Author: Kent Scheidegger

Police Use of Force and the “Moment of Threat”

by · May 15, 2025 10:52 am

The Supreme Court has long held that claims of unreasonable search and seizure under the Fourth Amendment must be evaluated under the “totality of the circumstances.” Since Illinois v. Gates in 1983, it has rejected categorical rules that confine the assessment. Today the high court decided in Barnes v. Felix that a claim of unlawful use of force against a police officer cannot be confined to the “moment of threat.” Unlawful use of force is considered a seizure and analyzed under the Fourth Amendment.

Today, we reject that approach as improperly narrowing the requisite Fourth Amendment analysis. To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.

No big surprise there. The decision was unanimous. Continue reading . . .

Enjoining State Prosecutions in Federal Court

by · May 15, 2025 10:32 am

After the Texas Attorney General gave Yelp, Inc. notice of intent to file a quasi-criminal enforcement suit against it, Yelp went yelping to the federal district court in San Francisco for an injunction against the enforcement.

Can they do that? No, said the district judge, and today a three-judge panel of the Ninth Circuit affirmed. This isn’t a new rule. It’s an old case called Younger.

Over 55 years ago, a federal district court enjoined a prosecution in California state court. The Los Angeles District Attorney (and future California Attorney General) Evelle Younger, took it all the way to the Supreme Court. In Younger v. Harris , 401 U.S. 37 (1971), the high court established a general rule that federal courts should abstain from using their injunctive powers against prosecutions in state courts. Federal-law defenses must generally be asserted in the state court. There is an exception for bad faith prosecutions.

First Amendment defenses generally are not an exception. Younger itself was such a case. Yelp did not succeed in showing bad faith here. Continue reading . . .

Culture, Crime, and Statistics

by · May 10, 2025 8:59 am

Barry Latzer, Emeritus Professor of Criminology at John Jay College of Criminal Justice, has this letter on culture and crime statistics in the Wall Street Journal.

If economic gains are associated with rising crime and economic downturns with declining crime, the prevailing theories of crime causation need rethinking. Indeed it seems the relationship between crime and economic conditions is unpredictable, and cultural values play a central role in the extent of violent behavior by various social groups.

Professor Latzer is too modest. The prevailing theories have already been rethought. By him. Continue reading . . .

Dispatch Acquires SCOTUSBlog

by · Apr 26, 2025 10:12 am

SCOTUSblog has been acquired by Dispatch Media. Amy Howe has this post on SCOTUSblog, and Dispatch editor Steve Hayes has this post on the Dispatch.

I am pleased to see that Amy is staying with SCOTUSblog as a member of Dispatch’s team. Her posts on SCOTUSblog and her own blog have long been my go-to source for thorough and unbiased reports on Supreme Court cases that are outside my own field of expertise.

The usual squawkers are squawking that The Dispatch is “right-wing.” See, e.g., this post at Above the Law. But a quick look at The Dispatch’s home page illustrates how meaningless such simplistic designations are. They are certainly not Trump fans. One post is titled “Trump’s Team of Losers.” The Founding Manifesto states, “The goal was to create a place where thoughtful readers can come for conservative, fact-based news and commentary that doesn’t come either through the filter of the mainstream media or the increasingly boosterish media on the right.” That’s a long way from the image usually conjured up by the term “right wing.”

Continue reading . . .

Baby Murderer Granted Early Parole

by · Apr 25, 2025 1:53 pm

Herbert Brown beat his two-year-old daughter to death in 2013. He was convicted of murder and sentenced to 15-to-life, of which he has only done 12 years. So why is the Board of Parole Hearings granting him parole?  The San Luis Obispo County District Attorney’s Office has this press release.

“It is shameful for the Parole Board to grant Herbert David Brown III early release from prison,” said District Attorney Dan Dow. “Mr. Brown was convicted of murdering his own 22-month young daughter Lily due to abuse he inflicted upon her while he was using and under the influence of methamphetamine. Brown, who now identifies as a woman and goes by the name ‘Allie Brown,’ was sentenced to serve 15-years-to-life and should have served every day of the 15 years before being considered for possible parole. I ask the Board of Parole Hearings: ‘Where is the justice for Baby Lily?’” Continue reading . . .

Mixed Ruling in El Salvador Case

by · Apr 11, 2025 12:03 pm

Yesterday, the U.S. Supreme Court issued an order partly granting and partly denying the Department of Homeland Security’s application in the case of the deportation of Kilmar Abrego Garcia to El Salvador, noted in this post Monday. Here is the dispositive paragraph:

The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by The Chief Justice, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court’s order remains in effect but requires clarification on remand. The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to  share what it can concerning the steps it has taken and the prospect of further steps. The order heretofore entered by The Chief Justice is vacated.

Continue reading . . .

Venezuelan Gang Case Must Proceed in Habeas Corpus

by · Apr 7, 2025 5:39 pm

The U.S. Supreme Court has resolved the case of deportation of Venezuelans alleged to be members of the Tren de Aragua gang, just as I said in this post on March 26. The case that arrived in the Supreme Court is the wrong type of case, filed in the wrong court, and the high court vacated it. This case must proceed in habeas corpus, and it must be brought in the district where the petitioners are detained, which is in Texas.

The opinion is here. Continue reading . . .

Supreme Court Grants Stay of Injunction for Return of Alien

by · Apr 7, 2025 4:20 pm

The United States has sought Supreme Court review of an order of a federal district court ordering the Government to effect the return of an alien who has already been deported and is in the custody of a foreign government. The Solicitor General’s application in Noem v. Abrego Garcia, 24A949, notes the unprecedented nature of an order “dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight.” The Chief Justice stayed the district court’s order and ordered a response by tomorrow. Continue reading . . .