Redemption for Iowa’s Supreme Court?

In the midst of the uproar surrounding the Supreme Court’s recent decisions, I nearly missed the news that a different Supreme Court is taking action that is worthy of some attention.  Via How Appealing, I learned of Ryan Koopmans’s post at On Brief.

When the California Supreme Court and Ninth Circuit affirmed the decision of the Northern District Court of California that Proposition 8 was unconstitutional, I was not as vocal in celebration as some of my classmates who were natives of California.  I had just come from Iowa, so I was already used to gay marriage being legal (I had a similar experience with the fierce debate surrounding the failed attempt to eliminate California’s death penalty).  By the metrics of most of my friends, Iowa was ahead of California in a number of important respects – and I made sure to constantly remind them of this fact.

My enthusiasm in Iowa’s progress was dampened, however, by the tendency of the state to take steps backward as soon as it had moved forward.  The legalization of gay marriage was met with the expulsion of three of Iowa’s Supreme Court Justices during their retention election.  But in an action that went beyond popular backlash, the Iowa Supreme Court proceeded to tarnish its own reputation in the case of Nelson v. James H. Knight, DDS, P.C.

In Nelson, the Iowa Supreme Court held that it is not a violation of the Iowa Civil Rights Act to fire an employee because the employer feels personally attracted to the employee.  Even if the employee would not be fired but for his or her gender, there is a difference between sex-based termination and termination based on a personal attraction.  While I am no expert on the Iowa Civil Rights Act, the decision raised some red flags to me because it seemed to put employees’ security at the whim of employers’ sexual desires.  Furthermore, employers could claim a personal attraction as a false justification for firing employees on the basis of sex and it is not clear how the employee would be able to disprove the claim of attraction.

This decision made national news and was met with wide ridicule, even all the way out here at UCLA Law.  My Iowan ancestry, once my claim to fame, became a source of shame.  It is because of all of this that I am happy to see that the court has agreed to rehear the case.  I hope that the Iowa Supreme Court decides the case differently so that I can once again belittle my Californian friends by asserting Iowa’s jurisprudential superiority.

Apology: Delayed Case Postings

Due to clerkship applications, I have been unable to read through the recent Supreme Cases.  Fortunately, Friday is the big day, according to this new Plan, and once I am through with applications I will get to the cases.

Cases that I hope to explore (or that I at least find interesting) - and interesting takes that I have seen on them include:

Fisher v. University of Texas.  Posts that I have found interesting include Richard Sander's, Stuart Taylor's (via David Bernstein), and Jack Balkin's.

Descamps v. United States.  I found Will Baude's post interesting.

Alleyne v. United States.  Mike Gottlieb posts about it at SCOTUSblog.

Koontz v. St. Johns River Water Management District.  Ilya Somin of the Volokh Conspiracy posts about the case here and here.

Shelby County v. Holder.  I haven't had nearly enough time to sort through the case and its reactions, but Joey Fishkin posts on the case here.

United States v. Kebodeaux.

Salinas v. Texas.  Orin Kerr posts about it here.

Agency for International Development v. Alliance for Open Society.  Michael Dorf posts about it here.

Hollingsworth v. Perry and United States v. Windsor.  While the case has not been released at the time of this post, there are already reactions in all directions, but I will leave the sorting of the legal blogosphere's reaction to a time after the opinions are released.

Fox News Sued for Distress Caused by On-Air Suicide

BBC reports on a lawsuit filed by the family of a man who shot himself at the end of a car chase broadcast by Fox News is suing the network for infliction of emotional distress that arose from viewing the broadcast.

This suit initially seems related to negligent infliction of emotional distress (NIED) (which I posted about in the context of exam grades here.)  I find it difficult to fit this lawsuit into the NIED category, however.  The news-public relationship does not seem to be a relationship that is likely to cause severe harm or distress if the newscaster acts negligently (as opposed to, say, an undertaker who misidentifies a body and cremates it.)  Additionally, this does not seem to fit into the category of bystanders suing for NIED because Fox News did not cause the act that resulted in the harm.  This is different from, say, Scherr v. Hilton Hotels Corp., 214 Cal. Rptr. 393 (1985) a case where plaintiff argued (unsuccessfully) for NIED when the plaintiff saw a live broadcast of a hotel fire where her husband died.  In that case, the plaintiff was suing the hotel, not the news agency, because it was not the news agency that caused the harm that in turn caused the emotional distress.

Here it is different -- the plaintiff is focusing her efforts on the news agency that broadcast the suicide of the father of her children.  It probably would not be sense to sue the most direct cause of the distress -- the man himself -- since he is dead.  The question becomes whether the medium that communicates the distressing event can be sued, that is, whether the plaintiff can sue the messenger.

