Arizona Redistricting Case Could Signal The Future Of Legislative Standing

By Elizabeth Price Foley and David Rivkin, March 3 2015, 11:57am

In Federalist No. 22, Alexander Hamilton observed, “Laws are a dead letter without the courts to expound and define their true meaning and operation.” In constitutional controversies, the judiciary’s role is even more profound. Last week, the Supreme Court heard arguments in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that will signal how willing the Court is to prevent separation of powers from becoming a dead letter.

Separation of powers protects individual liberty by preventing any one branch of government from amassing too much power. It also ensures that government functions effectively, by assigning to each branch those powers that are most appropriate to its nature. For example, legislating is best accomplished by a multi-member body that engages in extended debate and deliberation. By contrast, waging war requires timeliness, and is thus best given to a unitary executive.

The Arizona case involves a turf dispute between Arizona’s legislative and executive branches, but it’s unclear if the Court is amenable to refereeing this constitutional conflict. The case is therefore a canary in the coalmine for “legislative standing,” which means a legislature’s ability to defend, in court, its lawmaking prerogative against executive assault. This is important not only to Arizona’s legislature, but any legislature, including the U.S. Congress.

At issue in the case is the constitutionality of Proposition 106, a referendum passed by Arizona voters that divested the legislature of drawing the state’s congressional districts and gave that power to an independent commission. When the commission redrew the districts in 2012, the Arizona legislature filed suit, asserting that the commission had violated Article I, section 4, of the U.S. Constitution, stating, “the Times, Places and Manner of holding elections for … Representatives [in the House] shall be prescribed in each State by the Legislature thereof .”

Before the meaning of this language can be resolved by the Court, it must first find that the Arizona legislature has standing to sue. In over 225 years of constitutional history, the Court hasn’t definitely articulated when legislative standing is proper.Read more…

The closest case is Coleman v. Miller (1939), where a majority of Kansas state senators were granted standing to assert their constitutional claim against the state’s Lieutenant Governor. His tie-breaking vote had effectively nullified the senate’s vote against a piece of legislation, so the Court concluded the senators had adequately asserted an institutional injury. By contrast, a later decision, Byrd v. Raines (1997), denied legislative standing to six congressmen, who sued the executive branch over the Line Item Veto Act’s constitutionality. The Court concluded these legislators were a disgruntled group that “simply lost [the] vote” on the Act and their claim did not represent the legislature’s institutional interests.

However, the Supreme Court has made it clear that the constitutional requirements for standing are the same for all litigants. All branches of government are capable of suffering an institutional injury — of having their constitutional prerogatives trenched upon—and all branches should have standing to vindicate those interests. State executives have standing to challenge federal intrusions on their state’s constitutionally-reserved powers, and have successfully done so in a series of Supreme Court cases such as New York v. United States and the 26-state lawsuit challenging the constitutionality of Obamacare’s mandatory Medicaid expansion.

Likewise, the federal executive branch has standing to bring lawsuits seeking to preserve its institutional prerogatives. In Arizona v. United States (2012), for example, the Obama administration sued Arizona, seeking to stop implementation of a state law that conflicted with federal immigration law. Moreover, state and federal executive agencies such as the FDA, EPA and FCC have standing to litigate against individuals and entities that don’t comply with their lawful orders, because these violations harm their institutional interest in executing laws that they administer.

Legislatures are not institutional orphans, incapable of vindicating their constitutional prerogatives. When legislatures bring suit as legislatures, there should be no doubt that they possess sufficient institutional interests to sue. Indeed, when the legislature’s constitutional authority has been invaded, courts have a solemn duty to resolve the dispute and preserve our separation of powers architecture.

Elizabeth Price Foley is professor of constitutional law at Florida International University College of Law. David B. Rivkin, Jr. served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He practices appellate litigation with particular focus on constitutional law at BakerHostetler, LLP.

Source: http://dailycaller.com/2015/03/10/arizona-redistricting-case-could-signal-the-future-of-legislative-standing/2/

Another Obama Collision With the Constitution

By MICHAEL B. MUKASEY and DAVID B. RIVKIN JR.

