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Tiffany and Aaron James believe Cottonwood Heights police havent told the truth about the morning an officer fatally shot their 19-year-old son, Zane.

An internal document they have identifies two contradictions in the polices version of events and the information comes directly from shooting Officer Casey Davies.

The officer gave an interview as part of an internal review. The interviews fall under the 1967 Supreme Court ruling called Garrity v. New Jersey, which says police chiefs can force their officers to talk but the information cant be used against the officer in a criminal proceeding.

Cottonwood Heights fought to keep Davies Garrity statement out of the courtroom in a civil case and from the public. A federal judge disagreed, giving the family access to the interview.

Police officials have said Zane James crashed his motorcycle during a chase on May 29, 2018. Davies, in his interview, said he purposefully rammed into him.

They also said Davies was on his way to the department when he heard about the search for James, and thats why he didnt have his body camera. In his interview, Davies said he was already at the station.

Davies has since left Cottonwood Heights and now works at the Herriman Police Department.

These revelations are part of an amended federal civil lawsuit filed Thursday by Tiffany and Aaron James. In it, the couple also allege police hid and potentially destroyed video footage of the shooting.

Officer Davies statement is irrefutable evidence Zanes death was both illegal and should have never happened, the couple said in a statement.

Heather White, the attorney for Davies and Cottonwood Heights, said there are simple explanations for the inconsistencies.

There is no cover-up, she said.

She added, I can unequivocally tell you there is no recording of this incident and never has been.

She said the department did not talk to Davies about what happened until the internal review, which led to the misstatements.

When Davies signed a declaration in court saying he was on his way to work and was unable to grab his body camera, White said Davies didnt read the document closely enough to note the error.

I didnt actually write it, Davies said, according to a court transcript. I just signed the document that I was asked to sign.

Salt Lake County District Attorney Sim Gill cleared Davies in the case in October 2018, though he made his decision without any comment from Davies, who declined an interview with investigators, citing his Fifth Amendment right against self-incrimination.

Gill told The Salt Lake Tribune he was unaware Davies intentionally crashed into Zane James, which is a deadly use of force his office would normally investigate. As the law requires, prosecutors cant review the Garrity statement, named after the Supreme Court case. The officers who did talk to D.A. investigators said they either saw James crash on a speed bump, heard that on the radio or assumed thats what happened.

Gill said to investigate Davies ramming into James, he would need to learn that fact from a source outside of the Garrity statement.

If nobody else knew that, or nobody else was aware of it, even though that may implicate potentially criminal conduct, Gill said, I cant get to it unless I can get to it independently.

He said would have his attorneys look into the discrepancies.

The Cottonwood Heights Police Department, which reviewed the Garrity interview, also cleared Davies, saying the shooting was within policy.

It wasnt easy for the James family to get the internal interview. After months of debate, a federal judge ruled July 7 that the James family could use that Garrity statement in its civil lawsuit.

Separately, the State Records Committee has ruled the city must turn it over to The Tribune. The city is fighting that ruling, taking The Tribune to court to prevent its release.

Read more: A Utah Prosecutor Says New Self-Defense Law Makes it Harder to Charge Problematic Police Officers

Here are the facts, gleaned from documents about the investigation, including the Garrity statements spelled out in the amended lawsuit:

Only one other officer, Cottonwood Heights Bryan Betenson, said he saw James crash and was there for the shooting.

He told Salt Lake City police investigators he and Davies were chasing James.

As the motorcycle went over the second speed bump, the investigator wrote in a report, he saw sparks and saw that the male had lost it and wrecked the motorcycle.

Salt Lake City Police Department investigators also talked to Cottonwood Heights Officer Jamie Croft, who had just finished a training shift that morning when he decided to respond to the chase. Croft said Davies reported James had crashed.

As he was driving into the area, Off. Davies called out the suspect had wrecked and to get medical started, an SLCPD investigator wrote in a report on the shooting.

In a motion to dismiss the familys civil suit, attorney Heather White wrote, James, in his flight from the police, unsuccessfully attempted to execute a turn and crashed his motorbike on a narrow neighborhood street.Officer Davies, who had been pursuing James, witnessed the crash.

Yet Davies told former Cottonwood Heights Sgt. Ryan Shosted during his Garrity interview that he made the decision to run James over because he thought James was going to pull a gun and shoot him and that running him over would be safer than shooting through the police cars windshield.

