Which circuit is the worst on qualified immunity?

You may have thought it was the 11th... but it’s the 5th actually.  We aren’t far behind, according to this interesting Reuters report.  And the best is the 9th Circuit. But the disparities is a good reason to abolish the doctrine altogether.  Here’s a small portion from Reuters:

For years, the words “qualified immunity” were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine — created by the U.S. Supreme Court itself — a target of broad public demands for comprehensive reform to rein in police behavior.
The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyd’s death, the immunity defense has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years — even when judges found the behavior so egregious that it violated a plaintiff’s civil rights — thanks largely to continual Supreme Court guidance that has favored police.
The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. “It’s essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas,” said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court. “It shouldn’t turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.”
The “happenstance of geography” shows up in a comparison of Collie’s case to the one Benny Herrera’s family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collie’s case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.

Lori Loughlin gets two months...

... which is two months too long. 

First, she was bullied into pleading guilty.

Second, the government appears to have committed serious misconduct.

But most importantly, the sentence really doesn't serve any legitimate purpose.  I wrote about the same issue in the two-week Felicity Huffman sentence here.  Here's a snippet:

With as much subtlety and sophistication as a sledgehammer, social media erupted after Felicity Huffman’s 14-day sentence was announced, with commenter after commenter saying her sentence was way too light. A rich, white woman only received two weeks in jail. The system must be corrupt! Well, the system is corrupt, but not because Huffman’s sentence was too light, but because it was too severe.

But wait, you might be saying, she only received a few weeks; how can that be too severe?

Her sentence is wrong for at least four reasons:

1.    Our criminal justice system still has an unjust “jail-first” mentality. The default sentence for a first-time non-violent offender who accepted responsibility where no one suffered any loss should obviously be something other than incarceration. If that type of offender — with no aggravating factors — isn’t getting probation, then who is? The problem is that we are so tied to putting people in jail, even people we know will never do anything similar again, that our default is some prison. That’s wrong. It’s important to keep things in perspective: Huffman didn’t hurt anyone and it’s not altogether clear that paying someone to take a test should even be a federal crime in the first place.   

2.    Comparisons to other sentences show that those sentences are too high, not that Huffman’s is too low. With no sense of irony, the Huffman prosecutor cited other cases in which defendants received grossly and inappropriately high sentences as a reason to impose prison time on Huffman. For example, the prosecutor pointed to the case of Kelley Williams-Bolar, an African-American woman who originally was sentenced to five years in prison for using her dad’s address to get her kids into a different school district. The sentenced was later suspended to 10 days in jail. Everyone agrees: That sentence — even after it was reduced to 10 days — was obscene. Saying that Huffman should not get a probationary sentence because another prosecutor obtained an unjust sentence in another case demonstrates why we have a mass-incarceration problem. The prosecutor said at the Huffman sentencing: “If we believe in just punishment, we should not put the Williams-Bolars in jail while letting the Huffmans go free.” That’s true, but it means that we shouldn’t put the Williams-Bolars in jail, not that we should put both in prison. 

John Byrne discussed high school football

It's a little off-topic, but hey, it's Friday afternoon. Check out his Miami Herald op-ed here.  The intro:

 On Aug. 14, the Florida High School Athletic Association’s board of directors approved Aug. 24 as the start of practice for the fall sports seasons, including football. Under the FHSAA’s plan, the regular season will start on Sept. 4, and there will be a nine-week regular season. As in past years, there will be playoffs in November and a state championship in December.

Of course, this isn’t like past years in one major respect: the coronavirus pandemic. The pandemic has had an undeniable impact on this country — and on Florida and Miami-Dade County, in particular. And, in the sports arena, it’s already led major college football conferences to cancel the football season. The FHSAA however, plans to move forward as if it’s business as usual, with the only exception being that it’s giving high schools until Sept. 18 to opt-out of its proposed schedule and set their own, the consequence being that these schools can’t compete for a state championship.

The FHSAA plan is unacceptable.

If Judge Wilson takes senior status next year, who will take his spot on the 11th Circuit?

The vetting room blog says that Roy Altman is a likely candidate if Trump wins:

Judge Roy Altman (S.D. Fl.)

The 38 year old Altman was the youngest district court judge in the country when he was appointed in 2019, and, despite that youth, he sailed to confirmation by a 2-1 margin, a landslide among recent confirmation votes.  Altman will likely be strongly considered for a seat on the Eleventh Circuit if Judge Charles Wilson moves to senior status in a second Trump term, or if Judges Lagoa or Luck are elevated to the U.S. Supreme Court.

And if Biden wins:

Judge Leslie Abrams Gardner (M.D. Ga.)

The sister of the famous Stacey Abrams, Judge Leslie Abrams Gardner made history as the first woman ever appointed to the Middle District of Georgia.  The 45-year-old Gardner is poised to potentially make history again as the first black woman appointed to the Eleventh Circuit (and potentially further to the Supreme Court).

