Today in Supreme Court History: February 25, 1841

2/25/1841: Justice Phillip Barbour dies.

Justice Phillip Barbour

Comments

[Dan Schiavetta]

North Carolina State Board of Dental Examiners v. FTC, 574 U.S. 494 (decided February 25, 2015): upholding FTC ruling that North Carolina Board of Dental Examiners committed antitrust violation by prohibiting non-dentists from providing teeth whitening services (State action is immune from antitrust liability, Parker v. Brown, 1943, but Board was not a governmental entity nor was under State supervision)

Yates v. United States, 574 U.S. 528 (decided February 25, 2015): Yates, caught with undersized fish in violation of conservation laws, threw them overboard despite being told by wildlife official to preserve them. Court holds that this did not violate 18 U.S.C. §1519, which criminalizes “altering, destroying, mutilating, concealing, covering up, falsifying, or making a false entry in any record, document, or tangible object” with the intent to impede a federal investigation. (So if in addition to ditching the fish Yates had written down that he had preserved them, he would have been convicted. Lesson: it’s fine to actually destroy evidence, and even admit it, as long as they can’t tell such from the records.) 5 - 4 decision. Kagan, in dissent, points out that a fish is a tangible object, and cites Dr. Seuss’s “One Fish, Two Fish, Red Fish, Blue Fish”. (Yates was also convicted under 18 U.S.C. §2232(a), “Destruction or Removal of Property to Prevent Seizure”; he didn't appeal that conviction.)

Prince v. United States, 352 U.S. 322 (decided February 25, 1957): expanding federal bank robbery statute by including “entry of bank with intent to rob it” did not increase maximum punishment (20 years for robbery became 20 years for entry + robbery)

Hernandez v. Mesa, 589 U.S. — (decided February 25, 2020): parents of unarmed 15-year-old Mexican child shot and killed while crossing border into Mexico (agent claimed he wasn’t playing jump-over game with friends but trying to cross the border illegally but WTF??) cannot sue; one can sue federal agents for violation of Constitutional rights such as Due Process and unreasonable seizure (Bivens v. Six Unknown Federal Narcotics Agents, 1971) but not for cross-border incidents which are a political question between countries

Fernandez v. California, 571 U.S. 292 (decided February 25, 2014): post-arrest consent to search apartment can be given by robbery suspect’s live-in girlfriend (she was apparent victim of domestic assault by suspect and police reasonably wanted to question her outside his intimidating presence)

[taqmcg]

Despite the snark, the Yates verdict seems pretty reasonable from cc's description. There's one law dealing with records and one dealing with physical evidence. He was convicted and didn't appeal the ruling regarding altering the physical evidence, but he was not doubly liable because the physical evidence could also be treated as a 'record'. If he had gotten off scot free because he dumped the fish I could see this as being a bit dodgy. But as it stands, to me at least, it's the prosecutor that seems to the one who was pushing the limits of what was intended by the law as a whole.

[Dan Schiavetta]

Section 1519 doesn’t refer just to altering records but (if you pick from among the several words which all are supposed to carry the same weight) “concealing . . . a tangible object” with the intent to impede an investigation. That is different from §2232(a) which is destroying evidence to prevent federal officials from seizing it. Often, a single act violates more than one criminal statute.

Possibly the prosecutor decided to press both charges with the hope that if one didn’t stick, the other would. (It turned out both did, at least as to the verdict in the trial court.) But though related, they are different offenses.

[Michael P]

... From which we can infer that Justice Kagan would demand that a train attempt to stop for geese on the track, even risking injury to passengers due to emergency braking, seeing that she advocates a mindlessly literal approach to statutory construction.

[David Nieporent]

From which we can infer that Justice Kagan would demand that a train attempt to stop for geese on the track,

I don't remember any Dr. Seuss books about geese.

Though there is I Wish That I Had Duck Feet. Close enough?

[Noscitur a sociis]

We love textualism!

[Noscitur a sociis]

No, there’s one statute dealing with interfering with the government’s ability to take custody of property, and another dealing with concealing truthful evidence from the government in a federal investigation. If anything, the § 2232 charge is the bigger stretch.

[not guilty]

"Possibly the prosecutor decided to press both charges with the hope that if one didn’t stick, the other would. (It turned out both did, at least as to the verdict in the trial court.) But though related, they are different offenses."

The prosecutor may also have wanted the option of consecutive sentences.

[Dr. Ed 2]

The law was intended to apply to pieces of paper, not fish.

[SRG2]

North Carolina State Board of Dental Examiners goes 6-3 against the Board. How unsurprising to find the minority is Scamasito.

[Kazinski]

"one can sue federal agents for violation of Constitutional rights such as Due Process and unreasonable seizure (Bivens v. Six Unknown Federal Narcotics Agents, 1971) but not for cross-border incidents which are a political question between countries"

Really? Anyone try that lately?

I'd say Mexican citizens are probably in a better spot to get compensation for being shot by a federal agent across the border than an American being shot by a Federal agent domestically.

