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New Filings

Saturday, September 22, 2007

Cert. Petition Preview: Censoring Prisoners’ Outgoing Mail

01:13 PM | Adam Chandler | Comments (0)

This is the third post previewing petitions for certiorari to be considered at the Justices’ Long Conference on Monday, September 24. Each was also listed in the Petitions to Watch post here. The preview of Gilles v. Blanchard (06-1617) is here, and the preview of Catholic Charities v. Dinallo (06-1550) is here.

This post will examine Koutnik v. Brown, et al. (06-1171), a case involving the censorship of a prisoner’s outgoing mail. The petition, brief in opposition (BIO), and reply for Koutnik are respectively available here, here, and here.

The petition presents two questions: first, what the correct First Amendment standard of review is when applied to censorship of prisoner mail; and second, whether censorship by prison officials on general rehabilitative grounds violates the First Amendment.

Joseph D. Koutnik, as an inmate at the Wisconsin Secure Program Facility, attempted to send a letter and some drawings from prison in December 2002. The mail was addressed to Northern Sun Merchandising, a retail catalog selling items like T-shirts and posters featuring political messages. In his cover letter, Koutnik noted that prison reform messages were not well-represented among Northern Sun’s products, so he urged the company to use some of his ideas. As the petition describes it, “[o]ne of Mr. Koutnik’s drawings was a cartoon swastika filled with prison bars, with the captions, ‘Department of Corruptions’ and ‘Keeping Kids in Kages.’” The respondents emphasize that the caption to the swastika included three “prominent, stylized” Ks, a reference to the Ku Klux Klan. The BIO also points out that Koutnik’s letter expressed a wish for Northern Sun to market prison reform-themed products to inmates.

Prison officers confiscated and destroyed Koutnik’s mail and notified him as such. The BIO explains that seizing Koutnik’s mail was “related to the penological goal of rehabilitation” because the prison needed to encourage Koutnik to “live crime-free upon release[,] … to develop the ability to solve conflicts without resorting to violence[, and] to recognize that successful integration into society requires respecting the rights of others.”

Koutnik brought a pro se suit alleging breaches of his First and Fourteenth Amendment rights. He claimed that the swastika drawing was a political statement comparing the prison system to Nazi concentration camps. He also denied that he was promoting white supremacist views, and that “as a person of Slavic descent, he abhors Nazis,” according to the petition. The BIO counters that Koutnik is a member of the Simon City Royals, a “usually white” gang. The District Court for the Western District of Wisconsin granted summary judgment in favor of the prison officials, and in August 2006, the Court of Appeals for the Seventh Circuit affirmed. Koutnik then obtained pro bono representation to petition for rehearing and now for certiorari.

Continue reading "Cert. Petition Preview: Censoring Prisoners’ Outgoing Mail" »

Tuesday, September 11, 2007

Death penalty for child rape challenged

02:57 PM | Lyle Denniston | Comments (12)

For three decades, the Supreme Court has permitted the death penalty only for the crime of murder. On Tuesday, a Louisiana man under death sentence filed a new appeal asking the Court to maintain that limit, barring his execution for the crime of rape of a child. The Louisiana Supreme Court, however, ruled on May 22 that the Supreme Court's 1977 decision barring capital punishment for rape (Coker v. Georgia) does not apply when the victim is a child under age 12.

UPDATE: The petition has been docketed as 07-343.
The petition in Kennedy v. Louisiana can be downloaded here. The lengthy opinion of the state Supreme Court can be found in the petition's appendix here.

The case could provide the first opportunity for the Court under Chief Justice John G. Roberts, Jr., to indicate whether it will continue to interpret the constitutionality of death penalty laws in the U.S. partly on the basis of what other countries do on the question. In the Court's most recent rulings against application of the death penalty, barring it for juveniles and for mentally retarded individuals, it relied in part upon international as well as national trends. According to Amnesty International, more than half the nations that still have the death penalty do not impose it for child rape. (Inside the U.S., five states including Louisiana allow the penalty for child rape; the Kennedy petition says that prosecutors in the other states refuse to seek it.)

Patrick Kennedy, a 43-year-old black man from suburban New Orleans, has been sentenced to death after being convicted of raping his eight-year-old stepdaughter, identified in court papers only as "L.H." He has contended since the assault occurred in March 1998 that it was committed by two neighborhood boys. His attorneys have said he refused to plead guilty when a deal was offered to spare him from a death sentence.

