May the 4th be with you. (UPDATED)

UPDATE -- the Supreme Court arguments were interesting this morning. The Court didn't collapse because there was live-streaming. The big news was that Justice Thomas asked questions! Here's some coverage.

Thomas asked the questions via audio teleconferencing in a case on whether Booking.com could trademark its namesake.

The last time Thomas, who is the only African-American and the only Southerner on the court, asked a question was in March 2019, in a case involving a black Mississippi death row inmate, Curtis Flowers, who was tried six different times for the 1996 murders of four people in a furniture store.

Before that, Thomas asked one question in 2016, less than two weeks after the death of Justice Antonin Scalia. That question came 10 years after the last time Thomas had chimed in during oral arguments.

"Could Booking acquire an 800 number that's a vanity number, 1-800-booking for example, that is similar to 1-800-plumbing, which is a registered mark?" Thomas asked to the U.S. government's lawyer, Erica Ross.

After Ross' response, Thomas followed up: "That could be true, but I'd like you to compare this to Goodyear," Thomas said, referencing a past case. "In Goodyear, you had a generic term, but you also had an added term, such as company or inc, which any company could use. With Booking here there could only be one domain address dot com, so this would seem to be more analogous to the 1-800 numbers which are also individualized."

Live from DC, it's SCOTUS arguments!

The Supreme Court will get back to oral arguments tomorrow, but will do so over the telephone.  And for the first time, that audio will be live-streamed.  Exciting times!  I liked how this Atlantic article set it up:

America’s typical amusements—March Madness, the NBA playoffs, Major League Baseball Opening Day, the U.S. Open, the Masters—have suddenly disappeared. Just in time, though, a new Big League debuts tomorrow, offering a welcome spectacle of bare-knuckle combat, vicious competition, taunts, and trash talk.

The Ultimate Fighting Championship will return on May 9. Until then, the United States Supreme Court is the only show in town.

Starting Monday, the Court will at long last air the audio of oral arguments live. For the first time ever, the public will be able to experience oral argument as it happens. This was formerly the sole prerogative of justices, lawyers, reporters, and the few citizens who are able to gain tickets by waiting for hours (or days).

The format will be rather staid, whether one is watching on C-SPAN or listening via the radio or the internet. I have always thought a Court broadcast should be a cross between TV coverage of Wimbledon and the World Series of Poker—hushed, aristocratic-sounding announcers whispering comments on strategy while an Upshot-like needle moves back and forth, changing the predicted outcome with each question and answer.

How will the Justices take turns asking questions? In order of seniority:

For the forthcoming broadcast arguments, however, the rules will be different. In a press release Tuesday, the Court announced that the two-minute allowance will remain in effect. However, afterward, the justices will question by turns: “The Chief Justice will have the opportunity to ask questions. When his initial questioning is complete, the Associate Justices will then have the opportunity to ask questions in turn in order of seniority.”

I am not sure that this will work as well as hoped; some of the justices strike me as willing to ask questions for the full 30 minutes of argument, leaving no time for anyone else. Whether Roberts will intervene in such an instance remains to be seen.

Good for Judge Cooke!

The Herald covers her 12 page order which tries to get ICE to actually address the virus in a reasonable way at Krome:

Citing conditions that amount to ”cruel and unusual punishment,” a Miami federal judge ordered U.S. immigration authorities Thursday night to release hundreds of detainees held at three South Florida detention centers.

In a strongly worded 12-page order filed late Thursday, U.S. District Judge Marcia G. Cooke said U.S. Immigration and Customs Enforcement has acted with “deliberate indifference” to the condition of its detainees. She ordered the agency to report to her within three days how it plans to cut its non-criminal and medically vulnerable populations by the hundreds.

The judge also ordered the agency to submit weekly reports on the releases. After 10 days, ICE is to begin filing twice-weekly reports. Within two days, she ordered, ICE shall also provide masks to all detainees and replace them once a week.

“There is record evidence demonstrating that ICE has failed in its duty to protect the safety and general well-being of the petitioners,” Cooke wrote. “Social distancing at Krome is not only practically impossible, the conditions are becoming worse every day. Further, ICE has failed to provide detainees in some detention centers with masks, soap and other cleaning supplies, and failed to ensure that all detainees housed at the three detention centers can practice social distancing.”

She added: “Such failures amount to cruel and unusual punishment because they are exemplary of deliberate indifference.... Accordingly, there is sufficient evidence in this record to determine that the present conditions at the three detention centers constitute a violation of the Petitioners’ Fifth and Eighth Amendment rights.”

The judge said that detainees with non-violent criminal records or underlying health conditions who qualify for release can be subject to detention alternatives like parole, telephone monitoring, physical check-ins or GPS monitoring through electronic ankle bracelets.

All around good guy David Leibowitz to be nominated for Judge Moreno’s seat

I’m biased here since I’ve known him a long time, but David Leibowitz being nominated is great news for the District. He’s smart, hard-working, and well-rounded. 

He’s served as an AUSA in the SDNY (we won’t hold that against him) and in private practice as general counsel for Braman Motors. He went to U Penn for undergrad (where he roomed with former U.S. Attorney Ben Greenberg) and law school, and then got his Ph.D at the London School of Economics.

Rre here: https://www.miamiherald.com/news/local/article242390041.html#storylink=cpy

BREAKING -- Aileen Cannon nominated to District Bench in SDFLA (Fort Pierce)

From the press release:

Aileen Mercedes Cannon, of Florida, to serve as Judge on the United States District Court for the Southern District of Florida.

