Carpenter wins 5-4

A big win for the 4th Amendment and for privacy rights.  Justice Roberts’ opinion is that cell phones are different.  And you can’t track people indefinitely.  Although the court was divided, I suspect that most Americans would agree with Roberts here.

Those old out-of-date 70s cases don’t work well with new technology.  And as much as Alito and Thomas would like to hold on to those cases, the Court is not going to be handcuffed to them. Alito also complained that there is going to be a “blizzard” of litigation because of the decision.  Why?  Is it so hard for cops to go get a warrant for this material.  If there is a question, get a warrant.  It’s not a big burden.

Quartavious Davis lost this issue before the en banc 11th Circuit court (I argued it for Davis) and the Supreme Court denied cert, which was a huge bummer.  The 11th Circuit, per Judge Hull, felt bound by the third-party doctrine cases from the 70s, like Miller and Smith.  Hull basically wrote an opinion that tracked Alito’s dissent.  The 11th Circuit dissenters, Martin and Jill Pryor, are vindicated.

Here’s the amicus brief we did in Carpenter.

"Well, in Louisiana they'd shoot you."

That was Senator John Kennedy, a Republican from Louisiana during his questioning of Roy Altman at yesterday's hearing.  The exchange went like this:

Kennedy: "Why don't I have a right in the privacy of my home with my spouse to take cocaine? I'm not talking about buying it, that's illegal. I'm talking about I walk into my living room and the cocaine is there."

Altman: "Under the government of Louisiana —"

Kennedy: "Well, in Louisiana they'd shoot you."

Altman: "Then under the government of Florida, since the founding, the states have had police powers to regulate even intrahome conduct. And if it were the federal government, then the conduct would have to have some effect on interstate commerce."

WHAHHHH?!?

That exchange wasn't covered in this article about the hearings:

Roy Altman, who is up for a seat on the U.S. District Court for the Southern District of Florida, served as a federal prosecutor in Miami from 2008 to 2014, before becoming a partner at the Miami firm Podhurst Orseck.
Altman told senators his experience working on a violence reduction program while serving as a federal prosecutor has prepared him for a seat on the federal bench by helping him better understand the people who will come before him in court. As part of the program, Altman gave speeches and participated in career days at public schools in the Miami area.
The program also offered job fairs and other services to people re-entering the community from prison, seeking to cut down on recidivism rates.
“A good judge understands that but for the grace of God, there go I,” Altman said. “That whether it’s a small-time plaintiff, a victim in a case or a criminal defendant, everybody deserves a fair shake. People make mistakes, people take the wrong turn, that doesn’t mean everybody’s evil and I think a district court judge needs to recognize that every single day.”
***
The committee also heard from Judge Rodolfo Ruiz, who is nominated to a seat on the U.S. District Court for the Southern District of Florida. Ruiz has served as a Florida state court judge since 2012, first as a county court judge for the Eleventh Judicial Circuit of Florida and later as a circuit court judge.
A Federalist Society member, Ruiz previously worked as a state prosecutor and as an associate at the Miami firm White & Case.
Ruiz told Sen. Chuck Grassley, the Iowa Republican who chairs the committee, that his lengthy experience both as a lawyer and a judge will serve him well on the federal court.
He also spoke highly of his experience training judges on implicit bias while on the state court, telling Sen. Mazie Hirono he thinks all judges could benefit from similar lessons.
“I can tell you personally, for me, it has been extremely important, especially in matters of sentencing,” Ruiz said. “And as we always say, it does not mean you have a racial problem, you just need to be aware when you’re sentencing that you take the time to pause and make sure you’re not sentencing based on factors, for instance, that have no bearing on the crime at issue.”

Senate to hold hearings this morning on judicial nominees Ruiz and Altman

Rodolfo Ruiz and Roy Altman have their Senate hearings this morning at 10am.  You can watch here.  No word on why Rodney Smith isn’t on the agenda this morning.

Meantime, Senator Flake is holding up Britt Grant’s nomination to the 11th Circuit.  But it’s apparently related to another issue and is not a problem with her, but Flake isn’t saying what it is.

Finally, the 11th Circuit decided to hear this suppression case en banc.  Surprise, surprise, it was a defense win with the panel.  Still no en banc hearings where the prosecution wins with the panel.

