Thursday, April 5, 2018

Facts Are for Juries

In May of 2010, a neighbor of one Amy Hughes “called 911 to report that a woman was hacking a tree with a kitchen knife.” Officer Andrew Kisela, a police officer in Tucson, Arizona, “and another police officer, Alex Garcia, heard about the report over the radio in their patrol car and responded. A few minutes later the person who had called 911 flagged down the officers; gave them a description of the woman with the knife; and told them the woman had been acting erratically. About the same time, a third police officer, Lindsay Kunz, arrived on her bicycle.” [1]

Officer “Garcia spotted a woman, later identified as Sharon Chadwick, standing next to a car in the driveway of a nearby house.” There was a “chain-link fence with a locked gate” separating Ms. “Chadwick from the officers. The officers then saw another woman…emerge from the house carrying a large knife at her side.” The woman, who was later identified as Ms. Hughes, “matched the description of the woman who had been seen hacking a tree. Hughes walked toward Chadwick and stopped no more than six feet from her.”

At this point, all “three officers drew their guns.” They ordered Ms. Hughes to drop the knife at least twice. Ms. Chadwick told both Ms. Hughes and the officers to “take it easy.” Ms. “Hughes appeared calm, but she did not acknowledge the officers’ presence or drop the knife. The top bar of the chain-link fence” was blocking Officer “Kisela’s line of fire, so he dropped to the ground and shot Hughes four times through the fence.” The officers then “jumped the fence, handcuffed Hughes, and called paramedics, who transported her to a hospital. There she was treated for non-life-threatening injuries. Less than a minute had transpired from the moment the officers saw Chadwick to the moment Kisela fired shots.”

Ms. Hughes sued Officer Kisela in federal district court, alleging that Kisela had unconstitutionally used excessive force (intentional police shootings are considered “seizures” under the 4th Amendment [2]), and the case eventually made its way to the Supreme Court, which decided the case on April 2nd. The facts that your humble servant has set forth above were the Court majority’s rendition of the facts as viewed in the light most favorable to Ms. Hughes.

The reason why the Court had to consider the facts in that manner is that the appeal arose out of the district court’s granting of a “summary judgment” in favor of Officer Kisela, and summary judgments happen when a court decides that one party has no conceivable case in a civil matter, thereby making it pointless to bring in a jury. So an appellate court, in reviewing the lower court’s decision, will take a look at the facts from the losing party’s perspective to determine if that party had any case at all, which would make a summary judgment inappropriate.

Interestingly, the Supreme Court did not reach a decision on whether Officer Kisela’s actions violated the Fourth Amendment. Instead the Court decided that the facts were insufficient for Ms. Hughes to overcome Officer Kisela’s “qualified immunity.”

Police officers are entitled to qualified immunity against civil suits when their “’conduct does  not  violate  clearly  established  statutory  or  constitutional  rights  of  which  a  reasonable  person  would  have known.’” The “’focus  is  on  whether  the officer  had  fair  notice  that  her  conduct  was  unlawful….’” In other words, even if the officer actually violated someone’s constitutional rights, he is shielded from suit unless a reasonable person would have known he was doing so.” And a reasonable person knows that he is violating a constitutional right only if existing precedent has “’placed the statutory or constitutional question beyond debate.’” This means that qualified “’immunity  protects  all  but  the  plainly incompetent  or  those  who  knowingly  violate  the  law.’”                  

On these facts, the Court held that Officer Kisela was entitled to qualified immunity, and that, because of that, there was no conceivable way that Ms. Hughes could have a case against the officer, making proper the grant of summary judgment against her. The circumstances were not such, the Court held, where anyone in Officer Kisela’s shoes would know that he was unlawfully violating the constitutional rights of Ms. Hughes.

Justice Sonia Sotomayor dissented from the Court’s decision, taking issue with the Court’s rendition of the facts. Specifically, she noted, the Court’s rendition left out the critical fact that the knife Ms. Hughes was carrying, a kitchen knife, was being held down at her side, with the blade facing away from Ms. Chadwick. Her view of the facts was this:

“Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home.  The record,  properly  construed  at  this  stage, shows  that  at  the  time  of  the  shooting:  Hughes  stood stationary  about  six  feet  away from  Chadwick,  appeared ‘composed  and  content,’…,  and  held  a  kitchen  knife  down  at  her  side with  the  blade  facing  away  from  Chadwick.   Hughes  was nowhere  near  the  officers,  had  committed  no  illegal  act, was  suspected  of  no  crime,  and  did  not  raise  the  knife in the  direction  of  Chadwick  or  anyone  else.    Faced  with these  facts,  the  two  other  responding  officers  held  their fire,  and  one  testified  that  he  ‘wanted  to  continue  trying verbal  command[s]  and  see  if  that  would  work.’…. But not Kisela.  He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured. If this account of Kisela’s conduct sounds unreasonable, that is because it was.  And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no ‘clearly established’ law…. 

