Short Circuit: A Roundup of Recent Federal Court Decisions

Prolonged hostilities, threatening to complain about the police, and officers who don't turn on their recording equipment.

Today the Puerto Rican Supreme Court overruled a 20-year-old precedent and rejected a challenge to a program that will allow up to 10,000 students a year to obtain gov't scholarships to use at private and public schools. Read more here.

More news from Puerto Rico: Puerto Rico saca "F" en sus leyes de expropriación. Which is to say that an IJ report on Puerto Rico's eminent domain laws finds serious shortcomings that give officials vast power to seize private property for virtually any reason. Click here to read it (in English or Spanish).

• In 2001, Congress authorized the president to detain enemy combatants without trial for as long as hostilities continue. Gitmo detainee captured in 2001: The war in Afghanistan has gone on so long that it's essentially a new, different war; the authority to detain me has thus lapsed. Also, the courts need to impose some kind of limits on these detentions. D.C. Circuit: Not so.
• State police pull man over near Harrisburg, Penn. for staying in left lane longer than necessary to pass vehicles in right lane. He's driving a rental, and his name isn't on the rental agreement; police search the car without a warrant, telling him they don't need his consent. Third Circuit (2017): No need to suppress the evidence. SCOTUS (2018, unanimously): Reversed. Drivers have a reasonable expectation of privacy in such instances. Third Circuit (2018): But the officers complied in good faith with precedent in effect at the time of the search, so convictions affirmed.
• Cigarette company buys tobacco distribution business, hires its former owners to continue running things. Yikes! The distribution business is something of a "Trojan Horse." The ATF funds part of it, and the former owners are longtime confidential informants (who helped nail over 100 cigarette traffickers and generate tens of millions of dollars in forfeitures). Cigarette company: The former owners overvalued their business's assets thanks to the ATF funds and otherwise violated their agreements with us in a bunch of ways. District court: The informants were de facto federal agents, so you have to sue the feds instead. District court (with new judge after original judge retires): Nah, you can sue the informants. Fourth Circuit: You can't reconsider a decision like that. The feds are indeed the proper defendants.
• Last year, the Fish and Wildlife Service issued a permit for a new 600-mile natural gas pipeline project and authorized the pipeline to kill or otherwise harm several endangered or threatened species (including the clubshell, the rusty patched bumble bee, the Madison Cave isopod, the Indiana bat, and the northern long-eared bat). Also that year, the Forest Service authorized the pipeline to cross the Blue Ridge Parkway, which would affect the scenic view from the road. Fourth Circuit: Both approvals are rescinded.
• Allegation: Man who feels he's being wrongly arrested threatens "to make lawful complaints" about Tangipahoa Parish, La. officers. He's charged with threatening, intimidating the officers. Charges dismissed before trial. Fifth Circuit: A state law that criminalizes threatening public employees—including threats to take lawful actions like calling the media, suing an officer, or running against an incumbent—is unconstitutionally overbroad, violates the First Amendment.
• Man with no criminal record who's lived and paid taxes in the U.S. for 20 years is ordered deported in 2013, but ICE allows him to remain until 2017, when he's told to leave for good. His U.S.-citizen children sue ICE officials, alleging violation of their right to familial association and selective removal of their father because of his Hispanic origin. Fifth Circuit: We can't consider either claim.
• Fifth Circuit: No need to reconsider convictions of Mexican drug cartel leader who, among many other crimes, dismembered a 6-year-old with an axe in front of her parents. (Click here for a news story.) Even though many of the crimes were committed abroad, U.S. law can be enforced because the cartel leader directed the flow of drugs into America.
• In 2012, Detroit residents approve ballot measure increasing property taxes; the revenue is to go to schools. But wait! In 2016, officials reroute $56.5 mil of it to subsidize Detroit Pistons basketball team. Does Michigan law require the school district to put a new referendum on the ballot to give voters a chance to approve the change? Plaintiffs (one of whom is a prolific, vexing litigant who doesn't even live in Detroit) don't have standing to bring such a claim, says the Sixth Circuit.
• Man tells Watford City, N.D. police his sister intentionally drove van over his foot. Police, who witnessed the event, say the man intentionally put his foot under a wheel and arrest the man for making a false statement. Allegation: During which, one officer grabbed him by the throat, and the other used a baton to pry him from a lawn chair, breaking his arm. Eighth Circuit (over a partial dissent): Video is inconclusive; a jury might decide it was an unlawful arrest and/or excessive force.