SDFLA accepting applications to be Clerk of Court

From the Court's website:

The United States District Court, Southern District of Florida, one of the
nation’s busiest federal trial courts, is seeking a dynamic and energetic
executive to succeed the incumbent who is retiring. This is a full‐time,
permanent, highly visible executive position. The selected candidate will be
expected to provide strong leadership to the hard working Clerk’s Office
staff. Selection includes promotion potential up to Grade JSP 18 without
need for further advertisement and competition.
The Court Administrator • Clerk of Court is appointed by the Judges of the
Southern District of Florida and functions under the direction of the Chief
U.S. District Judge. The Clerk of Court is responsible for managing the
administrative activities of the Clerk’s Office and overseeing the
performance of the statutory duties of the office. This court unit executive
position includes responsibility for compliance with the Court’s
Employment Dispute Resolution Plan which addresses equal employment
opportunity.

The salary isn't shabby: $173,653-$201,375. 

Congratulations to Steven Larimore on a great run as Clerk. It's not an easy job, trying to keep all of the judges happy...  I know the judges and staff will miss him.

SCOTUS Monday: Fane Lozman is 2-0

Fane Lozman has won his second case before the Supreme Court, this time 8-1.  From Justice Kennedy's intro:

This case requires the Court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech. An arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation. See, e.g., Devenpeck v. Alford, 543 U. S. 146, 153 (2004). At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Crawford-El v. Britton, 523 U. S. 574, 592 (1998).
The petitioner in this case alleges that high-level city policymakers adopted a plan to retaliate against him for protected speech and then ordered his arrest when he attempted to make remarks during the public-comment portion of a city council meeting. The petitioner now concedes there was probable cause for the arrest. The question is whether the presence of probable cause bars petitioner’s retaliatory arrest claim under these circumstances.

And then the intro to the analysis:

The issue before the Court is a narrow one. In this Court Lozman does not challenge the constitutionality of Florida’s statute criminalizing disturbances at public assemblies. He does not argue that the statute is overly broad, e.g., Terminiello v. Chicago, 337 U. S. 1 (1949); Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150 (2002); or that it impermissibly targets speech based on its content or viewpoint, e.g., Texas v. Johnson, 491 U. S. 397 (1989); Cohen v. California, 403 U. S. 15 (1971); or that it was enforced in a way that curtailed Lozman’s right to peaceful assembly, e.g., Brown v. Louisiana, 383 U. S. 131 (1966). Lozman, furthermore, does not challenge the validity of the City Council’s asserted limitations on the subjects speakers may discuss during the public-comment portion of city council meetings (although he continues to dispute whether those limitations in fact existed). Instead Lozman challenges only the lawfulness of his arrest, and even that challenge is a limited one. There is no contention that the City ordered Lozman’s arrest to discriminate against him based on protected classifications, or that the City denied Lozman his equal protection rights by placing him in a “class of one.” See Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam).Lozman, moreover, now concedes that there was probable cause for the arrest. Although Lozman does not indicate what facts he believes support this concession, it appears that the existence of probable cause must be based on the assumption that Lozman failed to depart the podium after receiving a lawful order to leave.
Lozman’s claim is that, notwithstanding the presence of probable cause, his arrest at the city council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials. The question this Court is asked to consider is whether the existence of probable cause bars that First Amendment retaliation claim.

The Court says no and reverses the 11th.

The Court also has a couple of sentencing decisions, one in favor of the defendant and one if favor of the government.  Check SCOTUSBlog for details.  (Still no Carpenter)

Judges are people too.

Just a friendly reminder that judges are people too. They eat dinner, even Supreme Court Justices.  They should be permitted to use Facebook.  And they should be able to write a letter for a friend without getting reprimanded.  From David Ovalle at the Herald:

A Miami-Dade judge, lauded for working with drug-addled defendants, has agreed to a public reprimand after she improperly wrote a letter of support for a mental-health worker convicted of federal Medicare fraud.
County Judge Deborah White-Labora is the third Miami judge in the past two months to get into trouble with Florida's Judicial Qualifications Commission The other two are facing possible expulsion from the bench, one for using a racial slur, the other for failing to report luxury hotel stays gifted to her husband.
White-Labora was cited for improperly using her position to vouch for Sam Konell, who was sentenced in February to five years in federal prison for illegally steering state-court defendants to a corrupt clinic, which in all fraudulently billed Medicare for more than $63 million.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article213341544.html#storylink=cpy

Dershowitz takes on the recall to Judge Aaron Persky

You remember Persky.  He is the judge who gave the 6 month sentence to the Stanford student convicted of rape.  The sentence seemed too low to most observers, and the judge was just recalled.  Dersh persuasively argues that the recall is a dangerous attack on judicial independence.  Even if you disagree with the sentence, judges need to be free to judge.  If not, they will just do what the majority says:

Yet, demanding a recall of a judge because of disagreement with a particular sentence has institutional implications that transcend a single case. The campaign to recall Judge Persky was led by a feminist law professor from Stanford named Michele Dauber, who argued that Judge Persky was too lenient in his sentence and that she wanted to send a message to other elected judges.