President Obama last week sent to Congress a draft resolution regarding an authorization for use of military force, or AUMF, against the terrorist group Islamic State. Although presidents have constitutional power to defend American national-security interests, seeking an AUMF is both constitutional and sound. The measure enables Congress to show its support for military efforts and encourages public approval of them. From the nation’s founding, dozens of AUMFs have been enacted. The 2001 resolution authorizing war against al Qaeda and its affiliates and the 2002 authorization of the Iraq war are only the most recent.

AUMFs also have legal significance. They buttress the president’s powers and, consistent with Supreme Court precedent, provide legal support when such aspects of war-fighting as electronic surveillance, detention of enemy combatants and use of deadly force against American nationals who have joined the enemy are challenged in court.

One can argue whether Congress’s constitutional power to declare war serves principally to distinguish formally among enemies, friends and neutrals, or has broader effect. However, AUMFs have become particularly important in the aftermath of the 9/11 terror attacks, as federal courts have involved themselves to an unprecedented degree in scrutinizing such activities. The relevant judicial decisions often cite the existence of an AUMF.

Despite the benefits of traditional AUMFs, President Obama’s proposal is fundamentally flawed. Attempting to obtain political cover for his strategy to fight Islamic State, also known as ISIS or ISIL, he has asked Congress to ban “enduring offensive ground operations” and to terminate the authorization after three years.

Congress cannot restrain the president’s core constitutional authority to wage war, even when congressionally imposed restrictions are minor—as was true with 2001 legislation that purported to limit the president’s authority to place U.S. armed forces under the command of foreign officers as part of U.N. peacekeeping missions. Congress did not bar the president from placing U.S. troops under foreign command, but merely required that certain procedures be followed in such cases. Even so, the Justice Department’s Office of Legal Counsel correctly concluded that “it is unconstitutional for Congress to place conditions, whether substantive or procedural, on the president’s exercise of his constitutional authority as Commander-in-Chief.”

Every president from Richard Nixon on has maintained that the 1973 War Powers Resolution, requiring that the president notify Congress within 60 days of committing U.S. troops abroad, is unconstitutional. Yet each president also has—voluntarily—complied with it. Except President Obama, who directed U.S. military intervention in Libya and claimed that the 1973 law did not apply because the effort was too limited to be called a “war.” Yet now the Obama AUMF purports to impose major constraints on the president’s commander-in-chief authority—both his own, and his successors’.

The Founders were careful to vest responsibility for waging war in a unitary executive, rather than in a multimember legislature. They made the decision based on their historical knowledge that the unity of command is the prerequisite for military success, and on their own experience during the Revolutionary War—which had been managed by committees of the Continental Congress. James Wilson, among the most learned lawyers of the Founding generation, reasoned that, with a unitary executive “[w]e secure vigor. We well know what numerous executives are. We know there is neither vigor, decision nor responsibility in them.”

The Founders also trusted in the power of political accountability, which is why they decisively rejected an executive branch composed of a president and executive council in favor of the unitary executive branch we now enjoy. In Federalist No. 70, Alexander Hamilton observed that political accountability can exist only if the president cannot shift responsibility for his actions onto others: “It often becomes impossible, amid mutual accusations, to determine on whom the blame of punishment of pernicious measures, ought really to fall.” The public, he concluded, would be “left in suspense about the real author” of bad policy.

If Congress were to limit President Obama’s commander-in-chief power by banning what his resolution calls “enduring offensive combat operations”—whatever that means—Congress would effectively operate as an executive council to Mr. Obama, allowing him to evade accountability for his halfhearted prosecution of war against ISIS. It is bad enough that legislation to tie a president’s hands is being proposed by a president. That it is proposed by this president, who has been so willing to exceed his constitutional authority in domestic affairs—by rewriting immigration laws, anti-narcotics laws, ObamaCare and so on—underscores the administration’s cynicism and its disdain for the Constitution.

