Hall v. Florida: SCOTUS tries to define “intellectual disability”

In 2002 the Supreme Court Ruled that the Eighth and Fourteenth Amendments forbid the execution of persons with intellectual disability.  Atkins v. Virginia, 536 U.S. 304, 321 (2002), but failed to define “intellectual disability.”  Florida, home to George Zimmerman, Casey Anthony and Alan Grayson, defined an intellectual disability as having an IQ score of 70 or less.  Those with an IQ greater than 70, including Freddie Lee Hall at 71, were foreclosed from arguing they have an intellectual disability.  Today in Hall v. Floridain a 5-4 opinion the Supreme Court held: “This rigid rule…creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.”  The opinion (discussed with greater detail and superior knowledge here) relies heavily on the medical community’s view that IQ tests are just one (imprecise) factor in assessing intellectual disability. 

For a discussion of the potential impact of Hall click here.

Click here for the full Opinion or visit the Library>Supreme Court Cases.


The Amy and Vicky Child Pornography Victim Restitution Improvement Act

In response to Paroline v. United States, a bipartisan group of Senators headed up by Orrin Hatch (R-Utah) and Chuck Schumer (D-NY), introduced the Amy and Vicky Child Pornography Victim Restitution Improvement Act.  The bill would force people convicted of possessing child pornography to pay at least $25,000 in restitution to the victim.

Check out this Washington Times article for more information.

Click here for the one-page summary of the proposed legislation, or look in LIBRARY > Child Pornography

Restitution for Child Porn Victims

The Supreme Court issued an opinion in Paroline v. United States: “The threshold question the Court faces is whether [18 USC] §2259 limits restitution to those losses proximately caused by the defendant’s offense conduct.”  The 5 Justice majority struck a balance of sorts between awarding victim, “Amy Unknown,” the $3.6 million awarded by the Fifth Circuit and the District Court’s denial of restitution for lack of proximate cause.  The court held that a court “should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”  The Court declined to set forth a “rigid formula” for such a calculation, instead offering “rough guideposts.”

Click here to view the opinion.  It will also be in Library > Supreme Court Cases — new

Click here for comment from the victim’s attorney and Volokh Conspiracy writer, Paul Cassell, or here for a summary from the Washington Post.

The Supreme Court’s New “Freedom Destroying Cocktail”

The Supreme Court decided Prado Navarette v. California today with an opinion the dissent dubbed a “freedom-destroying cocktail.”  The 5 Justice majority, written by Justice Thomas, held: “the traffic stop complied with the Fourth Amendment because, under totality of the circumstances, the officer has reasonable suspicion that the truck’s driver was intoxicated.” 

The Majority

The majority believes a 911 call claiming petitioner’s truck ran her off the roadway contained “adequate indicia of reliability for the officer to credit the caller’s account,” even assuming the call had been anonymous (which it was, so I’m not sure why we’re “assuming”).  The court relied on several facts to support the caller’s veracity and reliability:

– the caller gave a specific description – color, make, model – of the vehicle

– caller provided a license plate number

– the timing of the call and location where the car was eventually located corroborated the location the caller gave 

– the fact that the caller called 911, which can identify and track calls (stopping just short of calling all 911 calls per se reliable…)

Then the majority concluded that the 911 caller’s report of being run off the road created a reasonable suspicion of an ongoing crime as opposed to an isolated incident, “we can appropriately recognize certain driving behaviors as sound indicia of drunk driving.”  Running another car off the highway is conduct that “bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.”  Thus, although the officer observed no additional suspicious conduct, even after 5 minutes of following the petitioner’s vehicle, he already had sufficient reasonable suspicion to stop the petitioner.  Thomas does throw a bone to the petitioners at the end, conceding it was a “close case.”

The Dissent


The dissent begins with every fact the majority ignored: “California Highway Patrol…knew nothing about the tipster…they did not know her name…her phone number or address.  They did not even know where she called from (she may have dialed in from a neighboring county.)”  And then Scalia gets feisty, debunking each basis on which the majority relies: “The [majority] says…’by reporting that she had been run off the road by a specific vehicle…the called necessarily claimed eyewitness knowledge.’ So what?…The claim to ‘eyewitness knowledge’…supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1.”  He continues, “there is not reason to believe that your average anonymous 911 tipster is aware that 911 callers are readily identifiable.” 

And now for the majority’s assumption of drunk driving: “She…neither asserts that the driver was drunk nor even raises the likelihood that the driver was drunk.”  Further, the majority relies heavily on the tipster’s nondescript account of getting run off the road when “…who really knows what (if anything) happened?” 

“It gets worse.”  As pointed out (in passing) by the majority, the responding officers followed the petitioners for five minutes during which they did not witness a single traffic violation: “consequently, the tip’s suggestion of ongoing drunken driving (if it could be deemed to suggest that) not only went uncorroborated; it was affirmatively undermined.” 

As for the freedom destroying cocktail the majority is serving up, it consists of “two parts patent falsity”:

(1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location

(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness

After being served this cocktail, “all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness…”

Click here for the full opinion, or visit the Library > Supreme Court Cases — new

From Seizure to Search: What consitutes an unreasonable delay? US v. Christie


Let’s say agents get a warrant to search P’s house, looking for a computer they suspect stores content that is illegal to possess. They knock on the door and P lets them in. They execute the warrant and seize P’s computer, not knowing, because P doesn’t agree to confess, whether the computer seized does, in fact, contain illegal content. P does not consent to the seizure of the computer.

The agents march off with P’s computer. Five months later, the agents haven’t bothered to find out what’s on the computer’s hard drive. Perhaps they were using P’s computer as a book end. In any event, the computer has been sitting, untouched.
P asks that the computer be returned and his request is denied. Finally, the agents look at the hard drive, and find the illegal content.  Can P complain that the seizure of the computer was unreasonable under the Fourth Amendment, because the agents neglected to timely determine whether the item seized did in fact contain the illegal content anticipated in the warrant application and approved for seizure by the issuing judge?

It depends. Did P confess that the computer contained the evidence sought? Did P consent to the seizure? Did P impliedly consent by permitting time to pass, post-seizure, without asking for the computer’s return? In other words, did P directly, or impliedly, consent to the delay? If the answer is no, this is an issue ripe for launching.

See, this language, from  U.S. v. Christie, 2013 WL 2477252 (10th Cir, June 11, 2013):

“We do not doubt that an unreasonable delay in obtaining a search warrant can sometimes violate the Fourth Amendment. This much surely flows from the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” U.S. Const. amend. IV. What, after all, is “reasonable” about police seizing an individual’s property on the ground that it potentially contains relevant evidence and then simply neglecting for months or years to search that property to determine whether it really does hold relevant evidence needed for trial or is totally irrelevant to the investigation and should be returned to its rightful owner? (Strings cites omitted)

Keep the Fourth Amendment alive (this part is not in the opinion).