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Yesterdays argument in County of Los Angeles v. Mendez was, in a word, unsatisfying. The question of governmental liability for a law enforcement shooting of innocent individuals is extremely fact-intensive, and the law in this area is unsettled enough that assembling a majority for general Fourth Amendment rules on this record presents quite a challenge. It is possible to imagine some general statements that the court could agree on, but when it comes time to either affirm or reverse the specific award here, the justices might well split 4-4. Accurate tea-leaf reading seems impossible based on this argument transcript; the justices themselves seemed undecided. But in the end, at least four justices may view a tie as the fairest result on this record: The damages award for the sympathetic plaintiffs here would be left in place, without a divided Court issuing conflicting opinions on the law.
A Fourth Amendment violation, but a subsequent reasonable shooting
As previewed here, Angel Mendez and his wife present sympathetic facts, while the law enforcement officers start off with a Fourth Amendment violation. In brief:
Two Los Angeles County Sheriffs deputies were sent into the backyard of a home, while other officers forced their way into the house itself without a warrant or consent. In the backyard, the deputies came upon a shack occupied by the Mendezes. Guns drawn, the deputies opened the door of the shack without a warrant and without knocking or announcing who they were. Mendez, not knowing who was barging into his home, picked up a BB gun (just moving it, not aiming it, as the district judge found) in order to get out of bed. Seeing this, the deputies opened fire, causing significant injuries. Mendezs leg had to be amputated below the knee.
After a five-day bench trial of the Mendezes civil suit against the county and the deputies, the district judge settled many disputed facts and legal questions, and calculated damages for the Mendezes at roughly $4 million. The judge ruled that the deputies (at the house and at the shack) had violated the Fourth Amendment by conducting their entries without a warrant; no exceptions to the warrant requirement applied. The judge also ruled that the deputies had violated the Fourth Amendments knock and announce requirement. But the judge further ruled that at the moment they fired their guns, the deputies were acting reasonably because they thought someone was going to shoot them. However, after all was said and done, the judge concluded that the government was liable for the damages because the deputies had recklessly provoked the confrontation (by entering without a warrant and without announcing).
The U.S. Court of Appeals for the 9th Circuit affirmed the award on appeal. Although law enforcement officers are entitled to official immunity unless they violate clearly established rights, the court of appeals ruled that the Fourth Amendments warrant requirement was clearly established; thus the officers are not immune from damages for that violation. But the court also ruled that it was not clearly established that the deputies had to knock and announce in this specific context, because the officers at the house had already knocked and announced. So (as was assumed at the argument yesterday), because the deputies receive official immunity for the knock and announce violation, that violation cannot support an award of damages. Nevertheless, the 9th Circuit affirmed the award on two grounds: (1) under the circuits own provocation doctrine, the deputies can be liable if they recklessly provoked the situation; and (2) even aside from provocation, the deputies are liable under basic notions of proximate cause.
Oral argument: four justices advocate relief, while four others see no proximate cause?
Yesterdays argument addressed both of the 9th Circuits grounds, but focused almost entirely on the second one, proximate cause. (No justice mentioned the Mendezes briefed argument that the countys cert petition had presented three questions but then reduced them to two somewhat different questions at the merits stage.)
Justice Sonia Sotomayor jumped in first, appearing to defend damages for police shooting victims who had nothing to do with causing the loss. Noting that homeowners have a Second Amendment right to possess firearms to protect themselves, Sotomayor and (and later Justices Elena Kagan and Stephen Breyer) seemed to suggest that deputies should reasonably foresee a violent confrontation if they enter unlawfully.
But Josh Rosenkrantz, an experienced Supreme Court advocate who argued for the county, firmly and repeatedly reminded the court that the failure to knock and announce in this case is assumed not to violate clearly established law, so that damages cannot be based on that. Kagan then presented perhaps the best argument for the Mendezes: Shouldnt this be viewed more generally as an unauthorized entry that violates the Fourth Amendment and can support damages? Breyer similarly asked a bit later why do you break it down this way? and if you look at all the circumstances, why isnt there proximate cause? Justice Ruth Bader Ginsburg also offered a couple of seemingly favorable remarks; that adds up to four justices possibly favoring the Mendezes.
Indeed, Leonard Feldman, about to argue for the Mendezes, must have been pleased when Justice Anthony Kennedy (a potential fifth vote) then got into a brief squabble with Rosenkrantz. Kennedy presented a hypothetical, and when Rosenkrantz gave a no damages response, Kennedy said, then we simply have no way to enforce the warrant requirement, you want us to write that in the law? But as described below, any hope by the Mendezes for Kennedys vote appears to have been short-lived.
