Miami Beach Police Department (FL)

Detective Larry Marrero suffered a fatal heart attack while participating in his department’s physical fitness program at the police headquarters building at 1100 Washington Avenue.

He was transported to Mount Sinai…

Detective Larry Marrero suffered a fatal heart attack while participating in his department's physical fitness program at the police headquarters building at 1100 Washington Avenue. He was transported to Mount Sinai...

from https://www.odmp.org/

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Woman accused of holding housekeeper captive, forcing her into marriage

A New Jersey woman held her Sri Lankan housekeeper against her will for nearly a decade, forcing the victim to marry her and work without pay as a domestic servant, federal authorities said Wednesday. Alia Imad Faleh Al Hunaity, who also goes by Alia A…

A New Jersey woman held her Sri Lankan housekeeper against her will for nearly a decade, forcing the victim to marry her and work without pay as a domestic servant, federal authorities said Wednesday. Alia Imad Faleh Al Hunaity, who also goes by Alia Al Qaterneh, of Secaucus, was indicted last week in the case...

from https://nypost.com

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Symposium: Three establishment clause paths

Symposium: Three establishment clause pathsLuke Goodrich is Vice President and Senior Counsel at The Becket Fund for Religious Liberty, which filed a cert-stage amicus brief in support of the petitioners in The American Legion v. American Humanist Association. The most interesting thing about the Maryland Peace Cross case won’t be who wins. (The Supreme Court will almost certainly uphold […]

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Symposium: Three establishment clause paths

Luke Goodrich is Vice President and Senior Counsel at The Becket Fund for Religious Liberty, which filed a cert-stage amicus brief in support of the petitioners in The American Legion v. American Humanist Association.

The most interesting thing about the Maryland Peace Cross case won’t be who wins. (The Supreme Court will almost certainly uphold the cross.) The interesting part will be which path the court takes to get there.

There are three main possibilities: the “Lemon test,” a historical approach, or a punt. Which path the court takes will have profound implications for the relationship between church and state.

The path of Lemon

The most infamous path comes from Lemon v. Kurtzman. Lemon prohibits any government action that (1) lacks a secular purpose, (2) has the primary effect of “endorsing” religion, or (3) excessively entangles the government in religion. If the government’s action does any of these things, it violates the establishment clause.

The Lemon test is simple to say, but hard to apply — mainly because it is so subjective. Judges must imagine how a fictional “reasonable observer” would perceive a monument like the Maryland Peace Cross, and then decide whether the reasonable observer would think the government is “endorsing” religion by displaying the cross.

Because the “reasonable observer” is a judicial fiction, the test is easy to manipulate. If a judge — consciously or subconsciously — wants to uphold the cross, she can say the reasonable observer would know that the Peace Cross stands near other war memorials, has the words “Valor,” “Courage,” and “Devotion” inscribed on its base, has a plaque commemorating 49 local heroes who died in World War I, and has always been perceived as a war memorial — as the district judge and Chief Judge Roger Gregory held in this case.

If a judge wants to strike down the cross, he can say the reasonable observer wouldn’t be able to stop and read the commemorative plaque, because the cross is in the middle of a busy intersection and the plaque is obscured by bushes. But the observer would see a 40-foot tall cross towering over government property and would naturally conclude the government must favor Christianity — as two of the three 4th Circuit judges concluded here.

This test doesn’t constrain judges in any meaningful way. Rather, it invites them to project their own preferences onto a fictional “reasonable observer” — who then ends up looking like whichever judge holds the deciding vote. As Judge Frank Easterbrook has said, under Lemon, “a judge can do little but announce his gestalt.”

The path of history

The second path the Supreme Court could take is rooted in the history of the establishment clause. Under this approach, the government is forbidden from taking any action that constitutes an “establishment of religion” as that term was historically understood.

This is not a new approach. The Supreme Court’s earliest establishment clause decisions — such as Everson v. Board of Education of the Township of Ewing, McGowan v. Maryland and Walz v. Tax Commission of the City of New York — self-consciously grounded themselves in the historical meaning of the establishment clause. More recent cases, too — like Van Orden v. Perry (in a plurality) and Town of Greece v. Galloway — have rejected Lemon in favor of a historical approach. In Town of Greece, the court even said “the Establishment Clause must be interpreted by reference to historical practices and understandings.”

