Tuesday, July 19, 2016

Black and Blue in Baltimore

By Professor Eric Miller
Originally appeared on Prawfsblawg

Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?

I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.

Thursday, July 14, 2016

President & Policing: What the Candidates Need to Consider

By Adjunct Professor Steve Lurie
Lieutenant, Los Angeles Police Department

The next president of the United States will lead our nation’s police through the most important four years in the history of American policing. Their most critical responsibility will be to rebuild the morale of our nation’s police officers. The president will inherit a nation where law enforcement professionals feel paralyzed. As a result, violent crime is rising in all of our major cities. Recruitment numbers are falling. Proactive policing is dying or dead. Without a motivated, professional police community, re-energized to walk the thin blue line, no progress will be made.

In tandem with this mission, the president must address communities who do not trust that policing is being done in a constitutional, even-handed manner. There is no doubt that a small percentage of officers make errors in judgment during their shifts. Even more rarely, an officer with bad intentions uses their power for evil. These breaches of the public trust are abhorrent and should be swiftly punished. Increased funding for body cameras and other accountability tools should come in the first 100 days of the new administration. Once deployed, these will show that police misconduct is extraordinarily uncommon. The current national tone far exaggerates the frequency of true wrongdoing by sworn officers.

Leadership on policing starts at the White House and the Attorney General’s office. Both of these have failed to curtail the fomentation of an environment where the police are viewed as the enemy, and the law breakers are empowered as never before in our history. The expected result, a marked increase in crime, is beginning to cast its cloud over our people. The next president of the United States must act immediately and decisively to turn back this storm in a way that strengthens the bond between members of law enforcement and the communities they serve.

Adjunct Professor Steve Lurie teaches the Police Practice Seminar at Loyola Law School. He is a lieutenant with the Los Angeles Police Department.

Monday, July 11, 2016

The Fatal Costs of Drug Interdiction

By Professor Eric Miller
Originally posted on Huffington Post

Philander Castile was pulled over for a broken tail-light and shot while he reached for his registration. While there has already been much discussion of the shooting, one point is missing from the story: the police stop was likely a pretext to engage in drug interdiction.

Now I am not suggesting that Castile was stopped because he was black. Nor am I suggesting the contrary—that he was *not* stopped because he was black. What I am suggesting is that the primary purpose of the stop was *not* to tell him about his busted tail-light—an admirable act of beneficence on the part of the police officer—but to search Castile’s car for drugs. And it is this aspect of the encounter—a police officer, looking for drugs, and finding an armed individual inside the car, that inevitably produced the deadly result.

Friday, July 8, 2016

The Elusive Search for Justice

By Dean Michael Waterstone

Recently, the state of Mississippi and federal government announced they were ending efforts to bring any further cases in the 1964 civil rights murders of Andrew Goodman, Michael Schwerner and James Chaney. This is unfortunate. Successfully bringing cold cases so many years later is incredibly difficult. Many of the culpable individuals have died and memories of witnesses have faded. But despite being understandable as a legal matter, this decision saddens me. There was only one prosecution by the state of Mississippi against any of the individuals involved in this atrocity, and the effort demonstrated how difficult justice can be to obtain but how crucial it is to pursue.

I know because I was there. In 2005, the state of Mississippi brought murder charges against Edgar Ray Killen, a self-avowed “preacher” who had coordinated the connection between the gang of Klansman and sheriff's office. At the time, I was a first-year law professor at the University of Mississippi, teaching civil rights law. I went down to Neshoba County for the murder trial, and brought one of my students from the area with me. It was a moving experience that I will never forget.

Remember, this had been a crime that had captivated the entire nation. The three civil rights workers were in Mississippi to register black voters during Freedom Summer. They were murdered by Klansmen working in direct connection with the sheriff's office. President Johnson sent the National Guard to find the bodies of the missing civil rights workers. But the state of Mississippi, the entity primarily responsible for seeking justice, did nothing. Forty years later, a community coalition of whites, blacks, and Native Americans issued a “call for justice,” urging officials to bring prosecutions against anyone who was still alive. This culminated in Killen’s trial.

