Sad day.

Welcome back.

We start year 12 with this cool article from the Herald about Fane Lozman, who has this message for his town:  Fane Lozman returns, Thank you... U.S. Supreme Court 

From the article:

“I want to make a statement,” he said. “I want people to see who I am and then they can look up the case to find out more.”
Lozman’s troubles began when Riviera Beach “arrested” his houseboat in April 2009 and later destroyed it. Lozman, a former Marine Corps officer, argued that the city couldn’t regulate his home as a maritime vessel.
His houseboat had been moored at the Riviera Beach marina after Hurricane Wilma destroyed his former marina in North Bay Village in 2005. The structure did not have an engine and was equipped to be connected to sewer lines on dry land.
In 2013, the Supreme Court, by a 7-2 vote, overturned an 11th Circuit Court of Appeals ruling, deciding that Riviera Beach didn’t have the jurisdiction to have his boat seized. He said he still hasn’t recovered his financial losses — including the cost of the boat — from the city, and hopes he will soon.

Meantime, Justice Sotomayor is kicking some ass (via NYT):

The Supreme Court term had barely gotten underway in early November when Justice Sonia Sotomayor issued her first dissent. A police officer’s “rogue conduct,” she wrote, had left a man dead thanks to a “‘shoot first, think later’ approach to policing.”

Justice Sotomayor went on to write eight dissents before the term ended last week. Read together, they are a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.

Only Justice Clarence Thomas wrote more dissents last term, but his agenda was different. Laconic on the bench, prolific on the page and varied in his interests, Justice Thomas is committed to understanding the Constitution as did the men who drafted and adopted it centuries ago.

Justice Sotomayor’s concerns are more contemporary and more focused. Her dissents this term came mostly in criminal cases, informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787.

She dissented again in January, from Justice Antonin Scalia’s final majority opinion. Joined by no other member of the court, she said the majority in three death penalty cases might have been swayed by the baroque depravity of the crimes. “The standard adage teaches that hard cases make bad law,” she wrote. “I fear that these cases suggest a corollary: Shocking cases make too much law.” 

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/miami-beach/article87493917.html#storylink=cpy

Happy 11th birthday to the blog

Tomorrow the blog turns 11 years old, which is very old in blog years!  It's been pretty cool covering the District ... we are at 3000 posts and counting. 

The very first post 10 years ago asked for President Bush to appoint a Floridian to the Supreme Court.  Although the Court did get its first Hispanic jurist, it did not get a Floridian.  Hopefully one day soon!

Thanks to all of you for reading, sending me tips, and commenting.  

Judge Paul Huck's Court Observer Program a success

Every summer, Judge Huck holds a really cool seminar for summer interns/clerks.  Here are some pictures from this year's event:

Lighthouse = wet foot (UPDATED w opinion)

UPDATE -- here's the 35-page opinion. Some good stuff.  Here's the conclusion:

“We acknowledge, as a widely-accepted truth, that Cuba does violate human rights and fundamental freedoms and does not guarantee the rule of law to people living in Cuba.” Gonzalez I, 212 F.3d at 1353. “The principal human rights abuses include[] the abridgement of the ability of citizens to choose their government; the use of government threats, physical assault, intimidation, and violent government-organized counterprotests against peaceful dissent; and harassment and detentions to prevent free expression and peaceful assembly.” Bureau of Democracy, Human Rights & Labor, U.S. Dep’t of State, Cuba 2015 Human Rights Report 1, available at http://www.state.gov/documents/organization/253217.pdf. Twenty-four Cuban migrants boarded a boat slightly over a month ago in hopes of reaching the United States, the land of freedom and opportunity where their families and friends had ventured before them, a place where “all men are created equal” and where the “certain unalienable rights” of “Life, Liberty, and the pursuit of Happiness” are held sacred. The Declaration of Independence para. 2 (1776). There is no doubt that these Cuban migrants and their families have spent the pendency of this litigation dreaming of those opportunities in the spirit of the Cuban hero and poet José Martí: “I dream with open eyes both night and day; I always dream.”15
The Court neither approves nor disapproves the Executive Branch’s decision that the Cuban migrants in this case do not qualify for refugee processing as dry foot arrivals to the United States. Developments and revisions of immigration and foreign policy are left to the political branches of the government. However, the Coast Guard’s informal adjudication in this case does not contradict Congress’s policies in the INA nor the President’s executive actions in securing our borders. And Plaintiffs have not been deprived of any constitutional rights to which they are presently entitled.

