on Justia Law

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When a phone connects to a cell site, it generates time-stamped cell-site location information (CSLI) that is stored by wireless carriers for business purposes. The FBI identified the cell phone numbers of robbery suspects. Prosecutors obtained court orders to get the suspects’ CSLI under the Stored Communications Act, which requires “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation,” 18 U.S.C. 2703(d), rather than a showing of probable cause. With CSLI for Carpenter’s phone, the government cataloged Carpenter’s movements over 127 days, showing that Carpenter’s phone was near four robbery locations at the time those robberies occurred. After denial of his motion to suppress, Carpenter was convicted. The Sixth Circuit affirmed. The Supreme Court reversed, holding that the acquisition of Carpenter’s cell-site records was a Fourth Amendment search. The Fourth Amendment protects expectations of privacy “that society is prepared to recognize as reasonable” so that official intrusion generally qualifies as a search and requires a warrant supported by probable cause. Historical cell-site records give the government near-perfect surveillance, allow it to travel back in time to retrace a person’s whereabouts. Rejecting an argument that the third-party doctrine governed these “business records,” the Court noted the “world of difference between the limited types of personal information” addressed in precedent and the “exhaustive chronicle of location information casually collected by wireless carriers.” CSLI is not truly “shared” because cell phones are an indispensable, pervasive part of daily life and they log CSLI without any affirmative act by the user. The Court noted that its decision is narrow and does not address conventional surveillance tools, such as security cameras, other business records that might reveal location information, or collection techniques involving foreign affairs or national security. View "Carpenter v. United States" on Justia Law

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Currier was indicted for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. Because the prosecution could introduce evidence of his prior burglary and larceny convictions to prove the felon-in-possession charge, which might prejudice the jury’s consideration of the other charges, the parties agreed to a severance and asked the court to try the burglary and larceny charges first, followed by a second trial on the felon-in-possession charge. At the first trial, Currier was acquitted. He then, unsuccessfully, sought to stop the second trial, arguing that it would amount to double jeopardy. The jury convicted him on the felon-in-possession charge. Virginia courts and the Supreme Court affirmed, reasoning that, because Currier consented to a severance, his trial and conviction on the felon-in-possession charge did not violate the Double Jeopardy Clause, which provides that no person may be tried more than once “for the same offence.” A second trial is not precluded simply because it is very unlikely that the original jury acquitted without finding the fact in question. Currier was not forced to give up one constitutional right to secure another but faced a lawful choice between courses of action that each bore potential costs and benefits. View "Currier v. Virginia" on Justia Law

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After Lozman towed his floating home into a marina owned by the City, he became an outspoken critic of the City’s plan to condemn waterfront homes for private development. He filed suit, alleging that the City’s approval of a development agreement violated Florida’s open-meetings laws. The Council held a closed-door session and discussed Lozman’s lawsuit. He alleges that the meeting’s transcript shows that councilmembers devised an official plan to intimidate him. Months later, the Council held a public meeting. Lozman spoke about the arrests of officials from other jurisdictions. When he refused a councilmember’s request to stop making his remarks, a police officer was told to “carry him out.” The officer handcuffed Lozman and ushered him out, allegedly for violating the Council’s rules of procedure by discussing issues unrelated to the City and refusing to leave the podium. The State’s attorney determined that there was probable cause for his arrest, but dismissed the charges. Lozman filed suit under 42 U.S.C. 1983. The district court instructed the jury that, for Lozman to prevail on his retaliatory arrest claim, he had to prove that the officer was motivated by impermissible animus against Lozman’s protected speech and lacked probable cause to make the arrest. The Eleventh Circuit affirmed a judgment for the City. The Supreme Court vacated. The existence of probable cause does not bar Lozman’s First Amendment retaliation claim because his case, is “far afield from the typical retaliatory arrest claim.” Lozman must prove the existence and enforcement of an official policy motivated by retaliation which is unlike an on-the-spot decision by an individual officer. The Court noted that Lozman alleges that the City deprived him of the right to petition, “one of the most precious of the liberties safeguarded by the Bill of Rights." View "Lozman v. Riviera Beach" on Justia Law