Tag Archives: courts

Judge Says North Dakota’s Abortion Ban Is "Clearly Unconstitutional"

by Hedrick Lepsch Posted on July 22, 2013

Mother Jones

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A judge has blocked the country’s most restrictive abortion law from taking effect in North Dakota. The law, passed in March, would ban abortion at the point when a fetal heartbeat can be detected—which can be as early as six weeks into a pregnancy. The law is what earned North Dakota the championship in our Anti-Choice March Madness tournament earlier this year.

In his decision, US District Judge Daniel L. Hovland said the law would not pass constitutional muster:

The State has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded to all women. The United States Supreme Court has unequivocally said that no state may deprive a woman of the choice to terminate her pregnancy at a point prior to viability. North Dakota House Bill 1456 is clearly unconstitutional under an unbroken stream of United States Supreme Court authority.

There is only one abortion clinic in North Dakota, the Red River Women’s Clinic in Fargo, and it has to fly doctors in from out of state to provide the procedure. Hovland’s ruling notes that the law would basically make it impossible to get an abortion in North Dakota:

Typically only women who have regular menstrual periods, keep close track of them, and take a pregnancy test promptly after a missed period at four weeks LMP, will know they are pregnant by six weeks. Because the Clinic only performs abortions one day per week, and cannot safely perform abortions before five weeks of her last menstrual period, the law will effectively limit a woman’s ability to obtain an abortion to a single day during the pregnancy’s fifth week.

North Dakota’s law is the most strict in the country so far, but last week Texas lawmakers introduced a bill that would also outlaw abortion once a fetal heartbeat can be detected. Today’s ruling in North Dakota is a preliminary injunction that stops the law from going into effect until the full case can be heard.

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Judge Says North Dakota’s Abortion Ban Is "Clearly Unconstitutional"

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Court: Chevron Can Seize Americans’ Email Data

by Rob Sutter Posted on July 22, 2013

Mother Jones

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Thanks to disclosures made by Edward Snowden, Americans have learned that their email records are not necessarily safe from the National Security Agency—but a new ruling shows that they’re not safe from big oil companies, either.

Last month, a federal court granted Chevron access to nine years of email metadata—which includes names, time stamps, and detailed location data and login info, but not content—belonging to activists, lawyers, and journalists who criticized the company for drilling in Ecuador and leaving behind a trail of toxic sludge and leaky pipelines. Since 1993, when the litigation began, Chevron has lost multiple appeals and has been ordered to pay plaintiffs from native communities about $19 billion to cover the cost of environmental damage. Chevron alleges that it is the victim of a mass extortion conspiracy, which is why the company is asking Google, Yahoo, and Microsoft, which owns Hotmail, to cough up the email data. When Lewis Kaplan, a federal judge in New York, granted the Microsoft subpoena last month, he ruled it didn’t violate the First Amendment because Americans weren’t among the people targeted.

Now Mother Jones has learned that the targeted accounts do include Americans—a revelation that calls the validity of the subpoena into question. The First Amendment protects the right to speak anonymously, and in cases involving Americans, courts have often quashed subpoenas seeking to discover the identities and locations of anonymous internet users. Earlier this year, a different federal judge quashed Chevron’s attempts to seize documents from Amazon Watch, one of the company’s most vocal critics. That judge said the subpoena was a violation of the group’s First Amendment rights. In this case, though, that same protection has not been extended to activists, journalists, and lawyers’ email metadata.

The Electronic Frontier Foundation (EFF) represents 40 of the targeted users—some of whom are members of the legal teams who represented the plaintiffs—and Nate Cardozo, an attorney for EFF, says that of the three targeted Hotmail users, at least one is American. Cardozo says that of the Yahoo and Gmail users, “many” are American.

“It’s appalling to me that the First Amendment has no bearing in this case, and that the judge simply assumed that all of the targets aren’t US citizens—when in fact, I am,” says a human rights activist from New York who has been advocating on behalf of the indigenous community, doing both volunteer and paid work, since 2005. He has never been sued by Chevron, nor been deposed. He wishes to remain anonymous—because his legal fight against the subpoena is still pending. The activist received a notice of the subpoena from Google last year (it has not been granted yet.) Chevron is seeking information including, but not limited to, the name associated with the account and where a user was every time he logged in—for the past nine years.