There is the possibility that the plaintiff may still have an argument for emotional damages caused by general negligence.  After all, negligent infliction of emotional distress is a separate claim that tends to accompany arguments for negligence.  If the plaintiff can argue that Fox News was negligent in reporting this suicide, the plaintiff may be able to claim damages for emotional distress.  It is not clear whether the plaintiff is pursuing this theory, since the article indicates she is suing for "infliction of emotional distress."

This strategy is not foolproof however.  Under the Hand formula for negligence, the plaintiff would need to argue that the precautions that Fox News could have taken to prevent her distress would have been less costly than the harm she suffered multiplied by the probability of this harm.  Fox News would have a strong argument that there was a low probability that a person in a car chase would shoot himself.  On the other hand, many news agencies delay their broadcasts by a few seconds, so there may have been low-cost measures Fox News could have taken to avoid harm.

On yet another hand, however, this seems to raise interesting questions about the live broadcasting of disasters or terrorist attacks.  If Fox News were to report on a story more newsworthy than an exciting car chase, say an ongoing terrorist attack, and if this story were to show victims being killed, could the families of the victims sue Fox News for infliction of emotional distress?  This lawsuit intuitively seems less meritorious, and this intuition may be bolstered by recognizing that altering the coverage of events like terrorist attacks may have a much higher cost than altering the coverage of car chases.  Calculating these comparative costs seems to require some determination of the newsworthiness of events as measured by the costliness of altering the coverage of the events - a task that seems to be quite difficult.

Passenger Standing After United States v. Jones

This will probably be the last of my overly frequent posts about United States v. Jones, 132 S. Ct. 945 (2012) (for a while at least), since I will be finished with arguing a similar case by the end of the day tomorrow.  The final aspect of Jones that I would like to mention is one that I will probably pursue in a more formal matter since a quick perusal of articles on Jones and the Fourth Amendment do not seem to touch much on this.  That issue is: the state of vehicle passenger standing to challenge Jones-based searches.

Standing to challenge searches is already in a funny state when it comes to vehicles because of the Court's holding in Rakas v. Illinois, 439 U.S. 128 (1978) where the Court held that a passenger in a vehicle had no standing to challenge a police search of a locked glove compartment and under the front seat of that vehicle. The Court held that the defendant, as passenger, failed to show a legitimate expectation of privacy in that vehicle.

The legitimate expectation of privacy that Fourth Amendment standing involves is different from reasonable expectations of privacy that dominate traditional determinations of whether a search exists in the first place.  For instance, in Minnesota v. Carter, 525 U.S. 83 (1998), the Court held that guests in a house who are not overnight guests do not have a legitimate expectation of privacy in that house, and therefore do not have standing to challenge a search of that house as a violation of their Fourth Amendment rights.  The guests in the house likely expected that police would not intrude on their activities, and society probably would have found this expectation reasonable, since they were inside of a friend's house with the blinds (mostly) shut.  Despite this, any expectation of privacy they had was not legitimate.

Jones seems to introduce an entirely new way of analyzing standing: a test of whether the defendant has a possessory interest in the place searched.  In cases where the defendant asserts that police action would have constituted trespass at common law, the action is a search under Jones.  It would seem to follow that the only person that would have standing to challenge the search would be the person whose possessory interest is violated by the trespass.  For instance, I would not be able to challenge a search of my friend's house, under Jones, since I do not have a possessory interest in that house.  While I may have a legitimate expectation of privacy under Carter, that goes beyond the property-based rule that Jones establishes.

Usually, this will not be a big deal, since the legitimate expectation of privacy test will often lead to standing in situations where there is no trespass on the defendant's possessory interests.  It will be a big deal, however, in situations like the one in Jones: GPS monitoring of vehicles.  Passengers of vehicles that are tracked by attached GPS devices will probably not be able to challenge this type of search under Jones because the passenger has no possessory interest in the monitored vehicle.  Additionally, the interior of the vehicle is not searched -- typically only the public movements of the vehicle are tracked -- meaning that the passenger would be hard-pressed to argue from the legitimate expectation of privacy direction.  Jones did not address standing issues, but it did note in a footnote that Jones was the exclusive driver of the vehicle, indicating that he had a possessory interest that would have given him standing had a standing challenge arisen.

Admittedly, this class of searches may be a narrow one, but it illustrates the interesting new dimension that Jones brings to Fourth Amendment standing.  While traditional standing analysis involving legitimate expectations of privacy may involve fuzzy tests, Jones may be a bit clearer since parties need only look to property law to see if any possessory interests in searched property exist.

Hafetz on Criminal Law Principles Applied to AUMF Detentions

Over at Balkinization, Jonathan Hafetz posts about his upcoming article in a delightful legal periodical.

I recommend this article to anybody who is following events at Guantanamo and who is interested in the implications of President Obama's speeches and policies on the subject.  As somebody who is far more interested in the principles underlying criminal law than the intricacies of national security law and laws of war, I found Hafetz's explanation of these varied concepts approachable, and his blending of these fields to be deft and enlightening.