His petition says that he "is the only person in the United States who is on death row for a non-homicide offense. He has been sentenced to die for the crime of rape -- an offense for which no person has been executed in this country for over forty years" -- since Missouri executed Ronald Wolfe in 1964.

His lawyers posed two questions:
"1. Whether the Eighth Amendment's Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
"2. If so, whether Louisiana's capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty."

Louisisna's legislature made aggravated rape a capital crime in 1995, when the victim was under 12 years of age. That is the way the law stood when Kennedy received a death sentence. In 2003, the state legislature changed the law to make that punishment available when the victim was under 13.

The Supreme Court, on June 2, 1997, refused to hear a pre-enforcement challenge to the Louisiana law. Three justices said in a separate statement that review of that case may have been barred for jurisdictional reasons, because the individual involved, Patrick DeWayne Bethley, had not been convicted of any crime, nor sentenced. (The Court's order and the separate opinion in Bethley v. Louisiana, docket 96-8334, can be found here.)

The new appeal argues that the Louisiana Supreme Court decision upholding the child rape sentencing law "flouts the overwhelming national consensus that capital punishment is an inappropriate penalty for any kind of rape." The Kennedy case, it adds, "stands in the ideal procedural posture for this Court's review and actually highlights the distressing realities attendant to extending the death penalty into the realm of child rape. There would be no benefit from further percolation" on the issue in lower courts.

Monday, September 10, 2007

D.C. residents seek broader right to challenge laws

12:01 PM | Lyle Denniston

Five residents of Washington, D.C., who challenged their city’s strict ban on handguns told the Supreme Court on Monday that they support review of the constitutionality of that ban, but also asked the Court to rule on their right to challenge criminal laws enforced by the city. In a cross-petition, Parker, et al., v. District of Columbia, et al., the five individuals argued that they had been wrongly excluded from the gun lawsuit because of flawed precedents on who may sue in federal courts in D.C. (Click here to read the petition and appendix in Parker, et al., v. District of Columbia, et al. A docket number has not yet been assigned.)(UPDATE: The petition has been docketed as 07-335.)

Last week, D.C. officials appealed to the Court (District of Columbia v. Heller, docket 07-290), seeking to revive the local handgun control law that has been struck down by the D.C. Circuit Court based on the Constitution’s Second Amendment. Those who successfully challenged the law have until Oct. 5 to formally respond to that appeal, but their lawyers have indicated they will do so earlier than that.

The new petition was filed by Shelly Parker, Tom G. Palmer, Gillian St. Lawrence, Tracey Ambeau and George Lyon. They all live in Washington, and were part of the lawsuit that succeeded in nullifying the handgun ban. But the D.C. Circuit found that none of those five had “standing” to be in the case. (The Circuit Court found one D.C. resident, Dick Anthony Heller, did have standing, so proceeded to decide the case.)

The other five could not sue, the Circuit Court found, because they had not been “singled out or uniquely targeted by the D.C. government for prosecution.” Even though local officials had said repeatedly they would enforce the handgun ban, those statements were not directed against these five particular individuals, the Circuit Court said. (It found Heller had standing to sue, because he had sought a license to have a handgun, and had been refused.)

This exclusion of the five other residents, their new appeal argued, follows several precedents of the D.C. Circuit – in conflict with other appeals courts and with the Supreme Court – that will only allow individuals to sue to challenge laws that have not yet been enforced only if they can show a specific threat that they, as individuals, will be prosecuted under such laws.

Continue reading "D.C. residents seek broader right to challenge laws" »

New Cert. Petition

10:32 AM | Kevin Russell | Comments (0)

On Friday, we filed a cert. petition in Greenlaw v. United States, a case out of the Eighth Circuit. The petition raises the question whether a court of appeals may order an increase in a criminal defendant's sentence sua sponte, absent an appeal or cross-appeal by the Government. Now-former Stanford student Lindsey Powell worked on the case with us over the summer.

Friday, September 07, 2007

U.S. mounts sweeping challenge to Circuit Court

07:15 PM | Lyle Denniston | Comments (8)

UPDATE Saturday a.m. The Justice Department, in added materials filed with the rehearing petition on Friday, asked the Circuit Court to allow only the judges -- not their law clerks, and not the detainees' lawyers -- to see or use two secret versions of declarations by the heads of the CIA and the NSA. The motion to restrict access to those items can be found here. The Department also filed a motion to expedite the Circuit Court's consideration of its rehearing petition; that document can be found here.