“I disagree.    Viewing the facts  in  the  light  most  favorable  to  Hughes,  as  the  Court must at summary judgment, a jury could find that Kisela violated  Hughes’  clearly  established  Fourth  Amendment rights  by  needlessly  resorting to  lethal  force.”

In cases of this kind, the view one takes too often depends on his or her political persuasion. That, of course, is not how legal decisions should be made. But your humble servant will submit that, as to liability, a fair-minded and objective person (to the extent there is such a beast) will find this a close case.

On the one hand, the officers were told of a woman with a knife acting in a manner that manifested mental illness. They came upon a woman matching her description, with a knife, within the proximity of Ms. Chadwick. Although Ms. Hughes was six feet away from Ms. Chadwick, with the knife pointed away from Ms. Chadwick, and appeared to be calm for the moment, there was no assurance that Ms. Hughes wouldn’t suddenly erupt into an act of violence. Six feet is not a long distance to run, and knives held to the side and pointed away can be raised. Ms. Hughes was told to drop the knife at least twice, but failed to do so. Plus, there was a chain-link fence between the officers and the two women. And while Officer Kisela was the only officer who fired his weapon, all three officers found the situation such that they drew their sidearms. Viewed in this way, the shooting was a clearly justified action in defense of Ms. Chadwick’s life.

On the other hand, Ms. Hughes never raised the knife, the knife was a kitchen knife, mental illness does not equal a danger of violence, Ms. Chadwick asked the officers (as well as Ms. Hughes) to “take it easy,” and Officer Kisela never gave a warning to Ms. Hughes before opening fire even though there was no indication of an immediate attack on Ms. Chadwick. From this perspective, it appears that Officer Kisela violated Ms. Hughes’s Fourth Amendment rights.

In other words, both sides had facts favorable to their side with which to go before a jury. But a grant of summary judgment takes a case away from a jury, and that should only happen when one side in a civil matter has no case at all.

Here the Supreme Court decided that not allowing a jury to hear the case was proper. But they did this based on a record. They didn’t watch the witnesses testify or observe their demeanor to assess credibility as would a jury, even though witness credibility could prove critical in a case like this, which involve close factual questions. It can only be concluded that the Court was mistaken in not allowing Ms. Hughes to take her case before a jury.

Friday, March 30, 2018

Of Horses, Carts, and Gerrymandering

On Wednesday, the United States Supreme Court heard arguments “in a challenge by Republican voters to a U.S. House of Representatives district in Maryland that was reconfigured by Democratic state legislators in a way that helped the Democrats defeat an incumbent Republican congressman.” [1] That is, the Maryland Democrats engaged in gerrymandering, that societal pestilence that every principled person opposes, but for which a cure has yet to be agreed on.

And that was precisely the problem facing the Court. Sure, we know there is partisan gerrymandering, but what to do about it appears to perplex our best minds.

1812 Political Cartoon
The first question is whether the courts should get involved at all. The second is, if the courts should get involved, what standard should be applied.

Now if the Court decides that it shouldn’t trouble itself with a political issue of this kind, your humble servant encourages the reader to view it as a cop out. The only reason for gerrymandering is to tip the playing field in favor of one party, to create a situation where one point of view is underrepresented in relation to the number of people who hold to it. If such a practice is allowed to go on unimpeded, any suggestion that we live in a republic will, once and for all, become a mockery.

During the arguments, Justice Stephen Breyer recognized the constitutional violation in having “deliberate, extreme gerrymandering,” but wondered whether there “is there a practical remedy that won’t get judges involved in every — or dozens and dozens and dozens of very important political decisions?” In other words, how can the Court enunciate a standard that can be applied across a wide variety of gerrymandering cases?

It would be difficult to come up with such a standard. It might even be impossible. But, as they say, so what?

Associate Justice Stephen Breyer
The Court isn’t being called upon to decide every gerrymandering case that might arise in the future. It is being called upon to decide the case before it. The Supreme Court isn’t required to come up with a general principle that will apply to all cases, then apply that principle to the case before it. Instead, principles develop over time from the decisions that are made in a particular area. Indeed, a mechanical application of a rule without reference to the concrete case before the Court runs the danger of working an injustice, since the facts of one case may materially differ from another, even if both cases share subject matter.