Nicole Saharsky then argued for the solicitor general in support of the county, and she focused her remarks more generally on the 9th Circuits provocation doctrine. Sotomayor asked why does a police officer get a pass if the officer creates the dangerous situation? But Chief Justice John Roberts intervened, asking is the label whats wrong? and noting that I dont think of it as provocation that you should have gotten a warrant earlier in the day. Saharsky stayed focused on her general critique of the provocation theory, calling it incredibly ill-defined. But Kennedy then shifted the argument back to one of proximate cause those are two different things, right?
Kagan continued to press the best argument for the Mendezes, seeking agreement that in general, an unauthorized entry produces violence or might produce violence. The justices also demonstrated the special position that the solicitor generals office occupies, permitting Saharsky to add one more sentence to her argument not once but three times after her time had expired.
Feldman who also argued the Sheehan case two terms ago in which Justice Samuel Alitos opinion for the court noted criticism of the provocation doctrine then began by presenting a generalized balancing test that appeared to gain no traction with the court. (Justice Antonin Scalia would have blanched balancing tests were his bane.) Kennedy drove the argument back once more to the specific question of proximate cause on this record and then flatly said, I just dont see the proximate cause between failure to get the warrant and what happened here. Alito (a longtime critic of the provocation doctrine) mildly challenged Feldman, and Roberts then focused firmly on the relationship between not getting a search warrant and the shooting: Why did that make a difference? [T]he failure to get a warrant did not cause the entry. That too seems to add up to four votes, against the Mendezes, if one assumes that Justice Clarence Thomas (who asked no questions) is also likely to side with the county.
When Roberts repeated, I dont know why the failure to get a warrant matters, Kagan immediately asked, can I suggest why?, and did. As she continued her explanation, Roberts, in his low-key way, offered perhaps the best line of the term: Counsel [referring to Kagan], if I could interrupt you to ask a question.
Conclusion: the real action is in conference, and the result seems uncertain
As with all the courts arguments, there is much more in the transcript than can be recounted here. But Kennedy summed it up at the end, quietly implying that the real action will happen during the justices private conference this week: Based on the arguments of counsel, we [and I would emphasize the we] can have our discussion as to whether or not it was indeed proximate.
Re-reading the transcript, I honestly am not sure what the justices will do. If the desire to end or limit the provocation doctrine is strong, perhaps some opinion (or opinions) will issue. On the other hand, it is not hard to imagine an even split here, with four justices firmly believing that the Mendezes innocent actions, coupled with the deputies unreasonable behavior, justify affirming the award. Yet there is little doubt that some justices would strongly dislike that outcome. In that case, I can also imagine seeing something Ive never seen before (although Professor Dan Epps advised me late last night of one precedent from 1960): separate unhappy opinions accompanying a one-sentence affirmed by an evenly divided court judgment.
Posted in County of Los Angeles v. Mendez, Analysis, Featured, Merits Cases
Recommended Citation: Rory Little, Argument analysis: An unsatisfying argument regarding Fourth Amendment qualified immunity and proximate cause, SCOTUSblog (Mar. 23, 2017, 11:24 AM), http://www.scotusblog.com/2017/03/argument-analysis-unsatisfying-argument-regarding-fourth-amendment-qualified-immunity-proximate-cause/
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Argument analysis: An unsatisfying argument regarding Fourth Amendment qualified immunity and proximate cause - SCOTUSblog (blog)
Authored by Chris Menahan via InformationLiberation.com,
NSA whistleblower William Binney told Tucker Carlson on Friday that the NSA is spying on "all the members of the Supreme Court, the Joint Chiefs of Staff, Congress, both House and Senate, as well as the White House."
Binney, who served the NSA for 30 years before blowing the whistle on domestic spying in 2001, told Tucker he firmly believes that Trump was spied on.
"They're taking in fundamentally the entire fiber network inside the United States and collecting all that data and storing it, in a program they call Stellar Wind," Binney said.
"That's the domestic collection of data on US citizens, US citizens to other US citizens," he said. "Everything we're doing, phone calls, emails and then financial transactions, credit cards, things like that, all of it."
"Inside NSA there are a set of people who are -- and we got this from another NSA whistleblower who witnessed some of this -- they're inside there, they are targeting and looking at all the members of the Supreme Court, the Joint Chiefs of Staff, Congress, both House and Senate, as well as the White House," Binney said.
"And all this data is inside the NSA in a small group where they're looking at it. The idea is to see what people in power over you are going to -- what they think, what they think you should be doing or planning to do to you, your budget, or whatever so you can try to counteract before it actually happens," he said.
"I mean, that's just East German," Tucker responded.
Rather than help prevent terrorist attacks, Binney said collecting so much information actually makes stopping attacks more difficult.
"This bulk acquisition is inhibiting their ability to detect terrorist threats in advance so they can't stop them so people get killed as a result," he said.