He said, So I made the decision Im going to run him over So I floored it, hit him as he was going over that second speed bump.

White said she repeated the claim that James wrecked because she wrote it without using the Garrity statement.

It was just a mistake on our end and on his end in reading that, she said.

In addition to Davies saying he intentionally wrecked James, he also told Shosted he was at the police station when he heard radio traffic and decided to get involved.

This is a small but important detail, because it is inconsistent with a legal declaration Davies signed in August 2020, as well as multiple public statements made by Cottonwood Heights police officials about why they havent released body camera footage.

I was not wearing my body camera during the incident involving Zane James on the morning of May, 29, 2018. I had been on my way to work at the time and had not yet gotten to the police station to pick up my body camera, according to the document, filed in U.S. District Court.

In a November evidentiary hearing, Davies told Attorney Bob Sykes that he misunderstood what he was signing. He contended he didnt mean to give a false statement.

In dispatch audio used as an exhibit in the amended complaint, Davies radios in that James had wrecked out. About 10 seconds later, he reports back: Shots fired.

Shosted, the same officer who would interview Davies as part of the departments internal investigation, told The Tribune the day of the shooting that Davies was on his way to work before the shooting.

KSL reported the same thing in mid-June, when the department released video showing the aftermath of the shooting.

In the internal interview, Davies told Shosted he actually arrived to work early for a seat belt enforcement shift.

He told Shosted he heard the chase on the scanner as he was putting on his uniform. He heard that police believed the motorcyclist might be the suspect in an earlier robbery.

At that time, I hurried and rushed. I so my camera was still in the docking station at that point and so my belt was hanging I was in my uniform at this time so I just grabbed my belt, threw it on, ran out, Davies said in the internal interview.

The James family alleges in the amended complaint that this is also false, because it has evidence that shows his camera was taken off the docking station at 5:50 a.m.

White said that its true someone removed Davies camera from the docking station, but it was another police officer who removed it to upload their own camera. She said that officer put Davies camera in a drawer, where it remained until he returned to duty after this shooting.

She compared it to sharing a phone charger with multiple people.

Another piece of evidence the family is relying on is a City Council member who maintains that not only does video of this shooting exist, but also that she has seen it.

Read more: A disturbing shooting: Salt Lake County district attorney says officer was justified in killing handcuffed man

When The Tribune asked Cottonwood Heights City Manager Tim Tingey in August 2020 about video of this shooting, he said he wasnt aware of any footage.

White said Thursday that the city has checked body camera records and can now say no such footage exists or ever existed.

The only video police have released is from an officer who arrives after Davies had already fired. It shows police standing around James and trying to assess his injuries and give him aid.

Tingey wrote the city believes the allegations of undisclosed bodycam footage are entirely mistaken and without any merit whatsoever, and that they stemmed from a councilperson confusing another, entirely different, non-fatal shooting with the Zane James shooting.

He was referring to City Council member Natalie Tali Bruce and arguing that she conflated this shooting with Cottonwood Heights Officer Chris McHugh shooting a different teenager in September 2017. That shooting took place under an overpass in a different part of the city at night. James was shot in daylight in a residential area of Cottonwood Heights.

Bruce has since testified in a November 2020 evidentiary hearing that she and others saw a video of Davies shooting Zane James during a June 12, 2018, closed meeting.

In the hearing, she described the video in detail. She said it begins with the image of a crumpled motorcycle and pans left to James hobbling on the grass. Bruce said it was clear that he was injured, according to a transcript.

[H]is pants were sliding down on his hips, you could see the waistband of his underwear. And his left arm went back, to me it looked evident that he was going to pull up his pants, which were dropping as he was attempting to flee, Bruce said. At that point, you hear pow-pow, pow-pow and he went down, facedown into the grass.

She added Davies didnt give any sort of verbal commands to James before shooting him in the back. Bruce said she didnt see a weapon. The next day, she asked the mayor and council a question in an email obtained by The Tribune.

I apologise [sic]. I should have asked this last night but my brain was exhausted, she wrote. Was a Tazer [sic] not an option with the pursuit?

At least 13 people including council members who would have been at this meeting, Tingey and Police Chief Robby Russo have signed sworn declarations they hadnt seen video of the shooting and that they dont believe it exists.

At the evidentiary hearing, White, the attorney representing the city, asked Bruce why so many people would have sworn the video didnt exist if they saw it. Bruce cited gaslighting by Tingey and former Mayor Kelvyn Cullimore.