“Chevron is trying to crush, silence, and chill activism on behalf of the people they screwed over,” the activist argues. Michelle Harrison, an attorney for EarthRights International, tells Mother Jones that her clients aren’t comfortable going on record about the subpoenas they’ve received, because “Chevron’s dogged pursuit of anyone that dares speak out against them is regrettably having precisely the chilling effect we warned the court it would.”

Advocates for the plaintiffs in the Chevron case say that subpoenaing the email records is the company’s latest nuclear tactic to win a lawsuit it keeps losing. Chevron was ordered to pay $9 billion in damages in 2011 and to issue a public apology. After the company refused, a judge ordered the damages to double. The Supreme Court has declined to hear Chevron’s appeal. The extortion case is set to go to trial on October 15, after Kaplan—whom the Ecuadorean plaintiffs once asked to be removed from the case—refused to delay it.

Cardozo says there are 101 email addresses listed in the subpoenas to the three tech companies, but EFF has found only two that are owned by actual defendants in the lawsuit. “Subpoenas of nonparties are generally quite routine,” says Eugene Volokh, a professor at the University of California-Los Angeles School of Law. But Karl Manheim, a professor at the Loyola School of Law in Los Angeles, notes, “The parties seeking the info have to establish its relevance to the case; you can’t just go on a ‘fishing expedition’ or on a hunch.”

Julian Sanchez, a research fellow at CATO, says that “even assuming the account holders aren’t citizens, it doesn’t automatically follow that the First Amendment is irrelevant.” But he notes that while anonymous speech made by Americans is protected under the Constitution, “courts have been inconsistent in applying that protection against civil subpoenas aimed at identifying anonymous internet users.” In the case Dendrite International, Inc. v. Doe No. 3, for example, an appellate court held that a company was not allowed to unmask users who had criticized the company on a Yahoo message board.

Manheim says the judge’s invocation of citizenship is “wrong” in this case and the users should appeal. “The US Constitution applies to all persons (even foreign nationals) within US borders and to US persons abroad. While the targets of the subpoenas are outside of US jurisdiction, the subpoena itself is operative within the US. So the Constitution should apply.” (Chevron did not respond to request for comment.)

“I think if the NSA scandal has taught us anything, anyone who says that ‘it’s just metadata’ doesn’t know what metadata is—if I want to spend the night at my friend’s house and use his computer, that’s my business,” Cardozo says. “And if Judge Kaplan thinks seizing metadata is routine, he doesn’t know how powerful it can be.” The activist adds, “It’s a slippery slope. Once one thing is granted, it will only be easier to ask for more.”

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Court: Chevron Can Seize Americans’ Email Data

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The Supreme Court’s Next Big Abortion Decision

by daniel13stoko Posted on July 19, 2013

Mother Jones

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Roe v. Wade, watch out. The Supreme Court will venture into the abortion debate later this year when it considers the constitutionality of an Oklahoma law restricting the use of oral medications for abortions. The case could have major implications for the 16 states that have passed laws limiting the use of drugs that induce abortions.

Oklahoma’s governor signed the state’s medicine abortion law in May 2011, putting in place new restrictions on the use of RU-486 (also known as mifepristone or Mifeprex) and any other “abortion-inducing drug.” The law mandates that doctors follow the exact protocols for the drugs that are described on the Food and Drug Administration-approved label. Off-label use of drugs is legal and fairly common, and in the years since the drug was first approved for use in 2000, doctors have found that RU-486 and other drugs can be effective at lower doses and can be done with fewer visits to the doctor’s office than outlined on the FDA label. Doctors have also found that RU-486 is effective up to nine weeks into a pregnancy, not the seven weeks for which it was originally approved. Oklahoma’s law bans doctors from using that new knowledge to help their patients.

After Oklahoma’s governor signed the law, the Oklahoma Coalition for Reproductive Justice and the Center for Reproductive Rights sued—and won. A trial judge struck down the law in May 2012. When Oklahoma appealed to the state Supreme Court, it lost again. The state then appealed to the US Supreme Court, which indicated in June that it would consider the case. Reproductive rights groups say Oklahoma’s law—and similar ones in other states—are a transparent attempt to limit access to medication abortions. The groups argue that the new laws would make medicine-induced abortions virtually inaccessible, since the drugs are so frequently used off-label. “What this law will do is deny women the benefits of nonsurgical options for terminating a pregnancy,” says Julie Rikelman, the director of litigation at the Center for Reproductive Rights. “We think it’s an extreme law.”

In ruling that the law was unconstitutional, the trial court judge stated that it was “so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do.” Now reproductive rights groups are hoping the Supreme Court will agree with the lower court’s ruling. There’s a problem, though: Most reproductive rights advocates believed that the justices would not take up the Oklahoma case at all, since the state Supreme Court had already agreed with the lower court.