"Which means, you know, they pick up the pieces and blood after the attack. That's what's been going on. I mean they've consistently failed. When Alexander said they'd stop 54 attacks and he was challenged to produce the evidence to prove that he failed on every count."
Binney concludes ominously indicating the origin of the deep state...
"They are like the praetorian guard, they determine what the emperor does and who the emperor is..."
Who's going to stop them?
See the rest here:
"They're Like The Praetorian Guard" - Whistleblower Confirms ...
(CIRCA) As his presidency drew to a close, Barack Obamas top aides routinely reviewed intelligence reports gleaned from the National Security Agencys incidental intercepts of Americans abroad, taking advantage of rules their boss relaxed starting in 2011 to help the government better fight terrorism, espionage by foreign enemies and hacking threats, Circa has learned.
Dozens of times in 2016, those intelligence reports identified Americans who were directly intercepted talking to foreign sources or were the subject of conversations between two or more monitored foreign figures. Sometimes the Americans names were officially unmasked; other times they were so specifically described in the reports that their identities were readily discernible. Among those cleared to request and consume unmasked NSA-based intelligence reports about U.S. citizens were Obamas national security adviser Susan Rice, his CIA Director John Brennan and then-Attorney General Loretta Lynch.
Some intercepted communications from November to January involved Trump transition figures or foreign figures perceptions of the incoming president and his administration. Intercepts involving congressional figures also have been unmasked occasionally for some time.
See the rest here:
Obama let NSA intercepts get into political hands - WND.com
Republicans charged Tuesday that Democrats are blocking the House Intelligence Committee's investigation into Russia from moving forward by refusing to sign a letter that would officially invite FBI Director James Comey and NSA Director Adm. Mike Rogers back before the committee for closed-door testimony.
Republicans have made clear they want that testimony before hearing from others, and say it will allow the committee to be as informed as possible when interviewing future witnesses.
Committee member Rep. Peter King, R-NY, verified the information about the letter that was described to the Washington Examiner by a source close to the committee who requested anonymity.
"My understanding is that Devin [Nunes] or the general counsel for the Republican side prepared a letter to Director Comey and Director Rogers asking them to testify at a closed session, and that thus far, the Democrats have not signed it," King said.
"The purpose of the closed session is to start getting answers to many of the questions that Director Comey could not answer at the public hearing because of the ongoing investigation. To me, if Democrats want answers to their questions, this is one way to get them. So I'm surprised they're not agreeing to this right away," King added.
A Democratic committee aide replied by accusing Republicans of trying to eliminate the open hearing entirely.
"Republicans wanted to do the closed hearing in lieu of the open hearing they were hoping to schedule it at the exact same time as the open hearing, even though all the witnesses [Brennan, Clapper and Yates] were prepared to testify," the aide said. "We would welcome hearing from Directors Comey and Rogers again just not instead of the open hearing."
The delay in setting up the closed hearing also means that the testimony volunteered by four persons related to Trump campaign Paul Manafort, Carter Page, Roger Stone, and son-in-law Jared Kushner is on hold indefinitely, as the committee wants to have the closed session first.
Comey and Rogers have already given their open testimony to the committee. But just two days later, Chairman Devin Nunes, R-Calif., made his bombshell revelations in which he claimed to have reviewed raw intelligence documents that allegedly show members of the Trump transition team being caught up and named in legal surveillance of foreign nationals. Nunes also briefed the White House on his findings, a move which was controversial enough at the time, but has grown even more so in recent days.
Also from the Washington Examiner
At least three former Trump administration officials have reportedly said they never signed the president's ethics pledge.
03/29/17 5:49 PM
Last Friday, Nunes announced the committee was cancelling the already-planned second open hearing which would have included former National Intelligence Director James Clapper and former acting US Attorney General Sally Yates. "We are asking Mr. Comey and Mr. Rogers to come back in. And until we can get them in in a closed session, it's not going to be worth it to have the open session," he said.
Democrats blasted the decision at the time. "What's really involved here is the cancellation of this open hearing and the rest is designed to distract," said ranking member Adam Schiff, D-Calif.
Democrats said they were skeptical that Nunes' revelations might have been coordinated by the White House. That speculation intensified this week after CNN reported Nunes had been on the White House grounds to meet the source for the documents behind his claims.
Nunes explained the episode in an interview with CNN by saying his White House visit was a fairly common happening, and that the information he needed to view could only be done so at places with the correct computer security and clearances, which was available at the White House.
Numerous Democrats have called for Nunes to step away from the investigation, but thus far he has refused to do so.
Also from the Washington Examiner
The first lady was also present and insisted on her husband's attendance, he quipped during his remarks.
03/29/17 5:16 PM
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GOP accuses Democrats of blocking closed FBI, NSA testimony on Russia - Washington Examiner