Thursday, July 7, 2016

Comparing California's Competing Death Penalty Initiatives

By Adjunct Professor Paula Mitchell
Executive Director, Alarcón Advocacy Center & Legal Director, Loyola Project for the Innocent

On Nov. 8, 2016, California voters will choose between two competing death penalty initiatives: Prop 62 ends capital punishment and saves California taxpayers $1.5 billion over the next 10 years, while the other measure, Prop 66, doubles down on the state’s costly, failed system, spending millions more in an effort to speed up executions.

The state has spent roughly $5 billion over the last 40 years on a system that has produced no more than 13 executions. Supporters of Prop 62, known as the Justice That Works Act, say it is too costly, it does not deter crime, it risks executing innocent people, it is not evenly applied racially or geographically, and it is fundamentally a failed system that cannot be repaired. 

They say its time to end the death penalty because the system has long been dysfunctional and is now broken beyond repair. They also argue that ending the death penalty will prevent the state from ever executing anyone who is actually innocent of the crimes for which they were convicted. Prop 62 is retroactive and will convert the death sentences of the 747 inmates on death row to life without the possibility of parole and increase to 60% the share of wages earned while working in prison that are dedicated to victim restitution orders.

By contrast, the Death Penalty Reform and Savings Act of 2016, Prop 66, claims the system can be fixed and proposes to implement various amendments to state law aimed at speeding up the judicial review process and the rate of executions, including suggested time frames and limitations on direct appeal and habeas corpus proceedings, changing the process for appointment of to appoint counsel in direct appeals and habeas corpus petition proceedings, shifting initial jurisdiction for habeas corpus petitions, and making various other changes to the laws and procedures that would ease regulations surrounding the lethal injection protocols developed and employed by the California Department of Corrections and Rehabilitation (CDCR). These proposed changes will increase state costs by tens of millions of dollars annually, with the fiscal impact of such costs being unknown in the longer run.

The full report appears below.

Wednesday, July 6, 2016

Loyola Professors Enrich Supreme Court Conversation

Loyola Law School, Los Angeles professors continue to enrich the dialogue about U.S. Supreme Court jurisprudence after the court concluded its 2015 term in June with commentary on cases ranging from evidence collection and affirmative action to immigration and abortion access. Their analyses reached millions of people nationwide via such outlets as NPR, the Wall Street Journal, the Los Angeles Times, Politico, Bloomberg and more on an array of cases:


Professor Kimberly West-Faulcon, the James P. Bradley Professor of Constitutional , weighed in on the U.S. Supreme Court’s 4-3 rejection of a challenge to the affirmative action-based admissions policy of the University of Texas at Austin. West-Faulcon, a nationally recognized expert on standardized testing and reverse discrimination claims, filed an amicus brief in the case. She provided analysis to several outlets:

“Surprisingly, Facts Rule the Day in Fisher II,” SCOTUSblog, June 24, 2016
Yesterday’s decision in Fisher v. University of Texas at Austin marks the first time Justice Anthony Kennedy has ruled in favor of a racial affirmative action policy in the twenty-eight years he has served on the Supreme Court. Unwilling to sound the death knell on racial affirmative action in higher education, Kennedy ventured down a path he had never taken before. He upheld the race-conscious component of the University of Texas at Austin’s admissions policy as satisfying the stringent strict-scrutiny standard of review. Instead of siding with rejected white applicant Abigail Fisher or ruling that affirmative action is per se unconstitutional as Fisher’s lawyers contended, Kennedy upheld the policy Fisher challenged as unconstitutional despite an oft-articulated constitutional aversion to race consciousness.
“Supreme Court Upholds Use of Affirmative Action at Universities,” Los Angeles TImes, June 23, 2016
“This is momentous,” said Kimberly West-Faulcon, a law professor at the Loyola Law School in Los Angeles. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse. This is a significant departure.”
“Scholars: Fisher Decision Gives Colleges ‘Breathing Room’ to Consider Race in Admissions,” Diverse Issues in Higher Education, June 23, 2016
Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School in Los Angeles, said Kennedy’s decision represents a “significant departure” from his previous decisions in affirmative action cases.“This is momentous,” West-Faulcon said. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse.“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date,” West-Faulcon continued, referring to Kennedy’s votes against affirmative action policies in two higher education cases — Grutter and Gratz — as well as other cases.