How does this historical approach work in practice?

Rather than asking what a fictional “reasonable observer” would think of the government’s action, the court asks whether the government’s actions share one of the historic characteristics of an “establishment of religion” at the time of the founding.

This is an objective inquiry, and it is not particularly controversial. There is widespread agreement on what constituted an “establishment of religion” at the time of the founding. Nine of the 13 colonies had one, as did Great Britain. As Professor Michael McConnell has explained, an “establishment of religion” had six common elements:

  1. Government control over the doctrine and personnel of the established church — including laws regulating who could preach and how worship would be conducted;
  2. Mandatory attendance in the established church — including laws imposing penalties for failing to attend church services;
  3. Government financial support of the established church — including taxes and land grants exclusively for the support of the church;
  4. Restrictions on worship in dissenting churches — including laws imposing penalties for preaching outside the established church;
  5. Restrictions on political participation by dissenters — including laws barring dissenters from voting or holding political office;
  6. Use of the established church to carry out civil functions — including laws giving the church authority to keep public records or prosecute moral offenses.

Importantly, many of the outcomes of the Supreme Court’s establishment clause cases already track these six historic characteristics. Take school prayer. In Engel v. Vitale, government officials composed a prayer that all public-school children were expected to recite. Under a historical approach, this violates the establishment clause because the government has used its coercive power to control religious doctrine (by composing an official prayer) and compel religious worship (by pressuring children to recite it).

Many other cases would also come out of the same way — such as Larkin v. Grendel’s Den Inc. and Kiryas Joel v. Grumet (which involved assignment of civil functions to religious authorities), Torcaso v. Watkins (which involved restrictions on political participation by dissenters), and Hosanna-Tabor v. Equal Employment Opportunity Commission (which involved government control over the personnel of a church).

But a passive monument like the Maryland Peace Cross is not an establishment of religion. It doesn’t control religious doctrine or compel religious observance. It doesn’t send any money to a religious institution or impose any penalty on dissenters. It just sits there. Anyone who dislikes it is free to ignore it.

Not surprisingly, then, there is “lots of history,” as Judge Kevin Newsom said in another cross case pending at the Supreme Court, indicating that governments at the founding erected monuments with religious content — including crosses — and this was never considered to be an establishment of religion. Although the government need not produce this sort of evidence to prevail under the historical approach, such evidence makes passive monuments an easy case.

The path of punting

The third path is to punt. Sadly, the Supreme Court has punted in many establishment clause cases over the last two decades. Often, lower courts have relied on Lemon but the Supreme Court has reached its decision without ever mentioning it. In fact, the Court has not relied on Lemon in an establishment clause case since 2005.

But for local governments and lower courts, the Supreme Court’s silence on Lemon is cold comfort, because Lemon remains controlling in lower courts until the court says otherwise. As a practical matter, then, the path of punting is the path of Lemon.

Why the path of history is best

There are several reasons to prefer the path of history over the path of Lemon.

First, a historical approach offers an objective basis for resolving establishment clause claims. Because the historical elements of “an establishment of religion” are well-settled, a historical approach yields consistent, objective results. As with other parts of the Bill of Rights, history provides real grounding for legal doctrine. Lemon, by contrast, is essentially a Rorschach test, offering nothing more than “I know it when I see it.”

Second, the path of history reduces needless conflict over passive religious displays. Does anyone (other than church–state militants) relish the annual “wars” over local Christmas and Hanukkah displays? Love them or hate them, these displays aren’t harming anyone. Yet Lemon makes every display a potential flashpoint in a never-ending culture war. Anyone who feels offended can bring a lawsuit, and the lawsuit then holds far more meaning than the underlying display ever did. A ruling permitting the display is taken as government “endorsement” of religion, while a ruling removing the display is taken as government “hostility” toward religion. The litigation itself becomes the occasion for ill-will across religious lines, with each side caring more about the court’s decision than the challenged display. A historical approach would put an end to this needless Kulturkampf.

