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Another Mexican National Allegedly Shot By Border Patrol At The U.S. – Mexico Border

Posted by admin | Posted in The Capitol | Posted on 11-01-2011

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One story that has been largely gone unnoticed in recent days is the death of Ramses Barron Torres — a 17-year-old Mexican national who was shot by a U.S. border patrol agent. At first, there were conflicting reports regarding the curious circumstances surrounding his death. Originally, a Mexican official reportedly said the teen died Wednesday after he fell from a border fence and hit his head on a rock. However, witnesses to the event claimed that Torres was shot by a U.S. Border Patrol agent. Ambassador to the U.S., Arturo Sarukhan, said on Thursday that it now appears “to be clear that the death was the result of a gunshot wound.”

KGUN has shared the testimony of a friend and witness to Torres’ death:

“The moment I came from running from up here (USA) to down there (Mexico), that’s when you can hear the gunshot. I thought that they were shooting at me, but they weren’t. This is when Ramses yelled, ‘They hit me! They hit me! Help me!” explained Torres’s friend, Sergio, who did not want his full name revealed.

Sergio added that aside from climbing the fence to visit Ramses’s American girlfriend, the two did nothing else to provoke Border Patrol. His statements conflict with reports saying the boys threw rocks at the federal agents.

“We didn’t do any harm to them. We didn’t have any guns or nothing. We just had ourselves. I think they were just mad because they (Border Patrol) couldn’t catch us,” said Sergio.

Watch the report:

The FBI, which is leading the investigation, has maintained that Border Patrol agents were attempting to arrest suspected drug smugglers near the fence when bystanders began throwing rocks at them, prompting an agent to fire at them. Nonetheless, the agent who fired the shot was placed on administrative leave.

Regardless of which side is right, the incident presents yet another disturbing case of what appears to be excessive force. This past summer, Anastacio Hernández, a father of five U.S. born children, was shot with a stun gun by a Customs and Border Protection Officer at the San Ysidro border crossing as he resisted being deported. While Customs and Border protection maintained their actions were necessary to “subdue the individual and maintain officer safety,” the San Diego County coroner ruled that his death was a homicide.

A few days later, a U.S. Border Patrol agent shot and killed Sergio Adrián Hernández Huereca, a 14-year-old boy on the U.S. side of the Paso Del Norte bridge in El Paso, Texas who allegedly threw rocks at him. At the time, T.J. Bonner, president of the National Border Patrol Council, claimed “deadly force” was a justified response. However, I still have a hard time understanding how young, unarmed kids throwing rocks merits a deadly firing of bullets in response.

Either way, it’s still unclear whether rock-throwing was even involved in last week’s incident. According to the Arizona Republic, newspapers on both sides of the border reported that the incident occurred in an area that is under video surveillance, which will hopefully clear up what is about to come yet another international controversy.

(H/T Colorlines)

Wonk Room

Why Did Bradley Manning Allegedly Leak Wikileaks Two Things before He Verified Assange’s Identity?

Posted by admin | Posted in The Capitol | Posted on 11-01-2011

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To return to the work I was doing yesterday, there’s something odd about the timeline of Bradley Manning’s alleged leaks to Wikileaks: he appears to give Wikileaks at least two things-the Rejkjavik 13 cable and the Collateral Murder video-before he verified Julian Assange’s identity.

In the chat logs, Manning explains he first started working with Wikileaks after they released the 9/11 pager messages.

(12:46:17 PM) Adrian: how long have you helped WIkileaks?
(12:49:09 PM) bradass87: since they released the 9/11 “pager messages”
(12:49:38 PM) bradass87: i immediately recognized that they were from an NSA database, and i felt comfortable enough to come forward
(12:50:20 PM) bradass87: so… right after thanksgiving timeframe of 2009

That would date it November 24 or 25. Interestingly, the government says Manning’s alleged activities began somewhat earlier, November 19. That may suggest they have reason to believe he may have first accessed materials he was not authorized to access on November 19.