Professor Jessica Levinson, who teaches Laws of the Political Process and Money, Politics & the Supreme Court, opined on the Supreme Court’s vacating of the political corruption conviction of former Virginia Gov. Bob McDonnell. Her commentary appeared in several stories:

“Politics As Usual Is Not Illegal,” Sacramento Bee (Op-Ed), June 28, 2016
As a result of the court’s opinion, plenty of really disgusting behavior, like that of McDonnell, is now legal. This is because the court significantly narrowed the types of behavior that are impermissible under the federal bribery statutes by reading the term “official acts” as requiring more than “merely arranging a meeting, attending an event, hosting a reception, or making a speech.” Instead, in order to be found guilty anofficial must “make a decision or take an action on (an) action or matter.”
“Supreme Court Throws Out Corruption Conviction of Ex-Virginia Gov. Bob McDonnell,” Wall Street Journal, June 27, 2016
The decision “kind of blesses a lot of activities that are problematic,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “If I were a prosecutor, I would be more circumspect.”
“McDonnell Ruling a Big Blow to Corruption Law,” Politico, June 27, 2016
"It allows for a great deal of activity that really sidelines the average person who can't give a Rolex, a Ferrari or throw a wedding for someone," said Loyola Law School professor Jessica Levinson. "It essentially acknowledges that business as usual in political means money talks really loudly."

SUPREME COURT COMPOSITION: Effects of Scalia’s absence on court’s jurisprudence

Professor Allan Ides, the Christopher N. May Professor of Law and a former clerk to U.S. Supreme Court Associate Justice Byron White, deconstructed how the alterered Supreme Court composition affected case outcomes.

“How a Bench of 8 Justices Changes Supreme Court Decisions,” KPCC-FM’s Take Two, June 24, 2016
Professor Allan Ides discusses the effects of Associate Justice Antonin Scalia’s death on the Supreme Court at it wraps up its 2015 term.

“Supreme Court Limps to Finish,” The Hill, June 26, 2016
“For run of the mill cases this is having no effect, but the high-profile cases — Friedrichs, the contraceptive case, immigration — it has had an impact and you can see it where the court has been unable to resolve the case or tried to find some gimmick to send it back to the lower court,” Allan Ides, a professor of law at Loyola Law School in Los Angeles, said about the impact of a short-handed court."


The co-directors of the Loyola Immigrant Justice Clinic – alumnae Marissa Montes and Emily Robinson – were go-to sources of commentary on the Supreme Court’s opinion in U.S. v. Texas, which struck down President Obama’s executive action on immigration, Deferred Action for Parents of Americans (DAPA).

“Deadlocked Supreme Court Fails To Revive Obama's Immigration Plan,” NPR, June 24, 2016
Marissa Montes, Co-Director of Loyola Law School, Los Angeles’ Immigrant Justice Clinic, joins Morning Edition to discuss the Supreme Court's tie vote, which blocked an attempt to help millions of unauthorized immigrant families. The case goes back to the court of a conservative federal judge in Texas.
“After Supreme Court Deadlock on Immigration, What's Next?” Dallas Morning News, June 24, 2016
"We would be naive to think he is going to side with the immigrant advocates in this country who want protections," Emily Robinson, co-director of the Loyola Immigrant Justice Clinic in Los Angeles, said in an interview Friday.