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The Supreme Court’s Next Big Abortion Decision

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New Cuccinelli Website Defends Virginia’s Anti-Sodomy Law

by Leon Russell Posted on July 17, 2013

Mother Jones

Today Virginia gubernatorial candidate and state attorney general Ken Cuccinelli launched a website promoting his effort to enforce the state’s law banning oral and anal sex. “Keep Virginia Children Safe!” the site proclaims. It goes on to argue that the anti-sodomy law Cuccinelli is defending is really an “anti-child predators law” that has kept 90 people on the state’s sex offender registry.

Last month, Cuccinelli appealed to the Supreme Court, after an appeals court ruled that the anti-sodomy law is unconstitutional. The Supreme Court already declared laws banning sodomy unconstitutional in Lawrence v. Texas back in 2003, but Virginia kept its “Crimes Against Nature” law on the books. Cuccinelli has been trying to use that statute to prosecute a man for having oral sex with two teenagers. The AG insists that the law is “an important tool that prosecutors use to put child molesters in jail.”

With the new website, Cuccinelli is trying to put Democratic gubernatorial candidate Terry McAuliffe on the defensive, arguing that he’s “playing politics instead of protecting our children.”

But as I’ve written before, Cuccinelli’s argument will be a tough one to make before the Supreme Court, because it’s basically asking the justices to rule again on an issue they’ve already decided on so that Virginia can keep a legal loophole open:

This specific case deals with a man who was prosecuted under the “Crimes Against Nature” statute for having had oral sex with women, a felony offense under that law. The man in the case, William MacDonald, was in his late 40s when he was charged with having consensual oral sex with two young women who were, at the time, ages 16 and 17. While that might be seen as creepy, in Virginia, the age of consent is 15 years old. It is considered statutory rape—a felony offense—to have sex with anyone under that age. Under state law, an adult can be prosecuted for “causing” delinquency by having sex with someone between the ages of 15 and 18, but that is only a misdemeanor. MacDonald was convicted of such a misdemeanor, and his lawyers aren’t challenging that conviction. But they have challenged—so far, successfully—the state’s attempt to prosecute him for violating the “Crimes Against Nature” law.
Because Virginia still has this anti-sodomy law on the books, the state wants to use it against MacDonald and win a felony conviction. The state, however, couldn’t prosecute him under this statute if he had engaged in vaginal sex. That is, the state is trying to use a loophole in the law that makes oral, but not vaginal, sex a felony in order to go after this guy. The court of appeals determined that MacDonald could not be prosecuted under this law because the US Supreme Court ruled in 2003 that such laws are an unconstitutional “intrusion into the personal and private life of the individual.”

Virginia’s anti-sodomy law may not be a winner with the courts, but Cuccinelli’s new campaign site makes it clear that he thinks it’s a winning issue with voters.

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New Cuccinelli Website Defends Virginia’s Anti-Sodomy Law

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This Man Has an IQ of 70. Will Georgia Execute Him Tonight? (Update: No)

by RupertxMcmillan Posted on July 15, 2013

Mother Jones

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Update: A Fulton County judge has stayed Hill’s execution, pending a hearing on Thursday.

At 7 p.m. EST on Monday, Georgia is set to execute Warren Hill, who has been on death row since 1989 for murdering his cellmate with a wooden board. (Hill had, at the time, been serving a life sentence for murdering his girlfriend.) That in itself isn’t especially unusual, except that according to every expert who has examined him, Hill is mentally disabled—and states are prohibited from executing mentally disabled individuals under a 2002 Supreme Court decision.

At this point, no one seems to dispute that Hill meets even the state’s high standard for proving he’s mentally handicapped. But Georgia contends—and in April, a federal appeals court agreed—that his mental capacities are irrelevant, because he is procedurally barred from making that case. That is, even though there is evidence beyond a reasonable doubt that Hill is unfit for execution, Georgia is going ahead with the lethal injection anyway, on a technicality; he’s all out of options.

But there’s another wrinkle. In February, a state court granted a stay of execution for Hill due to questions about the legality of the state’s lethal injection cocktail. The difficulty in acquiring new lethal injection cocktails is such that in February, Georgia sought to expedite the executions of its 94 death row inmates before its cocktails reached their March 1 expiration date. So in May, Gov. Nathan Deal (R) signed the Lethal Injection Secrecy Act, which classifies the state’s execution drug cocktail as a “state secret,” and therefore immune from judicial oversight:

The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information of any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence shall be confidential and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.