If Congress buys into this presidential plan it will set a dangerous precedent that might do lasting damage to the separation of powers. With the two political branches seemingly in accord on joint responsibility for waging war, the federal courts might bless this arrangement, handicapping future presidents.

In recent years, congressional Democrats have been content to accommodate President Obama, whether he chose to enlarge the president’s constitutional prerogatives or diminish them. Congressional Republicans, having chosen to litigate against President Obama when he invaded Congress’s lawmaking authority by rewriting ObamaCare, should display the same principled determination to uphold the president’s constitutional prerogatives. No AUMF is better than one that is constitutionally flawed.

Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006). Mr. Rivkin is a constitutional litigator and served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/michael-b-mukasey-and-david-b-rivkin-jr-another-obama-collision-with-the-constitution-1424391724

Nevada’s Right Choice on Immigration

By DAVID B. RIVKIN JR. And LEE A. CASEY, Feb. 2, 2015 7:40 p.m. ET

A very public dispute broke out last week when Nevada Attorney General Adam Laxalt went against Gov. Brian Sandoval’s wishes and joined a lawsuit filed by 25 other states challenging President Obama’s imposition of his immigration reform policies by executive action.

Messrs. Sandoval and Laxalt are both Republicans who agree that the current immigration system is broken and that comprehensive reform is necessary. But Mr. Sandoval opposes litigation and has suggested that new immigration reform legislation is the best way to proceed.

Yet on Jan. 26 Mr. Laxalt announced that Nevada had joined the plaintiff states in Texas v. United States of America. “As Nevada’s chief legal officer,” he explained, “I am directed by Nevada’s Constitution and laws to take legal action whenever necessary ‘to protect and secure the interest of the state.’ ”

Mr. Laxalt was right to join the suit. Mr. Sandoval’s legislative path will neither solve America’s vexing immigration problems nor rein in a president who has ignored the Constitution’s limits on executive power.

Texas v. United States of America challenges the president’s use of an executive order to suspend federal immigration laws that require, among other things, deportation of undocumented immigrants and strict limits on who may lawfully work in the U.S. The Constitution requires that the president “Take care that the laws be faithfully executed,” and provides no exemption for laws with which the president disagrees.

As the Supreme Court stated in Youngstown Sheet & Tube Co. v. Sawyer (1952), ruling against President Harry Truman’s seizure of the nation’s steel industry during the Korean War, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

The president is, in other words, stuck with laws passed by Congress and signed into law by previous presidents. The reason for this is at the heart of America’s constitutional separation of powers—the power to make laws and to execute them are divided between separate branches of government, Congress and the president respectively.

The third branch—the judiciary—has the power to say what the law is, including when the president and or Congress have crossed the constitutional lines. It is only litigation before the courts that can now vindicate the most basic tenets of our constitutional system.

However desirable immigration reform might be, congressional action won’t prevent this president from ignoring provisions in a new law that he dislikes or opposes. Only a determination by the courts that he has overstepped his constitutional authority can do that. Unless the president’s ability to play lawmaker is decisively defeated in litigation, congressional legislation on any contentious public-policy issue would be inherently futile.

Nor is Mr. Laxalt obliged to follow Gov. Sandoval’s preference. Nevada law permits the governor to direct the attorney general to bring or defend an action in the courts. But as Mr. Laxalt explained, it also imposes an entirely independent obligation on the attorney general to take such action if he believes it necessary to secure the state’s interests.

All American states, including Nevada, have critical interests at stake here, both because of the burdens President Obama’s suspension of federal immigration law imposes on their state budgets and governments, but also because of their basic character as coequal sovereigns. The Constitution is a “grand bargain” among the states and the American people. That bargain includes a powerful federal government, but one that has limited powers that may be exercised only in accordance with the institutional arrangements the Constitution creates.

The separation of legislative and executive authority is among the most important limitations on federal power. It is now up to the federal courts to restore the Constitution’s balance between the president and Congress and between the federal government and the states. Mr. Laxalt made the right choice. Those state attorneys general that have yet to join Texas v. United States of America should follow his lead.

Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/david-rivkin-and-lee-casey-nevadas-right-choice-on-immigration-1422924012

How Congress Can Use Its Leverage on Iran

By DAVID B. RIVKIN JR. And LEE A. CASEY, Jan. 20, 2015

Nuclear talks between Iran and the U.S. recommenced Jan. 14, ahead of full international talks with senior officials from the U.S., U.K., France, Russia, China and Germany two days later. A final agreement is to be reached no later than June 30. Nothing less than Middle Eastern and global security hangs in the balance.

That security depends on verifiable elimination of Iran’s nuclear-weapons and ballistic-missile programs. Unfortunately, the Obama administration is likely to accept a deal leaving in place a substantial Iranian nuclear-weapons infrastructure, including uranium-enrichment capability, long-range ballistic missiles and the ability to deploy a rudimentary nuclear force on short notice. A course correction that only Congress can effect is urgently needed.

It is difficult for Congress to stop a president determined to sign an agreement with foreign leaders. And as this newspaper pointed out in a recent editorial, President Obama has threatened to veto any legislation to impose further sanctions on Iran if the June 30 deadline is not met. Still, Tehran’s insistence that existing U.S. sanctions be lifted as part of a nuclear-weapons agreement gives U.S. lawmakers substantial leverage. The collapse of oil prices, which dealt a heavy blow to the already weakened Iranian economy, has further increased this leverage. Here is what Congress should do:

First, Congress should insist that any Iranian agreement take the form of a treaty. The Constitution requires that treaties be made only with the advice and consent of the Senate. At the time it was adopted, and throughout most of U.S. history, agreements fundamentally ordering the relationship between the U.S. and foreign nations took the form of treaties, not executive orders. A mere executive agreement, which Mr. Obama may use to evade congressional constraints here, would be constitutionally insufficient.

Iran, too, should insist on a treaty and—to ensure sanctions ultimately are lifted—on congressional involvement in the negotiations. Presidents can unilaterally terminate both executive agreements and treaties, but executive agreements carry far less weight. Presidents are more likely to revise or revoke a predecessor’s agreements or orders than they are to repudiate treaties. The Iranians have already made clear that any deal would require their parliament’s approval. It is disconcerting to see Tehran treating its legislative branch with more deference than this U.S. president is treating Congress.

Second, the entire Congress—Senate and House—should be involved. A treaty ratified by the Senate has the force and effect of law. But the current Iranian sanctions regime is so complex—having been created over decades and involving an intricate and tangled web of statutes, executive orders and implementing regulations—that only new legislation can amend or eliminate it in a manner that ensures Iranian compliance.

Presidential orders nullifying specific sanctions, such as enabling U.S. financial institutions to return to business with currently blacklisted Iranian banks, should be unacceptable to the Iranians since such actions could be reversed by President Obama’s successor. Indeed, Tehran has repeatedly expressed concern that the U.S. might not deliver on its sanctions-lifting commitments.

Third, Congress should pass legislation now clearly stating the parameters of an acceptable nuclear deal with Iran, emphasizing the need to eliminate any Iranian breakout capability. It should also put the Iranians and our allies on notice that, absent congressional approval, the president cannot deliver comprehensive and permanent relief from the existing sanctions statutes.

This would prevent the worst possible scenario: Mr. Obama makes unilateral sanctions-related commitments, on which he ultimately cannot deliver. Tehran would thus have a perfect diplomatic cover to continue its nuclear-weapons program, while casting the U.S. as the deal breaker.

The legislation should lift sanctions in stages, as Iran begins to dismantle its nuclear and ballistic-missile programs in a transparent, permanent and verifiable manner, finally complying with its own international obligations. Congress should make clear that failure to submit an agreement as a treaty will lead to the imposition of an even broader and harsher sanctions regime against Iran. The statute should impose these sanctions now, slated to go into effect by a date certain, unless Congress repeals them after reviewing the final deal with Tehran.