Finally, a historical approach keeps government and religion in their proper spheres. The path of history rightly forbids government from attempting to control religious doctrine, compel religious observance, or provide exclusive funding for religious institutions. Separation of church and state — rightly understood — is vital.

But a historical approach also avoids needlessly scrubbing religion from the public square, along with the message of hostility that sends. Religion is a fundamental aspect of human culture, and the government routinely recognizes the importance of other aspects of our culture, including race, ethnicity, sex, art, and much more. So it is only natural for the government to recognize that religion is also an important aspect of our culture — as even the most secularist European governments do.

In short, the path of history avoids both government promotion of religion and government hostility toward religion. That is a result almost everyone can support — even if it leaves a gap in December cable-news programming.

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from http://www.scotusblog.com

Man busted after girlfriend finds child porn on cellphone: cops

A 58-year-old Louisiana man was arrested after his 19-year-old girlfriend found pornographic images of children — some as young as 3 — on his cellphone during a search to remove photos of herself, police said. Sherneskie Bell, of Kenner, was arrested Friday on a charge of possession of pornography with a juvenile after having an…

A 58-year-old Louisiana man was arrested after his 19-year-old girlfriend found pornographic images of children — some as young as 3 — on his cellphone during a search to remove photos of herself, police said. Sherneskie Bell, of Kenner, was arrested Friday on a charge of possession of pornography with a juvenile after having an...

from https://nypost.com

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Cohen Gets Three-Year Term for Financial Crimes, Lying

“My weakness could be characterized as a blind loyalty to Donald Trump,” President Trump’s former attorney Michael Cohen told a federal judge. The judge rejected a plea for no jail time and said “a significant term of imprisonment is fully justified in this highly publicized case to send a message.”

Michael Cohen, President Trump’s former attorney, was sentenced Wednesday to three years in prison for financial crimes and lying to Congress, reports the Washington Post. The disgraced former “fixer” apologized for his conduct but said he felt it was his duty to cover up the “dirty deeds” of his former boss. Cohen made an emotional, teary apology to U.S. District Judge William Pauley, taking responsibility for crimes that included tax violations, lying to a bank, and buying the silence during the 2016 campaign of women who alleged affairs Trump.

“My weakness could be characterized as a blind loyalty to Donald Trump,” Cohen told the packed courtroom. The judge also ordered Cohen to pay nearly $2 million in financial penalties. Pauley said Cohen’s sentence should reflect the competing interests of the Cohen case — punishing those who repeatedly break the law, and rewarding those who cooperate and provide truthful testimony. The judge said Cohen “selected the information he disclosed to the government. This court cannot agree with the defendant’s assertion that no jail time is warranted. In fact this court firmly believes that a significant term of imprisonment is fully justified in this highly publicized case to send a message.”

from https://thecrimereport.org

Parents didn’t tell investigators that son mutilated woman’s corpse: police

The parents of a Michigan man accused of dismembering a woman’s body knew he butchered her corpse into “multiple pieces” but didn’t tell police during interviews, court records show. Barbara Louise Chance, 63, and her husband, James Howard Chance, 76, both of Holland, are now facing felony charges of perjury and accessory after the fact…

The parents of a Michigan man accused of dismembering a woman’s body knew he butchered her corpse into “multiple pieces” but didn’t tell police during interviews, court records show. Barbara Louise Chance, 63, and her husband, James Howard Chance, 76, both of Holland, are now facing felony charges of perjury and accessory after the fact...

from https://nypost.com

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Symposium: The establishment clause strictly prohibits government preference for one faith — that could change with the Bladensburg Cross case

Symposium: The establishment clause strictly prohibits government preference for one faith — that could change with the Bladensburg Cross caseHeather L. Weaver is a senior staff attorney for the Program on Freedom of Religion and Belief at the American Civil Liberties Union. A 40-foot-tall Latin cross made of marble and cement stands on public property at one of the busiest intersections in Bladensburg, Maryland. The Bladensburg Cross is impossible to miss and overshadows everything […]

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Symposium: The establishment clause strictly prohibits government preference for one faith — that could change with the Bladensburg Cross case

Heather L. Weaver is a senior staff attorney for the Program on Freedom of Religion and Belief at the American Civil Liberties Union.