• Drunk driving suspect declines to stand up for handcuffing. Video: A South Dakota state trooper, who has a sizable size advantage, pins the suspect's arms behind him, lifts him up, and smashes him face first into the ground. Eighth Circuit: Could be excessive force.
• Cedar Falls, Iowa officer shoots man three times at close range. (He lives.) Officer: He punched me and tried to grab my gun. Man: I can't remember any of it. District court: The officer's testimony is unrebutted; qualified immunity. Man: It'd be rebutted if he'd turned on his recording equipment. Eighth Circuit: No court that we know of has adopted an evidentiary presumption against officers who fail to record; "we decline to adopt such a radical solution" here. Affirmed.
• Hot Spring County, Ark. jail officer takes inmate who'd been fighting to ground, breaking the inmate's shoulder. Though the jail is liable for the inmate's medical expenses, officers present him with a form stating he would be liable for the expenses, and then, when he declines to sign it, refuse to take him to hospital for surgery. (He ultimately has the surgery after being transferred to prison.) Eighth Circuit: The inmate is entitled to compensatory damages because the jail refused to provide him the hydrocodone prescribed by the ER, leaving him in severe pain.
• Bourbon, Mo. police officer attempts to pull over driver with reputation for fighting police, fleeing traffic stops. The driver flees, drives in the wrong lane even while rounding turns and cresting hills, and then crashes. Video shows him exit his vehicle and walk purposefully toward the officer, who shoots him dead. District court: No qualified immunity. Eighth Circuit: Reversed.
• New semiautomatic handguns sold in California must have a pair of safety features (a chamber load indicator and a magazine detachment mechanism) meant to prevent accidental discharges. They must also be able to "microstamp" identifying information on cartridges or shell cases (so as to aid police investigations). Ninth Circuit: None of which offends the Second Amendment. Partial dissent: The microstamping requirement is an effective ban on new handguns, if, as manufacturers allege, they cannot comply with the requirement. Indeed, no new handgun has been sold commercially in the state since it was enacted, which, perversely, has kept guns with the two safety features off the market.
• California has long banned individuals from bringing guns on school property—with exceptions for concealed carry permit holders and retired police officers. Recently, legislators removed the exemption for concealed carry permit holders but retained, after "potent" lobbying from law enforcement, the exemption for retired cops. Ninth Circuit: No equal protection violation here. Retired cops could run into an enemy at school and need to defend themselves. Moreover, they have special training in firearms safety.
• Allegation: Without provocation, Border Patrol agent in Nogales, Ariz. shoots across the border, hitting teenager about 10 times, mostly in the back, killing him. (The agent is acquitted of murder. Retrial on manslaughter charge is pending.) Ninth Circuit: "Any reasonable officer would have known, even without a judicial decision to tell him so, that it was unlawful to kill someone—anyone—for no reason." The teen's family can sue the agent. Dissent: Courts shouldn't meddle in foreign affairs without direction from Congress, and Congress has consistently declined to fashion a remedy for aliens injured abroad.
• Immigration judge orders asylum seeker removed to Mexico, but asylum seeker gets an emergency stay from federal court. Despite an automatic electronic notice of the stay, a faxed copy of the stay from the asylum seeker's lawyer, and a call from the lawyer to the deportation officer on the case, DHS removes the man to Mexico. Ninth Circuit: And he can sue for that.
• Allegation: Denver detectives coerce confession they know to be false out of developmentally disabled eighth grader. He's convicted of murder and spends 13 years in prison before pleading guilty to lesser charge in exchange for release. Tenth Circuit: He hasn't shown he's innocent, so he can't sue the detectives for malicious prosecution. But his false arrest claim, alleging detectives misrepresented and omitted important details on the arrest warrant affidavit, can go forward. (Click here for a news story on the case.)
• Miami taxicab medallion owners do not have a "property right to monopoly power in perpetuity," says the Eleventh Circuit, citing a trio of IJ cases. Thus, officials did not unconstitutionally take medallion owners' property by failing to block competition from Uber and Lyft. Nor did officials violate the Equal Protection Clause by regulating taxis and ridesharing differently. (Click here for commentary on the ruling.)

