Two Opinions and Multi District Litigation

Here are some sketches from Tuesday at the Supreme Court.

 

The Court heard arguments in Gelboim v. Bank of America Corp., a case from the Second Circuit which turned down an appeal of a case in a Multi District Litigation because the other consolidated cases were still pending, at least that’s what I think it may be about. It’s complicated.

Opinions in two cases were also announced. Warger v. Shauers, about the admissibility of one juror’s testimony about another juror’s statements (above), and Integrity Staffing Solutions v. Busk, about compensation for employees who have to go through security screen after completing their shift (below).

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All Aboooard . . . the Amtrak Limited

The Supreme Court today heard arguments testing the regulatory authority of Amtrak, a quasi-private for-profit company created by congress in 1970 to prop up passenger rail service. The tracks are owned by the rail-freight companies but Amtrak gets priority to keep its trains on time.

The case is Department of Transportation v. Association of American Railroads. You can read Lyle Denniston’s reporting on the argument here.

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The Ambiguous Pregnancy Discrimination Act

United Parcel Service came to the Supreme Court this morning to argue that it is pregnancy-blind, that it treats expectant female employees the same as any other employee injured off the job.

The Pregnancy Discrimination Act 1978 says, “. . women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.” The language sounds plain and the intent of the law obvious, but when applied it seems to be ambiguous.

When Peggy Young became pregnant and her doctor ordered her to not lift heavy objects she asked her employer, UPS, to put her on light-duty. Instead UPS placed her on unpaid leave, so she sued.

Young’s lawyer, University of Michigan law professor Samuel Bagenstos, argued that UPS made accommodations for three similar groups: those injured on the job, those covered by the Americans With Disabilities Act and employees whose driving licenses were suspended or revoked.

“Well, Ms Halligan, for the democratic process to work as it should, the PDA has to be given a fair reading,” said Justice Kagan. “And what we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers.”

The lawyer for UPS, Caitlin Halligan, was questioned aggressively by Justices Ginsburg and Kagan. They asked so many questions that it was hard to get a sketch of Halligan since she was turned away when facing the two justices.

Lyle Denniston’s SCOTUSblog analysis of the argument is here.

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The Hapless Bank Robber

While it poured outside the Supreme Court yesterday morning the Justices inside heard arguments about a statute that imposes a minimum ten year sentence on a bank robber who “forces another person to accompany him”.

Larry Whitfield and an accomplice, armed with an AK-47 and a .357, tried to rob a Gastonia, North Carolina credit union but were foiled by a metal detector that automatically locked the bulletproof lobby doors. Fleeing in a Crown Victoria they crashed into the median. Whitfield got away, while his accomplice was caught.

The would-be bank robber, who had ditched his firearm, first broke into a vacant house but when the owner showed up he threatened her with a knife and ran. Next, he entered the home of 79-year-old Mary Parnell. He forced Parnell to accompany him a few feet into a room where he called and texted a friend, telling a terrified Parnell, “Ma’am, just calm down. I’m probably more scared than you are, and I’m actually just trying to leave.”

Mary Parnell was having a heart attack and died. Whitfield got 20 years for the robbery plus five for forcing Parnell to accompany him to the other room.

The case is Whitfield v. U.S.

Read Amy Howe’s SCOTUSblog account of the argument here.

 

 

 

 

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Facebook and Ginsburg’s New Jabot

After a sudden hospitalization last week, Justice Ginsburg – who I think has never missed a day of work – was back on the bench this morning to hear arguments.

Of this morning’s two cases the second, regarding a Pennsylvania man’s threatening rants on Facebook, drew the crowds. During the first I could see a few new members of the bar struggling to stay awake, although the Justices seemed to enjoy it.

The case, Elonis v. United States, was brought by Anthony Elonis who was convicted and served more than three years in prison for threatening his estranged wife with Facebook posts such as this one, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Restrictions on First Amendment speech are permitted if that speech constitutes a “true threat”, but that can mean many things. Elonis’ lawyer, John P. Elwood’s position that his client had no intent to scare his wife, much less follow through on his threats, that he was only venting in a rap style caused Justice Ginsburg to ask, “How does one prove what’s in somebody’s mind?”

When it came the government’s turn at the lectern, Chief Justice Roberts asked, “So how do you start out if you want to be a rap artist? Your first communication you can’t say, I’m an artist, right?”

“I think you have a perfect freedom to engage in rap artistry,” replied Deputy Solicitor Dreeben. “What you don’t have perfect freedom to do is to make statements that are like the ones in this case where, after the individual receives a protection from abuse order from a court which was based on Facebook posts that his wife took as threatening, he comes out with a post and says fold up that PFA and put it in your pocket, will it stop a bullet?”

