U.S. Supreme Court Considers Invalidating Ban on Politics-Themed Apparel in Polling Places

Minnesota Voters Alliance: "We have two people that were told they either had to remove their clothing or have their name and address taken down for potential prosecution in order to vote. We also have a number of people that didn't even try to wear apparel because they were afraid of enforcement…."


Justice Sotomayor: "…. Let's not forget who these people were and what they were wearing, 'Please ID me,' which for some people was a highly charged political message, which was found, on remand, was intended to intimidate people to leave the polling booth …."


— Minnesota Voters Alliance v. Mansky (U.S. Supreme Court, Oral Argument, Feb. 28, 2018)

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Judicial Reviewability of Decision to Cancel DACA

"[T]he District Court should have granted [the Government's] motion on November 19 to stay implementation of the challenged October 17 order [requiring the Government to produce documents relating to the cancellation of DACA] and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is 'committed to agency discretion,' 5 U.S.C. § 701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction)."



—In re United States, 138 S.Ct. 443, 445 (U.S. Supreme Court, Dec. 20, 2017).

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Pregnant Alien Minor Has Due Process Right To Elective Abortion, D.C. Circuit Says

"Border authorities, immigration officials and HHS [the U.S. Department of Health and Human Services] itself would be well served to know ex ante whether pregnant alien minors who come to the United States in search of an abortion are constitutionally entitled to one. And under today's decision, pregnant alien minors the world around seeking elective abortions will be on notice that they should make the trip. (footnote omitted)


— Judge Henderson, dissenting from en banc opinion of the U.S. Court of Appeals for the D.C. Circuit in Garza v. Hargan, 874 F.3d 735 (D.C. Cir. October 24, 2017).

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FISA Probable Cause Standard Is Different From The Standard for Criminal Warrants

Foreign Intelligence Surveillance Act ("FISA") intercepts may contain national security information. If an aggrieved person (usually the target of the surveillance) is charged with a crime and seeks discovery of the FISA applications or orders or other materials, alleging the surveillance was unlawfully acquired or not in conformity with the FISA Court's authorization, 50 U.S.C. § 1806(e), (f), the Attorney General could prevent discovery by filing an affidavit declaring that disclosure or an adversary hearing "would harm the national security of the United States," in which case the federal district court reviewing the defendant's motion must "review 'in camera' and 'ex parte' the application, order, and such other materials as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." See United States v. El-Mezain, 664 F.3d 467, 564 (5th Cir. 2011) (quoting and citing 50 U.S.C. § 1806).

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Artis v. D.C.: A Small Case That Vastly Expands Federal Power

The Supplemental Jurisdiction statute, 28 U.S.C. § 1367, enacted in 1990, permits federal district courts to hear state-law claims not ordinarily within federal jurisdiction if those claims are part of the same case or controversy as a claim within the federal court’s jurisdiction. In the event the federal court declines jurisdiction of the state-law claims, subsection (d) of § 1367 tolls the state-law statutes of limitations while the case is pending in federal court and for 30 days thereafter, permitting litigants to refile the dismissed claims in state court. The question in Artis v. District of Columbia (United States Supreme Court, Jan. 22, 2018) was the meaning of the word “tolled” in § 1367(d).

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D.C. v. Wesby: "Lurid Optics" Overwhelm Case

In District of Columbia v. Wesby (U.S. Supreme Court, Jan. 22, 2018), the claim was false arrest.  The result was 9-0 in favor of the police (the District of Columbia's Metropolitan Police Department).  Apparently the arrestees conceded the unfavorable facts initially in their opposition to the petition for writ of certiorari.  As a result, the arrestees waived their right to challenge those facts later in their merits brief, under the Supreme Court’s Rule 15.2. 

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Hostility Toward Christianity: Recent Federal Cases

"Commissioner Hess says freedom of religion used to justify discrimination is a 'despicable piece of rhetoric.'  Did the Commission ever disavow or disapprove of that statement?"

—Justice Kennedy, U.S. Supreme Court, Dec. 5, 2017 oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission.


"Appellants later clarified their desired injunctive relief as removal or demolition of the Cross, or removal of the arms from the Cross 'to form a non-religious slab or obelisk.'"

—American Humanist Association v. Maryland-National Capital Park and Planning Commission, 874 F.3d 195, 202 n.7 (4th Cir. October 18, 2017).

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Federal Judge dismisses Lawsuit against "Black Lives Matter": Social Movements Can’t Be Sued

"Plaintiff … produced a Proposed Amended Complaint that not only fails to state a plausible claim for relief against any of the named Defendants, but that also attempts to hold a hashtag [#BlackLivesMatter] liable for damages in tort.  The Court therefore finds that granting leave to Plaintiff to attempt to file a Second Proposed Amended Complaint would be futile.  The Court also notes that Plaintiff’s attempt to bring suit against a social movement and a hashtag evinces either a gross lack of understanding of the concept of capacity or bad faith, which would be an independent ground to deny Plaintiff leave to file a Second Proposed Amended Complaint...." 

—Judge Brian A. Jackson, U.S. District Court, Middle District of Louisiana, September 28, 2017.

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Abortion Clinics: Shareholder Liability

It is settled law that corporate officers can be held responsible for damage they cause, even if the corporation itself is also found responsible. But what about shareholders of a corporation? Courts with equity powers (such as the DC courts) will deprive shareholders of the privilege of operating as a corporation and assign individual liability if the evidence shows misuse of the corporate form to perpetrate fraud or wrong. An egregious local example of shareholder liability for misuse of the corporate form is that of Mrs. Vuitch, ex-wife of abortion-purveyor Dr. Vuitch. His “clinic annex” was housed at their residence. Although Mrs. Vuitch moved out after their divorce, she remained as a shareholder in their business and as CFO. Educated in business and finance, she paid the bills for the vast clinic, and was aware of a brazenly illegal clinic policy that led to a gruesome injury and a jury finding of her personal liability, although she did not directly participate in the misconduct. The case was Vuitch v. Furr, 482 A.2d 811 (D.C. 1984).

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Marijuana: Seizure of Evidence

Under federal law, possession of even small amounts of marijuana is still a crime in the District. Federal law enforcement can still arrest anyone for possession in D.C., although local law enforcement (the Metropolitan Police Department) complies with local decriminalization of possession of up to 2 ounces by a person over age 21. But whether you’re 21 or under, or over 21, the government must not exceed constitutional prohibitions against unreasonable searches and seizures (whether seizure of a person or evidence of an alleged crime). The Fourth Amendment of the U.S. Constitution gives enhanced protection to preserving the sanctity of the home. Privacy in your home extends to all types of warrantless “searches,” whether the search is conducted in person by police, or through infrared technology. Your privacy might even be protected from warrantless surveillance flights above your property, depending on how common such flights are, if you maintain a “reasonable expectation of privacy” from such intrusions.

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