Bruces attorney, Michael Young, released a statement about the Garrity revelations Wednesday.

I am not surprised by a continued pattern of malfeasance by Cottonwood Heights, as reflected in the current litigation between Ms. Bruce, the city and others, he said.

Russo sued Bruce and Cottonwood Heights in May 2020, alleging they were part of a scheme to get him fired. He recently received $70,000 as part of a settlement in that case, KUTV reported.

Bruce filed a countersuit to Russos initial complaint, alleging the police chief began a campaign of harassment and intimidation against Bruce after she questioned the utility of using city resources to fund a police department, according to the court filing.

That case is still pending.

The original May 2019 lawsuit alleges James didnt pose a threat and that officials covered up Davies negligence. It cited a witness of the shooting who said that despite law enforcement statements, Davies didnt give James any commands before firing, and that Davies fired as James ran away.

It also cast doubt on police statements that James reached for a gun.

Attorney Bob Sykes wrote in the original lawsuit that claim makes no sense because Zane knew he did not have a real gun, so why would he reach for a toy gun, knowing armed officers were close behind?

The amended complaint, filed Thursday in federal court, includes the facts established in the Garrity statement and builds on those earlier ideas.

The suit alleges that James was wrongfully killed and Cottonwood Heights didnt properly train its officers in de-escalation tactics and other established rules of policing.

Davies believed he could use deadly force against a fleeing felon, even if there is no imminent threat to the officer or the public, the lawsuit states, saying this belief is baked on a deep misunderstanding of the law.

The lawsuit is asking for Davies to be held in criminal contempt for his knowing submission of false testimony, as well as for Cottonwood Heights to eliminate its training programs and create new ones. It also asks that the matter be referred to the U.S. Department of Justice for review, and that an outside supervisor be appointed to audit the departments training and policies.

The family is seeking monetary damages and attorney fees.

White said it is untrue that the city tried to hide anything in this case.

I feel for this family. Theyve been through a terrible ordeal and they dont trust police, White said, but their theories about what they think happened are completely inconsistent with the physical evidence and the testimony that has been given.

This story is part of a collaboration with The Salt Lake Tribune through FRONTLINEs Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.

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Utah Couple Say Internal Police Interview Contradicts Cottonwood Heights on Shooting Death of Son - FRONTLINE

A wide range of federal statutes reach conduct overseas. When those statutes include private rights of action, Americans may find themselves with claims against defendants with fewif anyties to the U.S.

Since the U.S. Supreme Courts decision in Daimler v. Bauman cut back states authority to hale non-resident corporations into court for conduct unrelated to their activities in-state, many have assumed that these would-be plaintiffs are out of luck.

Now, in Douglass v. Nippon Yusen Kabushiki Kaisha, the Fifth Circuit has decided to take a second look at the question of whether and how that rule applies when federal courts hear federal-law claims against corporations based abroad.

Federal courts personal jurisdiction usually depends on the long-arm statutes of the states in which they sit. Those statutes are subject to the 14th Amendments Due Process Clause, which limits states jurisdiction over non-resident defendants to situations where the claims against them arise from, or relate to, their in-state conduct.

But federal law has its own long-arm provisions, governed by the Fifth Amendment, that are intended to fill in where state law leaves gaps.

Although the Fifth and 14th Amendments Due Process clauses are worded identically, the Supreme Court has gone out of its way, in cases like Bristol-Myers Squibb v. Superior Court, to leave open whether the clauses impose the same constraints. And the government has argued, most recently last term in Ford v. Montana Eighth Judicial Dist. Ct., that the U.S.s unique constitutional prerogatives and powers permit the exercise of federal judicial power in ways that have no analogue at the state level.

Yet most federal appellate courts, including the First, Second, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, Federal, and D.C. circuits, have assumed or held without much analysis that federal service-of-process provisions are subject to the same limits as their state-law counterparts. The only difference they have recognized is that litigants proceeding under federal service-of-process provisions can aggregate defendants contacts with the U.S. as a whole, instead of any single state.

Its worth asking why. After all, a central justification for the focus on forum contacts under the 14th Amendment is the need to protect interstate federalism. But federalism is beside the point when a federal court hears federal-law claims against, say, a foreign terrorist organization that injures Americans traveling abroad or a foreign company that traffics in overseas property confiscated from U.S. citizens. And its not clear how much the inconvenience that litigating here imposes on non-resident foreign defendants should weigh against the judgment of Congress that Americans should be able to bring claims based on foreign conduct.

