More than five years after the Supreme Court ruled that a Kuwaiti national, Fawzi Khalid Abdullah Fahad Al Odah, had a right to challenge his detention at Guantanamo Bay, a federal judge has decided that challenge, upholding Al Odah’s captivity.  Al Odah’s challenge was the second oldest of the Guantanamo cases in U.S. District Court, but went to the Supreme Court in 2003 as part of the first test of presidential detention power.  (Al Odah’s case was a companion to Rasul v. Bush, the first-filed  Guantanamo case; the two cases were decided together on June 28, 2004.)

After several rounds of legal maneuvering and efforts by Congress since then to stop such challenges, and 14 months after the Supreme Court put such challenges on a constitutional footing, a federal judge on Aug. 24 decided Al Odah’s case in a brief, unexplained order.  On Monday, the District judge, Colleen Kollar-Kotelly. released a partly redacted opinion explaining her ruling. It can be downloaded here.

His case has actually been pending in federal court since May 2002, but has frequently been stalled in one court or another, and only became active on the merits in the past year.

In deciding Al Odah’s case, the judge borrowed from other District judges a definition of presidential detention power that is less expansive than those proposed by both the Obama Administration and, before it, the Bush Administration.  Still, she concluded that the government had met that standard after finding that Al Odah had gone to Afghanistan and engaged there in a series of actions that, together, showed he “became part of Taliban and al Qaeda forces.”

Read the rest of this entry »

NOTE: From time to time, the blog will examine significant new cases as they are filed at the Supreme Court.  This post is one in that series.  Some of these cases very likely will appear later in the blog’s Petitions to Watch feature when the Court is ready to consider them.

———————————–

Seeking to revive a lawsuit against a gun manufacturer over a teenager’s accidental but fatal shooting of a friend, lawyers for the Illinois parents of the dead boy have asked the Supreme Court to strike down a four-year-old federal law that shields the industry from many — but not all — lawsuits.  The petition in Adames, et al. v. Beretta USA Corp., filed last Monday and docketed as 09-253, can be downloaded here.  That file includes the appendix.  For a link only to the Illinois Supreme Court decison rejecting the constitutional challenge, click here.

The 2005 law – titled the Protection of Lawful Commerce in Arms Act — was controversial when passed, and has been attacked repeatedly since then in court.  The challengers have argued variously that Congress either had no power to wipe out already-filed lawsuits against gun makers, or that it went too far in doing so. So far, the Supreme Court has not been willing to get into the controversy, and the first issue facing the new lawsuit is whether it is sufficiently different that it can not only draw the Justices’ interest, but also overcome likely resistance from the federal government.

Last March 19, the Court denied review in two cases challenging the Act — New York City, et al. v. Beretta (08-530) and Lawson, et al. v. Beretta (08-545).  The federal government joined in both of those cases to defend the law, and successfully urged the Court not to hear either one, arguing that neither one raised clearly the issues it sought to put forward.  In the new case, the Justice Department was not involved as it went through Illinois courts, but because a federal law could be at stake, it could do so in the Court.

The narrower issue in the Illinois case is whether the specific lawsuit by the dead boy’s parents fits within an exception in the 2005 law that permits some cases to go ahead.  The broader issue is whether Congress has intruded too deeply into the way states craft their own laws, barring those that test issues arising under state common law, allowing at least some that test a state statute.  The petition quotes at length from congressional floor debates, with lawmakers blasting juries and judges for fashioning “novel” ways to attack the gun industry while showing respect for laws that emerge from state legislatures.

Read the rest of this entry »

Below, Erica Goldberg previews McDaniel v. Brown, one of the three cases to be heard by the Supreme Court on Tuesday, October 13. Erica is a graduate of Stanford Law School. Check the McDaniel  v. Brown (08-559) SCOTUSwiki page throughout the summer for additional updates.

At the heart of McDaniel v. Brown is the “prosecutor’s fallacy,” a trial error in which the prosecution equates the probability of the defendant’s DNA randomly matching the DNA found at the crime scene with the probability of the defendant’s innocence.  But it is the possible analytical fallacies contained in the Ninth Circuit’s opinion granting relief to a potentially innocent defendant, that have caused confusion among both sides as to what the court of appeals actually decided.   On October 13, the Court will hear oral argument to determine whether the Ninth Circuit erroneously awarded a convicted child rapist a new trial.

