Once the government sets up a military base, and defines its boundaries, the military is in charge of all of the base’s property even if it allows the public to make some use of it, the Supreme Court ruled Wednesday. The Court left open, however, the question whether the base commander can constitutionally stop an anti-war demonstrator from protesting in a zone especially set up for that.
The ruling in United States v. Apel was unanimous in its interpretation of a federal law, giving wide scope to the power of base commanders to determine when members of the public can be on the base and what they can do while there. While seven of the nine Justices refused to comment on whether the First Amendment limits that authority, two other Justices said there are limits. That issue remains open as the case returns to lower courts.
We will be live blogging this morning as opinions are issued. Please click this link to be taken to the live blog page.
Coverage of, and commentary on, the Court focused on the three opinions in argued cases that the Court issued yesterday. In Fernandez v. California, the Court held – by a vote of six to three – that, even if one occupant of a dwelling objects, police may still search that dwelling if another occupant consents after the objecting occupant has been removed. Rory Little covered the case for this blog; other coverage comes from Nina Totenberg of NPR, Jess Bravin and Brent Kendall of The Wall Street Journal, Robert Barnes of The Washington Post, and Jaclyn Belczyk of Jurist. The articles by Barnes and Bravin and Kendall also reported on yesterday’s opinion in Kaley v. United States, in which the Court – again divided six to three – held that a criminal defendant whose assets have been frozen before his trial does not have a right to a hearing to challenge the probable cause for his indictment, even if he needs the money to hire a lawyer to defend him against the charges. I covered the decision in Kaley for this blog. In the third decision yesterday, Walden v. Fiore, the Court held that a Georgia police officer could not be sued in Nevada for his conduct in Georgia, even if that conduct affected plaintiffs who had connections in Nevada. Kimberly Bennett covered the decision for Jurist. Continue reading »
This morning at 10:00 a.m. we expect one or more opinions in argued cases. We will begin live blogging at 9:45 here. Following opinions, the Justices will hear oral arguments in Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Allcare Management Systems, Inc., both of which Ronald Mann previewed for this blog.
The petition of the day is:
Issue: (1) Whether, in the context of a First-Amendment-protected contribution to a judicial campaign, the McCormick v. United States holding that campaign contributions cannot constitute bribery unless “the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act” mean “explicit,” or if not an explicit agreement, a certain quality and quantity of evidence is needed to permit a jury to only infer that an explicit agreement existed; (2) whether this standard requires proof of an “explicit” quid pro quo promise or undertaking in the sense of actually being communicated expressly, as various circuits have stated; or whether there can be a conviction based instead only on the jury’s inference that there was an unstated, inferred and implied agreement, a state of mind, connecting the contribution and the corrupt official action; (3) whether a public official may be prosecuted for the receipt of lawful campaign contributions in the absence of sufficient evidence of an “explicit” quid pro quo connection between those lawful campaign contributions and some official act; and (4) whether there must be there be a specific link with or connection between the giving of a campaign contribution from a donor to a public official for use in a political campaign and the latter’s performance of a specific and particular official act in order to sustain an Honest Services statute conviction and avoid a First Amendment concern.
The U.S. Court of Appeals for the Fourth Circuit on Tuesday set a briefing schedule for the appeal testing the constitutionality of Virginia’s ban on same-sex marriage. The schedule will put that case slightly behind the timing for review of two states’ bans by the U.S. Court of Appeals for the Tenth Circuit.
In 2007, Kerri Kaley and her husband, Brian, were indicted on charges arising from a plan to steal and then re-sell prescription medical devices. Based on the indictment, the federal government also got a restraining order to freeze their assets. The Kaleys asked the district court to lift the asset freeze so that they could pay their lawyers: although they did not dispute that the frozen assets could be traced to the conduct for which they were indicted, they argued that the charges against them were “baseless.” Both the district court and the U.S. Court of Appeals for the Eleventh Circuit denied the request, holding that it was prohibited because the Kaleys had no right to a hearing to challenge the grand jury’s determination that there was probable cause to support the charges against them. This morning a divided Supreme Court agreed, preserving a frequently used tool in the government’s arsenal for prosecuting crimes. (My preview of the case is available here, while my report on the October oral argument is available here.) Continue reading »
Unsurprisingly (see my post-argument analysis here), this morning the Court ruled in Fernandez v. California that Georgia v. Randolph is a “narrow exception” to the normal rule that “police officers may search jointly occupied premises” without a warrant “if one of the occupants consents.” In Randolph, by a vote of five to three, the Court held (over the Chief Justice’s vigorous dissent) that an objection to searching made by a “physically present” co-occupant must be honored, even if another occupant is consenting at the time. Today the Court made clear that its holding in Randolph “was limited to situations in which the objecting occupant is present.” Even when the objector has been removed by police, if the removal is made for “objectively reasonable” reasons, then a consenting co-occupant provides sufficient authority to search.