These are among the questions the full Fifth Circuit will consider when it rehears Douglass.

The appeal arises from a collision in Japanese waters on June 17, 2017, between the U.S. Navy destroyer USS Fitzgerald and a cargo ship (MV ACX Crystal) chartered by a Japanese shipping company that left seven U.S. sailors dead and dozens injured. In consolidated cases, the victims and their survivors sued the company under the federal Death on the High Seas Act. They asserted personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), which allows service of process in federal-law suits where the defendant is not subject to jurisdiction in any state.

Finding no connection between the accident and the shipping companys limited U.S. contacts, the district court dismissed the suits under Daimler. A panel of the Fifth Circuit grudgingly affirmed, devoting much of its per curiam opinion to casting doubt on circuit precedent that subjected Rule 4(k)(2) to the same 14th-Amendment standard as its state-law counterparts. The two active judges on the panel concurred, urging the full court to revisit the issue. It agreed to do so July 2.

With virtually no guidance from the Supreme Court, the case promises to take the predominantly conservative appeals court back to first principles. That could lead to interesting debates about federal power, sovereignty, and what it means to be faithful to the U.S. Constitutions text. And it could make the Fifth Circuit, which includes Louisiana, Mississippi, and Texas, the go-to forum for federal claims against non-resident foreign corporations.

Although its impossible to predict the outcome, it seems unlikely that the court took the case en banc just to confirm its prior precedent. The question is how far it will go.

The now-vacated panel decision gives one hint: It endorsed a compromise position suggested by an amicus brief from civil-procedure scholars that would read the Fifth Amendment to allow jurisdiction over foreign corporations for claims based on foreign conduct that is related to their U.S. operations. But the court could go further still and hold, as the governments brief in Ford suggested, that the Constitution imposes no territorial constraints on federal authority.

Whatever the result, the Supreme Court is sure to face calls to weigh in before long.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Eugene Sokoloff is counsel at MoloLamken LLP where he focuses on critical motions and appeals.

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Just How Long Is the Long Arm of U.S. Jurisdiction? - Bloomberg Law

At the end of its recent term, the U.S. Supreme Court handed down a new decision on the law of takings. The case, Cedar Point Nursery v. Hassid, was a labor relations dispute disguised as a takings case, but its resolution has important implications for the terms on which New York developers can get access to adjoining property in aid of their construction projects. In Cedar Point Nursery, a divided Court ruled, by a 6-3 vote, that a state regulation authorizing very limited temporary entry by union organizers onto private agricultural property amounted to a physical taking of property that violated the Fifth and Fourteenth Amendments to the Constitution.[1] The decision expands the concept of what is a physical taking and raises questions about the further expansions of takings law that may follow.

The last clause of the Fifth Amendment to the U.S. Constitution, part of the Bill of Rights adopted in 1791, provides: nor shall private property be taken for public use, without just compensation. Although originally applicable only to the federal government, the Fourteenth Amendment, adopted after the Civil War, makes the principle equally applicable to the states and their political subdivisions.[2]

The most obvious example of a taking is when the government or a private party authorized by law to do so (such as a utility) exercises the power of eminent domain to acquire actual ownership of private property, or at least a permanent interest in property. In that situation, a public purpose and just compensation are required by the Constitution.[3] Other situations are not so obvious and have spawned a large body of court decisions addressing countless permutations.

Supreme Court precedent distinguishes between physical takings and regulatory takings. Physical takings are unconstitutional per se (i.e., automatically) in the absence of a public purpose and compensation. By contrast, an owners claim that it has been subjected to a regulatory taking in effect, a claim that although there has been no physical invasion of its property, a law, regulation or other governmental action has intruded so far into its property rights as to amount to a taking must be analyzed and evaluated on a fact-specific, case-by-case basis.

What rises to the level of a physical taking, however, isnt always clear either, and the concept has expanded over the years. In 1946, the Supreme Court held that repeated low-altitude overflights by military aircraft approaching and leaving a nearby airport, the effect of which was to destroy the owners ability to operate their chicken farm, constituted a taking.[4] In 1979, the Court held that the governments claim of a navigational servitude over private property, the effect of which was to allow the public to access the property on a continuous basis, effectuated a taking.[5] And in 1982, the Court held that even a de minimis permanent physical occupation of property is a taking; more specifically, the Court struck down as unconstitutional a New York statute requiring owners of apartment buildings to allow cable TV companies to attach their cables to the owners buildings.[6] Which brings us to the Cedar Point Nursery case.