Read the rest of this entry »

FINAL UPDATE Saturday a.m.  The Supreme Court on Friday dismissed the petition in docket 08-1513, by agreement of the parties under the Court’s Rule 46.  See the docket entries here.

UPDATE Friday a.m.  The company’s statement, posted on its blog, can be found here.  It makes clear that “New Chrysler” will accept liability for cars made by “Old Chrysler,” provided the accident occurred on June 10 or later. Thus, prior accidents will not be covered, nor would lawsuits filed before June 10.

UPDATE 10:50 p.m.  Changing position, Chrysler Group announced Thursday evening that it would now accept product liability claims on vehicles built before the new company was formed June 10, according to a statement from corporate officials reported in The Detroit News and other news outlets.  The News’ story is here.  It notes that the company’s acceptance of liability does not apply to lawsuits if they were filed before June 10.

————————-

The Supreme Court has dismissed some of the consumer groups’ challenge to the deal that led to the bankruptcy sale in June of Chrysler Corp.  to the Italian automaker, Fiat, with heavy financial backing from the U.S. and Canadian governments.  All of the other challengers involved in the case also have asked that they be dismissed, and the Court is expected to do so shortly for those, too.  The petition in Center for Auto Safety, et al., v. Chrysler LLC (08-1513) was the only challenge to Chrysler remaining before the Court.  (The petition can be downloaded here.)

Read the rest of this entry »

Dividing 2-1, the D.C. Circuit Court on Wednesday refused to put on hold its ruling in April barring federal judges from putting any limits on the government’s decisions to transfer detainees out of Guantanamo Bay.  Lawyers for five Chinese Muslim Uighur prisoners wanted the decision stayed until after the Supreme Court had acted on an appeal they are planning to file.  The order denying a stay in Kiyemba v. Obama (Circuit docket 05-5487) can be found here.  A post discussing the plan to take the case to the Supreme Court can be read here.

The new case, perhaps now known as Kiyemba II, bears the same title as a case the prisoners now have pending at the Supreme Court (docket 08-1234).  That case involves a D.C. Circuit decision that federal judges have no authority to order the transfer of a Guantanamo detainee into mainland U.S.  The Court is expected to act on that case in the new Term that starts Oct. 5 — unless the Uighurs are re-settled to another country before then.

In Wednesday’s Circuit Court action, Judges Douglas H. Ginsburg and Brett M. Kavanaugh voted to deny a stay of the mandate in Kiyemba II.  Judge Thomas B. Griffith would grant the stay, the order said.

NOTE: From time to time, the blog will examine significant new cases as they are filed at the Supreme Court.  This post is one in that series.  Some of these cases very likely will appear later in the blog’s Petitions to Watch feature when the Court is ready to consider them.

———————————–

UPDATE: The case has been docketed as 09-231.

Investment capital, obviously, moves from state to state as markets attract it, but it is not clear that it travels with constitutional protection.  Does a state, aiming to protect locally owned business, have the constitutional authority to resist the entry of outside money?  And, if traveling capital seeks to do business under the shield of the corporate form, can states resist that?

Those are variations on Commerce Clause themes that are now being tested in the Supreme Court, in a new case filed last Friday. The petition — in Brown, et al., v. Hovatter, et al. – is here; it has not yet been assigned a docket number.  It challenges a Fourth Circuit Court ruling last March; that decision can be found here.

Read the rest of this entry »

NOTE: From time to time, the blog will examine significant new cases as they are filed at the Supreme Court.  This post is one in that series.  Some of these cases very likely will appear later in the blog’s Petitions to Watch feature when the Court is ready to consider them.

———————-

UPDATE: The case has been docketed as 09-227.

Lawyers for four Britons who formerly were held at Guantanamo Bay returned to the Supreme Court on Monday, seeking the first ruling by the Justices on claims of torture of terrorism suspects by U.S. agents.    The new petition asked the Court to rule that the Constitution protects those held by the U.S. military or intelligence agencies from being tortured or abused, and to declare that a federal law protects them from discrimination based on their Muslim religion.  They are challenging an April ruling by the D.C. Ciruit Court, rejecting for a second time their constitutional and legal challenges. The case is Rasul, et al., v. Myers, et al. , not yet assigned a docket number.