 15 “Yo sueño con los ojos abiertos, y de día y noche siempre sueño.” Twentieth-Century Latin American Poetry: A Bilingual Anthology 21 (Stephen Tapscott ed., Elinor Randall trans., Univ. of Tex. Press 1996) (capitalization modified).

Interesting decision by Judge Gayles.  Via the Miami Herald:

After more than five weeks bobbing offshore in a Coast Guard cutter, 21 Cuban migrants are headed back to Cuban soil.
Federal Judge Darrin Gayles ruled Tuesday that the U.S.’s “wet-foot, dry-foot” policy does not extend to the American Shoal lighthouse six and a half nautical miles off Sugarloaf Key. The 21 migrants, two of which are women, fled Cuba and landed on the lighthouse, sparking an eight-hour standoff with the Coast Guard crews while they refused to climb off the 109-foot tall structure.
Once they climbed off the lighthouse and into the Coast Guard boats, the U.S. government said the structure didn’t count as American soil and tried to send the migrants back to Cuba.

 

Read more here: http://www.miamiherald.com/news/local/community/florida-keys/article86407227.html#emlnl=News_Alert#storylink=cpy

Supreme Court to end Term on a whimper (UPDATED)

It's partly because there's only 8 Justices (see, e.g., the immigration case).  It's partly because the Court didn't have as many cases as usual (and even that's been very low in recent years).  And it's partly because the Court just didn't have the blockbuster Term it's had in the past.

There are 3 cases left.  Mark Sherman from the AP has this:

- Abortion: Texas abortion clinics are challenging a state law and regulations that already have cut the number of abortion providers in half, to roughly 20. Fewer than 10 would remain if the 2013 law were allowed to take full effect. One positive sign for the clinics is that only Justices Stephen Breyer and Elena Kagan, who generally side with abortion rights advocates, have yet to write opinions from the session in late February and early March when the case was argued. Each justice typically writes at least one majority opinion from each argument session.
- Public corruption: The justices seemed likely to side with McDonnell, who is challenging his conviction for accepting gifts and loans from a wealthy businessman in exchange for promoting a dietary supplement. A ruling for McDonnell could make it harder to prosecute public officials.
- Guns: Two men from Maine are challenging their convictions for possessing guns under a federal law that is intended to keep guns out of the hands of people who have previously been convicted of domestic violence.

UPDATE -- I'll leave the abortion and gun decisions for someone else to write about.  For this Blog's readers, check out the McDonnell opinion.  A unanimous Court vacated the convictions because the government, district court, and appellate court read the statutes at issue way too broadly and didn't give defense requested jury instructions.  It's worth noting that the appellate court did not even grant McDonnell a bond pending the cert proceedings and the Supreme Court had to step in.  I think this is a good reminder from SCOTUS that district judges and appellate judges need to really step up their role as a check on the government.  There should be more dismissals granted (the government can always appeal), more defense instructions given, and more bonds granted (no one suffers any harm here if there is a bond, but if not, the case may become meaningless because the defendant will have served his sentence).  It's so much harder to get the Supreme Court to review a conviction (as was done here, perhaps because the defendant was the Governor) than the other way around. 

En banc argument in Docs v. Glocks

You remember the case.  It's the law Judge Cooke struck down and then the 11th Circuit reversed 2-1 (the opinion was amended 3 times before the court took the case en banc).  The AJC covers it here:

Several of the 11 judges on the federal appeals court in Atlanta were skeptical — and at times perplexed — about the purpose of a Florida law that prohibits physicians from asking patients about guns in their households.The occasion for the unusual “en banc” hearing — in which all the judges on the 11th U.S. Circuit Court of Appeals hear a case rather than the usual three-judge panel — was a law that has infuriated doctors and pleased gun-rights advocates. The measure, nicknamed “Docs v. Glocks,” was not well-received by the crowd of jurists at Tuesday’s hearing.
The hourlong proceeding included a striking exchange among the judges and Rachel Nordby, the deputy solicitor general of Florida, who was representing the state. The court questioned why the law seems to contradict itself, at one point evoking a strict prohibition and at another seeming to say the law is more of a suggestion.
Nordby said the law allows doctors to ask questions about guns if they believe that information is “relevant. They are the gate keepers.”
Are you telling us we should assume the law is totally ineffective?” Judge Charles Wilson asked Nordby.
“All of these provisions are illusionary? They have no legal effect?” Judge William Pryor asked.
“How is this enforceable?” Judge Robin Rosenbaum asked. “There’s no objective standard by which a physician can know.”
Nordby paused for several seconds before answering and then said, “The legislative intent was to express its views on an important public policy,” she said. “These provisions were not meant to be enforced.”
That briefly stirred the spectators, who grumbled audibly at Nordby’s reply.