In 2016, IJ sued Charleston, S.C. on behalf of three tour guides barred from giving tours because the city wouldn't give them a license. Each guide spent months memorizing the city's 490-page study manual (per officials' instructions) but then failed the licensing exam, which consisted of questions the would-be guides found picayune and irrelevant. But no more! A federal judge has ruled officials violated the First Amendment by imposing serious burdens on the would-be guides' ability to speak without first trying any less restrictive alternatives. Click here to learn more.

Comments

[ActualRightWingPatriot]

"California has long banned individuals from bringing guns on school property?with exceptions for concealed carry permit holders and retired police officers. Recently, legislators removed the exemption for concealed carry permit holders but retained, after "potent" lobbying from law enforcement, the exemption for retired cops. Ninth Circuit: No equal protection violation here. Retired cops could run into an enemy at school and need to defend themselves. Moreover, they have special training in firearms safety."

Ridiculous. If retired cops could run into an enemy, so could anyone else. Also, this regime would prohibit ex-Navy Seals from carrying, but would allow cops. Cops qualify by shooting about 50 rounds a year. What a joke.

[Jason Cavanaugh]

Are you at all surprised by the Ninth demonstrating hatred for the 2A? I'm certainly not.

[ActualRightWingPatriot]

Not at all. The only rights they care about are those involving the pelvic rights and protecting illegal aliens.

[Angammus]

9th Circuit turns aside a challenge that, if successful, would have barred retired police officers from carrying guns on school property.

You somehow interpret that as "hatred for the 2A."

And this is "reason.com".

[Morbo]

Some people take the ideal of equal protection seriously. Giving extra rights to retired cops is a pretty clear cut case.

And maybe if retired cops were treated like the rest of us plebs, they'd be inclined to pressure lawmakers into making it legal for everyone, instead of just the ennobled few.

[Angammus]

Perhaps you'd like to reread the complaint I responded to: that the case shows the 9th Circ. "demonstrating hatred for the 2A." I responded to that, not to the notion that they were wrong about the Equal Protection Clause issue.

[Deep Lurker]

Yes, it is "hatred for the 2A" - it denies that the 2A right to carry guns is a right, treating it as a privilege instead.

[Brett Bellmore]

"In 2012, Detroit residents approve ballot measure increasing property taxes; the revenue is to go to schools."

Tax increment authorities; I first learned about them when one was proposed in my own home town.

A nasty business; Basically the last choice the voters get is when they authorize it, after that it's free to boost taxes and spend the loot on anything it wants. You can petition for a hearing challenging a decision, and they'll bill you for the hearing when they listen and reject your complaint.

The ballot proposal for these should carry a notice: "Passing this is the last time they'll need your permission for anything."

[bernard11]

I really don't understand what happened here at all.

The decision quotes the state supreme court about this kind of financing:

[A] tax increment financing (TIF) plan allows a local government to finance
public improvements in a designated area by capturing the property taxes levied
on any increase in property values within the area. Under a TIF plan, ... All, or
a portion, of the property taxes levied on the captured value (SEV) is diverted to
the area's development plan.

Tax increment financing is premised on the theory that, without the
redevelopment project, property values would not increase, or that increases in
land values and assessments in the project area are caused by the redevelopment
authority's own construction of economic activity in the district.

First, the premise seems dubious to me. The claim that all the increase is due to the development activity strikes me as silly.