A regulation under Californias Agricultural Labor Relations Act gave labor organizations a limited right of access to private agricultural property. Access was allowed in no more than four 30-day periods in any one calendar year, and only during three hours during any one day one hour before work, one hour during the lunch break and one hour after work. Access was limited to two organizers per work crew, plus one additional organizer for every 15 workers over 30 workers in a crew. The property owner was entitled to prior notice. Disruptive conduct was prohibited, but the union organizers were otherwise free to meet with employees to discuss labor or union issues.

Cedar Point Nursery is a large California strawberry grower. It claims that, one morning in 2015, United Farm Workers organizers entered its property and disturbed its operations, causing some workers to join a protest and others to leave the worksite. Along with a second grower, it sued in federal court, arguing that Californias regulation effected an unconstitutional physical taking of its property. The trial court dismissed the lawsuit, and a divided U.S. Court of Appeals for the Ninth Circuit affirmed that decision. The Supreme Court agreed to hear the case.

The Court reversed the Ninth Circuits decision and ruled in favor of the nursery. Perhaps not surprisingly, given the cases origin in a dispute about union activity, the Court split along partisan lines, with the six Republican-appointed justices forming the majority and the three Democrat-appointed justices dissenting.

Chief Justice John Roberts wrote for the majority that the access regulation appropriates a right to invade the growers property and therefore constitutes a per se physical taking. The opinion emphasized that the short duration of time during which the regulation allowed entry onto property was irrelevant, and the length of the appropriation bears only on the amount of compensation. The opinion affirmed that physical invasions are takings even if they are intermittent instead of permanent, citing United States v. Causby, the 1946 decision in which the Court held that occasional low-altitude military overflights had effected a taking (although in Causby the overflights had destroyed the owners business).

To reconcile this absolutist definition of a taking with commonly recognized circumstances in which limited entry onto private property has long been allowed, the majority opinion articulated a series of exceptions to this per se rule. First, isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. Second, access that is consistent with longstanding background restrictions on property rights, including traditional common law privileges to access private property, is another exception. And third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.

The dissenting opinion was written by Justice Stephen Breyer. It argued that the California regulation did not effect a per se taking because it did not appropriate anything, but only regulated employers right to exclude others from their property.

The Cedar Point Nursery majority and dissenters disagreed about how to distinguish between the appropriation of property and regulation of the right to exclude. Because the Court held that the California regulation allowing limited access by union organizers to agricultural properties was in fact an appropriation, the decision raises questions about how much further the Court might go and how far property rights advocates will push the Supreme Court and lower courts in expanding the concept of a taking.

To begin with, any law or regulation requiring that union representatives be given access to a workplace or job site is now to say the least constitutionally suspect.

In future cases, moreover, courts are likely to be asked to clarify the exception to the per se rule that Cedar Point Nursery recognized for access that is consistent with longstanding background restrictions on property rights. The opinion provided no further definition of this exception beyond a reference to traditional common law privileges. Prior case law from around the country has recognized multiple situations in which entry onto anothers land without the owners permission is allowable, including, for example, to bypass an impassible section of a public road, to retrieve personal property, to abate a private or public nuisance, to stop a crime or to make a lawful arrest.[7] Are all of these examples still good law after Cedar Point Nursery?

Even if these cases remain good law, is only court-made law still valid? One possible implication of the absolutist interpretation of a taking in Cedar Point Nursery is that, while court-made exceptions to the per se rule remain valid, state and local governments are powerless to enact statutes that recognize limited rights of entry in defined circumstances.

