Today in Supreme Court History: March 27, 1996

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

Comments

[Thought about __ all my life]

The treatment of Indians was bad

but let's not abuse words
"Perhaps in the spirit of the founding-era maxim Abundans cautela non nocet, one additional example—this one from outside the Constitution’s text—wouldn’t hurt: From founding-era descriptions of Indian tribes as “nations,” some scholars have concluded that European-Americans recognized tribes as sovereigns, and therefore did not apply state law to them. In fact, this particular use of “nation” was a Latinate usage deriving from natio—meaning an ethnic group. Robert G. Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denv. L. Rev. 201, 259 (2007). Incidentally, Abundans cautela non nocet means “Overflowing caution doesn’t hurt.” It is a canon of construction"

[JoeFromtheBronx]

The dissents (Stevens and Souter) show how sovereign immunity has been taken to dubious levels, following text, history, and basic republican values. As they note, there are "two Eleventh Amendments," the one ratified in 1795 and the one invented by the Court.

As Breyer later wrote for the Court in LAPIDES V. BOARD OF REGENTS:

The Eleventh Amendment grants a State immunity from suit in federal court by citizens of other States, U.S. Const., Amdt. 11, and by its own citizens as well, Hans v. Louisiana, 134 U.S. 1 (1890).

The Court didn't just invent this path from the ether. Nonetheless, it is a wrongminded (especially to the extent taken) choice of the available options, again following text, history, and structural values as set forth by the Constitution.

The "fundamentally mistaken" (Souter) nature of the majority opinion led to a continual effort by the liberal/moderate wing against the sovereign immunity line of cases.

Happy 3 Cubed Day to all that celebrate.

[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. 71 (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 was for jury 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

[John F. Carr]

The lower courts in Tennessee v. Garner granted qualified immunity to police who relied on a law allowing them to use deadly force. Back in those days courts were expected to reach the underlying constitutional question instead of ducking it.

"after burglary in unoccupied house"

In my state the degree of burglary does not depend on whether the house is occupied. Burglary in the nighttime is more serious because people are more likely to be home. Going into a house where you know the residents are on vacation is the same as going into a house full of sleeping people. There is a separate crime called armed home invasion that depends on people being inside.

[Dan Schiavetta]

Thanks!

[A Japanese Student]

Interesting. Japan lacks a general burglary offense. If you break into a building and steal some goods, you can be charged with theft and trespass. Japanese criminal law is like that - there are many generic offenses, covering a wide variety of conduct. Shoplifting and burglary are both theft, drawing a graffiti and bulldozing a house are both "destruction of building", etc.

Note, though, that there do exist provisions where burglary is treated separately from theft. Self-defense requirement is relaxed when stopping a burglar, and "habitual burglary" has a statutory minimum of three years.

[John F. Carr]

By my count Massachusetts has 11 forms of burglary (General Laws Chapter 266 sections 14, 15, 16, 16A, 17, 18, 18A, 19, 20, 20A, 20B) and 2 forms of assault in a dwelling (Chapter 265 sections 18A and 18C).

When Congress made federal laws conditional on a prior state law "burglary" conviction the courts had to decide which offenses counted as priors. Some of Massachusetts' burglary-like laws protect vehicles as well as buildings. They are not considered burglary for purposes of federal law.

[Dan Schiavetta]

I lament the desuetude of the verb "burgle", replaced nowadays by "burglarize".

[David Nieporent]

Yeah, it's not the Hamburglarizer, after all.

[SMP0328]

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.)

This was from a time when the Supreme Court did not like, and/or could not grasp, that the Fourteenth Amendment was meant to fundamentally change the relationship between the federal government and the States. Cruikshank has been effectively overruled by multiple 1A- and 2A-based decisions.

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

The Court ruled that Congress could not use its Article I powers to abrogate the sovereign immunity of any State in federal court, except where it is shown the States adoption of the Constitution was intended to be a "surrender of this immunity in the plan of the convention." The Court also expressly overruled Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989).

Regarding Ex parte Young, the Court ruled that where Congress has provided an enforcement mechanism that mechanism replaces Ex parte Young.

[Dan Schiavetta]

Thanks!

[JoeFromtheBronx]

Tennessee v. Garner was relevant during the drone debates, including when they targeted an American citizen.

The ruling left open use of deadly force, including without judicial process, in certain cases.

The spirit of United States v. Cruikshank partially lives on respecting "private rights." We saw that in U.S. v. Morrison.

Some people appealed to Cruikshank when they didn't want the Second Amendment to be incorporated, but as noted the reach of the opinion also applied to the First Amendment.

[apedad]

Re: Lanzetta v. New Jersey

18 U.S. Code § 521 - Criminal street gangs

(a)Definitions.—
“conviction” includes a finding, under State or Federal law, that a person has committed an act of juvenile delinquency involving a violent or controlled substances felony.

“criminal street gang” means an ongoing group, club, organization, or association of 5 or more persons—

(A)that has as 1 of its primary purposes the commission of 1 or more of the criminal offenses described in subsection (c);
(B)the members of which engage, or have engaged within the past 5 years, in a continuing series of offenses described in subsection (c)

https://www.law.cornell.edu/uscode/text/18/521

Just thought it would be interesting to see what current law states about "being a gangster."