Today in Supreme Court History: March 27, 1996

3/27/1996: Seminole Tribe of Florida v. Florida decided.

Comments

[Dan Schiavetta]

United States v. Cruikshank, 92 U.S. 542 (decided March 27, 1876): The Constitution does not guarantee a right to peacefully assemble, nor a right to bear arms; it merely prevents those rights from being encroached on by the federal government. Neither are “fundamental” (i.e. preexisting) rights, and can therefore be restricted by States. (Or so it was held. Typically leaden opinion by Waite, dismissing Louisiana indictment arising out of the Colfax massacre, where about 100 black people were killed in a dispute over a state election; Waite cites supposed vagueness of indictment, and holds that Fourteenth Amendment and Enforcement Act of 1870 apply only to state conduct, not conduct of private individuals.)

Lorenzo v. SEC, 587 U.S. — (decided March 27, 2019): dissemination (not just creation) of false or misleading statements violates securities laws (upholding SEC sanctions against banker who had emailed potential investors as to the upside of an offer to a client but not the downside)

Tennessee v. Garner, 471 U.S. 1 (decided March 27, 1985): issue of fact as to whether shooting of fleeing suspect after burglary in unoccupied house was a “reasonable” seizure under the Fourth Amendment; striking down Tennessee statute allowing deadly force against nondangerous suspect

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (decided March 27, 1996): Florida has Eleventh Amendment immunity from suit by Indian tribe to compel negotiations under Indian Gaming Regulatory Act; also state officials don’t have enough discretion under the Act to be exposed to Ex parte Young liability

Delaware v. Prouse, 440 U.S. 648 (decided March 27, 1979): stopping car and checking license is unreasonable Fourth Amendment search/seizure unless “articulable suspicion” of violation of law (marijuana smelled and found during stop was suppressed) though “less intrusive” “spot checks” are o.k.; in his concurrence Blackmun, joined by Powell, “assumes that the Court’s reservation also includes other not purely random stops (such as every 10th car to pass a given point)”; four years later in City of Los Angeles v. Lyons, 1983, where the Court held for no standing, Marshall in dissent pointed out that under that decision “a policy of shooting one out of ten suspects” would evade federal court review

Lanzetta v. New Jersey, 306 U.S. 451 (decided March 27, 1939): striking down on vagueness grounds statute criminalizing “being a gangster” (known to be a gang member, knowing gang members, etc.)

Millbrook v. United States, 569 U.S. 50 (decided March 27, 2013): Federal Tort Claims Act waives sovereign immunity for any act by law enforcement officers while in the course of their employment, not just while arresting, investigating, etc. (can sue for sexual assault by federal prison guards)

Comcast Corp. v. Behrend, 569 U.S. 27 (decided March 27, 2013): Court reverses class certification because trial court did not allow defendant to rebut plaintiff’s expert showing of increase in cable prices due to Comcast’s anticompetitive activities (which was not tailored to the only theory allowed by the trial court — that Comcast’s gobbling up of local providers prevented new competitors from entering market); 5 - 4 decision; the dissent by Ginsburg and Breyer argues that Court’s holding restricts class certification to cases where plaintiffs can already show they will win the case (that’s my impression also).

Rutledge v. United States, 517 U.S. 292 (decided March 27, 1996): conspiracy to distribute cocaine (21 U.S.C. §846) was lesser included offense within continuing criminal enterprise (§848); defendant can’t be convicted of both

United States v. First City National Bank of Houston, 386 U.S. 361 (decided March 27, 1967): under the Bank Merger Act of 1966, trial court in lawsuit challenging merger should not have given any deference to the decision of the Comptroller of the Currency allowing merger

[The Margrave of Azilia]

“holds that Fourteenth Amendment and Enforcement Act of 1870 apply only to state conduct, not conduct of private individuals”

I thought the killers had been deputized by one of two claimants to the office of sheriff (each claimant contended that he was duly elected).

Sounds like acting under color of state law.

[Frank Drackman]

Ponce de Leon was in Florida a hundred years before the Seminoles got there and not a single Casino named after him.

[Magister]

Apparently there was a Ponce de Leon Springs Hotel and Casino in Florida in 1925, a property which subsequently became (part of) a state park. Not a gambling casino, though, as the Florida Park Service is quick to point out.