"Street Cred": An Important Argument with Unnecessary Problems

CrimProf Blog notes that Montré Denise Carodine recently posted to SSRN "Street Cred," an upcoming article in Volume 46 of the UC Davis Law Review.  Here is the abstract:

The killing of unarmed teen Trayvon Martin by a neighborhood watch captain and the purported lackadaisical response to that killing by the Sanford, Florida Police Department riveted the country and sparked an important conversation regarding the breakdown of the relationship between the police and the communities that they serve. Regardless of one’s opinion on what happened the night that Martin was killed, it is undeniable that this entire case has jeopardized the already fragile relationship between law enforcement and not only the Sanford community, but communities across the nation. This Essay considers the effect of the dysfunctional relationship between the police and the communities that they serve on the perceived reliability of the evidence that police provide in our criminal justice system on a daily basis. The evidence rules, which are particularly crucial in criminal cases, should reflect the reality of public perception of law enforcement. I propose that communities call for and legislatures implement a moratorium on the admissibility of certain types of law enforcement testimony in communities with strong levels of distrust of the police. And, in turn, when confidence in the credibility of law enforcement is restored, which is the ultimate goal of this Essay, the evidentiary regime can and should then reflect a new reality and take the opposite approach. The rules of evidence should incorporate a community policing approach to the admissibility of police testimony. 

My approach is novel, as criminal law and evidence scholars have not considered the importance of the community in assessing evidentiary reliability. But we should rely on the community to adjudge police credibility and the evidentiary value of their testimony. This approach is superior to relying solely on prosecutors, judges, and the police themselves. My proposal will help to restore the public’s trust in law enforcement, which is at an all-time, critical low.

My initial comment on this article is that it should not be dismissed -- especially not by those who are particularly prosecution-minded.  My first reaction to the thesis after reading the abstract was one of incredulity.  Excluding all law enforcement testimony from certain cases?  My initial impression was that the article would seem credible only to those who already hold these strong views, and would seem completely incredible to all others.  As I read the article, however, I found a great deal of interesting discussion on community perspectives of law enforcement and specific strategies that law enforcement agencies can take to repair broken relationships with an untrusting public.  The problem of distrust and the solutions the author presents in Part II make this article worth reading, even by those who disagree with the author's ultimate proposal.  The perspective is important, and the problem is real; it is of social importance to reformers and of strategic importance to prosecutors.  The article does have its problems, which I discuss after the jump, but I think that Part II is certainly worth reading.

However,

Fun News Activity: Spotting Partisan Views on Privacy

A few days ago, Eugene Volokh posted a response to this Reason article.  The Reason article advances the intuitively-appealing notion that those who express opinions on the NSA's data-collection efforts tend to have their opinions colored by their political ideology.  The article contends that Democrats who disagreed with President Bush's data-collection efforts now agree with President Obama's use of similar efforts because President Obama is a Democrat.  The article further argues that the same principle holds true for Republicans, with those agreeing with President Bush's strategy now expressing critical opinions of President Obama's surveillance policies.

Professor Volokh takes issues with the article's basis for these claims, noting that the difference in poll outcomes shows that many Democrats and Republicans have in fact maintained consistent opinions and that in the time between these polls people may have changed their minds for non-political reasons.

While I agree with Professor Volokh's interpretation of the article -- this interpretation holds room for the conclusion that a small percentage of Democrats and Republicans do fit the model of the blind partisan who is willing to change his or her views depending on the party in power.  This gets us to the fun news activity.

Many news programs hold panel discussions and interview pundits on the subject of the NSA's surveillance efforts.  Most of these pundits fall outside of the blind partisan model, with Republicans focusing their points on criticizing Edward Snowden, the contractor who leaked the description of the program to the press.  Democrats tend to criticize the program, often noting its origins in the Bush administration.  The pundits who tend to stick to their policy positions seem to be those who are more established on networks and who make regular appearances.

Despite this general trend, it is especially fun to see those pundits who fit into the blind partisan model described by Reason and who, through a series of mental gymnastics, misleading appeals to the Constitution, and overbroad labels of "legality" shape their support or criticism of the NSA to fit with their partisan identifications.  The pundit who does this is typically a more fanatical and less substantive contributor to the discussion, and these folks tend to be those who appear less regularly on news programs.  Flags that indicate partisan-conformity efforts include, most obviously, the party affiliation of the speaker (for example, if that speaker is a current or past senator or representative, their party label is indicated by the network).  Other signs to look for include broad appeals to the Constitution or law, overly simplistic claims of legality, shifty eyes, stammering, or overuse of introductory phrases like "well, as a matter of fact."

When you find the partisan, I recommend that you listen carefully to their arguments and see how the normative bases of these arguments square with their other talking points on the program.  Also look carefully if they make eye contact with the program's host or with the camera and see if you can catch a glimpse of how uncomfortable they really feel.  It is easier to spot than you'd expect.