Alrighty then...

More from the AP:

Circuit Chief Judge Ed Carnes asked Douglas Hallward-Driemeier, a lawyer for the doctors, whether the state has the right to prohibit a doctor from discriminating against a patient based on gun ownership. Hallward-Driemeier replied that there would be no problem if that was all the law said.
The main problem is that the effectively stops many doctors from asking relevant questions about guns because they fear a patient will take offense and file a complaint with the Florida Board of Medicine, Hallward-Driemeier said.
The law also violates doctors' First Amendment right to free speech by targeting speech on a specific topic, Hallward-Driemeier argued.
Florida is the only state that has enacted such a law, according to the National Conference of State Legislatures.

Copy-gate resolved (UPDATED)

The parties worked out their differences in the middle of the litigation (background here).  The defense already had presented Rossana Arteaga-Gomez as a witness, but before the prosecutors and agent could be called as witnesses, a plea agreement was reached -- the defendant would plead guilty to an information charging a false statement and be sentenced to time served.  Case over. 

UPDATE -- At the plea hearing, the defense made the following statement:

In addition, as part of this plea, we are hereby
withdrawing the motion to dismiss and/or disqualify the
prosecution team, and I make the following representations as
to the reasons why we are prepared to withdraw the motion:
I and my colleague, Rossana Arteaga-Gomez, we have met
with the Government since the last court session, and we make
the following statements in support of withdrawing the motion:
First, we know that the allegations in the motion to
dismiss regarding that the practice was a long-standing
practice over the last 10 years of the U.S. Attorney's Office
to receive CD roms with electronic copies of the defendant's
selected document request were based solely on the statements
and e-mails of the owner of the copy service, whose
credibility, at a minimum, has come into question during this
litigation.
I, and Rossana Arteaga-Gomez, have met with the Chief
of the Criminal Division of the U.S. Attorney's Office, we've
met with the trial attorneys, who are the ones who informed us
of their results of their own internal investigation after
reviewing the matter, and neither Ms. Rossana Arteaga-Gomez or
I have any information, aside from the copy service, that the
U.S. Attorney's Office has ever engaged in any pervasive
practice or pattern of receiving copies of CD roms and
potential defense work product in criminal cases in this
District.
Second, as I've stated on a number of occasions in open
court, but I reiterate again today, that the prosecutors in
this case, Mr. Hayes, Ms. Miller, they acted appropriately and
ethically by immediately disclosing to Rossana and myself that
the Government had received duplicate CDs from the copy service
of the materials selected for copying by the defense.
We have no information that these prosecutors ever
looked at the CDs or even knew that the CDs were being given to
the Government. I so stated before, and I reiterate that point
again. And, of course, we credit these prosecutors for
disclosing the issue to us.
And we finally note that the prosecutors in this case,
frankly, they've been the most forthcoming and responsive
prosecutors in providing discovery, in my experience, and it's
my hope that the U.S. Attorney's Office would adopt that
practice of providing early discovery to us, including FBI 302
reports, well in advance of trial.
And as a result of our satisfaction of the statements I
just made, we are hereby withdrawing the motion to dismiss or
disqualify.
THE COURT: Thank you very much.

 And the prosecutor made this statement:

Your Honor, I'd like to thank Mr. Srebnick
for his statement to the Court. I'd like to reiterate, defense
counsel's not agreeing with this, but that's not what the
Government's saying, but the Government's investigation to date
has indicated that copying of defense selections was not
pervasive practice in this United States Attorney's Office.
What was a practice was one copier. The copier in this
case would provide a copy of what was provided to the defense
to the Government on CD, and it's the Government's position
that he can't differentiate between what a defense selection is
and what regular discovery is.
Our investigation to date has revealed that any copying
of defense selections as part of the discovery process, which
is fluid and it changes case to case, was exceedingly rare; and
that the Government is not in the practice of surrepetitiously
copying defense selections, and that, in some cases, defense
lawyers knew that this copying was being done and in other
cases they did not.
In any case, the Government is aware of no cases where,
other than, unfortunately, this one, where these copies were
accessed by an agent or a lawyer otherwise and, thus, our
position is that this was not a regular and pervasive practice.
THE COURT: Thank you very much.