There’s a curious break in the chat logs (where Lamo makes his first efforts to get Manning to talk about operation security, while Manning loses it), after which Manning seems to correct Lamo’s suggestion that he’s a WL volunteer. But that does lead Manning to discuss communicating directly with Assange.

(2:04:29 PM) Manning: im a source, not quite a volunteer
(2:05:38 PM) Manning: i mean, im a high profile source… and i’ve developed a relationship with assange… but i dont know much more than what he tells me, which is very little
(2:05:58 PM) Manning: it took me four months to confirm that the person i was communicating was in fact assange
(2:10:01 PM) Lamo: how’d you do that?
(2:12:45 PM) Manning: I gathered more info when i questioned him whenever he was being tailed in Sweden by State Department officials… i was trying to figure out who was following him… and why… and he was telling me stories of other times he’s been followed… and they matched up with the ones he’s said publicly
(2:14:28 PM) Lamo: did that bear out? the surveillance?
(2:14:46 PM) Manning: based on the description he gave me, I assessed it was the Northern Europe Diplomatic Security Team… trying to figure out how he got the Reykjavik cable…
(2:15:57 PM) Manning: they also caught wind that he had a video… of the Gharani airstrike in afghanistan, which he has, but hasn’t decrypted yet… the production team was actually working on the Baghdad strike though, which was never really encrypted

As I suggested yesterday, that would mean that Manning had not verified Assange’s identity until roughly March 24. That would coincide exactly with the Wikileak Twitter account’s discussion of US and Icelandic surveillance. Of potential note, on March 23, WL said, “We know our possession of the decrypted airstrike video is now being discussed at the highest levels of US command,” which might be information Manning had access to. While not definitive, all of that suggests the public discussion was one way Manning verified “that the person i was communicating was in fact assange.”

But there were at least two things Manning had already allegedly leaked to Wikileaks: the Collateral Murder video and the Rejkjavik 13 cable. A possible third which I will not deal with here is the intelligence report naming Wikileaks as a threat to the military, which was released March 18, 2010, but which is not definitely attributable even hypothetically to Manning.

Collateral Murder Timing

WL first reported getting what appear to be the Collateral Murder and Gharani videos on January 8, 2010.

Have encrypted videos of US bomb strikes on civilians http://bit.ly/wlafghan2 we need super computer time http://ljsf.org/

On February 20, it claimed to have cracked the encryption code of what appears to be the Collateral Murder video.

Finally cracked the encryption to US military video in which journalists, among others, are shot. Thanks to all who donated $ /CPUs.

For his part, Manning describes just stumbling upon the Collateral Murder video, did some research into what it was, then stewed on it for a month and a half before forwarding to WL.

(03:07:53 PM) Manning: i watched that video cold, for instance
(03:10:32 PM) Manning: at first glance… it was just a bunch of guys getting shot up by a helicopter… no big deal… about two dozen more where that came from right… but something struck me as odd with the van thing… and also the fact it was being stored in a JAG officer’s directory… so i looked into it… eventually tracked down the date, and then the exact GPS co-ord… and i was like… ok, so thats what happened… cool… then i went to the regular internet… and it was still on my mind… so i typed into goog… the date, and the location… and then i see this http://www.nytimes.com/2007/07/13/world/middleeast/13iraq.html
(03:11:07 PM) Manning: i kept that in my mind for weeks… probably a month and a half… before i forwarded it to [Wikileaks]

He dates uploading the video sometime in February.

