Beginning a Discussion of the Supreme Court's Term

 Welcome. It is that time of year again: time for this blog's four-part discussion of the just-concluded US Supreme Court session. 

As has been my habit, there will be four parts to this. Today, I will focus on one outstanding case, after some introductory observations. Tomorrow, I will look to developments this year in the jurisprudence of capital punishment. 

Thursday, we will discuss what I think of as quintessentially Trump-era cases and controversies. These include tariffs and the founders' reservation of the "power of the purse" to the legislature. The Trump-distinctive posting will also address the Alien Enemies Act and the way it has been brought out of a deep archive to remake immigration policy. 

Finally, Friday, we will get to some evergreen controversies such as specific interpretations/applications of the Americans With Disabilities Act and efforts at imposing civil liability on gun manufacturers. I will also address Blom Bank, an anti-terrorism case that oddly became a sort of final exam question for a civil procedure exam. 

There is, as usual, no effort at being comprehensive. In particular, the court gave us a rash of decisions in June 27th in an effort to get out of town and into various vacation bungalows, but of that bundle of decisions, I will discuss only two in some depth. That will happen in Thursday's post when I come to a decision that upheld an important provision of the Obamacare Act against an anti-administrative-state challenge, and a decision on the same day about a parental right to have one's children excused from assignments in public schools that contravene the family religious principles.  

The two others from the 27th that I hereby mention fleetingly, for his paragraph alone, are: Free Speech v. Paxton and Trump v. CASA.  The former upheld the authority of the state of Texas to demand that adult websites verify age as a condition of usage. The protection of children from exposure to salacious material has long been considered a legitimate, and even a substantial, interest of the state, so this is not especially surprising. The latter case bracketed the question of whether Trump will be allowed to muck around with birthright citizenship -- until such later date as it HAS to decide that, it prefers doing something-or-other on the issue of nation-wide versus district or plaintiff specific injunctions. And it isn't clear what it has just done on THAT subject either.

Still by way of introductory observations, this term featured a dismissal of an appeal as improvidently granted (DIG) that is worth at least passing reference here.  The decision was Lab Corp. v. Davis, and the issue was whether it is appropriate for a federal court to certify a class action lawsuit if some of the parties in the case lack legal standing.  The underlying lawsuit involved the Americans with Disabilities Act, and a self-service kiosk for learning the results of lab tests. Two legally blind individuals alleged that Lab Corp's kiosks were too difficult for the visually impaired to use, and so violated the ADA. The matter was certified as a class action. And therein lies the rub, for the company lawyers argued that the class contains a substantial number of individuals who have visited a LabCorp but who never used or intended to use the self-service kiosks. We didn't get any further illumination on the consequences of such a certification this term -- the court punted with its DIG.    

My pet case for the year

Most years when I do this my first post of four takes care of introductory necessities (as above) then turns to a case that doesn't necessarily fit into whatever categorization system defines the next three posts. I've come to think of in as my "pet case".  

This year I follow that pattern, and my pet case is BARNES v. FELIX, which rejected the moment-of-the-threat doctrine. The case involves what counts as "excessive force" by a police officer and, accordingly, unreasonable actions by such an officer under the terms of the fourth amendment, and under the civil liability of section 1983. 

In April, 2016, Roberto Felix (a police officer patrolling a highway outside Houston, Texas) saw a vehicle driven by Ashtian Barnes (a 24 year old man driving a car his girlfriend had rented), that has a license plate linked to toll violations by another driver. Because of those violations, Felix pulled Barnes over.  

The should-have-been-routine stop grew confrontational quickly, in part it appears because Felix smelled marijuana in the car. And in part because Felix put his hand on his gun and a moment when Barnes was co-operating with the stop and the hand-on-gun gesture freaked him out. [Excuse the technical terminology there.]

At any rate, Barnes made the bad decision to try to drive away from the traffic stop.  Felix then jumped onto the door sill of the car with his gun drawn. Two seconds later, Felix fired into the car. Sine Felix's head was above the roof, he was firing blind here.  

In the words of Jacob Sullum of Reason:  "The offenses that led to the traffic stop, which had not even been committed by Barnes, were trivial, and Felix himself created the danger to which he responded by killing Barnes. That use of deadly force was plainly unreasonable, Barnes' mother, Janice Hughes Barnes, argued in a federal civil rights lawsuit against Felix."

The appeals court of the fifth circuit (which includes Texas) decided in a 2011 case that in a lawsuit for a police officer's use of fatal force, when the officer perceived a threat, the plaintiff has to show that the decision of the police officer was unreasonable in a specific time-constrained sense, AT THAT MOMENT and so abstracting from the decisions that got the parties to that moment.[That precedent is known as Rockwell v. Brown -- also as it happens a case arising out of Texas].

Given Rockwell, the district court granted summary judgment in Felix' favor. The fifth circuit affirmed that summary judgment, saying that it is “[b]ound” by its own “moment of threat doctrine.”

This is false as a logical matter. A court is bound by a superior court's doctrine. The district court was bound by what the court of appeals had done. It was free to overturn or revise its own doctrine. It just didn't feel like doing so and used the language of a 'bond' in order to say so.  

The decedent's mother appealed to the US Supreme Court, and it heard the case precisely because it wanted to determine "whether, in resolving Fourth Amendment excessive-force claims, courts may apply the moment-of-threat rule." 

I am happy to report that on the 15th of May this year the highest court ruled that "they may not." 

The case has been remanded back to the district court for trial under a totality-of-circumstances test. Felix will still be in a position to argue that he reasonably considered himself in danger and that he reacted appropriately. Barnes will be in a position to argue for the contrary view. The facts and arguments will not be constrained by an exclusive focus on the two second period between the restarting of the car and Felix' shots. 

Zeno's arrow and Felix' bullets

I've discussed Zeno's paradoxes in this blog recently and the underlying theme seems to show up here. Consider the arrow. In Aristotle's account, Zeno said that "if everything when it occupies an equal space is at rest at that instant of time, and if that which is in locomotion is always occupying such a space at any moment, the flying arrow is therefore motionless at that instant of time and at the next instant of time but if both instants of time are taken as the same instant or continuous instant of time then it is in motion." 

The ideas, in other words, is that logically any arrow is where it is at any moment, and nowhere else.  Taking it in isolation, then, there is motion at no moment.  If time is but a sequence of moments, then there is no motion.  Full stop. 

The "moment of threat doctrine" seems to work similarly. Zeno might even have appreciated its name.  If we keep isolating events until we focus on one instant, then at some point we have isolated away even the possibility of any unreasonable use of force.  And THAT will turn out, conveniently for the officer, to be the moment that matters. 

I am reminded, too, of the observation Henri Bergson that: “We take snapshots, as it were, of the passing reality... and string them on a becoming, abstract, uniform and invisible... in order to imitate what there is that is characteristic of this becoming itself.” Bergson was writing in the early days of motion pictures, and he was well aware that a string of single shots can produce the illusion of motion. But they don't show the motion itself, which escapes between the frames. 

The Supreme Court, even the 'conservatives' thereon (the four who signed on with a cautious concurrence) seem willing to allow the courts below to consider the reality of motion, not just a freeze frame.