A 40-foot-tall Latin cross made of marble and cement stands on public property at one of the busiest intersections in Bladensburg, Maryland. The Bladensburg Cross is impossible to miss and overshadows everything nearby. Erected as a memorial to soldiers who died in World War I, it is now owned and maintained by a state entity, the Maryland-National Capital Parks and Planning Commission. Last month, the Supreme Court agreed to decide whether the cross display violates the establishment clause of the First Amendment to the U.S. Constitution.

It should be a no-brainer.

According to the Supreme Court, the “clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” And, as the U.S. Court of Appeals for the 4th Circuit highlighted in holding the display unconstitutional, the “Latin cross is the core symbol of Christianity.” Writing on behalf of Muslim American veterans in opposition to a different cross display, Professor Douglas Laycock put it more starkly (and colorfully): “If government can sponsor a Christian cross and deny that it has done anything religious, then words and symbols have no meaning and the Court has consigned the Establishment Clause to the world of Alice in Wonderland.”

But that is exactly what could happen in the Bladensburg Cross case. Petitioners and their supporting amici have argued that the cross display is secular and that the cross — despite being the foremost symbol of Christianity — represents the sacrifice of all fallen soldiers, regardless of their faith. This argument dismisses the religious beliefs of non-Christian service members, who reasonably understand the cross to be a Christian emblem that is not representative of their religion or other belief system. And, as the Baptist Joint Committee has observed, it debases the Latin cross as a religious symbol by stripping it of its uniquely Christian meaning.

Nevertheless, the effort to rebrand the Latin cross as a secular icon has appealed to some Supreme Court justices. The Supreme Court has never been directly presented with the question whether a cross displayed by the government runs afoul of the separation of church and state. Just over nine years ago, however, the court heard oral argument in Salazar v. Buono, a case involving a different display of a Latin cross on government property, the federally owned Mojave National Preserve in California. (The ACLU represented the plaintiff-respondent Frank Buono.)

Like the Bladensburg Cross, the Mojave Cross was erected as a memorial to service members who died in World War I. And, like the 4th Circuit, the U.S. Court of Appeals for the 9th Circuit emphasized that the Latin cross “is the preeminent symbol of Christianity” — indeed, it is “exclusively a Christian symbol” — in ruling that the display violated the establishment clause. “Whatever the Establishment Clause may mean,” Judge Alex Kozinski wrote, “it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).”

By the time the Buono case wound its way to the Supreme Court in 2009, whether the government could display the Mojave Cross on public land was not at issue because the government never appealed the 9th Circuit’s ruling that the monument violated the establishment clause. Instead, the question before the Supreme Court centered on the constitutionality of a federal statute authorizing the land on which the Mojave Cross stood to be transferred to a private organization in exchange for another parcel of property.

The Buono Court, thus, had no occasion to judge the constitutional propriety of the Mojave Cross display, although that did not stop Justice Antonin Scalia from questioning the respondents’ counsel about the cross’s meaning during oral argument. Pouncing on a comment that the Mojave Cross honored only Christians, rather than all Americans who died fighting in World War I, Scalia demanded to know why the cross did not also represent non-Christians. Counsel explained that “the cross is the preeminent symbol of Christianity and it signifies that Jesus is the son of God, and died to redeem mankind for our sins,” but Scalia was unpersuaded. He countered that “the cross is the most common symbol of … the resting place of the dead” and challenged the respondent’s attorney to identify a design that would have honored all World War I veterans — “a cross, some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?”

In response, ACLU attorney Peter Eliasberg gently corrected Scalia by clarifying that “the cross is the most common symbol of the resting place of Christians,” adding, “I have been in Jewish cemeteries. There is never a cross on the tombstone of a Jew.” Still, Scalia would not let the matter rest, declaring it “outrageous” to conclude that “the only war dead that [the Mojave] cross honors are the Christian war dead.”