11th Circuit Zooms

Here's the picture from the Tampa Bay Times of the Zoom hearing regarding the felon voting rights case:

More:

In a case that could have major ramifications ahead of the November election, a panel of federal judges in Atlanta questioned lawyers Tuesday about Florida’s decision to require felons pay off all court fees and fines before voting. Ten judges from the U.S. Court of Appeals for the 11th Circuit, half of whom were appointed by President Donald Trump, peppered lawyers representing Gov. Ron DeSantis and more than a dozen felons about the state’s law and whether its requirements to pay off all fees equated to a modern-day “poll tax.” Most of the questioning, however, fixated on complicated judicial precedents. After more than two hours of back-and-forth that was carried on Zoom, the video conferencing site, judges gave little indication how they would rule. One exception was Judge Barbara Lagoa, who, along with Judge Robert Luck, was appointed to the court by Trump after Gov. Ron DeSantis named them to the Florida Supreme Court last year. Lagoa asked many questions that indicated she agreed with DeSantis’ position on Amendment 4, passed by Floridians in 2018 that wiped away the state’s Jim Crow-era ban on voting by people convicted of felonies. At one point, Lagoa questioned whether the court, if it finds parts of Amendment 4 unconstitutional, shouldn’t simply void the entire amendment. American Civil Liberties Union attorney Julie Ebenstein responded that not even DeSantis’ attorneys have said that Amendment 4 should be tossed out. Judges routinely “sever” parts of a law, striking some parts while preserving others. “Everybody agrees that nullifying Amendment 4 would be an absurd result that should be avoided,” Ebenstein said.

Should judges be elected?

Appointing judges has its problems, but after reading Rumpole’s blog and speaking to the state practitioners, it seems that electing judges is much worse and doesn’t make much sense. What do you all think?

In the meantime, watch this John Oliver clip in juries:

https://youtu.be/1f2iawp0y5Y

It is very possible that the next Supreme Court Justice went to high school in Miami

Ketanji Brown Jackson, a Miami Palmetto High School grad, is on Biden’s short list.  She currently sits on the district bench in D.C.  She was a star debater in high school. I got to know her as she was a few years ahead of me in high school (I went to Killian) and a year ahead of me at law school.  She’s a great person.  A former PD, she would be a wonderful addition to the Court.  

Here’s what Noah Feldman has to say:

Joe Biden has fulfilled his promise to choose a woman as his running mate. Let’s turn our attention to another promise he made: to name a Black woman to the Supreme Court. A number of women with different kinds of legal experience have been suggested by NGOs and journalists. But to legal insiders, Biden’s options narrow down very quickly to two names: Justice Leondra Kruger of the California Supreme Court, and Judge Ketanji Brown Jackson of the federal district court in Washington, D.C. 

*** 

Jackson became a federal judge in 2013. There was no major fight over her nomination, probably because it was for a district court position, which is not the traditional path to the Supreme Court. (Of the current justices, only Justice Sonia Sotomayor was a district court judge, and she followed that with a long stint on the court of appeals.) She’s now just shy of her 50th birthday. Jackson’s national profile rose significantly in 2019 when she presided over a case in which the House Judiciary Committee sought to enforce its subpoena against Donald McGahn, the former White House counsel. Jackson’s opinion rejected the Trump administration’s claim of absolute immunity and insisted that “presidents are not kings.” No comparably high-profile case has come before Kruger.

Michael Nadler leaving the U.S. Attorney’s Office

 He’s joining Stumphauzer Foslid Sloman Ross & Kolaya. A big get for them. Big enough for the AP to cover the move here:

A federal prosecutor who has jailed some of Venezuela’s biggest crooks is stepping down, The Associated Press has learned, leaving a void that could dampen U.S. efforts to expose criminal activity in the South American country amid rising tensions with the Trump administration. Michael Nadler, an assistant U.S. attorney, is leaving to enter private practice next month at a boutique Miami law firm— Stumphauzer Foslid Sloman Ross & Kolaya—said a person familiar with the move who insisted on speaking anonymously because it hadn’t been made public. Nadler, 48, has indicted multiple Venezuelan Cabinet ministers, businessmen and Swiss bankers as part of a sustained effort by investigators in the Southern District of Florida to recover some of the $300 billion estimated to have been stolen from Venezuela in two decades of socialist rule.

Nadler had this to say about the move:

It's has been an honor and privilege working as an AUSA for almost 10 years. Having the opportunity to work on some of the biggest cases in the country and focusing on high-level complex money laundering, Foreign Corruption Practices Act, foreign bribery cases, and targeting corruption at the highest levels in these international cases has been the highlight of my career to date. I thank the US Atty Fajardo for entrusting me and having the confidence in me to work these cases and to Willy Ferrer for hiring me. Leaving was an incredibly difficult decision. But when the opportunity presented itself to join a fantastic group of people and really talented lawyers at a well-respected and prominent boutique law firm, the choice was much easier. I look forward to this new chapter in my life.