Under the new law, judges—or anyone else, really—are prohibited from finding out what drugs are actually being used to execute death row inmates, and where those drugs are coming from. (In Oklahoma, for instance, lawyers have successfully blocked executions that make use of new, more experimental drugs.) Because the cocktail is unknown, it is impossible to know whether such an execution process would square with other Constitutional tenets, such as the Eighth Amendment prohibition on cruel and unusual punishment.

Hill’s last best hope now is the US Supreme Court, which had previously announced it would conference on the case in September. But that’s only pushed Georgia to speed up its own deadline. The law went into effect on July 1. On July 3, Georgia set the new execution date for Hill. We’ll keep you updated.

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This Man Has an IQ of 70. Will Georgia Execute Him Tonight? (Update: No)

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Zimmerman Has Been Found Not Guilty. Now What?

by gt67dx1 Posted on July 14, 2013

Mother Jones

After more than three weeks of testimony and nearly 17 hours of deliberation, the jury in the Trayvon Martin case has found George Zimmerman not guilty.

Zimmerman shot and killed the 17-year-old after a scuffle in a gated condominium complex in Sanford, Fla., on February 26, 2012. The case became a racially charged national story almost immediately due to the circumstances of Martin’s death—a black, unarmed teen shot after being tailed by Zimmerman for merely looking suspicious—and the fact that Sanford police did not arrest Zimmerman until 46 days after the killing.

But the actual trial boiled down not to racism or police inaction but whether or not Zimmerman wanted to kill Martin and if Zimmerman’s life was in danger when he pulled the trigger. To get a murder conviction, the prosecution had to prove to the six women on the jury that Zimmerman acted with malice or intent when he killed Martin. This was tough to prove, given that the victim wasn’t around to offer his version of events. During the trial, the defense sought to paint Zimmerman as a poor fighter who was overpowered by Martin and who came to fear for his life during the scuffle. During his closing statement, attorney Mark O’Mara brought a slab of concrete into the courtroom, arguing that the teen used the sidewalk as a weapon.

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“That is cement. That is a sidewalk. That is not an unarmed teenager with nothing but Skittles trying to get home,” he said. “That was someone who used the availability of dangerous items, from his fist to the concrete, to cause great bodily injury.”

The prosecution contended that Zimmerman killed Martin not because he had to, but because he wanted to. On Thursday, the judge in the case ruled that the jury could find Zimmerman guilty of a lesser charge of manslaughter. This option—described as a possible compromise by numerous legal observers—was not accepted by the jury.

For the people who believed that Zimmerman was guilty, this case±—and the Sanford police department’s reaction to it—was far more signficant than a local murder. It inspired deep emotions about the value of the lives of young black men, and this verdict will provoke deep feelings of disappointment and frustration for many who pushed for Zimmerman to be charged with murder.

But it’s not over. Now that the verdict is in, here’s what could happen next.

Federal charges: The Department of Justice launched an investigation last March to investigate whether Martin’s shooting amounted to a federal hate crime—that is, if Zimmerman followed and killed Martin because he was black. In July 2012, the FBI released a statement saying that investigators had found no evidence that Zimmerman was motivated by racism. The July statement indicates that federal charges are highly unlikely, but the DOJ has not announced that the case is closed. It’s still being brought up as a post-trial possibility. NAACP president Benjamin Jealous, for instance, said Saturday on MSNBC that “there are still additional legal avenues. He could still be charged with federal civil rights charges.”

Civil lawsuit: Martin’s family reached a settlement in April with the homeowners’ association of the subdivision where the killing occurred. The details of the settlement were not made public, but the Orlando Sentinel reported that the family was “said to” have been awarded at least $1 million. The suit did not include Zimmerman, but the family’s attorney Benjamin Crump has said that the family intends to sue their son’s killer at some point in the future. It’s not uncommon for families to seek a form of justice through civil courts, even when a the defendant is acquitted in criminal court. And the standards for judgments are different in such civil cases.

The public’s reaction: In the week leading to the verdict, speculation that people—specifically black people—would riot if Zimmerman were acquitted spread through the mainstream media, after taking off in the conservative press and cable news. What’s more likely, based on how Martin supporters have reacted initially—after the verdict was read, the crowd outside of the courthouse dispersed peacefully—is that protests (of the non-violent variety) against racial profiling will continue.