When the Supreme Court handed down its highly fractured decision in Buono months later, many religious-liberty advocates were disturbed to learn that Justice Anthony Kennedy had gone out of his way to include similar dicta in his opinion. Kennedy maintained that “a Latin cross is not merely a reaffirmation of Christian beliefs” but “a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people.” The Mojave display, he opined, “evoke[d] thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”

In fact, the Latin cross has not become a universal, secular symbol of fallen heroes or self-sacrifice. The “foreign fields” of crosses mentioned by Kennedy commemorate individual soldiers who have died fighting abroad, and those cemetery fields include religious symbols other than crosses. As Justice Samuel Alito noted in his concurring opinion in Buono, during World War I, “[m]ore than 3,500 Jewish soldiers … gave their lives for the United States.” Their sacrifices were marked in our cemeteries abroad by stars of David, not by crosses.

A century later, the U.S. Department of Veterans Affairs allows service members to choose from 70 “emblems of belief” for their headstones. In addition to various crosses, the options include the Jewish star of David, the Baha’i nine-pointed star, the Muslim crescent and star, the Druid awen, the Sikh khanda, the atheist atomic whirl, the Buddhist wheel of righteousness, several Native American religious symbols, and (after the ACLU filed suit to secure its addition to the list or approved iconography) the Wiccan pentacle.

These symbols, not the cross, are emblazoned on the headstones of non-Christian soldiers in military cemeteries across the nation. And rightly so. The engravings are meant to reflect the personal religious (or nonreligious) beliefs of each individual service member laid to rest — not to honor and represent all service members, who practice a diverse array of faiths and belief systems.

The “secular” Latin cross, then, is pure fiction. Adopting that fiction to excuse the government’s maintenance and display of a 40-foot Latin cross would strain credulity.

More importantly, it would be a dark day for the separation of church and state. Unlike President Trump’s travel ban, which the Supreme Court upheld last year despite its clear intent to target Muslims, the Bladensburg Cross case does not arise in the immigration or national-security contexts, in which the court has traditionally given more deference to the government. No matter the reasoning employed, permitting the government to display the Bladensburg Cross would be an unmistakable rebuke of the establishment clause’s “clearest command” that all faiths be treated equally, with government preference or favor given to none.

The consequences of upending what has long been regarded as a core First Amendment tenet would be alarming, especially now, when religious minorities across the country are regularly (and literally) under attack. It would open the door to a wide array of religious expression and conduct by the government, endorsing and favoring the majority’s religion while excluding and further alienating those who don’t share that faith. Hopefully, the court will recognize what is at stake here and affirm the decision below.

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from http://www.scotusblog.com

Pastor charged in slaying of transgender woman

A Detroit pastor was charged Monday in the murder of a transgender woman, as authorities revealed that her gender status played a role in her fatal shooting. Albert Weathers, 46, of Sterling Heights, was charged with murder in the death of Kelly Stough…

A Detroit pastor was charged Monday in the murder of a transgender woman, as authorities revealed that her gender status played a role in her fatal shooting. Albert Weathers, 46, of Sterling Heights, was charged with murder in the death of Kelly Stough, 36, who was found dead on a Detroit street Friday. Evidence about...

from https://nypost.com

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The Relist Watch Before Christmas

The Relist Watch Before ChristmasJohn Elwood previews 2018’s last relists. Here at Relist Watch, we have a long and distinguished tradition of doing lighthearted, holiday-themed posts to commemorate the last installment of the year. It’s a great way of getting into the spirit of wearing novelty clothing while making awkward small talk in overcrowded rooms. But this year, we’re […]

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The Relist Watch Before Christmas

John Elwood previews 2018’s last relists.

Here at Relist Watch, we have a long and distinguished tradition of doing lighthearted, holiday-themed posts to commemorate the last installment of the year. It’s a great way of getting into the spirit of wearing novelty clothing while making awkward small talk in overcrowded rooms. But this year, we’re inaugurating a new tradition inspired by my family’s recent holiday card practice: doing nothing. Nothing: It’s like a lump of coal, but carbon neutral.