There is no precedent for the Court striking down a gerrymandering scheme concocted to favor a particular political party. But the fact that such schemes strike at the very heart of republican government cannot be denied. What the Court should do here is strike down the gerrymandering device with which it is now confronted, and explain its reasons. Precedent will then be created, and the rule that can be gleaned from that precedent will develop as more cases involving political gerrymandering come before it.

That’s how it’s supposed to work in common law countries like the United States. For the Court to impose upon itself the obligation to come up with a general rule that will cover all political gerrymandering cases in the future before it dares to make a decision would entail a classic case of horse and cart inversion.

Thursday, March 22, 2018

The Law on High Pillars

On March 20th, the Supreme Court issued its opinion in the case of Cyan, Inc. vs. Beaver County Employees Retirement Fund, wherein it interpreted the Securities Litigation Uniform Standards Act of 1998. [1] The case presented two issues: (1) whether state courts have been stripped by the Act of jurisdiction over class actions against companies which fail to make “full and fair” disclosure when offering securities to the public, and (2) even if state courts still have jurisdiction in such cases, whether the Act gives defendants the option of removing those cases to federal court. The court answered “no” to both questions.

But your humble servant does not intend to discuss securities law in this post. Instead, he would like to talk about the oral argument in this case that took place before the Court on November 28th of last year as described by Ronald Mann, who writes for SCOTUSblog [2], regarding which he wrote that the “key word” in the argument “was ‘gibberish’ – the characterization by several of the justices of the text Congress provided in the Securities Litigation Uniform Standards Act of 1998. The argument revealed the justices’ frustration at the statute’s sloppy craftsmanship.”

The U.S. Supreme Court
Justice Samuel Alito expressed his dismay this way:

“Our late colleague [Antonin Scalia] wrote a book called Reading Law, which provides guidance about how you read statutes. And I looked through that to see what we are supposed to do when Congress writes gibberish. And that’s what we have here. You said it’s obtuse. That’s flattering. And we have very smart lawyers here who have come up with creative interpretations, but this is gibberish. It’s … just gibberish.”

Justice Neil Gorsuch shared that perspective, describing the legislation as “’gibberish all the way down here.’” For his part, Justice Alito wondered if the Court could really do anything with the legislation. As Ronald Mann wrote,

“For Alito, the drafting went far beyond the normal range of ambiguity or lack of clarity. Indeed, he suggested at one point that the statute in this case was so poorly crafted as to make the judicial task impossible: ‘I mean, all the readings that everybody has given to all of these provisions are a stretch. I’m serious. Is there a certain point at which we say this means nothing, we can’t figure out what it means, and, therefore, it has no effect, it means nothing?’”

James Madison
These sentiments might be behind the Court’s opinion that was issued this week. Ronald Mann man says that “a plain-language summary of this opinion would simply state that ‘if Congress wants to make any important changes to litigation of federal-law securities cases in state courts, it is going to have to be a lot more specific than it has been to date.’” [3]

But, really, this is a problem that extends beyond this case and the legislation at hand. Legislation on both the state and federal level is too often obscured by legislative drafting. Constant referring back to other legislation makes reading statutes an exercise in puzzle solving. The complexity of the language used too often makes a statute susceptible of more than one interpretation. The length of bills is often such that it is evident that legislators are voting on laws that they have never read.

A good example of this last problem is the Affordable Care Act, which turns out to be full of surprises; this, even though the aspects of the legislation that people really cared about—e.g., the subsidies, guaranteed issue, and community rating—could have been dealt with in about five pages. And the entire Act was drafted with apparently little or no regard for whether any of it would pass constitutional muster. The Supreme Court struck down the Medicaid expansion, and there were sound arguments for tossing the entirety of the legislation. That it was upheld at all was transparently a political act rather than a strictly legal decision. And that is how Congress elected to deal with America’s health coverage crisis!

In Federalist No. 62, James Madison pointed out, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood….” [4] And Sir William Blackstone described the law, in part, as “’a rule prescribed.’ Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it…. not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.” [5]

Sir William Blackstone
Perhaps it is not far off to describe much of our own law as no law at all, as Caligulan in its volume and incoherence as it is. Not only is a great deal of our law out of reach of the comprehension of the average person, even the justices of the highest Court in the land have difficulty with it. How much difference between this and placing the law in small characters on high pillars?

Something should be done, clearly. But your humble servant must concede that the only remedy he can conceive of has the aura of the preposterous around it, though that view may only be a symptom of an ingrained aversion to the new and unusual. That remedy is to require every sponsor of a bill to write his or her proposed legislation completely by hand, and then read the entirety aloud on the floor of the legislature. Whatever could be said against this idea, it would ensure that at least one member of the legislature had read the legislation they are voting on.

But there may be other ideas.