Does Tasering a Pregnant Woman Over a Speeding Ticket Violate the Fourth Amendment?

Adam Liptak at the New York Times has this great piece about a petition for certiorari asking the Court to grant a case involving some Seattle police officers, who tasered a pregnant woman because she refused to sign a speeding ticket. The police officers won on qualified immunity grounds in a divided en banc decision from the Ninth Circuit.

The reason the police officers are challenging a decision they essentially won is because they don’t want precedent out there saying that taser use can violate the Fourth Amendment. The reason such a holding is important, and unacceptable to the officers, is because now someone else can win on that constitutional claim as it has now been clearly established.

It is interesting that the City of Seattle agrees with the view that some taser uses by its own police can violate the Constitution. Apparently, the police force disagrees with the City on what is an appropriate use of force.

That does not seem likely a healthy relationship!

Rosen: pay no attention to the Constitution behind the curtain!

In an article for The New Republic, Jeffrey Rosen writes that the recent decision in the Hettinga case has “unmasked” the continuing machinations of Rosen’s “Constitution in Exile” conspiracy. I say his conspiracy because in Rosen’s eyes, the widening circle of lawyers, judges, and law professors who are drawing attention to the many shortcomings of the dominant Progressivist school of constitutional law can’t just be a group of people who think the courts have got certain things wrong—no, they’re a cabal of “conservative judges,” secretly plotting to take over the world and undermine Social Security…or something like that. After all, nowhere in Rosen’s article does he even try to address what people like Judge Brown or Professor Barnett believe, or why. Instead, it’s all portrayed as a camouflaged political power play, without any intrinsic merit at all. “Pro-business conservatives,” Rosen writes, are “interested in embracing constitutional doctrines that could ‘discipline a wayward politics’—even if that means rule by judges…. [W]e can expect future constitutional challenges to financial regulations, such as the Dodd-Frank law, and to the rest of the post–New Deal regulatory state.”

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Seventh Circuit Throws Out Ban On Audio Recording Police Officers

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Illinois has one of the strictest laws in the country when it comes to people audio recording police officers in public. But then again, Illinois is also known for a long history of police corruption, and maybe the State thought it could prevent a few civil rights settlements by banning people from recording their interactions with police. Whatever the motivation behind the law, it doesn’t much matter after today because the Seventh Circuit, in a 66-page opinion by Judge Sykes, directs the lower court to enter a preliminary injunction blocking enforcement of the law. The court did so because it said the law “likely” violates the First Amendment:

We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here. The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to contentneutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s freespeech and free-press guarantees.

 I haven’t read through the entire opinion yet, or through Judge Posner’s dissent, but what I have read is good. No great.

And I’m not the only one who thinks the majority got it right. Here is Eugene Volokh’s take. And coverage from the Chicago Tribune.

New CockleBur Blogger

This is Shon using Mathew Planalp’s user profile. Mathew recently joined Cockle Printing as a document analyst, and he is now joining the CockleBur. Mathew has a J.D. from Creighton University Law School, and he has quickly become a valuable member of the Cockle Printing staff.

Please give Mathew a warm CockleBur welcome.

Predictions for the NBA Playoffs

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Now that Rose is out for the remainder of the playoffs, the Bulls are mere mortals in a pool of mostly mortal teams. They were able to get by through the season without the reigning MVP from last year by playing outstanding defense, allowing everyone to get involved in the offense, and playing each game like it was game seven of the Finals. In the playoffs, though, you need at least one guy that you can lean on late in the fourth quarter when the game is close and the season is on the line. Even if he hadn’t gotten hurt, I was still worried that by the time the Bulls made it to see Miami in the Conference Finals that LeBron would switch over and check Rose in those situations, which he did last year with much success. In Rose’s defense, it’s hard to do anything when the most athletic guy in the league is guarding you and has not only six inches on you, but also an entire nation worth of haters serving as motivation. Still, I had that delusional confidence that comes along with being a fan, and I was confident that the Bulls would be able to get by Boston and Miami. I was a little skeptical about their chances of beating Oklahoma City though. That team is tough. I just finished watching them erase a thirteen point fourth quarter deficit to sweep the defending NBA Championship Mavericks and make it look easy.