We’re going to skip right past the fates of last week’s relists with nary a word about the Friday grant or the opinion dissenting from denial, or the one relist denied without comment, which was outperformed by a case that hadn’t been relisted at all. Looking ahead, the Supreme Court typically relists cases on its docket on the Monday before the conference at which they are to be considered. Because the next conference isn’t until January 4, 2019, we won’t know for weeks which cases were relisted after the December 7 conference. What follows is our informed speculation based on our review of the dockets.

First up is a case whose arrival we anticipated in an earlier edition, Yovino v. Rizo, 18-272. The case involves salaries for the Fresno County, California, school system, which sets employees’ current salaries by considering their prior salaries. A recently hired female “math consultant” brought suit under the Equal Pay Act when she learned that a male colleague had been brought on at a higher pay grade. Fresno explained the difference based on the employees’ salaries at their previous jobs. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit held that prior salary is a “factor other than sex” that the Equal Pay Act explicitly allows employers to consider in setting wages. But an en banc panel changed course, holding that as “a general rule” prior pay cannot be a “factor other than sex.” The court reasoned that the Equal Pay Act’s factor-other-than-sex exception follows three narrower exceptions, all of which “relate to job qualifications, performance, and/or experience.” The majority concluded that this exception must be similarly limited, and determined that prior salary is “not a legitimate measure of work experience, ability, performance, or any other job-related quality.” The Fresno School System seeks to challenge that determination. It also raises a second question: whether a deceased judge may continue to participate in the determination of cases. The en banc decision was authored by Judge Stephen Reinhardt, who died more than a week before the decision issued. If granted, the case will overtake Lamps Plus Inc v. Varela as the last Reinhardt opinion the Supreme Court reviews.

Our next case is a sequel: Moore v. Texas, 18-443. During the case’s first trip, the Supreme Court held that the Texas Court of Criminal Appeals had violated petitioner Bobby James Moore’s Eighth Amendment rights by considering outdated medical standards for determining whether he was so intellectually disabled that he was not eligible for the death penalty. On remand, the Court of Criminal Appeals again held that Moore had failed to demonstrate adaptive deficits sufficient to support a diagnosis of intellectual disability. In his current petition, Moore contends that the Texas court essentially considered the very same factors the Supreme Court had rejected, and again contradicted current medical standards in rejecting his intellectual-disability claim. Moore further contends that even the prosecutor in his case now agrees that Moore is intellectually disabled.

The last likely relist is Zappos.com, Inc., v. Stevens, 18-225. The case concerns the January 2012 data breach at the company, during which hackers gained access to servers that contained the personal identifying information of 24 million customers. Zappos contends that there is a circuit split about what allegations of injury suffice to maintain a lawsuit alleging a data breach. It argues that in four circuits, bare allegations that a database containing the plaintiff’s nonpublic personal information has been breached are insufficient to create standing, without specific allegations of resulting data misuse and concrete harm, while in five circuits, such allegations are sufficient. The case would give the Supreme Court another opportunity to clarify the standing rule of Spokeo, Inc. v. Robins, in a regrettably common context: the data breach, which appears to affect approximately 100 percent of the websites I give my credit-card information to. Comforted by the knowledge that I can probably hack into SCOTUSblog and delete this, let me say: This strikes me as a pretty likely grant.

That leaves just one case languishing unexplained on the Supreme Court’s docket, City of Pensacola, Florida v. Kondrat’yev, 18-351. This case raises the same issue as the Bladensburg Cross cases, American Legion v. American Humanist Association, 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, 18-18, granted on November 2, namely whether the establishment clause requires removal of longstanding memorials because they take the shape of religious symbols. But the case also raises the issue of whether feeling offense about a passive religious display suffices to establish standing. The city asks the Supreme Court to consider this case in tandem with the Bladensburg cases. But you have to imagine that if the court were interested in doing that, it would have granted cert in the case this week, rather than waiting almost another month to possibly grant in early January. And although this fact isn’t dispositive, the city still has an en banc petition pending in the U.S. Court of Appeals for the 11th Circuit that is being held in abeyance for the Bladensburg cases, so Pensacola might get relief yet from the court of appeals. At bottom, I think this case is probably a hold. We report, you decide.