Second, that doesn't seem to be what happened. It's not totally clear, but the increased property tax revenues appear to have been due to an increase in rates approved on the understanding that the extra money would go to schools, rather than being due to an increase in property values.

Of course, the whole, "It's for the schools" stuff can easily be bogus unless there are very careful controls, which there weren't.

[Rossami]

re: Third Circuit
Much as I dislike it, I can see the argument that police compliance in "good faith" should maybe shield them from personal liability for being wrong. I see no such argument for allowing otherwise invalid evidence in a case that they are prosecuting. This creates too much incentive for police to be willfully ignorant of the law just so they can claim the "good faith" exception.

(Yes, I know that 'willful ignorance' is the antithesis of 'good faith'. But 'willful ignorance' is exceptionally difficult to prove. The adverse incentive remains.)

More to the point, it's a double standard. You and I get granted no "good faith" exception when we are wrong about the law. Hold police and prosecutors to the same standards that they hold us to.

[ActualRightWingPatriot]

I don't generally like the "good faith" rule, but willful ignorance does not excuse them if they claim good faith. I believe their good faith needs to be reasonable.

[Bob from Ohio]

Letting criminals go free based on a error that it took the Supreme Court to determine the law on is kinda crazy.

[Rev. Arthur L. Kirkland]

I would expect a stale-thinking, right-wing authoritarian to see it that way.

I also expect the liberal-libertarian alliance to improve this situation (prosecutorial use of unlawfully obtained information, qualified immunity, law enforcement accountability) over time.

[VinniUSMC]

As always, masterful rebuttal from Artie...

Did you get your education from a McDonald's Happy Meal box?

[Krayt]

===Yes, I know that 'willful ignorance' is the antithesis of 'good faith'.===

It'a also the antithesis of 'ignorance of the law is no excuse'.

[Jerry B.]

"SCOTUS (2018, unanimously): Reversed. Drivers have a reasonable expectation of privacy in such instances. Third Circuit (2018): But the officers complied in good faith with precedent in effect at the time of the search, so convictions affirmed."

So the Third Circuit can now reverse SCOTUS decisions?

[Bob from Ohio]

"So the Third Circuit can now reverse SCOTUS decisions?"

The Supreme Court decision did not deal with the [so called] "good faith" exception.

[susancol]

The Supreme Court determined there was a violation of the constitution (which, under prior established case law requires REVERSAL of convictions. Third Circuit: "No reversal of conviction for SCOTUS-determined violation of your constitutional rights." Looks like the Third Circuit was doing its darnedest to reverse SCOTUS . . .

[TwelveInchPianist]

"The Supreme Court determined there was a violation of the constitution (which, under prior established case law requires REVERSAL of convictions."

You think courts are going to reverse a conviction just because cops violated the constitution?

[Bob from Ohio]

"You think courts are going to reverse a conviction just because cops violated the constitution?"

Why should the public suffer because the police made an error on a complicated area of law?

As you likely know, the exclusionary rule is not required by the constitution, its merely a remedy.

[bernard11]

"We don't need no steenking constitution."

[Angammus]

I, for one, would prefer not to have a steenking constitution. At least Febreze the damned thing.

[TwelveInchPianist]

Due process ought to require that the cops follow the constitution. We've discussed this on this blog before. It appears that even some lawyers don't understand how the exclusionary rule works, which shows how bizarre it is.

[Noscitur a sociis]

At the time of the search, the Third Circuit had expressly held that this type of search did not violate the constitution. Ought due process require that the police ignore the leading legal authority and clairvoyantly anticipate that the supreme court will disagree?

[James Pollock]

Applying the exclusionary rule is philosophically challenging. We want trials to produce accurate results... to find guilt for the guilty, and innocence for the innocent. You get better accuracy when the factfinder is allowed access to as much evidence as is possible.

Generally speaking, the "correct" response to a constitutional violation is a civil-rights lawsuit.

What we don't want to do is provide an incentive to police agencies and individuals to "cut corners" with Constitutional protections, which is why there is an exclusionary rule.