The motion to expedite argued that fast action by the Circuit Court on the rehearing plea could enable the Supreme Court to have the benefit of the Circuit Court's views on officials' document-filing duties as the Justices consider the pending detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). If the Circuit Court were to deny rehearing, the Department said, the government would then have the option of appealing the Bismullah/Parhat case to the Supreme Court during the current Term. The question of how much information the government must turn over to the Circuit Court and to detainees' lawyers is "an exceptionally important threshold question" as the Circuit judges weigh enemy combatant rulings, the motion siad..

Analysis

With a full rank of the Nation's top intelligence officers warning that they will have to sacrifice some of their efforts in wagng war on global terrorism if they must obey a court ruling in the Guantanamo detainee cases, the Justice Department on Friday asked the full ten-judge D.C. Circuit Court to reconsider a three-judge panel ruling on the scope of judicial review of some 130 detainee lawsuits. The petition and accompanying declarations by five high-level officials amount, first, to a wide-ranging challenge to the Circuit Court -- almost to the point of accusing it of endangering national security, and, second, to an energetic new attempt to sharply narrow any civilian court review of detainee challenges to their continued confinement.

The petition for rehearing en banc was filed in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397), in which the Circuit Court laid down the basic procedural rules for its congressionally-assigned review of "enemy combatant" rulings for Guantanamo Bay detainees. Those rulings are made by Pentagon panels named Combatant Status Review Tribunals; a finding that a detainee remains a combatant results in continued detention.

It will take the votes of a majority of the 10 active Circuit judges to grant reconsideration.

To read the rehearing petition, click here. To read the original July 20 panel opinion by the Circuit Court, click here.

A declaration of Michael V. Hayden, director of the Central Intelligence Agency, is here, one by Robert Mueller, director of the Federal Bureau of Investigation, is here, one by Keith B. Alexander, director of the National Security Agency, is here, one by J. Michael McConnell, National Intelligence director, is here, and one by Deputy Secretary of Defense Gordon R. England, Deputy Secretary of Defense, is here. A final added document, Pentagon regulations on reviewing detainee evidence, is here. In addition to the public versions of the officials' statements, classified versions with more secret materials were submitted to the Court.

As Justice Department and other government officials read the Circuit Court's ruling in Bismullah/Parhat, it would compel a government-wide search to find and then share with the Court and with detainees lawyers any kind of information -- highly sensitive or otherwise -- that might bear upon each individual's status as an "enemy combatant" even if some or even a great deal of the information casts no doubt on the validity of designating an individual as a combatant. That, the Department's petition argued, goes far beyond what Congress meant in 2005 when it passed the Detainee Treatment Act, assigning to the Circuit Court the exclusive role in hearing detainees' legal complaints about the status findings by CSRTs.

DTA was passed as a substitute for habeas corpus challenges by detainees; Congress had moved to wipe out all such habeas cases. The Department argued Friday that "It is inconceivable that as Congress sought to displace traditional habeas review it intended to impose a record review far more extensive than anhy production requirement found in habeas."

The Circuit Court on July 20 rejected the government argument that all it had to produce, in any individual detainee challenge to a combatant designation, was the actual record that a CSRT had considered. Going considerably beyond that, the Circuit Court ordered the government to produce all government information about each detainee who files a DTA challenge. The ruling, though, allowed the government to withhold from the other side's lawyers sensitivie classified information.

Friday's filings argued, however, that even filing some of the information under tight security wraps would pose heavy risks to national security, because it would compromise promises of confidentiality to other countries and to human intelligence sources who had supplied some of the information.

CIA Director Hayden's separate declaration argued: "The breadth of discovery apparently required by the Court's decision will include information about virtually every weapon in the CIA's arsenal to combat the terrorist threat to the United States." Deputy Defense Secretary England contended that the Circuit Court ruling's command to produce all the government information "will require DoD to pull resources away from the warfighting and intelligence gathering missions that are essential to fighting the Global War on Terrorism. We cannot overstate the importance of ensuring that our components can focus on their primary missions."

Continue reading "U.S. mounts sweeping challenge to Circuit Court" »

Cert. Petition Preview: Religious Speech on Public University Campuses

09:40 AM | Adam Chandler | Comments (2)

This is the first in a series of posts previewing petitions for certiorari to be considered at the Justices’ Long Conference on September 24. Each will also be listed in the Petitions to Watch post before that conference.

In this post, we’ll look at Gilles v. Blanchard, et al. (06-1617), a case involving religious speech on a public university campus. The petition, brief in opposition (BIO), and reply for Gilles are respectively available here, here, and here.