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Zimmerman Has Been Found Not Guilty. Now What?

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Short Takes: “Gideon’s Army”

by Ameliankak Posted on July 9, 2013

Mother Jones

Gideon’s Army

HBO DOCUMENTARY FILMS

Dawn Porter practiced law for 15-plus years, mostly for TV studios—before our justice system’s iniquities inspired her to get behind the camera. Gideon’s Army follows public defenders as they struggle with absurd caseloads and fret over clients’ fates. One resorts to pocket change to buy gas. “This is all the money I have in the world right now,” she explains. The occasion for the film is the 50th anniversary of the Supreme Court’s Gideon v. Wainwright ruling, which compels states to provide an attorney to criminal defendants who can’t afford one. And that’s something. But as Porter sums up today’s situation, “You have the right to a lawyer. You don’t necessarily have the right to a good one.”

This review originally appeared in our July/August issue of Mother Jones.

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Short Takes: “Gideon’s Army”

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Missouri Gov. Vetoes Journo-Jailing Gun Bill

by deqc16rl Posted on July 5, 2013

Mother Jones

Jay Nixon, the Democratic governor of Missouri, vetoed a sweeping pro-gun bill on Friday that received national attention earlier this year because it aimed to nullify all federal gun laws that state lawmakers decided were in violation of the Second Amendment. The bill also placed journalists in jeopardy of arrest for publishing virtually any information about gun owners—a measure far broader than the journalist-jailing bill signed into law last month by Louisiana’s Republican Gov. Bobby Jindal, and one that could still become law if the state legislature overrides Nixon’s veto later this year.

The Missouri bill, titled the “Second Amendment Protection Act,” would criminalize the publication of any information that identifies a gun owner or applicant by name by making this act a class A misdemeanor, which is punishable by up to a year in jail in the state. Unlike Louisiana’s new law, which only prohibits the publication of concealed handgun permit information, Missouri’s would ban the publication of “the name, address, or other identifying information of any individual who owns a firearm or who is an applicant for or holder of any license, certificate, permit, or endorsement which allows such individual to own, acquire, possess, or carry a firearm.”

“Under this bill, newspaper editors around the state that annually publish photos of proud young Missourians who harvest their first turkey or deer could be charged with a crime,” Nixon said in a statement explaining the veto.

The bill opens with a long-winded states’ rights discourse explaining why the legislation doesn’t violate federal law. It declares the National Firearms Act of 1934, which restricts machine gun ownership, and the Gun Control Act of 1968, which restricts interstate gun transfers, “null and void and of no effect in this state” because they “infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment.”

Earlier this year, Kansas Gov. Sam Brownback, a Republican, signed into law a similar bill that threatens federal agents with felonies for enforcing gun laws in the state. In response, US Attorney General Eric Holder sent a letter to Brownback threatening litigation if the governor enforced the law, which Holder said was an unconstitutional defiance of federal law. Similar legislation has recently been introduced in about 30 other states.

Missouri lawmakers may receive their own letters from Holder before the end of the year: The state legislature can override Nixon’s veto when it reconvenes in September if both the Senate and House choose to do so by a two-thirds vote. That could easily happen, because both chambers overwhelmingly voted in favor of the bill.

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Missouri Gov. Vetoes Journo-Jailing Gun Bill

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WATCH: Will You Sue Over Gay Marriage? Fiore Cartoon

by Carson Silverman Posted on July 4, 2013

Mother Jones

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Mark Fiore is a Pulitzer Prize-winning editorial cartoonist and animator whose work has appeared in the Washington Post, the Los Angeles Times, the San Francisco Examiner, and dozens of other publications. He is an active member of the American Association of Editorial Cartoonists, and has a website featuring his work.

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WATCH: Will You Sue Over Gay Marriage? Fiore Cartoon

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VIDEO: "I Now Pronounce You: Spouses for Life"

by kasyusd Posted on June 29, 2013

Mother Jones

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Friday afternoon at San Francisco’s City Hall, Kris Perry and Sandy Stier become the first same-sex couple in California to legally marry following a major Supreme Court decision on Wednesday that effectively overturned California’s voter-approved ban on same-sex marriage. The couple were litigants in the court’s Hollingsworth v. Perry case, which addressed the California ban, making today’s ceremony especially memorable for the crowd of local supporters and national media in attendance. Watch below as California Attorney General Kamala Harris officiates their wedding and pronounces them “Spouses for life”:

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VIDEO: "I Now Pronounce You: Spouses for Life"

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