[ActualRightWingPatriot]

The problem is guilt defendants (who would be the plaintiffs in the 1983 suits) are very unsympathetic litigants. I could see juries finding in their favor on civil claims and awarding $5 in damages.

[Bored Lawyer]

Reversal was NEVER required just because there was a Constitutional violation.

First of all,we are talking about evidence, arguably obtained in violation of the 4th Amendment. But that does not mean that the conviction is no good.

Suppose the cops have plenty of evidence of guilt. But then they conduct a warrantless search. The prosecution might well decide, why bother fighting the suppression hearing, we'll just go with the other evidence. When I interned at the US Attorney one summer, this is precisely what the decided to do in one case.

And even if the evidence was improperly admitted, that might be harmless error if there was plenty of other evidence of guilt.

[Bob from Ohio]

"(which, under prior established case law requires REVERSAL of convictions."

The case was remanded for further proceedings. The 3rd Circuit upheld the conviction on alternative grounds.

If the S/C thinks it was improperly defied, it can grant cert and reverse. Maybe it will but I would't bet in it.

[Angammus]

Kennedy concluded the opinion:

"The Court leaves for remand two of the Government's arguments . . . The Court of Appeals has discretion as to the order in which these questions are best addressed."

Alito concurs, says court can decide the case on remand "on another appropriate ground" too if it wants.

Third Circuit does not consider either of the two arguments the Court "le[ft] for remand" but does decide it "on another appropriate ground."

I actually don't know what to make of that, though the 3rd Cir. does seem right either way.

[eyesay]

I wouldn't bet on it either, but then, it was a unanimous S/C decision that the 3rd Circuit overturned from below, and maybe the S/C won't like its unanimous decision overturned from below.

[Noscitur a sociis]

The Supreme Court determined there was a violation of the constitution (which, under prior established case law requires REVERSAL of convictions.

This appears to be where you're going wrong. The law is precisely the opposite: there are many situations where an illegal search does not require evidence to be suppressed or convictions reversed. This is one of them. See Davis v. United States, 564 U.S. 229 (2011).

[SMP0328]

The Supreme Court ruled in Davis v. United States (2011) that the good-faith exception to the exclusionary rule applied when police conducted a search which binding precedent held complied with the Fourth Amendment but that later precedent said violated it. The Third Circuit is complying with Supreme Court precedent regarding the exclusionary rule.

[bernard11]

Man with no criminal record who's lived and paid taxes in the U.S. for 20 years is ordered deported in 2013, but ICE allows him to remain until 2017, when he's told to leave for good.

Thugs.

Immigration judge orders asylum seeker removed to Mexico, but asylum seeker gets an emergency stay from federal court. Despite an automatic electronic notice of the stay, a faxed copy of the stay from the asylum seeker's lawyer, and a call from the lawyer to the deportation officer on the case, DHS removes the man to Mexico.

Lawless thugs.

Without provocation, Border Patrol agent in Nogales, Ariz. shoots across the border, hitting teenager about 10 times, mostly in the back, killing him. (The agent is acquitted of murder. Retrial on manslaughter charge is pending.) Ninth Circuit: "Any reasonable officer would have known, even without a judicial decision to tell him so, that it was unlawful to kill someone?anyone?for no reason." The teen's family can sue the agent. Dissent: Courts shouldn't meddle in foreign affairs without direction from Congress, and Congress has consistently declined to fashion a remedy for aliens injured abroad.

Lawless thug. Strange dissent. Foreign affairs? Really?

[gormadoc]

I'm pretty sure the courts allowed US citizens to sue Saudi Arabia recently, clearly interfering with foreign affairs without Congressional direction. Shooting a teen unprovoked shouldn't be a 'foreign affair,' it should be clearly wrong.

[BillyG]

The question being, which jurisdiction is it? Mexico, US Federal, or Arizona?

[Eddy]

Apparently the dispute is whether to extend *Bivens* to the case - using what looks like a jurisdictional statute to create a cause of action against federal officers.

