Justice Sotomayor is fighting for criminal defendants

In two opinions this week, she explained how the Supreme Court was giving short shrift to criminal defendants.  SCOTUSblog has more:

Justice Sonia Sotomayor dissented from today’s summary reversal, in a 15-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor recounted the facts of the case, positing that if the story “sounds unreasonable, that is because it was. And yet,” she complained, “the Court today insulates that conduct from liability,” “effectively treating qualified immunity as an absolute shield.” In particular, she lamented, the court’s ruling “ultimately rests on a faulty premise”: that the cases on which the 9th Circuit relied “are not identical to this one.” But the Supreme Court, she argued, has never ruled that the “clearly established law” standard is met only when the plaintiff can point to a case with identical facts. “It is enough,” Sotomayor contended, “that governing law places the constitutionality of the officer’s conduct beyond debate” – as Kisela’s was here. But at a minimum, Sotomayor added, there is enough dispute about the facts and the law in Kisela’s case that the court should not have reversed without the benefit of briefing or oral argument on the merits.

The majority opinion may have contained a strong rebuke of the 9th Circuit, but Sotomayor’s dissent concluded with an equally forceful reprimand for her colleagues. She asserted that today’s ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Sotomayor had more strong words in her solo dissent from the court’s denial of review in two Florida capital cases. The inmates in the cases, Jesse Guardado and Steven Cozzie, had argued that their death sentences were unconstitutional, but the Supreme Court declined to step in. Sotomayor complained that the Florida Supreme Court had – as it had in two earlier cases – “failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences” after the Supreme Court’s 2016 decision holding that the state’s death-penalty-sentencing scheme violates the Constitution. In a somewhat unusual footnote, Sotomayor quoted from a 19th-century essay by the French author André Gide: “’Everything has been said already; but as no one listens, we must always begin again.’”

Good for her.

Meantime, there is a legal dispute in the 9th Circuit about anal clefts and what bikinis are too small for coffee baristas. From Reason:

So, what part of the butt is the ass crack, really? As a legal matter.

You see, a fight over scantily clad baristas in one Washington State community hinges partly on whether the average person can objectively tell which part of the bottom counts as the "anal cleft" and whether police could (or would) objectively be able to measure whether one is exposed or not.

The city of Everett, Washington, is trying to get rid of its "bikini barista" stands with an ordinance that forces the ladies there to wear more coverage. The city claims that these tiny stands where scantily clad women serve coffee are incubators of prostitution, public lewdness, and crime. They're trying to shut them down by forcing the women to button up.

The stands are fighting back and won an initial injunction against the ordinance's enforcement in December. A U.S. district judge determined that Everett's ordinance was too vague in its description of what needed to be covered and thereby risked arbitrary enforcement issues. And the judge further determined that the law likely violated the First Amendment free expression rights of the women who worked there.

Everett is now fighting back itself against the injunction, submitting a legal brief arguing that the judge erred on both counts. Its appeal calls for the judge to be overruled and the injunction dissolved.

You'll never read a more boring 66-page document about butts. It includes four pages listing all the federal court cases used to bolster its claim that there's no real confusion about what counts as an "anal cleft" and that there's no evidence that the women are actually expressing anything in particular in their clothing choices.

Cert grant for Miami FPD

The grant in Stokeling v. US involves whether a state robbery offense that includes "overcoming victim resistance" as an element is a "violent felony" under the Armed Career Criminal Act.  Here is the 11th Circuit per curium opinion, with a concurrence by Judge Martin.  Congrats to the Federal Public Defender's Office for getting cert in this case. 

There is no better job than clerking for a judge.

To prove the point, here's an essay by a former clerk about her judge, Stephen Reinhardt, who passed away last week.

Of course, there are always exceptions.  See, e.g., this horrible judge (confessing to stealing his former intern's dirty panties). 

Ft. Lauderdale federal courthouse progress

Good news for federal practitioners in Ft. Lauderdale... we are a step closer to a new federal courthouse.  Here’s the Sun-Sentinel coverage, which also mentions that Sen. Nelson is now aiming to get a new one built in West Palm Beach as well:

Celebrating the award of $190 million to replace the aging Fort Lauderdale federal courthouse, U.S. Sen. Bill Nelson has set his sights on getting money for a new one for West Palm Beach, too.

Nelson requested U.S. District Judge William Dimitrouleas ask Chief Judge Michael Moore to form a task force to spearhead the effort for a new West Palm Beach district courthouse. Dimitrouleas is chairman of the task force created about a decade ago for Fort Lauderdale’s effort.

“We’re going to have to do the same for West Palm Beach because it has an old federal courthouse as well,” Nelson said during his Fort Lauderdale courthouse appearance Wednesday with Mayor Dean Trantalis and court officials. The West Palm Beach courthouse, built in 1973, is at 701 Clematis St.