These standby sanctions should have no waiver provisions. Given the administration’s willful nonenforcement of other statutes it dislikes, the legislation should enable private parties to bring civil actions against sanction-busting companies and persons. They can be patterned after the private enforcement provisions in the False Claims Act, which allow private citizens to sue on behalf of the federal government.

A genuine and enforceable deal ending Iran’s nuclear programs would give the president and the United States a major foreign-policy triumph. But this is possible only with the full cooperation of Congress, which Mr. Obama needs to treat as a partner and not as an enemy to be ignored, outmaneuvered, stonewalled or steamrolled.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush. They are partners in the Washington, D.C., office of Baker & Hostetler LLP. Mr. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-how-congress-can-use-its-leverage-on-iran-1421800630

Judicial candidates face loss of free speech rights

David B. Rivkin Jr., and Andrew M. Grossman, January 18, 2015

For years, those who favor restrictions on campaign spending have insisted that their real interest lies in fighting corruption, not limiting political speech. Well, here’s a free-speech litmus test: Can a state block candidates from asking for campaign contributions that are themselves legal?

That’s the issue the Supreme Court will face Tuesday in Williams-Yulee v. The Florida Bar. Like most states, Florida elects or retains judges by popular vote. Many of those states prohibit judicial candidates from personally soliciting campaign contributions. This restriction, supporters say, prevents corruption, bias and the appearance of bias.

It’s hard to see how. Florida’s law allows contributions of up to $1,000 to judicial campaigns, and that limit cannot be significantly lowered (much less banned) without violating the First Amendment. Florida’s law allows judicial candidates to learn who their contributors are and to ask for other kinds of campaign support, including volunteer work and service on their campaign committees.

But a judicial candidate cannot post a request for support on the campaign website, cannot appear before a local civic group to request contributions, and cannot sign a fundraising letter asking for support. In other words, a candidate can accept contributions, just cannot solicit them. But solicitation is just speech.

That last restriction is the one that bit Lanell Williams-Yulee, a public defender and first-time candidate seeking election to a county court. She made the mistake of signing a letter announcing her candidacy and asking friends to contribute whatever they could. For that, she was reprimanded and fined by the Florida Supreme Court.

Like most campaign-finance restrictions, the speech ban on solicitation places another burden on challengers running for office — particularly those who lack the wealth to finance their own campaigns.

Even if Williams-Yulee had been elected, what would have been the harm of her asking for contributions?

Quid-pro-quo arrangements are already illegal. It is also illegal to fail to disclose contributions, so there’s no possibility of under-the-table dealing. And the Supreme Court has recognized that large expenditures in a judicial election — even if they’re made independently, without any contribution to a campaign — can create an appearance of bias that requires a judge to recuse herself in cases involving the spender.

So the Florida law’s sole purpose is to ban certain political speech. That’s something to keep in mind the next time self-appointed campaign-finance reformers — whose legal briefs unanimously support the Florida law — tell us that their proposed restriction won’t impact our First Amendment freedoms.

David B. Rivkin Jr., and Andrew M. Grossman practice appellate and constitutional law at the Washington, D.C., office of Baker & Hostetler LLP.

Federal Antidrug Law Goes Up in Smoke

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Dec. 28, 2014 6:52 p.m. ET

The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado’s law legalizing marijuana. The lawsuit states that, “The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”

Many conservatives have criticized Nebraska and Oklahoma for being “fair-weather federalists” because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress’s power to regulate commerce.

Conservatives’ ire instead should be directed at the Obama administration’s decision to suspend enforcement of the federal law prohibiting marijuana—a decision so warping the rule of law that the complaining states’ reliance on Raich is justified and necessary.

In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban.Read more…

The Controlled Substances Act is an exercise of Congress’s express power to regulate interstate commerce. The law declares that a “major portion of the traffic in controlled substances flows through interstate and foreign commerce” and that even locally grown and sold drugs have a substantial impact on interstate commerce. Drugs manufactured, distributed or consumed within a single state cannot be tolerated because they undermine Congress’s desire to stop interstate drug trafficking.