I would think - but I doubt the courts agree - that if *Bivens* doesn't apply and there's no federal statute giving a cause of action, then state law would apply. I suspect, however, that the courts would find a way to ignore state law, even if they find Congress hasn't passed a law to supersede state causes of action.

[VinniUSMC]

I would think jurisdiction belongs to Mexico. But it would be up to the US government whether or not to extradite the BP agent?

[Angammus]

I found this footnote, in the 4th Circuit's opinion (footnote 10, p. 39) on agency actions re environment, remarkable:

"We find it remarkable that counsel representing the National Park Service, which is charged with 'provid[ing] for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generation,' would seem to take a litigation position that regards the premier conservation agency's role as no more than highway maintenance."

Ouch.

[santamonica811]

"...Each guide spent months memorizing the city's 490-page study manual (per officials' instructions) but then failed the licensing exam, which consisted of questions the would-be guides found picayune and irrelevant...."

I think you meant to write, "Each guide spent months TRYING TO memorize the manual, but were too stupid to do so successfully . . ."

I'm on the fence regarding the merits of the case. But these plaintiffs, obviously!!!, did not memorize the manual. Or they, one presumes, would have easily passed the test that all the other guides managed to do. (And, yes; I do believe that the First Amendment protects the rights of the stupid just as much as the rights of the intelligent . . . I think that the First Amendment is perhaps even more important in terms of protecting the rights of dimwits--as in this case.)

[MatthewSlyfield]

" But these plaintiffs, obviously!!!, did not memorize the manual. Or they, one presumes, would have easily passed the test that all the other guides managed to do."

And you are presuming, apparently without any evidence to support it, that the study manual actually adequately represents the material covered by the test.

[santamonica811]

Yes, your point is correct. My default is, "If there has been a test that has been around for a while, I will assume it's a "fair" test unless it is shown to be otherwise."

I will, of course, keep an open mind. And if you show me a significant number of questions that are unfair, then I'll join you in opposing that test.

I take it that your default position is exactly the opposite . . . if you see some licensing test, you assumption is that it is not fair, although--one hopes--you also keep an open mind and can be persuaded that a particular test is a good idea. I dunno...going through life with an assumption of unfairness--seems like an exhausting way to live. But different strokes . . . .

(Off point: I found the bar exam almost completely unrelated to what I learned in law school. On the other hand, it was extremely well aligned with what I learned in Barbri, which is Barbri's raison d'?tre, of course.)

[MatthewSlyfield]

"I take it that your default position is exactly the opposite . . . if you see some licensing test, you assumption is that it is not fair."

1. My default position is that, unless lives are at stake, occupational licensing itself (forget the test) is generally not fair.

2. This is government bureaucracy we are talking about. I find it perfectly plausible that they might change the test, but then forget to update the study manual.

3. "I dunno...going through life with an assumption of unfairness--seems like an exhausting way to live." Government is very often unfair, and it's only exhausting if you don't know how to pick your battles.

[James Pollock]

"My default is, 'If there has been a test that has been around for a while, I will assume it's a "fair" test unless it is shown to be otherwise.'"

If the test fails people who should have passed, there's your evidence that the test isn't fair.

[santamonica811]

James. Yes, of course your (circular) point is correct. But, absent such proof, my original assumption still stands.

[Eddy]

"In 2016, IJ sued Charleston, S.C. on behalf of three tour guides barred from giving tours because the city wouldn't give them a license....A federal judge has ruled officials violated the First Amendment by imposing serious burdens on the would-be guides' ability to speak without first trying any less restrictive alternatives."

QUESTION 1: The war is called
(a) The Civil War
(b) The Late Unpleasantness
(c) The War Between the States
(d) The War of Northern Aggression

QUESTION 2: The war started when
(a) The Confederates attacked Fort Sumter
(b) Fort Sumter was fired upon
(c) Lincoln maneuvered the Confederates into firing the first shot
(d) Yankees first started meddling in the South's domestic institutions

[eyesay]

"In 2001, Congress authorized the president to detain enemy combatants without trial for as long as hostilities continue." But:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (U.S. Constitution, 6th Amendment.)