[I woke up when Hillary talked about Reconstruction]

This is the pale version of "Does Israel have a right to the land, or do the Canaanites and the Muslims?"
and of course there is bad intention in almost all such cases. Reminds me of 1619 Nikki who claims injustice to Blacks has to be dated to feet landing on Jamestown.
But why stop there???

"The historians John Thornton and Linda Heywood of Boston University estimate that 90 percent of those shipped to the New World were enslaved by Africans and then sold to European traders. The sad truth is that without complex business partnerships between African elites and European traders and commercial agents, the slave trade to the New World would have been impossible, at least on the scale it occurred....
The African role in the slave trade was fully understood and openly acknowledged by many African-Americans even before the Civil War. For Frederick Douglass, it was an argument against repatriation schemes for the freed slaves. “The savage chiefs of the western coasts of Africa, who for ages have been accustomed to selling their captives into bondage and pocketing the ready cash for them, will not more readily accept our moral and economical ideas than the slave traders of Maryland and Virginia,” he warned. “We are, therefore, less inclined to go to Africa to work against the slave trade than to stay here to work against it.”..."

Prosecute Nikki and then we can talk

[not guilty]

Who should prosecute her, and for what offense(s)? Please show your work, including identification of applicable statutes.

[Dan Schiavetta]

I don’t know what they said, because I’ve blocked that commenter(s), but I bet they don’t respond to you except with b.s.

[not guilty]

Still waiting, I woke up when Hillary talked about Reconstruction. Who should prosecute her, and for what offense(s)?

[Krychek_2]

This is a really silly argument. Suppose I hire someone to procure for me children for sex, and that person does. How exactly am I any less culpable because my victims were procured by someone else? If I am indicted, should I be allowed to argue that someone else was guilty too? And if there are damages (reparations) to be paid, am I off the hook for them because someone else was also involved?

This is nothing more than an apologetic to try to get the white part of the slave trade off the hook. OK, so Africans were involved too. So what?

[Dan Schiavetta]

Slavery in Africa was not as harsh as slavery in the U.S. For one thing, it was not race-based. It was more like slavery in the Roman Empire. Maybe the African slave sellers did not realize what they were selling those people into.

It is not in dispute though that they preferred dealing with Europeans. For one thing, they paid better. For another, they had booze! (I am absolutely a white supremacist on that topic. White people, far and away, have been the most accomplished, when it comes to inventing ways to get shitfaced.)

My source for this is "The Slave Trade" by Hugh Thomas, which I recommend.

[The Margrave of Azilia]

“It was more like slavery in the Roman Empire.”

That doesn’t sound like a mitigating circumstance. Maybe the Romans were willing to enslave people of various races (and they might massively enslave people from defeated nations), but slaves could be treated very badly.

Wikipedia’s description of “Slavery in ancient Rome” sounds familiar:

“Unlike Roman citizens, by law [slaves] could be subjected to corporal punishment, sexual exploitation, torture, and summary execution. The most brutal forms of punishment were reserved for slaves. The adequacy of their diet, shelter, clothing, and healthcare was dependent on their perceived utility to owners whose impulses might be cruel or situationally humane.”

Also,

“The harboring of fugitive slaves was against the law, and professional slave-catchers (fugitivarii) were hired to hunt down runaways. Advertisements were posted with precise descriptions of escaped slaves, and offered rewards.

“…Augustus himself boasted in his official record of achievements of having 30,000 fugitive slaves rounded up and returned for punishment to their owners.”

[Commenter_XY]

Is Cruikshank still good law? Would be unbelievable to me.

[not guilty]

No, it is not. The First Amendment right to peaceably assemble and to petition for a redress of grievances applies to the states. De Jonge v. Oregon, 299 U.S. 353, 364 (1937). Likewise, the Second Amendment right to keep and bear arms applies to the states. McDonald v. City of Chicago, 561 U.S. 742 (2010).

[Commenter_XY]

Whew! I'm like, we are so screwed if that is still good law....

[SMP0328]

Cruikshank is still good law regarding the 14th Amendment's Privileges and Immunities Clause and the State Action Doctrine. The former doesn't mean much since substantive due process achieved the same result.

[David Nieporent]

Cruikshank was routinely mis-cited by anti-gun activists as one of the SCOTUS cases that stood for the proposition that the 2A didn't protect an individual RKBA, but all it actually stood for was for the notion that the 2A didn't apply to the states. (It was pre-incorporation doctrine.)

[Dan Schiavetta]

It was not their strongest argument, but as far as it went, it was correct. Most gun laws are state laws.