State laws legalizing and regulating marijuana—in Colorado, Alaska, Oregon and Washington—conflict with the CSA and cripple its effectiveness. States cannot be required to enforce federal law. But as the Supreme Court held in A rizona v. United States (2012), when the federal government doesn’t enforce its own laws, states still “may not pursue policies that undermine federal law.” Colorado’s decision to legalize and regulate the sale of marijuana undermines the Controlled Substances Act, giving a major boost to all segments of that business. Indeed, in an interview this month Colorado’s attorney general, John Suthers, acknowledged that his state is “becoming a major exporter of marijuana.”

Neighboring states such as Nebraska and Oklahoma have seen a significant influx of high-potency marijuana purchased in and directed toward Colorado markets, increasing those states’ law-enforcement costs. If the CSA is a valid federal statute, the U.S. Constitution’s supremacy clause (Article VI, paragraph 2) instructs that conflicting state laws cannot be allowed to stand. This is where Raich comes in.

In Raich, individuals who used marijuana pursuant to California’s “compassionate use” law asserted that the CSA was unconstitutional as it applied to them, because Congress’s power to regulate interstate commerce couldn’t reach state-sanctioned intrastate marijuana use. The Raich majority refused to create a CSA “exemption” for medicinal marijuana, reasoning that “a nationwide exemption for the vast quantity of marijuana . . . locally cultivated for personal use . . . may have a substantial impact on the interstate market for this extraordinarily popular substance.” It concluded that the CSA was a valid exercise of the congressional power to regulate interstate commerce and that “marijuana possession and cultivation ‘in accordance with state law’ cannot serve to place respondents’ activities beyond congressional reach.”

Even the pro-federalism dissent by Justice Sandra Day O’Connor —which asserted that state compassionate-use laws could peacefully coexist with the CSA—acknowledged that medical marijuana was qualitatively distinct from recreational marijuana. More specifically, Justice O’Connor believed that the relatively small population of medical marijuana users didn’t have a “substantial effect” on the interstate market for recreational marijuana—the market Congress intended to extinguish in the Controlled Substances Act.

Whatever one thinks about Raich, it is still binding precedent. Colorado’s law is not about a limited, medical-need exemption for marijuana use. It is a full-scale defiance of the CSA. There is no federalism defense to Colorado’s law, unless one believes that Congress’s power to regulate interstate commerce doesn’t include the power to regulate the buying and selling of marijuana, a commercial market that involves interstate transportation, lures sellers and consumers from other states, and now generates more than $7 million in tax revenue for Colorado every month.

The Controlled Substances Act can be amended or repealed. Congress has taken a step in this direction by providing in its recent omnibus spending bill that the Justice Department cannot use appropriated funds to prevent states from implementing “laws that authorize the use, distribution or cultivation of medicinal marijuana.”

This development may lead the Supreme Court to take another look at the CSA’s constitutionality, something that could occur in the context of the Oklahoma and Nebraska lawsuit against Colorado. Alternatively, Attorney General Eric Holdercould use his authority under the Controlled Substances Act to remove marijuana from Schedule I. But Coloradans—or the citizens of any other state—lack the power in our constitutional regime to enact a law that conflicts with the CSA.

When federal power has been legitimately invoked, states may not go rogue. When they do, sister states that can demonstrate concrete injury are entitled to obtain a court declaration that state laws in conflict with federal law are unconstitutional. Normally such lawsuits wouldn’t be necessary because the federal government would enforce its superior law against rogue states. But these aren’t ordinary constitutional times, and it isn’t “fair-weather federalism” to defend these core constitutional principles.

Mr. Rivkin, a constitutional litigator, served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-elizabeth-price-foley-federal-antidrug-law-goes-up-in-smoke-1419810742

Winning civil justice for Michael Brown and Eric Garner

By David B. Rivkin Jr. and Andrew Grossman

The quest for justice for Michael Brown and Eric Garner did not end with the decisions of grand juries not to indict the police officers whose actions led to those men’s deaths. Those frustrated by the grand juries’ dispositions can take comfort in knowing that victims of police violence, as well as their families, can get their day in court.