That’s all for this week. Thanks again to Tom Mitsch for combing the docket to find these cases. Safe travels to our entire readership and best wishes for happy holidays, no matter what rituals you observe.

 

New Relists

Zappos.com, Inc., v. Stevens, 18-225

Issue: Whether individuals whose personal information is held in a database breached by hackers have Article III standing simply by virtue of the breach even without concrete injury, as the U.S. Courts of Appeals for the 3rd, 6th, 7th, 9th and District of Columbia Circuits have held, or whether concrete injury as a result of the breach is required for Article III standing, as the U.S. Courts of Appeals for the 1st, 2nd, 4th and 8th Circuits have held.

(likely relisted after the December 7, 2018, conference)

 

Yovino v. Rizo, 18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

(likely relisted after the December 7, 2018, conference)

 

Moore v. Texas, 18-443

Issues: (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.

(likely relisted after the December 7, 2018, conference)

 

Returning Relists

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Hester v. United States, 17-9082

Issue: Whether the rule of Apprendi v. New Jersey — which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt — should apply to the imposition of criminal restitution.

(relisted after the November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

White v. Kentucky, 17-9467

Issues: (1) Whether the Kentucky Supreme Court violated the Eighth Amendment, as interpreted in Hall v. Florida and Moore v. Texas, when it denied the petitioner the opportunity to present evidence supporting the “conjunctive and interrelated” assessment for intellectual and adaptive functioning, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White’s other IQ score of 76 adjusted for standard error of measurement; and (2) whether it violates the Fourth Amendment when officers abandon their duty to address a traffic violation that justified a pretextual stop in order to investigate a passenger.

(relisted after the November 30 conference; likely relisted after the December 7 conference)

 

Rehair v. United States, 17-9560

Issues: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

(relisted after the November 30 conference; likely relisted after the December 7 conference)

The post The Relist Watch Before Christmas appeared first on SCOTUSblog.

from http://www.scotusblog.com

Men Underestimate Levels of Sexual Harassment: Study

A survey of citizens in the U.S. and 12 European countries found that males don’t understand the extent to which women experience sexual assault or harassment.  American men for example underestimate the true levels by almost half.

Men don’t understand the extent to which women experience sexual harassment, according to a new study published by Ipsos, a global market research and a consulting firm.

In a study that surveyed citizens in the U.S. and 12 European countries, participants were asked to estimate the levels of sexual harassment experienced by women since the age of 15 in their country. In each country, men give a lower estimate of sexual harassment than women.

In the U.S. specifically, men believed that only 44 percent of women have been harassed, although the actual number is nearly double that—at 81 percent.

The study found that people in general underestimated levels of sexual assault, but men were more likely to underestimate, and by larger percentage points.

Furthermore, the study found that while verbal sexual harassment was the most common form of abuse against women, 51 percent of women said they were touched and groped in an unwelcome way, while 27 percent of women said they had survived sexual assault.

The research was part of a larger study called “Perils of Perception,” that shows which key facts citizens across 37 countries get right about their society – and which they get wrong.

In regard to crime and in criminal justice, people in several countries were wrong about the scale of knife and gun crime in their country.

For example, in the United Kingdom, 71 percent of those surveyed believed that knives cause the most deaths, when they actually account for just 25 percent of all deaths by interpersonal violence.

Even though firearms account for almost 70 percent of all deaths through interpersonal violence in the U.S., only about 59 percent correctly identify guns as the nation’s biggest killer.

Furthermore, people in most countries think prisons are even more crowded than they actually are. On average people think prisons are 30 percent over full capacity when they are 9 percent over capacity.  However, the countries with the highest levels of overcrowding do tend to be the countries with the highest guesses.

In addition to crime and criminal justice issues, the researchers examined participants perceptions regarding climate change, sexuality activity, vaccinations and the economy.

A full copy of the report can be downloaded here.

J. Gabriel Ware is a contributing writer to The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org