Read the rest of this entry »

The Justice Department formally notified a federal judge on Monday that it has carried out the court order to return a young Afghan detainee, Mohammed Jawad, to his homeland, ending nearly a seven-year stay in U.S. military custody, most recently at Guantanamo Bay, Cuba.  Jawad, who may have been as young as 12 when he was captured in Afghanistan in 2002, has rejoined his family, his lawyers at the American Civil Liberties Union said they had confirmed.

The Justice Department’s brief status report is here.  A Justice Department news release about the transfer is here.  The ACLU statement is here.

Read the rest of this entry »

If ten minutes of oral argument time is enough to say something meaningful to the Supreme Court, could the same be done in one minute?  A pair of groups seeking to speak on behalf of the citizenry is testing that question, asking the Court to give their attorney “as long as one minute” to argue in Citizens United v. Federal Election Commission (08-205), the campaign finance case that has  now spawned a major constitutional controversy.

In  a motion filed Aug. 18, an attorney for the Wyoming Liberty Group and Goldwater Institute Scharf-Norton Center for Constitutional Litigation sought that bit of time to join in the hearing scheduled for Sept. 9.

Read the rest of this entry »

A federal judge’s lengthy but heavily censored opinion released on Friday demonstrated anew the difficulty that the Pentagon and U.S. intelligence agencies are having in trying to justify in court the continued holding of some of the prisoners at Guantanamo Bay, Cuba.  A prisoner with family links to terrorist leader Osama Bin Laden, with personal encounters with Bin Laden, with at least a brief round of training in an Al-Qaeda military camp, with close knowledge of some of bin Laden’s bodyguards, and with other alleged links to Al-Qaeda soldiers — all of that was not enough, singly or together, to justify the detention of a Yemeni national, Mohammed Al-Adahi, Senior U.S. District Judge Gladys Kessler ruled.

Last Monday, the judge released a one-page order finding his detention unlawful, and ordering the government to take steps to arrange for his release, and to report back on Sept. 18 on what had been done to bring about release.  On Friday, after clearance by a court intelligence-reviewing officer, her 42-page, redacted opinion explaining that ruling was made public. It can be downloaded here.

Read the rest of this entry »

The Supreme Court will consider two new cases on the scope of individuals’ Second Amendment right to have guns at its first Conference for the new Term, on Sept. 29, according to the Court’s electronic docket.  Both petitions challenge a Seventh Circuit Court ruling that the Amendment does not restrict gun control laws adopted by state, county or city government, but applies only to federal laws.  The cases are National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521).

The so-called “incorporation” issue is the most significant sequel issue raised in the wake of the Court’s 2008 decision in District of Columbia v. Heller, recognizing for the first time a personal right to have a gun for self-defense, at least in one’s home.

If the Court agrees to hear the new cases after its first look, that could be announced as early as the day after the Conference — that is, on Wed., Sept. 30.  The first Conference of a new Term customarily is held in advance of the Term’s formal opening; this year, the Term starts Oct. 5.

The Court has not yet scheduled a time to consider another pending case on the Second Amendment issue — Maloney v. Rice (08-1592). The response in that case is now due on Aug. 28.  The new Justice, Sonia Sotomayor, took part in the Maloney case when she was on the Second Circuit Court.  Like the Seventh Circuit, the Second found that the Second Amendment only applies to federal laws.  When the Justices consider the Maloney case, Sotomayor is not expected to take part.  The fact that she had taken part in a ruling on the issue in one case, however, would not require her to withdraw from considering cases from other Circuits, like the Chicago cases.

Patricia Millett recently published this article (PDF download) in the Tenth Anniversary edition of the Journal of Appellate Practice and Process (Vol. 10, No. 1; Spring 2009).  It addresses the Supreme Court’s unique practice — not mentioned in the Court’s rules — of calling for the views of the Solicitor General at the certiorari stage, and the process of obtaining amicus support from the Solicitor General in such cases, as well as in cases in which review has been granted.

