Today in Supreme Court History: February 22, 2005

2/22/2005: Kelo v. City of New London argued

Comments

[Dan Schiavetta]

Joshua DeShaney v. Winnebago County, 489 U.S. 189 (decided February 22, 1989): Due Process protection does not apply to actions of private actors and state has no duty to provide for citizen’s safety absent a “special relationship” such as when he is in custody (here, child injured by father’s abuse even after state welfare officials repeatedly told of abusive incidents but made no attempt to remove him from home) (as Blackmun memorably wrote in dissent, “Poor Joshua!”)

Whalen v. Roe, 429 U.S. 589 (decided February 22, 1977): right to privacy not invaded by state statute requiring state to receive copies of all prescriptions of narcotics; valid use of police power, security procedures in place, and no showing that information will be misused such that patients become stigmatized as addicts

Buck v. Davis, 580 U.S. 100 (decided February 22, 2017): ineffective assistance of counsel when during penalty phase of capital murder trial counsel presented expert whose report said that being black was a plus factor for future violence (the expert’s general opinion was that defendant himself was unlikely to be a future danger, but the damage had been done, with the prosecution hitting on this in summation)

Messerschmidt v. Millender, 565 U.S. 535 (decided February 22, 2012): police searching for any and all firearms, and for gang paraphernalia, during warrant to search for sawed-off shotgun were entitled to qualified immunity (warrant not overbroad because these were reasonable things to search for in connection with suspected crime of past shooting of girlfriend in retaliation for her calling police)

Helix Energy Solutions Group v. Hewitt, 598 U.S. 39 (decided February 22, 2023): highly paid oil rig supervisor entitled to overtime under Fair Labor Standards Act because though a “bona fide executive” he was paid by the day (Court harmonizes two FLSA definitions)

Oregon v. Guzek, 546 U.S. 517 (decided February 22, 2006): defendant can present alibi evidence at sentencing but not if it’s inconsistent with conviction (here, testimony of mother which the jury had necessarily rejected in coming to its guilty verdict)

[Magister]

How could an alibi not be inconsistent with conviction?

[Dan Schiavetta]

The mother’s testimony was new evidence, not presented during the liability trial. The Court did mention case law on alibi evidence which might cast “residual doubt” on guilt but says it does not reach the question of whether that is permissible. I think I could have phrased the summary more clearly.

[Noscitur a sociis]

It can’t (in most cases), which is why it was okay to exclude the evidence.

To elaborate: Supreme Court precedent has said that a capital defendant can argue basically anything at the sentencing phase as a basis to not be sentenced to death. But they can’t argue that they shouldn’t be sentenced to death because they’re innocent of the crime they just got convicted of, and accordingly they can be precluded from introducing new evidence that was available during the guilt phase that’s only relevance is to that question.

[Dilan Esper]

DeShaney is why you will never see any serious conservative lawyers argue "the 14th Amendment bans abortion". It would require reversing DeShaney and reading in a state duty to protect life into the 14th Amendment. And the last thing conservatives want is for courts to be able to order the government to save people's lives.

[Noscitur a sociis]

I am not especially persuaded by it, but I think you can argue that the equal protection clause requires legislation that criminalizes crimes against all classes of people without there being an enforceable right to have the executive implement it any particular way.

[David Nieporent]

I mean, I am persuaded by that, as it's precisely the rule in the non-abortion context.

[Dilan Esper]

That's subject to rational basis review, though, and there's clearly a rational basis for legalizing abortion. (Indeed, I suspect even many religious right legal types would concede that much.)

To get you to "the 14th amendment criminalizes abortion", you need an affirmative duty of the government to protect life, not just an equal protection theory.

[defaultdotxbe]

Reading a requirement to pass a law doesn't require reading a requirement to ensure that law is enforced to perfection. I think that was kindof the whole point of the DeShaney decision.

[Dilan Esper]

There's never a requirement to pass a law. Unless you impose an affirmative duty on the government to protect life, which is exactly what DeShaney rejected.

As far as I know, a state isn't even required to enforce its murder laws against anyone under current doctrine.

[David Nieporent]

There’s never a requirement to pass a law. Unless you impose an affirmative duty on the government to protect life, which is exactly what DeShaney rejected.

There's a requirement not to deny the equal protection of the laws. A law that says that it's murder to kill white people, but not to kill black people, would not be permissible.

As far as I know, a state isn’t even required to enforce its murder laws against anyone under current doctrine.

It may be impossible to impose such a requirement — how would a court enforce such an order? — but that's different than saying that a state can enact laws that only protect some people.

[SMP0328]

Buck v. Davis, 580 U.S. 100 (decided February 22, 2017): ineffective assistance of counsel when during penalty phase of capital murder trial counsel presented expert whose report said that being black was a plus factor for future violence (the expert’s general opinion was that defendant himself was unlikely to be a future danger, but the damage had been done, with the prosecution hitting on this in summation)

What a great expert witness for a Black defendant. Says that the being Black is a reason for a death sentence, just not for that particular Black person. An attorney should be disbarred for such incompetence.

[Dan Schiavetta]

A juror who says, "I believe black men tend to criminals, but I can be objective about this criminal trial involving a black man," would be dismissed for cause. I used this argument once in getting a juror bounced (this was an action against a nursing home where he had expressed similar sentiments about nursing homes).

[F.D. Wolf]

The Oregon Supreme Court vacated Randy Lee Guzek's death sentence on three separate occasions for various procedural violations at his sentencing trials. At his fourth sentencing trial, the jury again sentenced him to death. This time the sentence was upheld. (Most prosecutors probably would have thrown in the towel after two failed attempts.) In December 2022, Oregon Gov. Kate Brown commuted the death sentence of every state inmate on death row to life in prison, including Guzek.

[Dr. Ed 2]

To the best of my knowledge, New London never built on Kelo's land.