In 1980, for example, a unanimous Supreme Court agreed that Californias Supreme Court could properly interpret its state constitution as protecting the right of peaceful protestors to set up a card table in a shopping malls central courtyard, distribute pamphlets and collect signatures over the objection of the malls owner, which maintained a blanket policy against expressive activity on its premises.[8] In reaching this result, the Courts opinion, written by Justice (later Chief Justice) William Rehnquist, explained that, while property does not lose its private character merely because the public is generally invited to use it for designated purposes, that principle does not limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.[9] In response to the mall owners contention that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation, the Supreme Courts opinion explained that it is well established that not every destruction or injury to property by governmental action has been held to be a taking in the constitutional sense, and the determination whether a state law unlawfully infringes a landowners property in violation of the Takings Clause requires an examination of multiple factors.[10]

The only way to reconcile this case-by-case approach with the per se rule of Cedar Point Nursery is to rely on the fact that the shopping mall was open to the public, although not for the purpose that the visitors in that case sought to use it, while in Cedar Point Nursery the owners did not open their land to the general public. But the Court specifically said in the shopping mall case (and in prior cases) that private property does not lose its private character even if it is open to the general public a point that is inconsistent with a distinction based on private propertys status as open to the general public.

Closer to home, New York has a statute, Section 881 of the Real Property Actions and Proceedings Law, that empowers courts to grant licenses allowing property owners to gain temporary access to neighboring property for the purpose of effectuating repairs or improvements to their own property upon such terms as justice requires. The statute often has been used by developers and their contractors to compel recalcitrant neighbors to allow them to enter onto adjoining property to perform surveys and install protective measures. The statute does not require compensation, although it is not unusual for courts, in the exercise of their discretion, to require the payment of a fee if the entry is for more than a de minimis length of time for example, if the purpose of the entry is to install and maintain temporary protective scaffolding. Is this statute unconstitutional due to its failure to expressly require the payment of just compensation in accordance with the Fifth Amendment? Or perhaps due to its creation of a right of access in the service of a private purpose rather than a public one? It seems inevitable that these issues and others of a similar nature will be litigated in a future case. The risk of the issue being raised should motivate developers to avoid litigation if possible and to be prepared, if necessary, to augment the usual protections provided in access agreements (such as indemnification and insurance) with some amount of compensation for the temporary intrusion onto a neighbors property.

[1] Cedar Point Nursery v. Hassid, 594 U.S. ___ (No. 20-107, June 23, 2021).

[2] Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).

[3] Id.

[4] United States v. Causby, 328 U.S. 256 (1946).

[5] Kaiser Aetna v. United States, 444 U.S. 164 (1979).

[6] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

[7] See, generally, Restatement (Second) of Torts 195-211.

[8] PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). Members of the Court issued multiple separate opinions explaining their reasoning, but all of the justices agreed with the result.

[9] The internal quotation in PruneYard is from the Courts prior opinion in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where the Court upheld the right of a shopping mall owner to prohibit public expression on its premises.

[10] The internal quotation in this excerpt from PruneYard is from Armstrong v. United States, 364 U.S. 40 (1960).

The author gratefully acknowledges the valuable contributions to this alert of Aaron Jacobs, a member of the Columbia Law School Class of 2022 and a 2021 Kramer Levin summer associate.

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The Supreme Court Further Expands the Definition of a Physical Taking of Property That Violates Fifth Amendment Protections - JD Supra

As Democrats push to renew the nationwide ban on evictions that expired Saturday, theyre squabblinger, screamingover whos failing the partys progressive base. Speaker Nancy Pelosi puts the onus on President Biden, urging him to act unilaterally. The White House says it lacks legal authority, as the Supreme Court recently made clear.

Mr. Biden is correct: The public-health powers of the Centers for Disease Control and Prevention do not extend to an interminable blanket prohibition of evictions across the entire nation. Any ban also may be an unconstitutional taking of property under the Fifth Amendment, though thats an argument for another day. The point is that for 11 months President Trump and President Biden stretched their authority, but now Mr. Biden must heed the Supreme Courts warning.

What is Mrs. Pelosis alternative? Five Justices this summer let the eviction ban stand until it expired. But Justice Brett Kavanaughs caveat was that the policy couldnt be continued without clear and specific congressional authorization (via new legislation). On Tuesday a defiant Mrs. Pelosi lauded the White Houses intention to identify all available authorities to extend the eviction moratorium. In other words, Mr. Biden might be bending under progressive pressure to reinstate the ban. This would be strikingly lawless, as the White House has admitted.

Little is being said in this debate about economics, but the numbers make it hard to see any case for a blunt national policy. The unemployment rate is 2.5% in Nebraska. Its 2.7% in Utah, 2.9% in both New Hampshire and South Dakota, and 3% in Idaho. How much more recovered from Covid can those labor markets get? Other places that suffered longer lockdowns are lagging. But if state and local leaders want, they can pass tailored eviction policies, and then they can be accountable for the results.