At least the Mexican citizen has their government to advocate for them, here your case will be rapidly dismissed, but both are likely to be SOL.

[taqmcg]

Meant this to follow the discussion of Yates above, but apparently didn't get it right!
Sure. I make no pretensions to being a lawyer. All I’m saying is that the outcome seems correct to me in terms of actual justice. He got convicted for what he did and the charge that got thrown out was one that was a bit of a stretch. Reasonable people can — and in the case of the judges on the various courts involved apparently did — disagree. He was ultimately punished for the crime he committed using the law which was directly on point. The title of the section is 1519 is “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy” . Maybe titles have no legal weight, but I think a distinction between things, and records of things is useful.

Note while it’s certainly the case that the fish were a tangible object, one could equally argue that none of the preceding verbs apply. ‘Conceal’ is the only one that’s even close, and as I understand it, he didn’t do anything to hide the fish, he simply did not preserve them on the boat — e.g., he didn’t do anything special like put the fish in weighted bags to make them sink. To me a robber who throws a gun away as he leaves the bank is not concealing the gun under the normal meaning of conceal — as opposed say to one who carefully hides it under a rock.

[Dan Schiavetta]

I don’t agree with everything you say but you make some good points.

[Noscitur a sociis]

I would say throwing something into the ocean with the specific intent to ensure that an investigator can’t access it is pretty squarely “destroying”, “concealing”, and/or “covering [it] up”.

[taqmcg]

Manifestly he did not destroy the fish. That might be something like putting it in the chipper. And I don't think he concealed or covered them up. Let's consider someone smoking an illegal drug. The air in their lungs -- including the illegal constituent -- is clear evidence for their guilt, and is a tangible thing. So if they see a DEA agent coming towards them purposefully, are we suggesting that they are obliged to hold their breath indefinitely or else they are 'concealing' evidence. I don't think we can indict someone for breathing and letting the gas mix with the atmosphere.

Back to the case at hand: if instead of a boat the fish had been in a warehouse, and they had simply thrown the fish out the windows onto the ground outside, we'd not be able to charge them with concealing evidence. It would be right there outside the window. They'd still be liable for the attempt to disassociate themselves from it, but it's clearly not concealed. The action on the boat was the same. They did not preserve the evidence, but they did not actively conceal it. In the environment they were in, evidence that is not actively preserved does not persist.

[Noscitur a sociis]

The air in their lungs — including the illegal constituent — is clear evidence for their guilt, and is a tangible thing. So if they see a DEA agent coming towards them purposefully, are we suggesting that they are obliged to hold their breath indefinitely or else they are ‘concealing’ evidence. I don’t think we can indict someone for breathing and letting the gas mix with the atmosphere.

The statute requires a specific intent to impair the availability of evidence. Incidentally consuming it in the course of doing drugs wouldn’t be sufficient. (Ingesting a bunch of drugs when you see the police ala Super Troopers would seem to, though, and why shouldn’t it?)

Back to the case at hand: if instead of a boat the fish had been in a warehouse, and they had simply thrown the fish out the windows onto the ground outside, we’d not be able to charge them with concealing evidence. It would be right there outside the window.

He didn’t just happen to place them in the water: he specifically intended to ensure that law enforcement would never recover them. And if you could prove that intent for the warehouse owner, why wouldn’t that count? The fact that the crime was performed ineptly isn’t usually something we recognize as a defense.

Finally, it’s worth noting that Yates didn’t just throw the contraband fish overboard: he also replaced them with other fish and tried to pass those off to law enforcement as the ones he was being charged for. So the “altering” and “falsifying” elements are also implicated.

[Rev. Arthur L. Kirkland]

Finally, it’s worth noting that Yates didn’t just throw the contraband fish overboard: he also replaced them with other fish and tried to pass those off to law enforcement as the ones he was being charged for.

The antisocial, disaffected, right-wingers and contrarian, -un-American, anti-government cranks love him all the more for that.

[HankViam]

The law profession as we know it today will never permit innovations that reduce prices, least of all for AI, the advent of which it undoubtedly regards as an opportunity to raise them (faster, better quality work products, etc.). For anything revolutionary to happen, the prohibition on non-lawyers owning law firms must be abolished and the profession subjected to the tender mercies of private equity sharks, LBO practitioners, etc., just like the rest of the economy.

[Dr. Ed 2]

It wouldn't even take that -- I'd like to see what some unions are already defacto doing --- selling legal representation insurance.

Why couldn't an insurance company calculate the costs of legal representation for various things (e.g. kid expelled from college) and then offer insurance with in house lawyers to cover it?

[The Margrave of Azilia]

Good catch - that is weird.

Incidentally, I had trouble finding the entry for Barbour because Blackman put in a superflous "l" in Philip Barbour's name.

[Jerry B.]

“states’ rights”. Interesting, considering he spent much of his time in office preventing states, notably South Carolina, from seceding.