The family of Garner, who died after being placed in an apparent chokehold by a New York police officer, has already announced plans to sue the officer and the city for $75 million. Michael Brown’s family has not yet said whether they intend to bring a lawsuit against former Ferguson, Mo., police officer Darren Wilson or the city, but their lawyer has indicated the possibility is being considered.

These suits may succeed where criminal charges failed. To protect against wrongful conviction, criminal charges must be proved “beyond a reasonable doubt,” the highest standard in law. By contrast, civil plaintiffs need convince a jury only that their claims are supported by a “preponderance of the evidence” — a hair more than 50 percent.

Both families could bring claims for wrongful death, arguing that the officers failed to exercise appropriate care in the confrontations that resulted in the deaths of their family members. Such a claim by Garner’s family would be particularly strong, given that the New York Police Department long ago banned chokeholds precisely to prevent choking-related deaths. As for Brown, the circumstances of his death are less clear at this time, but a trial would provide an opportunity for all the facts to come out. If the “hands-up-don’t-shoot” narrative is correct, the Brown family should be able to prevail.

And unlike a criminal trial, civil litigation can reach beyond the boundaries of a particular case to bring about broader change. Federal law authorizes claims — which can be brought in state or federal court — for violations of constitutional rights by state officials. Such claims can target both individual officers and, where plaintiffs can show that their injuries are the result of an official policy or practice, the municipality itself.

The most obvious civil rights claim in each case would be for the use of excessive force; courts have ruled that the use of force must be “objectively reasonable” under the Fourth Amendment. Such claims are heavily fact-dependent, turning on — in the Supreme Court’s formulation — “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” The video of Garner’s death appears to speak directly to these factors: The suspected crime was minor, his threat nonexistent and his actions reflecting frustration with police harassment more than flight or resistance. Again, the evidence concerning Brown’s death is less conclusive.

Both families could also bring claims challenging alleged racial profiling. Typically, such claims argue that a police stop was taken without the reasonable suspicion of criminality required by the Fourth Amendment and was based on race, in violation of the equal protection clause. Profiling claims can be difficult to prove, due to the light burden the law imposes on police officers to justify a brief stop. The officers involved in these cases have already offered reasons for stopping Brown and Garner — walking in the street and selling contraband cigarettes, respectively — that may be sufficient to defeat a profiling claim.

Still, such civil-rights claims could be a powerful way to force changes in policing in Ferguson and New York. Even if the cities themselves are not named as defendants, a finding of liability against an officer would put officials on notice that failure to prevent future abuses will have serious consequences.

Failure to appreciate the important remedies offered by civil law may lead some to draw the wrong lesson from the tragedies in Ferguson and Staten Island: that the protections for those accused of crimes are too strong. But safeguards such as grand juries provide, as the great Justice Joseph Story explained long ago, “security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies.” Weakening that security would only further disadvantage communities that already feel they are unfairly targeted by police and prosecutors. If anything, reform should strengthen grand juries for all those accused of crimes to restore what once was a vital check on the power of prosecutors and a protection against the enormous burden of a wrongful indictment.

The mistake on both sides is to assume that victims of crime are entitled to punishment of those they believe are responsible. It is society that is entitled to punish the provably guilty. Criminal prosecution is therefore a poor fit where evidence of guilt is ambiguous or equivocal — as is often the case involving confrontations with police.

What victims are entitled to is compensation for their injuries through civil litigation. That’s why the grand juries’ decisions are not the end of the story for determining police culpability for the deaths of Michael Brown and Eric Garner.

David B. Rivkin Jr. and Andrew Grossman specialize in constitutional litigation at the firm Baker Hostetler LLP.

Source: http://www.washingtonpost.com/opinions/winning-civil-justice-for-michael-brown-and-eric-garner/2014/12/12/01ab521e-815d-11e4-9f38-95a187e4c1f7_story.html