The Supreme Court opinion in Utah v. Strieff allows into court evidence found during an unlawful stop if the suspect was later found to have an outstanding warrant. Loyola professors opined on the impact of this decision in several stories:

“Illegal Evidence Allowed in Court,” Bloomberg Law, June 20, 2016
Professor Laurie Levenson, the David W. Burcham Professor of Ethical Advocacy, analyzed for Bloomberg BNA the Supreme Court opinion that On why this type of evidence is not considered fruit of the poisonous tree: “The court was using the Attenuation Doctrine. It’s never been used before in this situation,” said Levenson. “ The only thing you had here intervening was the arreseting officer finding an outstanding warrant.”

“Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police,” Summary Judgments, June 21, 2016
Professor Eric Miller, who teaches Criminal Procedure and related cased, assessed the impact of the Supreme Court’s decision in Utah v. Strieff, which opened the door for police evidence to be presented in court even when obtained without a search warrant and without initial probable cause. His commentary appeared on the Summary Judgments faculty blog, “The police can now target high-crime neighborhoods in which individuals have greater likelihood of warrants and engage in random stops with virtual impunity. In a city like Ferguson, Missouri, where the number of outstanding warrants is larger than the number of citizens, the right to avoid the police is a chimera.”

Miller's commentary was featured on SCOTUSblog.

O’Bannon v. NCAA: Antitrust case In which Athletes Seek Payment for Likenesses in Videogame

Professor Jennifer Rothman has closely followed the case of O’Bannon v. NCAA, a case in which NCAA athletes are seeking payment for the use of their likenesses in a videogame. The case involves right of publicity issues – an area on which Professor Jennifer Rothman, Joseph Scott Fellow, is a nationally renowned expert. Rothman runs Rothman’s Roadmap to the Right of Publicity. Her filing of an amicus brief to the Supreme Court received coverage:

DC Antitrust Group, Law Profs Back NCAA's O'Bannon Appeal,” Law 360, June 17, 2016
Another brief from 28 legal scholars, dated Monday, focused on what the professors described as a problem with the Ninth Circuit’s First Amendment analysis. The 28 law professors are represented by Eugene Volokh of the UCLA School of Law and Jennifer E. Rothman of Loyola Law School, Los Angeles.

LIABILITY UNDER FALSE CLAIMS ACT: Universal Health Services, Inc. v. United States ex rel. Escobar

Professor Paul T. Hayden's book, "The Law of Torts," is cited in the U.S. Supreme Court's opinion turning on when liability arises under the False Claims Act.
[Excerpt from the opinion]
We need not resolve whether all claims for payment implicitly represent that the billing party is legally entitled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying information—can be actionable misrepresentations. A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674 (1931) (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase.” Ibid. Likewise, an applicant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)).

Nationalism and Reciprocity

By Professor Eric Miller
Originally appeared on Prawfsblawg

Thanks to the powers at Prawsfblawg for inviting me back. I'm a law professor at Loyola Law School, Los Angeles. I always appreciate the opportunity to place my nascent thoughts in the public forum, and see what interests folks. For the most part, I'll blog about criminal procedure in general, and in particular policing. But given the date, I thought something else might be more appropriate.

I’m Scottish. Given the current temporal proximity of Brexit and the Fourth of July, in which Americans celebrate their revolting forebear’s legally irrelevant secession statement, I'll impart one thought on nationalism. We might think that nationalism is a unilateral affair: it states “I assert my independent status as Scottish/English/American/etc.” But nationalism is, in fact, a bilateral or multilateral affair: in asserting your American identity, you rejected your British identity. It is possible to have multiple identities—Scottish and British and European. But multiplicity sits uncomfortably with nationalism. Even if Scots want to be independent *within Europe*, Scottish nationalists want to be *not-British* within Europe. And for Scottish nationalists, Europe is not an independent national identity: it is a subsidiary part of the Scottish identity. Scotland, the Scottish nationalists assert, is a European country, not limited in its projects to the British Isles (and maybe even not oriented in its projects to the British Isles).