Nelson said a site decision for the new downtown Fort Lauderdale courthouse could come from the General Services Administration as early as June and “then let’s get this project going.” He took a tour of the courthouse while officials pointed out many of the leaks that have plagued the building.

Reuben Cahn goes to DC

Reuben Cahn—the Defender in San Diego, the former first assistant here in the SDFLA, and all around good guy—argued in the Supreme Court today.  It looks like it was an interesting argument and that Reuben did very well.  Here’s the review from SCOTUSBlog:

The first case for argument in the Supreme Court this morning has a very interesting underlying issue: whether a policy of shackling all criminal defendants at pretrial appearances in a federal district court is constitutional.
But as United States v. Sanchez-Gomez comes before the justices, the questions presented are more procedural in nature, including whether the U.S. Court of Appeals for the 9th Circuit had the authority to review the “interlocutory” appeal of a group of detainees after the federal district court upheld the U.S. Marshals Service restraint policy in the Southern District of California, which is based in San Diego.
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If Kedem comes across as the strait-laced, able Washington lawyer for the prosecution, Cahn has a bit of a Southern California vibe in his voice and manner.
“We believe the courtroom really is a sacred space,” he says, sometimes sticking his hand in his pocket and swaying back slightly from the lectern. “We believe judges control that space and assure that individuals come before the court with dignity and with autonomy and with their liberty interest protected, and that there was a well-established right at common law that, under this court’s precedent, is incorporated in the Due Process Clause to appear before courts free of bonds.”
Cahn mentions the notorious Newgate prison in London, where for centuries detainees faced “terrible conditions, shackled hand and foot, and without question, their bonds would be struck off for their arraignments.”

ICYMI CA11 Judge Julie Carnes to retire on June 18

Pretty surprising news announced late Friday afternoon — Julie Carnes, appointed by President Obama in 2014, is retiring.  This will give President Trump his third appointment to the 11th Circuit (Newsom, Branch) and a real opportunity to shape the small court.

It also shows a big difference between Obama and Trump.  If the measure is quickly filling openings with young judges who share your judicial philosophy on courts, Obama was slow and ineffective with his judicial appointments, while Trump  has been very successful. He has been aggressive, appointing young Federalist Society members in a relatively quick manner.  The Julie Carnes seat, for example, was open for quite some time before Obama cut a deal to put a right-leaning judge on the court, who only stayed for a few years.  Say what you will about Trump, he has been much more effective for his party on judicial appointments.

Carnes says she is going to “render substantial judicial service as a senior judge.”  That’s very nice, but she is also giving Trump an opportunity to replace her with a judge who will sit on the court for a long long time.

News and notes, Ultra Spring Break edition

It's Ultra time in downtown Miami, which means the lawyers will be fleeing around lunchtime today. And then it's spring break next week.

Scott Rothstein is writing his own motions. Paula McMahon has the interesting story here:

Ponzi schemer Scott Rothstein is imprisoned and disbarred from practicing as an attorney but it hasn’t stopped him from flexing his jailhouse lawyer muscles – on his own behalf.

Rothstein, 55, personally filed court documents on Thursday in his bid to try to force the feds to reduce his 50-year prison sentence.

Rothstein, who pleaded guilty to orchestrating a $1.4 billion Ponzi scheme, first had to obtain permission from Senior U.S. District Judge James Cohn to file his own court pleadings.

The judge consented and Rothstein, who is being held in the U.S. Bureau of Prisons’ secretive witness protection program for inmates, typed up a 13-page legal argument and submitted it Thursday.

In other news, Colbert asked RGB whether a hotdog is a sandwich. This is pretty funny.

New Ft. Lauderdale federal courthouse is in the works

From the Sun-Sentinel:

A new federal courthouse for Fort Lauderdale is included in a massive $1.3 trillion federal spending agreement that has bipartisan support and is expected to be approved in the next few days.

News that the $190 million downtown project was part of the package reached the city Wednesday from U.S. Sen. Bill Nelson, who phoned the city’s current and former mayors with the good news.
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The 39-year-old current courthouse at Broward Boulevard and Northeast Third Avenue has had a leaking roof and mold problems, doesn’t have sufficient office space and wasn’t designed for current federal security requirements. The courthouse has been No. 3 on the priority list for new courthouses since 2016.

The General Services Administration is conducting a feasibility study for the new courthouse that should be completed by June. It will then be up to the GSA to pick a site for the new courthouse.

In other news, the 11th Circuit held today that possession of a round of ammunition is not sufficient to conduct a search for a firearm. The suppression motion should have been granted. The case is United States v. Johnson. The court framed the issue this way:

This appeal requires us to consider whether the pat down of a burglary suspect and the identification of a round of ammunition in the suspect’s pocket constitutionally allowed the officer to retrieve the round and another item from the suspect’s pocket.