Now with Rose out, I can look at things more realistically. First off, let me quickly skim through the playoff match-ups for you: OKC already knocked off Dallas; they’re waiting to play the winner of the Lakers/Nuggets match-up, which, regardless of Denver’s mauling the other night, will be wrapped up in the next two or three games by LA. Remember a couple years ago when OKC took the Lakers (who ended up winning the title that year in a rematch over Boston) to six games? You could tell they were going to be a team to be reckoned with for quite a while if they could keep that nucleus of Durant and Westbrook together, and they ended up in the Conference Finals the next year (last year) against Dallas. Each year they keep getting better and better, and now they just swept the reigning NBA champions. How well does this bode for Kobe and company, who are looking tough themselves with the emergence of Andrew Bynum? Let’s just put it like this: OKC in five. On the other side of that bracket, San Antonio will sweep Utah (haven’t they done that already?) and will play the winner of the Memphis/LA Clippers series. That series is the only close one of the first round, but I think CP3 and company are talented enough to get past the Grizzlies. Might go to a game seven, though. Memphis gained plenty of confidence and experience last year, but Chris Paul is a genius and he’s good enough to get them into the second round. The Clippers are young and inexperienced as a team, so I don’t like their chances of making it past an aging yet battle tested Spurs team. Either way, whoever wins that series will get torched by the Thunder in the Conference Finals.

In the East, now that Rose is out, this is Miami’s conference to lose. The 76ers were looking like contenders early in the season before taking a second half dive that left them crawling into the playoffs, but with the confidence they’re gaining with these wins against the #1 seed, it might carry them into the second round (though I still hold out hope, especially if Noah is able to play, that the Bulls can at least get past the #8 seed). Boston should be able to beat either of them in the second round, though (which explains who I like in the Boston/Atlanta series). Indiana is a win away from making it into the second round and being swept by Miami. Miami versus Boston will be fun to watch, but ultimately LeBron will prove to be too much for Pierce (or anyone else crazy enough to guard him) and Miami will have another shot at winning (“not one, not two, not three, not four…”) their first title with the Big Three.

Remember when Karl Malone and John Stockton and Jeff Hornacek kept making deep runs and a couple of appearances in the Finals in the 90s, only to keep getting beaten by the GOAT (greatest of all time)? Well, unless LeBron sheds the “fourth quarter choke artist” label and claims his own stake as the GOAT, he might find himself in the same shoes as The Mailman. (Not literally, that’d be gross. I’m sure those shoes are all sweaty and stinky by now. Besides, they probably don’t wear the same size anyway.) The Thunder have the type of team that can win multiple championships, just like Miami does, except maybe a little better. They have two bonafied superstars, just like Miami, except that they’re younger and have less wear and tear on their bodies. Plus, they have a guy coming off the bench (James Harden) who can put up thirty points just as easily as anyone else on the court. What that means is they have options, multiple options, that can score from anywhere on the floor, at any time. James and Wade are both streaky shooters who rely more often on their quickness to get to the rim. When they absolutely need a bucket, it’s easier for defenses to clog the lane and make them pull up from long distance. When either of them is on fire and hitting those outside shots, they become impossible to defend. LeBron has better shooting percentages than Wade (an unprecedented 53% from the field, 36% from beyond the arc, compared to Wade’s 49.7% from the field and a paltry 26.8% from beyond the arc), but because it’s Wade’s team and because he’s got that whole “choke” label, LeBron will defer to Wade in clutch situations. Like on this play.

Durant and Harden are both great shooters (Durant: 49.6% from field, 38.7% beyond; Harden: 49%/39%) and even Westbrook has a better 3pt percentage than Wade (45.7% from field, 31% from 3pt), and all three have been on OKC from the get-go, so there’s no stigmatism about it being “their team,” even though it’s undeniably Durant’s team. Come late in the game, they’re going to try to get the ball in Durant’s hands, and rightfully so. (Especially when he regularly pulls of shots like these:


Still, like I said, it makes the game easier when you have multiple options capable of scoring from anywhere on the floor. OKC’s game plan should be simple: clog the lane with shot blocker extraordinaire, Serge Ibaka, and tough guy, Kendrick Perkins; limit turnovers (not a specialty of Westbrook’s, admittedly) to avoid giving up fast break points, and force Miami to beat you from outside.

Granted, Miami has great defense; and it’s true that if the shots aren’t falling for OKC they don’t have an inside threat that can be relied upon. Thing is, neither does Miami. Both these teams will have to rely on fast breaks and making open jumpers, but if the combo of Durant, Westbrook, and Harden are able to stay healthy throughout the playoffs and Finals, then Miami will have their work cut out for them. And if this Thunder team is able to find a way to keep this nucleus together for the next decade? Well, then James and Wade will find themselves in the same predicament that Stockton and Malone did about fifteen years ago, wondering why they weren’t able to win “not two, not three, not four, not five, not six, not seven…” but not even one title.

The California Bar Wants to Force Law Schools to Provide Practical Skills

The California Bar Association is considering a proposal that would require bar applicants to have taken a practical skills course during law school in order to be admitted to the bar. The Bar Association, however, has received some pushback from two prominent law school deans. Stanford Law Dean Larry Kramer urged caution. And UC Irvine Dean Erwin Chemerinsky said, “I have very mixed feelings. On the one hand, I stringently support skills training in law school. On the other hand, I don’t like the idea of the state bar saying, ‘This is what you should be teaching.’…Law schools should decide what they teach. Not the bar.”