This is not a legal argument, but even if the 6th Amendment does not apply to enemy combatants, holding someone without trial for 17 years, with no end in sight, is just plain wrong. Also, if the purpose of our involvement in Afghanistan is to make the place safe for democracy, we're not exactly showing the Afghans how great democracy is if it means locking up people for 17 years without trial and with no end in sight. Let's set a trial date for some time this year, present the evidence, and let the chips fall where they may.

[ReaderY]

An enemy combatant is a status, not a crime. It is no crime to be a soldier. Detainment is generally considered more humane than simply shooting. But perhaps not. A combatant who surrenders chooses imprisonment over death. If he thinks he made a bad choice, he could always undo his surrender.

Civilians regularly get killed in war for doing nothing worse than being in the wrong place at the wrong time. We killed thousands of children firebombing Dresden alone, let more in Hiroshima and Nagasaki. War is hell. People get killed. His fate is comparatively light.

There have been many wars longer than 17 years. There was a 100 Years War.

[santamonica811]

True enough for Gitmo prisoners who were combatants. How do you feel about those who were not combatants? (I'm thinking first of the innocent taxi driver Said Abasin, but I assume there are others similarly swept up whose names escape me at the moment.)

Of course innocent civilians die in wars. As a general rule, I think (hope??) we agree that, as a country, we ought not to deliberately kill or imprison the innocent, yes? My sense of the liberal perspective (based on my extremely limited subset of friends) on innocent bystanders dying is probably quite similar to that of conservatives: It's a shame, but it's also an unavoidable evil in many many military actions.

[MatthewSlyfield]

"An enemy combatant is a status, not a crime. It is no crime to be a soldier."

True, but it is a violation of the international treaties that comprise the "law of war" for someone to be an combatant on the battle field without being in a uniform. Per the rules of the Geneva Convention, a non-uniformed combatant can be summarily executed in the field on the concurrence of any two officers.

[James Pollock]

"True, but it is a violation of the international treaties that comprise the "law of war" for someone to be an combatant on the battle field without being in a uniform. "

Only meaningful for signatories.

[Bob from Ohio]

"holding someone without trial for 17 years, with no end in sight, is just plain wrong"

Some [many?] are not accused of crimes at all, we can hold them for as long as the war continues. Its not a new concept.

I guess they ought to have thought of this before they took up arms against the United States.

[James Pollock]

"Some [many?] are not accused of crimes at all, we can hold them for as long as the war continues. Its not a new concept."

It was illegal when Lincoln's armies tried it. And Lincoln's enemies were operating IN the United States.

[ReaderY]

In Rodriguez v. Swartz, the 9th Circuit had to work hard to come up with reasons why Supreme Court cases holding that the 4th Amendment lacks extraterritorial application (even application at the border) should be ignored before coming up with the remarkable claim that no court decision in its favor is needed because " murder" is supposedly "always wrong."

The argument that killing is always wrong has been a losing proposition at law since long before Roe v. Wade. As the Supreme Court noted in upholding the Enemy Alien Act, at common law enemy aliens were outlaws who could be despoiled or killed by any citizen on sight, and the decision to use a gentler approach such as internment is an act of grace not required by the Constitution.

As Johnson. v. Eisentager held, the bill of rights lacks "extraterritorial application." An alien outside US territory has the same constitutional status as a 3rd trimester fetus. Congress could decide to protect it but has no obligation to.

The essence of Roe's claim to legitimacy is that who does and does not have constitutional rights is fixed by constitutional text and judges are not free to protect or not protect whoever they feel like.

I predict the Supreme Court will use this case to reaffirm Verdugo-Urquidez re lack of constitutional protection, and point to Roe v Wade as the paradigmatic example of what the consequences of lack of constitutional protection mean.

[James Pollock]

Did anyone else notice you shifting from "murder" to "killing"?

[ReaderY]

Termination, if you prefer. The point is to use a value-neutral word, not to impose personal values on it.