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From the Ash Heap: Camp LeJeune

I came across these sketches I did back in 2005 at Camp LeJeune of an Article 32 hearing – the military equivalent of a preliminary hearing – for Second Lieutenant Ilario Pantano. Lt. Pantano was charged with the premeditated murder of two Iraqis.

When the World Trade Towers collapsed on 9/11 Pantano was living in New York, where he grew up, and had recently started his own business after a stint at Goldman Sachs. Shortly after the attacks he reenlisted in the Marines and was soon leading a platoon in the Sunni Triangle.

 

On April 15 , 2004 while investigating a report of insurgents at a compound Lt. Pantano stopped a car in which two Iraqis were attempting to leave. After knocking out the glass, flattening the tires and searching the vehicle Pantano released the Iraqis from their cuffs and ordered them to do an additional search of the vehicle. Sergeant Daniel Coburn and Corpsman George “Doc” Gobles were standing guard at either end, facing away from the vehicle, when they heard a short verbal exchange between the lieutenant and the Iraqis and then gunfire. Lt. Patanao emptied one M-16 magazine, then another, into the men. He then wrote on a piece of cardboard “NO BETTER FRIEND, NO WORST ENEMY” and placed it on the car where the bodies laid.

 

A couple months later Sergeant Coburn, who had recently been demoted by Lt. Pantano to radio operator, registered a complaint which led to the Lieutenant being charged with two counts of premeditated murder.

When Sgt. Coburn took the stand to testify it came out that he had spoken to the media in direct violation of orders not to do so. The hearing took a dramatic turn as Pantano’s lawyer confronted Coburn with his remarks that contradicted what he had told naval investigators. The hearing was stopped and the presiding officer, Lt. Col. Mark E. Winn, informed the sergeant of his Miranda rights. In his report Colonel Winn found “a great deal of discrepancies and conflicting testimony given by Sgt. Coburn”. The charges against Lt. Pantano were eventually dropped.

You can read more about Ilario Pantano in this New York Magazine article.

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Hey, I Made The ABA Journal Blawg 100, Again!

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If you like my blog please vote for it here. Thanks!

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Alabama Redistricting

After the 2010 census Alabama redrew its voting map with the result that some districts became more white/Republican and others more black/Democratic. Two groups, the Alabama Legislative Black Caucus and the Alabama Democratic Conference challenged the state’s redistricting plan saying that the plan “packed” predominantly African American districts on the basis of race.

It’s a complicated and unusual case where the sides historically arguing racial quotas have switched. Rather than attempt to explain the argument, I’ll just post my pictures and refer the reader to Richard Hansen’s analysis on SCOTUSblog.

” . . the so-called “crab claws” that the parties describe that extend out from the district capture African American populations.” -Solicitor General Verrilli

 

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“Everyone Loves Cell Phones . . .

. . . Nobody likes towers, apparently.” said Justice Breyer during yesterday’s argument in T-Mobile South v. City of Roswell.

The city council of Roswell, Georgia – which has more cell towers than square miles – denied a request by T-Mobile to erect a cell phone tower in a residential area. No reason for the decision was given in the city’s letter of denial though the meeting minutes were supplied within a few weeks.

T-Mobile’s lawyer told the Court that the explicit reasons “supported by substantial evidence contained in a written record” should accompany the city’s decision.

The Solicitor General’s lawyer said that it is sufficient that the reasons for the denial may be found in the minutes.

And the lawyer for the City of Roswell suggested an interesting approach in that he supported the SG’s argument that the reasoning can be found in the minutes but added that the letter of denial was not actually the decision. The decision by the city council, he argued, was not taken until the minutes were approved. The earlier letter of denial was merely a notification.

There was, of course, much more to the argument than what I’m capable of reporting. For more see Miriam Seifter’s analysis on SCOTUSblog.

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A Made For TV Kidnapping

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When Delvin Barnes snatched a Philadelphia woman off the street Sunday night it was recorded by surveillance cameras. And when he later used the victim’s ATM at a bank and a convenience store it was again on camera.

Barnes is a bad guy. There was already a warrant for his arrest for an October abduction in Virginia of a 16 year-old girl who escaped naked, doused in bleach and gasoline. He appeared by closed-circuit TV in Baltimore county district court yesterday before being extradited to Virginia to face attempted murder and rape charges.

When he arrived in Virginia he was “perp-walked” through a crowd of reporters shouting questions to which he responded with vulgar words of language. It made for great TV.

True, the story was also interesting for the way the authorities used GPS to track Barnes car – the dealer who sold him the vehicle had the GPS device installed because of Barnes’ bad credit – but what really made this a prime-time story was all the video. I’m afraid my sketch, which was in fact partly drawn from a video screen, got left on the cutting-room floor so to speak.

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