See, for example "American Lion: Andrew Jackson in the White House" by Jon Meacham.

[Dr. Ed 2]

" advocated for individual liberty, states’ rights, and slavery."

it makes perfect sense if it is only a clump of cells.

A fairly large clump, but still there really is no difference between ignoring the life of the adult slave and the life of the unborn..

Both are clumps of cells owned by another.

[The Margrave of Azilia]

He threatened to send troops into South Carolina and enforce the tariff if necessary, notwithstanding any state attempt at nullification.

Meanwhile, Congress reduced the tariff enough that South Carolina no longer wanted to resist it.

So both sides – Jackson and South Carolina – got to issue their manifestos but didn’t actually have to back them up with actual fighting. That came later.

And South Carolina was in a position to boast that threats of armed resistance could get results.

[not guilty]

Blastocystophiles are quick to compare abortion rights and slavery. I think the more cogent parallel is that female slaves had no control over their bodies. Many were forced to service their owners sexually, and some owners even used them as breeding stock.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Except for the federal fugitive slave laws.

[Rev. Arthur L. Kirkland]

A Noble Prize for identification of error in Today in Supreme Court History has been earned by and is awarded to The Margrave of Azilia, who joins a large group of discerning and deserving recipients.

(A clue leading toward this Noble Prize has been available for years.)

South Texas College of Law Houston, Georgetown University, and the Federalist Society have, correspondingly, earned yet another level of disrepute among genuine scholars.

Carry on, clingers!

[Please, Daivd, Seek Help]

I get that Blackman's politics are very bad and his blog posts are often quixotic but I don't think the existence of a minor typo in a low engagement semi-automated blog post brings pervasive disrepute to anyone's scholarship.

[CJColucci]

Too small for a republic, too large for an insane asylum.

[Rev. Arthur L. Kirkland]

It's the entire body of shambling work that causes Georgetown (and a few other legitimate schools) to wish that their names and reputations franchises were not being misappropriated and diminished by the misfit employees who operate this blog.

You must be new here if you are unfamiliar with the pervasive level of shoddy scholarship that is a signature element of Today in Supreme Court History.

[Michael P]

Former blastocyst declares "fuck you, I got mine" to latecomer blastocysts in bizarre rant about 160-year-old practices.

[Dr. Ed 2]

Yes, both have a heartbeat and both feel pain.
And both are human beings.

It was my reading of the pro-slave literature that made me pro-life.

[Dr. Ed 2]

michael +1

[not guilty]

Most pre-embryos naturally fail to implant and are washed away in the menstrual flow. Michael P, do the women in your life (if any) save their feminine hygiene products for a proper Christian burial on the chance that one may contain a microscopic unborn child?

[Michael P]

Which US places have banned all contraceptives?

[taqmcg]

So in my tortured analogy above, anyone smoking marijuana near an approaching DEA agent must die of asphyxiation lest they conceal evidence! Generally I think that simply throwing away something is not concealing it and that just because it happens in an environment where it becomes impossible to recover doesn't necessarily make it concealment. So, e.g., if someone purposely went on a boat and dropped something in the ocean, I think that would be concealment if that was the purpose of the boat ride. But if you're on the boat, just throwing things overboard, I think it's much less clear. As I understand it, there are laws against removing evidence which would still be (and were) applicable. But again IANAL.

[taqmcg]

Didn't get my edit in in time.
I should point out that this is just a little niggle. The real issue is that the reading of the law rebuffed by the court dramatically increased the scope of the law in a way almost certainly not intended by Congress. If the intention was that any material evidence is a record of itself, the statute would have been written very differently.

[not guilty]

Dr. Ed 2, is your claim that a blastocyst has a heartbeat and feels pain as true as everything else you have said?

[Michael P]

Oh, so your earlier comment had a typo. You meant "FYIGN", as in "fuck you, I got nothin'", especially between conflating contraception with abortion and not being able to cite any place or any one who actually embodies your imaginary FYIGN case.

[Michael P]

Aww, doubling down on being an asshole. How quaint. And typical.

[Michael P]

Yes, you enjoy arguing against straw man versions of imaginary people. We get it.

[Michael P]

Your analogy has been inapposite this whole time, from inventing imaginary people to complaining about century-old laws that no one is attempting to re-enact. I pointed out that you had nothing before, and now you're too busted to even come up with your own rebuttal. You're just projecting your lack of point onto me.

[Noscitur a sociis]

The point isn’t that a fish is a record. The point is that it’s a tangible object, which is exactly what congress said you can’t conceal, destroy falsify, etc.

in a way almost certainly not intended by Congress.

What’s your basis for this claim? To write a statute that would cover tampering with physical evidence, the way most (all?) states do, what would Congress have had to say differently?

[The Margrave of Azilia]

Yes, a one-way ratchet. States’ rights for me, federal supremacy for thee.

Really, it’s as if the slavers ruined everything they touched, including federalism which they tainted with guilt by association by their double-standard posturing.

[taqmcg]

The title of the section.