Too often ignored are the costs on the other side of the evictions ledger. Renters are facing hardships, but so are landlords. There are about 48 million rental housing units in the U.S., according to a 2018 federal survey. For 42% of them, day-to-day management of the property was performed by either the owner or an unpaid agent. Another 25% had a paid manager who was still directly employed by the owner.

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The Eviction Ban Has to End Sometime - The Wall Street Journal

While divisions on the Court are common, cleanly ideological breaks are less so. Justice Stephen Breyer explained it this way in a June 2021 podcast for the non-partisan National Constitution Center: I mean, we agree almost half the time, were unanimous. And, he continued, the five-fours are about, I dont know, 20 percent, 25 percent, 15 percent depending on the year. And its not the same five and the same four. Thats what makes the cases involving the rights of criminal defendants and immigrants this term so notable: The split was often the same six and the same three, a detail that offers some insight into one aspect of the Courts developing identity.

Because the criminal justice system in the U.S. is vastly over-represented by Black and brown defendants, who are five times more likely to end up in state prisons than whites, this predictable ideological split is not good news from the standpoint of racial and ethnic justice. The extraordinary interpretive power of nine unelected justices cannot be overstated. The U.S. Constitution houses the primary legal prohibitions on arbitrary governmental constraints on life and liberty, with the Fifth Amendment preserving due process rights vis--vis the federal government and the Fourteenth Amendment binding the states.

Bear in mind too, that in effect, the Supreme Court amends the Constitution through interpretation irrespective of each justices politics. For actual voters to amend the Constitution, by contrast, they must elect politicians who will ratify revisions by two-thirds in both Houses of Congress and three-quarters in all state legislatures. This is nearly impossible to achieve, a reality that shines a light on the mammoth power of the unelected justices, whose decisions cannot be altered absent a fresh majority on the Court or a formal amendment to the Constitution overruling a particular decision.

Paradoxically, it is the aforementioned cases in which justices crossed ideological lines that demonstrate how significant it is that on questions of incarceration, conservatives and liberals split so cleanly. Because it represents such a departure from the Courts historical behavior. In 2014, a panel of scholars concluded that the John Roberts Court at that point actually [produced] a notable number of rights-protective liberal decisions, and that when the Roberts Court [was] most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record place[d] him at the Courts center.

The late Justice Antonin Scaliaa conservative icon who reshaped constitutional jurisprudence in a number of wayshad developed a spacious view of individual rights within the criminal justice system, particularly under the Fourth Amendment, which governs unreasonable searches and seizures. With Kennedy, Scalia and the reliably liberal Ruth Bader Ginsburg now gone, those enmeshed in the coercive criminal justice and immigration systems must rely on President Donald Trumps appointees to exercise their vast discretion to either affirm or dissolve constitutional rights. So far, the new conservative coalition belies a discomforting callousness in close cases.

The ideologically split cases were not the most attention-grabbing of the Courts recent docket. But a closer examination of how the majority ruled shows why they collectively reveal the modern Courts emerging character.

Jones v. Mississippi was an Eighth Amendment case challenging a 15-year-old minors sentence to life without parole for murdering his grandfather. Writing for a 6-3 majority, Justice Kavanaugh acknowledged that the Court had issued two landmark rulings in 2012 and 2016 constitutionally outlawing mandatory life-without-parole sentences for juvenile offenders. At a resentencing hearing in light of these rulings, counsel for the defendant Brett Jones, who is now 32 years old, argued unsuccessfully that the sentencing court must...make a separate factual finding that the defendant is permanently incorrigible before deciding to lock him up for life. Kavanaugh concluded that a more detailed finding regarding a juveniles prospect for rehabilitation was not constitutionally required so long as the sentencer consider[s] the defendants youth.

In a dissenting opinion, Justice Sotomayor said [t]he Court is fooling no one. Time and again, this Court has recognized that children are constitutionally different from adults for purpose of sentencing, she wrote, as the character of a juvenile is more transitory and the impetuousness and recklessness that may dominate in younger years can subside. But with Ginsburg and Kennedy no longer on the Court, the new majority was collectively more sanguine about condoning discretionary life sentences for juveniles, likely paving the way for more children to spend their adult lives behind bars.