Below, Natasha Fedder previews Johnson v. U. S., one of the three cases to be heard by the Supreme Court on Tuesday, October 6.  Natasha is a rising third year at University of Pennsylvania Law School and a summer associate at Akin Gump. Check the Johnson v. U. S. SCOTUSwiki page throughout the summer for additional updates and newly filed briefs.

Argument Preview

18 U.S.C. § 924(e)(1) of the Armed Career Criminal Act (“ACCA”) subjects an individual with three prior convictions for a “violent felony” to a fifteen-year mandatory minimum sentence. On October 6, 2009, in No. 08-6925, Johnson v. United States, the Court will consider whether, for purposes of the ACCA, a prior state conviction for battery is in all cases a “violent felony,” even when the state’s highest court has held that the offense does not have as an element the use or threatened use of physical force.’ Background

In 2007, petitioner Charles Darnell Johnson pleaded guilty to and was convicted of possession of ammunition by a convicted felon. Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court’s determination with respect to his 2002 conviction for “unwanted touching,” which had been elevated from simple battery to felony status because of a prior battery conviction.

On appeal, Mr. Johnson argued that federal courts applying the ACCA are bound by the Florida Supreme Court’s recent decision in State v. Hearns (2007), holding that physical force or violence is not a necessary element of simple battery. Thus, the crime of battery does not fit the ACCA’s definition of “violent” crime as one that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Eleventh Circuit rejected this argument and affirmed Mr. Johnson’s conviction, applying federal law to find that the elements of his crime satisfied the definition of “violent” crime under the ACCA. Mr. Johnson filed a petition for certiorari, which was granted on February 23, 2009.

Read the rest of this entry »

Stepping in boldly to take control of an issue that has lingered for five years in Guantanamo Bay detainee cases — a dispute that traces directly back to the Supreme Court’s first ruling five years ago on government detention power, a federal judge on Wednesday put strict new limits on the government’s use of its main pile of evidence for justifying further confinement of prisoners.

U.S. District Judge Reggie B. Walton went further than any of his District Court colleagues has gone in cutting back on the Pentagon’s option of proving its detention cases by using a kind of evidence that normally would not be allowed in court — hearsay, as a substitute for direct proof of facts.  The judge refused to follow the government’s plea that all of its hearsay evidence about an individual detainee should have a special rank, admitted into court with a presumption that it was reliable unless detainees’ lawyers could show it was not.

Judge Walton’s 12-page order outlining a “framework” for processing government offers of hearsay evidence can be downloaded here.

Since the government has said that nearly all of its evidence of detainees’ alleged terrorist acts or affiliations  is hearsay — what somebody said, rather than hard physical evidence, the new limitations may make it harder to fend off detainees’ claims for their release, at least in Judge Walton’s Court.  Some other District judges have followed Walton’s lead on other detainee case procedures, and could do so on this, too.

The new development is another indication of how a dozen federal judges in Washington are shaping the law of detention, little by little, with only general guidance from the Supreme Court.  The net effect has been to hold the government to more demanding legal standards than it wanted, standards that it has vigorously resisted.

While the specific dispute centers on the arcane issue of what kinds of statements, declarations or other verbal descriptions of detainee activity can be admitted in habeas cases in federal court, there is a real practical dimension to it.  It puts the onus on Justice Department lawyers to show the material is convincing, and spares detainee lawyers the primary task of showing the contrary.

Read the rest of this entry »

Citizens United on Wednesday filed its reply brief  in Citizens United v. FEC (08-205), on constitutional issues surrounding federal campaign finance law as it applies to business corporations.  The filing is here.  The Federal Election Commission’s filing is here.  These two documents will complete briefing on the added constitutional question the Court raised in the case on June 29, after hearing the case on statutory issues.

The Court will hold an 80-minute hearing on the case in a special sitting on Wednesday, Sept. 9.  The case is considered part of the Court’s work in the 2008 Term.

————

Meanwhile, the federal government on Wednesday also filed its reply brief in a case on the constitutionality of the federal law making it a crime to depict animal cruelty in videos and other forms.  The brief in U.S. v. Stevens (08-769) is here. The case is scheduled for argument at 10 a.m. on Tuesday, Oct. 6.