Author: Kent Scheidegger

Federalist Society Convention Online

by · Nov 2, 2020 11:21 am

Like many events this year, the Federalist Society’s National Lawyers Convention will be online, Monday through Friday of next week, November 9-13. The good news is that you can attend all the talks for free* and without traveling to Washington. The bad news is that we won’t have all the networking in receptions and hallways. There will be no black-tie dinner, where we usually have our most prominent speaker, but Justice Alito will address the convention on Thursday evening. The full agenda is here.

There are an unusual number of panels of interest to criminal law practitioners this year. Continue reading . . .

Protest Organizer Liability for Injury to Police Officer

by · Nov 2, 2020 8:55 am

When is a protest organizer liable under state tort law for injury to a police officer when the protest turns violent? When is such liability blocked by the First Amendment?

The U.S. Supreme Court today summarily vacated and remanded a decision of the U.S. Court of Appeals for the Fifth Circuit. The Court of Appeals had ruled on the constitutional question without first adequately resolving the state law question. Continue reading . . .

Qualified Immunity and Prison Conditions

by · Nov 2, 2020 8:18 am

The U.S. Supreme Court released two summary opinions today. One case involves a suit by a prisoner against corrections officers. A second is a suit by a police officer is against a protest organizer for violence by a protester. Both cases were sent back for further consideration. This post addresses the prison case. Continue reading . . .

Disinformation on the Facts of Major Cases

by · Oct 28, 2020 3:46 pm

Appellate court opinions and news reports about cases often begin with a brief statement of the facts of the case. Too often, though, those “facts” are not facts at all. Sometimes they are merely allegations in a case that has not yet been tried, assumed by the court due to the procedural posture of the case. Sometimes they are representations by an attorney on one side. The public is often left with a seriously distorted view of what really happened in the case.

Jones v. Mississippi, to be argued in the U.S. Supreme Court on election day, is a widely misreported case. The brief by Jones’s lawyers recite his own self-serving testimony about the circumstances of his murder of his own grandfather as if they were actual facts. Continue reading . . .

Imprisonment Rate Down, But Why?

by · Oct 22, 2020 11:09 am

The U.S. Bureau of Justice Statistics has released its annual report on prisoners for 2019. The “imprisonment rate,” defined as number of sentenced prisoners per 100,000 population, continued to decline, as it has since peaking in 2007.

While many people obsess about the imprisonment rate, I consider it to be a statistic of little value, at least by itself. Why is it down? Is it down because crime is down? Because legislatures lowered statutory penalties? Because prosecutors use their discretion not to charge every crime a defendant has committed more often? Because judges use their discretion in sentencing more leniently? Continue reading . . .

Pursuit, Arrests, and Homes

by · Oct 21, 2020 4:49 pm

This term the Supreme Court seems to be interested in the law of arrests. Last week, the Court held oral argument in the case of Torres v. Madrid on the subject of what is a “seizure.” (My FedSoc podcast is here.) The common law rules on what is an “arrest” figured prominently in the argument, although there is some question of whether an arrest is necessarily a seizure.

On Monday, in an order that attracted little notice among more politically hot potatoes, the Court took up the case of Lange v. California, No. 20-18. Lange raises the question of whether a person evading arrest for a misdemeanor can thwart the pursuit, at least for the time being, by running into his home.
Continue reading . . .

The Consequences of Tolerating Theft

by · Oct 21, 2020 10:59 am

Tessa McLean reports in the SF Chronicle:

Another Walgreens is permanently shutting down in San Francisco.

The drugstore at 790 Van Ness Ave. had been dealing with rampant shoplifting, according to the San Francisco Chronicle, amounting to up to $1,000 in lost merchandise every day. Thefts were often brazen and carried out in broad daylight. Continue reading . . .