Black Robes Speak!: April 2012
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Wednesday, April 18, 2012

U. S. Supreme Court Rules UNANIMOUSLY Only Individuals Can Be Sued Under Under Torture Victim Law.

High court limits suits under torture victim law

The Supreme Court has ruled unanimously that organizations may not be sued for claims they aided in torture or killings abroad under a law aimed at helping torture victims.

Justice Sonia Sotomayor wrote the court's opinion Wednesday dismissing the lawsuit filed by the family of an American who died in the custody of Palestinian intelligence officers in Jericho in 1995. The family wanted to sue the Palestinian Authority and Palestine Liberation Organization under the Torture Victim Protection Act.

Sotomayor said the 1992 law's use of the word "individual" is persuasive evidence that only people may be sued over claims they took part in torture. ...

Read more here:

Editor's comment/note: The case is Mohamad v. Palestinian Authority, and you can read the Court's opinion by clicking on the case name link.


Tuesday, April 17, 2012

U. S. Supreme Court Extends "Qualified Immunity" To Private Lawyers Working For Government.

Supreme Court reverses 9th Circuit to shield private lawyers
By David G. Savage

WASHINGTON — The Supreme Court has shielded private lawyers and possibly others working for cities, counties and school districts from being sued for violating the rights of citizens and employees.

A UNANIMOUS 9-0 decision in the case announced Tuesday blocks a lawsuit against a Southern California attorney who was accused of ordering an illegal search of a firefighter’s house.

A judge had shielded the fire chief of the Inland Empire city of Rialto and two fire department inspectors from being sued for the allegedly illegal search under the rule that gives public employees a “qualified immunity” from suits when they are doing their jobs. But the U.S. 9th Circuit Court of Appeals said that this governmental immunity did not extend to Steve Filarsky, a private lawyer who advised the city on conducting internal investigations.

Disagreeing with the 9th Circuit, Chief Justice John G. Roberts Jr. said it made no sense to expose private lawyers working for the government to personal liability when public employees doing the same job are shielded. He said many small cities like Rialto cannot afford to have lawyers on their staffs and must rely at times on private attorneys.

“This case is a good example: Filarsky had 29 years of specialized experience as an attorney in labor, employment and personnel matters, with particular expertise in conducting internal affairs investigations,” the chief justice wrote. “The City of Rialto certainly had no permanent employee with anything approaching those qualifications.”

Shielding private lawyers from almost all personal liability is necessary for “ensuring that talented candidates are not deterred from public service,” Roberts said.

The case arose when Nicholas Delia, a firefighter in Rialto, became ill after responding to a toxic spill in 2006, and he missed several weeks of work. The city became suspicious of his extended absence and hired a private investigator to check on him. The investigator observed Delia buying rolls of fiberglass insulation from a home improvement store, and city officials suspected he might be doing construction work at home when he was supposedly recovering.

Filarsky questioned Delia about the building supplies. The firefighter admitted he bought the materials, but had done no work.

In order to put the suspicion to rest, Filarsky recommended the fire chief tell Delia he must show the materials to fire inspectors. Delia objected, and his attorney averred that such a forced search of his house would violate the 4th Amendment’s ban on unreasonable searches.

Undeterred, the fire chief ordered Delia to put the rolls of insulation on his front lawn. Delia did as ordered. The fire inspectors thanked him and left. Delia and his attorney then followed through with their vow and sued the fire chief, the inspectors and Filarsky claiming his constitutional rights had been violated.

A federal judge threw out the claims and ruled all the city officials were immune because they did not violate a “clearly established constitutional right.” In Tuesday’s decision, the Supreme Court said Filarsky deserved to be immune as well.

Editor's comment: read Filarsky vs. Delia by clicking on the link.


Tuesday, April 3, 2012

In A Move That STUNNED Even A VERY STRONG Conservative, Law And Order Kinda Guy Like Me, The U. S. Supreme Court Has Ruled That Corrections Officers May Strip Search ANYONE For ANY Offense regardless Of How Minor The Offense. SHOCKING!

Supreme Court Ruling Allows Strip-Searches for Any Offense

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.

The federal appeals courts had been split on the question, though most of them prohibited strip-searches unless they were based on a reasonable suspicion that contraband was present. The Supreme Court did not say that strip-searches of every new arrestee were required; it ruled, rather, that the Fourth Amendment’s prohibition of unreasonable searches did not forbid them.

Daron Hall, the president of the American Correctional Association and sheriff of Davidson County, Tenn., said the association welcomed the flexibility offered by the decision. The association’s current standards discourage blanket strip-search policies.

Monday’s sharply divided decision came from a court whose ideological differences are under intense scrutiny after last week’s arguments on President Obama’s health care law. The ruling came less than two weeks after a pair of major 5-to-4 decisions on the right to counsel in plea negotiations, though there Justice Kennedy had joined the court’s liberal wing. The majority and dissenting opinions on Monday agreed that the search procedures the decision allowed — close visual inspection by a guard while naked — were more intrusive than being observed while showering, but did not involve bodily contact.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Monday’s decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail’s general population. At least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband.

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration. So were victims of sexual assaults and women who were menstruating.

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

The case decided Monday, Florence v. County of Burlington, No. 10-945, arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant for Mr. Florence’s arrest based on an unpaid fine. (The information was wrong; the fine had been paid.)

Mr. Florence was held for a week in jails in Burlington and Essex Counties, and he was strip-searched in each. There is some dispute about the details, but general agreement that he was made to stand naked in front of a guard who required him to move intimate parts of his body. The guards did not touch him.

Sidebar: Justices’ Cerebral Combativeness on Display (April 3, 2012)

Related in Opinion

The Loyal Opposition: The Right to Strip (April 2, 2012)

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“Turn around,” Mr. Florence, in an interview last year, recalled being told by jail officials. “Squat and cough. Spread your cheeks.”

“I consider myself a man’s man,” said Mr. Florence, a finance executive for a car dealership. “Six-three. Big guy. It was humiliating. It made me feel less than a man.”

Justice Kennedy said the most relevant precedent was Bell v. Wolfish, which was decided by a 5-to-4 vote in 1979. It allowed strip-searches of people held at the Metropolitan Correctional Center in New York after “contact visits” with outsiders.

As in the Bell case, Justice Kennedy wrote, the “undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband.”

The majority and dissenting opinions drew differing conclusions from the available information about the amount of contraband introduced into jails and how much strip-searches add to pat-downs and metal detectors.

Justice Kennedy said one person arrested for disorderly conduct in Washington State “managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity.” Officials in San Francisco, he added, “have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance and shoplifting.”

Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.

For instance, in a study of 23,000 people admitted to a correctional facility in Orange County, N.Y., using that standard, there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s dissent.

Justice Kennedy said that strict policies deter people entering jails from even trying to smuggle contraband.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined all of Justice Kennedy’s majority opinion, and Justice Clarence Thomas joined most of it.

In a concurrence, Chief Justice Roberts, quoting from an earlier decision, said that exceptions to Monday’s ruling were still possible “to ensure that we ‘not embarrass the future.’ ”

Justice Alito wrote that different rules might apply for people arrested but not held with the general population or whose detentions had “not been reviewed by a judicial officer.”

Editor's note: The case is FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON ET AL. You can read the case here.

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