Aileen Cannon is an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of Florida. Ms. Cannon currently serves in the Criminal Division of the Appellate Section, where she represents the United States before the United States Court of Appeals for the Eleventh Circuit. Previously, Ms. Cannon served in the Major Crimes Division, prosecuting Federal firearms, narcotics, immigration, and fraud offenses. Earlier in her career, Ms. Cannon practiced civil litigation at Gibson, Dunn & Crutcher, LLP. Upon graduation from law school, Ms. Cannon served as a law clerk to Judge Steven M. Colloton on the United States Court of Appeals for the Eighth Circuit. Ms. Cannon earned her B.A. from Duke University, and her J.D., magna cum laude, from the University of Michigan Law School, where she was inducted into the Order of the Coif.

Fishy numbers at FDC-Miami

BOP is reporting that as of 04/28/2020, there are 1313 federal inmates and 335 BOP staff who have confirmed positive test results for COVID-19 nationwide.  Thirty have died.

The first female prisoner has died from coronavirus.  Her name was Andrea Bear and she was only 30.  It's a horrific story.  She had recently surrendered on a two-year sentence and was pregnant.  She had the baby while on a ventilator, and the baby survived.

Meantime, the numbers at FDC-Miami are strange.  There, we see 14 staff members who have tested positive, but no inmates.  How is that possible?  The explanation is pretty simple actually -- prisoners at FDC-Miami are not being tested.  I have heard this from numerous sources -- the clients themselves, guards, and others. 

So I call B.S. on the numbers, which local prosecutors are citing as a reason to deny release and bond.

In the good news category, go check out Don Samuel's new blog, Contemporary Legal Problems.  Don writes the 11th Circuit Handbook, that bible we all use everyday to kickstart our research.  While blog numbers are way down because of Twitter and other social media, it's nice to have such a great addition to the blogosphere!

11th Circuit tackles abortion case during COVID crisis

I missed this one last week.  Judge Jordan, joined by Martin and Rosenbaum upheld a preliminary injunction against an Alabama law that was being interpreted as prohibiting abortions during corona.

Bloomberg law summarizes the opinion here:

Alabama will remain partially blocked from imposing new restrictions on abortions in name of public health during the coronavirus pandemic, the Eleventh Circuit said.
Alabama State Health Officer Scott Harris mandated the postponement of “all dental, medical, or surgical procedures” except those “necessary to treat an emergency medical condition” or “to avoid serious harm from an underlying condition or disease, or necessary as a part of a patient’s ongoing and active treatment.”
The order is currently in effect until April 30, but may be extended. A violation would be a misdemeanor.
Planned Parenthood, the Alabama Women’s Center, and other abortion providers sued, and a federal court issued a preliminary injunction. It doesn’t entirely block the state from enforcing the order against abortion providers. But it does bar the state from “failing to allow healthcare providers to consider and base their decisions as to whether to provide an abortion without delay on certain factors,” including whether a delay would cause the patient to lose her legal right to an abortion under Alabama law after 20 weeks of pregnancy.
The injunction will remain in place, the U.S. Court of Appeals for the Eleventh Circuit said.
“The state argues that the order is a valid exercise of its power to issue public health orders during an emergency,” the court said. “But just as constitutional rights have limits, so too does a state’s power to issue executive orders limiting such rights in times of emergency.”

Judge Goodman continues great work on COVID-19 jurisprudence

Judge Goodman puts ICE's feet to the fire in this report and recommendation to Judge Cooke.  The Miami Herald covers it here:

A Miami federal magistrate judge recommended Wednesday that U.S immigration officials “substantially” reduce detainee populations at three South Florida detention centers as COVID-19 positive cases continue to climb behind bars.

In his 69-page recommendation — which still needs to be reviewed by U.S. District Judge Marcia G. Cooke — Magistrate Judge Jonathan Goodman said U.S. Immigration and Customs Enforcement should be required to prove that it is accelerating the release process for non-criminal detainees in an effort to stop the spread of the coronavirus. Those who qualify for release would be subject to detention alternatives like parole, telephone monitoring, physical check-ins or GPS monitoring through an electronic ankle bracelet.

Goodman stopped short of recommending that roughly 1,200 detainees be released from the Krome Processing Center in Miami-Dade and Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven. A lawsuit filed by immigration advocates sought an order for ICE to release as many as 90 percent of the detainees in the three facitilies. Goodman said the court does not have the authority to issue such an order.

***

“To eliminate any confusion, this [report] does not technically require ICE to actually release anyone. It requires ICE to only conduct its own, internal review in a good faith effort to cause the release of a substantial number of detainees,” Goodman added. “Thus, ICE would not be violating an order if it refused or otherwise failed to release detainees at the three centers. That hypothetical result would be horribly disappointing and extremely distressing, and it would undermine the spirit of this [order].”


Goodman said that “to encourage ICE to be reasonable and to help the court evaluate whether ICE is acting in good faith,” the agency should be required to also submit twice-weekly reports on how many of its detainees — and at which of the three centers — have no prior criminal convictions and no pending criminal charges, as well as those with criminal histories.

Goodman’s recommendation, filed in response to a lawsuit filed by immigration advocates last week seeking the immediate release of 90 percent of the detainees at the three South Florida centers, says the order he’s recommending would require ICE to immediately “make all efforts to reduce the population to 75 percent of capacity at each of the three detention centers” within two weeks, a “percentage sufficient to permit social distancing.”

Read more here: https://www.miamiherald.com/news/local/immigration/article242206461.html#storylink=cpy