The petition presents two questions: first, whether an open area on a public university’s campus should be considered a public forum for speech purposes; and second, whether campus officials can exercise “unbridled discretion” in regulating speech on public university property, even if the speech occurs in a nonpublic forum.

Since the early 1980s, James Gilles, a preacher informally known as “Brother Jim,” has spoken and distributed Christian literature on hundreds of college campuses around the country. According to Gilles’s petition, he visited Vincennes University, a public university in Indiana, in August 2002 in an attempt to discuss “faith and other moral issues of the day” in “an open and accessible part of the campus resembling a sidewalk and public park.”

A campus security officer stopped Gilles’ presentation and informed him that he would have to submit a “Request for Solicitation Approval” form to the dean of students. The dean deemed Gilles’s speech solicitation, meaning that Gilles could only speak in the area designated on campus for solicitation: a brick walkway in front of the student union “adjacent to a public street at a three-way intersection,” according to the petition. Due to noise and little student traffic in the designated area, Gilles ultimately decided to leave the campus. He brought suit in mid-2004. The district court granted the university’s motion for summary judgment, and the Seventh Circuit affirmed in February.

Continue reading "Cert. Petition Preview: Religious Speech on Public University Campuses" »

Thursday, September 06, 2007

Goverment responds to state secrets challenge

06:08 PM | Ben Winograd | Comments (0)

The Solicitor General’s office asked the Supreme Court on Wednesday not to review the suit of a German citizen alleged to have been mistakenly abducted and sent to a secret prison in Afghanistan as part of the Central Intelligence Agency’s “extraordinary rendition” program. The government’s brief (here), obtained Thursday afternoon, argues the district court and Fourth Circuit properly dismissed the complaint at the pleadings stage under the so-called “state secrets privilege,” which allows the government to seek the exclusion of evidence officials assert could jeopardize national security.

The government said that while it could not publicly discuss the significance of the secret evidence at issue in its public brief, officials would make a classified declaration available to the Justices upon request under “appropriate security measures.” Also on Wednesday, the Justices received amicus briefs in support of the petitioner from the Constitution Project (here) and the New York City Bar Association (here).

Lawyers for the American Civil Liberties Union filed the petition in May on behalf of Khaled El-Masri, a German citizen born to Lebanese parents. According to the petition in El-Masri v. United States (06-1613) (here), officials at the Macedonian border detained El-Masri in the final days of 2003 as he attempted to enter the country by bus. After being interrogated at a hotel for more than three weeks, El-Masri was turned over U.S. agents and flown to a CIA prison in Afghanistan known as the “Salt Pit,” his lawyers say. Agents at the prison repeatedly beat and interrogated El-Masri, according to the petition, until officials realized he was not the Al Qaeda suspect they had originally believed.

In late 2004, El-Masri brought suit against former CIA Director George Tenet in the Eastern District of Virginia, as well as three corporations and unnamed agents allegedly involved in his abduction. The U.S. government intervened to dismiss the case, saying the disclosure of state secrets would inevitably be required during the course of litigation. Both the district court and a Fourth Circuit panel ruled for the government after reviewing a classified declaration from then-CIA Director Porter Goss. Publicly, the government has said it “can neither confirm nor deny” El-Masri’s accusations.

In the petition for certiorari, El-Masri’s lawyers argued that the privilege had “become unmoored from its evidentiary origins” – invoked not against specific pieces of evidence but to prevent suits from even reaching discovery. In Wednesday’s response, the government argued that “[t]here is no logical basis for petitioner’s assertion that cases may not be dismissed before discovery even if it is evident at the outset that they could not proceed to judgment without recourse to state secrets.” The brief continued, “[s]uch litigation not only would be pointless, but would threaten the disclosure of the very privileged information that the state secrets privilege is designed to protect.”

Citing a forthcoming article in the George Washington Law Review, the government’s brief says courts dismissed nearly two dozen complaints at the pleading stage between 1973 and 2000 under the state secrets privilege. Also according to the article, authored by Professor Robert M. Chesney, “[t]he available data do … not support the conclusion that the Bush administration chooses to resort to the privilege with greater frequency than prior administrations or in unprecedented substantive contexts.”

Continue reading "Goverment responds to state secrets challenge" »

Tuesday, September 04, 2007

Second Amendment case reaches Court; cross-appeal coming

10:32 AM | Lyle Denniston | Comments (17)

UPDATE Wednesday p.m.
The Court has now docketed District of Columbia v. Heller as 07-290.