Kavanaugh wrote for the same 6-3 majority in Edwards v. Vannoy, refusing to apply a prior Supreme Court ruling to benefit a criminal defendant. Just months before, in April 2020, the Court had decided in Ramos v. Louisiana that criminal convictions by non-unanimous juries were unconstitutional. The question in Edwards was whether that ruling should apply retroactively to non-unanimous jury convictions that occurred before Ramos. Although Justice Neil Gorsuch delivered the lead opinion in Ramos, the other justices fell all over the map in that case. Gorsuch was joined in part by Ginsburg, Breyer, Sotomayor and Kavanaugh, for example, while Justice Elana Kagan joined part of Alitos dissenting opinion. But once Coney Barrett had joined the Court, the conservative bloc became more cohesive in rejecting the criminal defendants plea in Edwards, leaving prisoners who had been sentenced without the benefit of the Ramos decision to serve their time. Kagans dissent underscored that, [c]iting centuries of history, the Court in Ramos termed the Sixth Amendment right to a unanimous jury vital,' essential,' indispensable,' and fundamental to the American legal system, and vindicated core principles of racial justice. The touchstone of the new conservative majority looks decidedly different.

Conservatives were likewise unsympathetic to criminal defendants complaints of bad lawyering. In Shinn v. Kayer, a 6-3 majority in a per curiam opinion (meaning no justice claimed authorship) reinstated an Arizona inmates death sentence for the 1994 shooting death of one Delbert Haas during a gambling trip in Nevada. The U.S. Court of Appeals for the Ninth Circuit had thrown out defendant George Kayers sentence of death, persuaded that his Sixth Amendment right to effective assistance of counsel was violated during sentencing because his lawyer failed to investigate evidence of addiction, mental illness and a recent heart attack, among other mitigating factors. But the Supreme Court majority concluded that a fairminded jurist would have given more weight to the defendants prior conviction for burglary with a handgun and doubted whether Kayers addictions and bipolar disorder significantly impaired his ability to appreciate the wrongfulness of his conduct. In Dunn v. Reeves, the same 6-3 majority reversed a lower courts decision granting habeas corpus relief to a death row prisoner who claimed that his trial counsel failed to present mitigating evidence of his intellectual disability.

On the immigration front, the scorecard was similarly stacked against individual petitioners to favor the government. Justice Alito authored the opinion for a 6-3 majority in Johnson v. Guzman Chavez, ruling against a group of noncitizens who were deported from the United States but later reentered without authorization. When the government discovered they had returned, it reinstated their removal orders. The petitioners filed asylum proceedings because they feared persecution or torture if they returned to their home countries. The Court held that, in the interim, while their asylum pleas were adjudicated, they were subject to mandatory detention, denying them so much as a bond hearing. Without a hearing, the government would effectively keep the immigrants indefinitely jailed. As Breyer noted in dissent, they face proceedings that may last for many months or years.

Justice Gorsuch seemed equally unsympathetic to the plight of non-citizens in his opinion for a 5-3 majority in Pereida v. Wilkinson, which ruled against an undocumented resident who challenged deportation based on his guilty plea for the minor crime of attempted impersonation under Nebraska law. The Court placed the burden on the immigranta father of three who had been in the United States illegally for 25 years but sought to avoid deportation under a provision that makes exceptions for family hardshipto prove that his crime was not one of moral turpitude that would disqualify him from using the deportation exception. The trouble was that his criminal record did not make clear what his underlying crime was. As Justice Breyer explained in dissent: "We cannot look to jury instructions because there was no jury. Nor is there any plea agreement, plea colloquy, or 'comparable judicial record of the plea that might help determine what Mr. Pereida admitted. To make matters worse, [t]he Government confirmed several times at oral argument that it had not argued that a judge should be allowed to look at a broader array of evidentiary materials because, in its view, that issue was not implicated since no other documents exist. That did not stop the majority from ruling against Pereida for failing to prove what the government apparently could not.

For the most part, the Courts latest slew of cases signals that the law, in all its ambiguities, still trumps partisanship. But the handful of cases where conservatives joined forces also suggest that personal ideologyor perhaps the conservative focus on individual responsibility makes them loath to allow people second chances at liberty or legal immigration statusremains stealthily at play. Meanwhile, the United States has the highest prisoner rate in the world, with 639 prisoners per 100,000 people. So far this court appears unmoved by such statistics.

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Opinion | The One Area Where the Supreme Courts Six Conservative Judges Could Agree - POLITICO