Opponents of the recall included prosecutors and judges, who argued, “It certainly appears the goal is to teach judges, all judges, some lessons: If you want to keep your job as a judge, keep an eye on media reports of public sentiment when you are exercising your sworn duty to sentence a defendant in light of the law and the facts.”

Professor Dauber succeeded in recalling Judge Persky but, in doing so, she and those who voted for the recall inflicted a deep wound on judicial independence. Today, they recalled a judge who made a ruling against their agenda. Tomorrow, this recall will energize extremists from the right to recall judges who make rulings supporting the left-wing agenda.

California has already experienced a successful right-wing effort to remove liberal judges. Back in 1986, Chief Justice Rose Bird and Associate Justice Cruz Reynoso were voted out of office because of their opposition to the death penalty and their support of other liberal agenda issues. We are likely to see more recalls and contested judicial elections now, organized by extremists on both sides.

The sad reality is that the last thing extremists want is judicial independence. What they want is judges who will do their bidding, who will support their agenda and who will vote their side. In an age when nearly everybody picks a side and supports it without regard to neutral principles of justice or civil liberties, the danger to judicial independence comes equally from the left and the right.

The difference is that the left needs judicial independence more than does the right. This is because independent judges are supposed to defend the rights of the disenfranchised, the weak, the discriminated against and those who cannot prevail in our majoritarian political system. No judge has ever been removed from office for being too tough on crime, for imposing excessive sentences, or for siding with prosecutors. The recall is a right-wing tool that now has been sharpened by the hard left.

So the decision to recall Judge Persky may benefit the extreme left in the short run, but it hurts liberals and progressives in the long run. But extremists always demand immediate gratification and rarely look to the long-term implications of the damage they are doing. The ultimate losers will be African Americans, Hispanic Americans, Native Americans and other minorities who too often are treated unfairly by our legal system.

News & Notes

1.  Brendan Dassey (from the Netflix show Making a Murderer)  is trying to get the Supreme Court to hear his case.  The NY Times covers it here.

2.  New Florida Bar President Michelle Suskauer will focus on criminal justice reform and smaller law offices.  She will be great.  DBR coverage here:

Suskauer says the greatest weapon in her arsenal is social media, and she plans to use it with vigor. Followers can expect to see monthly video messages from Suskauer, as well as projects like the Legal Fuel Speaker Series, delivering on-demand, practical information to help the everyday lawyer with their practice.
Like many criminal defense attorneys, Suskauer believes rehabilitation has more societal benefits than punishment. In line with her calls for “common sense” justice reform, the bar will propose new criminal reform legislation this October at the Criminal Justice Summit — the first of its kind.

 3.  The feds have charged the former police chief and two officers in Biscayne Park for framing a teenager with unsolved burglaries.  From the Herald:

Federal prosecutors said Police Chief Raimundo Atesiano and two cops acting under his authority lied about the arrests to wow the small village's elected leaders with their crime-solving savvy.
Atesiano faced a Miami magistrate judge for the first time Monday afternoon after being indicted on charges that he violated the teen's civil rights during the arrests five years ago.
"The existence of this fictitious 100% clearance rate of reported burglaries was used by Atesiano to gain favor with elected officials and concerned citizens," according to an indictment.
Atesiano, 53, now stands accused of encouraging the officers to arrest the teen in June 2013, "knowing that there was no evidence and no lawful basis to support such charges," prosecutors said after unsealing the indictment. The teen is referred to as T.D. in the indictment.
The officers, Charlie Dayoub and Raul Fernandez, collected evidence from four unsolved burglaries, completed four arrest reports and created false narratives to imply the teen had broken into four unoccupied homes that April and May, according to the indictment. At a village council meeting in July 2013, a month after the teen's arrest, Atesiano claimed a perfect close-out rate for burglary cases in the mostly residential community near Miami Shores that is home to about 3,200 people.
Atesanio surrendered Monday to authorities on two charges of conspiring to violate the teen's civil rights and depriving him of those rights. He was granted a $50,000 personal surety bond, co-signed by his wife. Magistrate Judge John J. O'Sullivan set his arraignment for June 25.