Analysis

(The petition can be downloaded here, and the appendix is here. It will be assigned a docket number shortly. A news release discussing the filing can be found here.)

Relying upon strong rhetoric and the argument that access to handguns is a direct threat to peoples' lives in the Nation's capital, the District of Columbia government urged the Supreme Court on Tuesday to spare the city's gun control law from nullification under the Second Amendment. "Having a handgun, whether in the home or outside it, comes at the expense of the safety of those who may be victims," the petition for review argued. "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

The local residents who successfully challenged the local handgun law have already said they will join in urging the Supreme Court to hear and decide the case. The case is being filed early enough that, if granted, it could be decided in the current Term. Absent extensions of time, briefing on the issue of granting or denying review could be completed by mid-October.

UPDATE 11:50 a.m. Five of the six D.C. residents who filed the original challenge, and whose "standing" to sue was denied by the D.C. Circuit Court, plan to file a cross-appeal to the Supreme Court later this week, seeking to revive their right to have brought the case, according to one of their counsel, Robert A. Levy, senior fellow in constitutional studies at the Cato Institute. One of the six, Dick Anthony Heller, was found to have "standing."

Tuesday's appeal in District of Columbia v. Heller challenges a March 9 ruling by the D.C. Circuit Court, striking down the Washington, D.C., law adopted in 1976 that generally bars the registration of any handgun. Thus, the law does not allow anyone to possess a handgun for private, personal use, in any setting, including a private home. Although the Circuit Court's 2-1 ruling suggested that the District might be able to adopt some "reasonable" form of gun control, the sweeping language of the opinion appeared to mean that the Second Amendment would stand in the way of any regulation of any weapon that qualifies as a firearm. The Amendment's "right to keep and bear arms" protects a right to have a gun in one's own home for personal use, the Circuit majority ruled.

The petition raises a single question: "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns."

Worded that way, the question appears to offer the Justices an option of deciding the case on narrow grounds, limited to the urban setting of a single city with a history of handgun-related violence, with citizens still able to have some other kinds of guns for self-defense in case of need.

But the reasoning spread through the petition would also seem to offer the Court a chance, if it wished to take it, to speak broadly on the meaning of the Second Amendment -- including defining the scope of the Amendment's restriction on actions by Congress and what that means to states' power to enact gun control laws or protect gun owners' rights without federal interference. The Court has never ruled that the Second Amendment operates directly against state governments so as to limit their legislative power to regulate access to guns. The petition suggests an interpretation that would have the Second Amendment insulate the states from congressional second-guessing about gun rights that the states choose to recognize or to limit.

The Supreme Court has not ruled on the scope of the Second Amendment in 68 years -- not since U.S. v. Miller in 1939.

Continue reading " Second Amendment case reaches Court; cross-appeal coming" »

Friday, August 24, 2007

Petitioners' Briefs Filed in Detainee Cases

06:51 PM | Ben Winograd | Comments (6)

Lawyers for detainees at Guantanamo Bay filed merits briefs today in Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196).

The brief in Boumediene is here, and click here and here to read the petitioners' briefs in Al Odah. The Justice Department's briefs in both cases are due October 9.

One amicus brief filed today in support of the petitioners came from Salim Hamdan, available here. The Court has yet to take action on his two pending appeals, 06-1169 (rehearing petition) and 07-15 (cert before judgment).

At least 20 other amicus briefs were filed in support of the petitioners, with still another filed in support of reversal. They are listed and linked after the jump. See Marty's post below for his inital reaction to one of the amicus filings.

Continue reading "Petitioners' Briefs Filed in Detainee Cases" »

Thursday, August 16, 2007

Bottom-Side Briefs in Stoneridge

05:34 PM | Jason Harrow | Comments (0)

UPDATED Friday AM with brief of American Bankers Assoc.

Yesterday, we posted this entry about the Solicitor General's amicus brief supporting an affirmance of the decision below in Stoneridge v. Scientific-Atlanta; in that post, we also linked to the parties' merits briefs.

For those interested, the complete set of bottom-side amicus briefs, filed yesterday, can now be found after the jump.

Continue reading "Bottom-Side Briefs in Stoneridge" »

New Filings

Saturday, September 22, 2007

Tuesday, September 11, 2007

Monday, September 10, 2007

Friday, September 07, 2007

Thursday, September 06, 2007

Tuesday, September 04, 2007

Friday, August 24, 2007

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