As the ’08-’09 academic year comes to a close my posts have dropped off yet again.
Right now my concerns are on outlines and studying for finals. Wish me luck!
Solis v. Matheson (Indian Law, FLSA, overtime payments and federal inspections)
There’s a bunch of stuff happening in the legal world. For example, the 9th Circuit just handed down a decision stating that a business run on Indian trust land is subject to overtime payment requirements to employees under the Fair Labor Standards Act. It’s not an earth shattering decision (especially if we’re aware of the Coeur d’alene case) but interesting nonetheless in that tribal sovereign immunity against suit doesn’t work against acts of Congress that they have deemed are of general application to the country as a whole regardless of Indian treaties and domestic dependent sovereign status.
United States v. Baca (Indian law, recusal)
My own ancestral homeland, Yosemite, was a supporting character in the ongoing legal drama of a man (the defendant) caught videotaping sacred sites and ceremonies without permission. He was brought to task for it at the Yosemite branch of the Eastern District of California and was convicted; however, once news photos of the judge surfaced showing a hangman’s noose on his coat rack the defendant filed a lawsuit stating his trial was unfair as the judge failed to recuse himself. Judge Wanger in the Fresno branch of the E.D. Cal ruled in favor of the defendant and vacated his conviction. The whole thing with the noose was that it was a parting gift from the judge’s former colleagues in a district attorney’s office with the message: “Don’t forget where you came from.” Had it been in a glass case or something or at his home then I think no one would’ve cared, but why it was lying around arbitrarily who knows. As for the defendant, well, I still think he broke the law.
Al-Maqaleh v. Gates (Bagram detainees cases)
Also, as you may know the Gitmo detainees are now allowed to bring their habeas corpus suits into federal district courts in America via the landmark case Boumediene v. Bush. Now, the detainees at Bagram Air Force Base in Afghanistan are bringing their own habeas suits (fyi: Bagram is just as bad as Gitmo, just not in the news.) The DC Circuit granted three of the four petitioner’s writs but denied one petitioner’s writ stating, amongst other things, that because the United States has no intention of ever leaving the Guantanamo Bay, Cuba area then this factual distinction between our intention to someday leave Afghanistan once the War on Terror is over is enough to distinguish the cases. The theory behind this distinction is that the Constitution applies to areas where the United States has permanent control and under Boumediene the Constitution guarantees everyone the writ of habeas corpus, including those the US has control over in areas that the US has ultimate jurisdiction. That exists at Gitmo but not Afghanistan therefore Constitution doesn’t apply at Bagram. However, the detainees were so similar to the ones in Boumediene that Boumediene‘s holding affected them equally and their writs were granted – except for the fourth guy. Can’t wait for finals to be over so I can read this case in more detail; it is very fascinating in an area of law that is constantly changing.
Arizona v. Gant (Search incident to arrest, criminal procedure, 4th amendment search and seizure)
The US Supreme Court has decided Arizona v. Gant which limits the police’s search incident to arrest powers. Generally, under our 4th Amendment search and seizure laws, a person has a reasonable expectation of privacy in their persons, houses, papers and effects, and those rights shall not be infringed except through a valid search warrant backed by probable cause supported by oath or affirmation that describes the places to be searched and the things to be seized…unless the police making the search or arrest can show an exception to the warrant requirement. One such exception is the Search Incident to Arrest. If a police officer had valid probable cause to make an arrest then upon that arrest he now has authority to search the defendant’s person and the areas within their reach. This rule was extended to automobiles via New York v. Belton which limited the automobile search incident to arrest to just the areas in the car within defendant’s grasp which basically means the cops can search the entire car but not the trunk. If they want to get into the trunk they’ll try and hornswoggle you into giving consent or arrest you, impound the car and conduct an inventory search where they now have the right to strip the car down and catalog everything they find in the interest of preserving your property and making sure you can’t accuse them of stealing your stuff.
Now, the Gant decision says this (quoting Volokh link):
The police can search a car following arrest only if they could have a reasonable belief 1) that the person arrested “could have accessed his car at the time of the search” or 2)”that evidence of the offense for which he was arrested might have been found therein.”
Don’t jump for joy yet because what we’ll end up seeing is a new flood of litigation where cops are claiming reasonable belief to get into the car existed at the time of arrest.
Side Note: There’s a lot of really good officers out there but there’s also some bad cops out there who have abused Belton‘s broad grant of authority to search and such decisions are necessary to deter police misconduct. That was always the aim of 4th Amendment jurisprudence and I think Gant does a reasonably good job of staying in the lines of that goal.
Okay, back to work, these outlines aren’t going to write themselves! See you after finals.