I generally think that law school clinics are great because they teach students practical skills. I can’t wait to work in a clinic my second or third year. But I wonder whether Bar Associations–who have a mixed history of writing rules that favor the lawyers versus rules that favor the public good–are the right group to tell law schools how to teach the next generation of lawyers.

And I think an even better would idea would be to skip the third year of law school altogther and require a year long internship with a practicing attorney. That would certainly be cheaper for students.

Beating Distribution: The Curious Math of Late Petition-Stage Filings

What is Distribution?

Very simply, distribution is the process of delivering petition-stage briefing documents to the Justices and their clerks for consideration prior to the conference. Shortly after distribution, a randomly assigned clerk in the Cert Pool (and a clerk for Justice Alito, who does not participate in the Cert Pool) will begin reviewing the case documents, and start work on a summary memorandum and recommendation.

Petition-stage documents that arrive after distribution will follow the earlier filings up to chambers, but there is no guarantee that they will receive the same attention as documents in the initial distribution. Consider that every term, Court personnel must review hundreds of thousands of pages related to over seven thousand petitions. If you were a clerk—having already read the petition and brief in opposition, made your notes, and moved on to the rest of your brief assignments—would you be prepared to give full attention to a late-arriving brief?

One leading authority had this to say about petition-stage reply briefs:

There is no prescribed time limit for filing a reply brief. To do any good, the brief must be submitted in time for the Court to read it before it acts on the petition. This means that, to be effective, the reply brief should be available to the Justices (or their clerks) when they read the brief in opposition shortly after the case is circulated. Gressman, et al., Supreme Court Practice 509 (9th ed., BNA Books, 2007).

When Is Distribution?

Distribution days are scheduled throughout the year, usually on Wednesdays. Generally, one of three events can trigger distribution: receipt of the respondent’s Read More »

Why You Shouldn’t Bank With Wells Fargo

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If you are concerned about the number of citizens we as a society simply give up on by locking them up for decades, then you might want to think about not banking with Wells Fargo. Charles Davis at Salon writes that the Wells Fargo used bailout funds to invest in the GEO Group, the second largest private prison company in the country. Davis writes:

The political class having failed the public it purports to serve, choosing to imprison much of it for private profit, it’s left to the powerless – that would be us – to confront systemic injustice. One way to start: Quit giving your cash to those like Wells Fargo who make money by imprisoning your neighbors. And quit enabling the politicians from both major parties who make that possible.

You might think, oh, private prisons aren’t all bad and so it is okay for Wells Fargo to invest in GEO Corp. Well, NPR recently did a piece about a federal judge’s ruling condemning one of GEO Corp’s juvenile prisons in Mississippi because the court found “systemic problems.” Those problems included:

  • Prison staff had sex with incarcerated youth, which investigators called “among the worst that we’ve seen in any facility anywhere in the nation.”
  • Poorly trained guards brutally beat youth and used excessive pepper spray as a first response.
  • The prison showed “deliberate indifference” to prisoners possessing homemade knives, which were used in gang fights and inmate rapes.
  • Some guards had gang affiliations – a finding confirmed to NPR last year by former inmate Justin Bowling.

Just something to think about.

Paleo Diet Blogger Threatened With Jail Time

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Steve Cooksey is a former diabetic, who decided to start the popular “Paleo” diet. Not only did he lose weight, he became insulin free on the low carb, caveman diet. So he decided to share his success on his blog.  But Steve ran into a problem in the form of the North Carolina Board of Dietetics and Nutrition, who told him to stop giving advice on his blog because it amounts to “practicing nutrition.” The state then threatened Steve with 120 of jail time if he did not cease his illegal practice of nutrition.

Seriously. Jail time. For blogging about dieting. The country really needs to reassess whether licensing restrictions are serving anyone’s interest other than existing businesses. It always seems like the primary goal of licensing is to crush the spirit of entrepenuers like Steve. Or people just wanting to share their success.

Annie and I have been on the paleo diet for two months now and we’ve found great results. I’ve lost 18 pounds and I don’t FEEL like I’m dieting. It would be a shame if states decide to start limiting the free flow of information on the internet. Because in that scenario, we all lose.

For more coverage of Steve Cooksey’s case, see Reason Magazine, Carolina Journal, and Project.Nsearch.

Five Ways to Write Like Paul Clement

On Wednesday, former U.S. Solicitor General Paul Clement will take the lecturn at the Supreme Court to once again argue a vexing issue of the day. This time around he will be defending Arizona’s immigration policy. By now, people are probably wondering how Mr. Clement ends up arguing so many cases before the Court. Well, just one of the reasons is he can write amazing legal briefs.

But don’t take my word for it. The Legal Writing Pro, Ross Guberman, released a new article last week entitled “Five Ways to Write Like Paul Clement.” Check it out.