(02:47:07 PM) Manning: the CM video came from a server in our domain! and not a single person noticed
(02:47:21 PM) Lamo: CM?
(02:48:17 PM) Manning: Apache Weapons Team video of 12 JUL 07 airstrike on Reuters Journos… some sketchy but fairly normal street-folk… and civilians
(02:48:52 PM) Lamo: How long between the leak and the publication?
(02:49:18 PM) Manning: some time in february
(02:49:25 PM) Manning: it was uploaded
(02:50:04 PM) Lamo: uploaded where? how would i transmit something if i had similarly damning data
(02:51:49 PM) Manning: uhm… preferably openssl the file with aes-256… then use sftp at prearranged drop ip addresses
(02:52:08 PM) Manning: keeping the key separate… and uploading via a different means
(02:52:31 PM) Lamo: so i myself would be SOL w/o a way to prearrange
(02:54:33 PM) Manning: not necessarily… the HTTPS submission should suffice legally… though i’d use tor on top of it…

Now, those are seemingly contradictory sets of dates: WL boasts it has Gharani, at least, in January, though the February reference to decrypting it seems to mean Collateral Murder was included in the January announcement. But note that if Manning had first accessed the Collateral Murder video on November 19, a month and a half might put it close to the New Year.

In any case, however, both WL and Manning seem to agree the video was in hand by February, a month before (assuming Manning’s description of the verification process is accurate) Manning verified Assange’s identity.

Rejkjavik 13 Cable Timing

Which brings us to the Rejkjavik 13 cable, which was released first but may have been leaked after the videos, during the period when WL was working on prepping the Collateral Murder video for publication. The Rejkjavik cable obviously had to have been leaked between the time it was written on January 13, 2010 and when it was released on February 18, 2010.* Manning describes the Rejkjavik 13 cable as a test:

(1:48:50 PM) Lamo: give me some bona fides … yanno? any specifics.
(1:49:40 PM) Manning: this one was a test: Classified cable from US Embassy Reykjavik on Icesave dated 13 Jan 2010
(1:50:30 PM) Manning: the result of that one was that the icelandic ambassador to the US was recalled, and fired
(1:51:02 PM) Manning: thats just one cable…

I’m particularly interested in what Manning might mean by test. For a more cautious person, it might have been a test of the security of WL’s submission system. WL had just revamped its submission system as of January 12. And critics of Wikileaks used this very cable to explain some security problems with the submission and release process.

But it seems likely that, if Manning is the only source for the Collateral Murder video, then he was already using the submission system and presumably was comfortable with its security. Whether or not the January 8 date is accurate, after all, if they were announcing they had decrypted the video on February 20, just days after the Rejkjavik cable was released, then they surely had received it some time earlier.

So it seems clear that Manning wasn’t waiting, generally, to submit material until this test.

But consider the possibility it was a test for both sides?

What’s interesting about the cable is how much it fed directly into WL’s then very active campaign to build support for Iceland’s Modern Media Initiative, making Iceland a kind of free speech haven, and its opposition to IceSave, the “bailout” that Iceland wisely refused via referendum. WL appears not to have announced the release of the cable itself on Twitter. WL did, however, trumpet the release of details of the negotiations between Iceland and the British and Dutch on IceSave. That must explain why, out of all the cables accessible to Manning at that point, he allegedly chose to leak one on Iceland, which would be fairly unspectacular to American readers, but played right into WL’s objectives of the moment. Effectively, what Manning appears to have proven is that he had live access to whatever diplomatic discussions were going on, including the IceSave negotiations WL was following so closely.

Or did he?

If I’m not mistaken, the most recent creation dates for cables released thus far appears to be February 2010 (and there are a good deal of those, dated right up through the end of the month). It’s possible the government reacted immediately to the release of the Rejkjavik cable and restricted access; it’s possible that Manning did a download of the cables shortly after the Rejkjavik one was successfully released and never accessed the cables again. But it’s worth noting that the State Department database appears to end shortly after that first test cable.

Just as interesting, though, is how Manning’s reported verification of Assange’s identity appears to correlate with his leaks. If his estimate that it took him four months to verify Assange’s identity is correct, then it appears he had already leaked at least the Collateral Murder and Gharani videos, the Rejkjavik cable, and possibly the intelligence report.

That is, he didn’t wait to verify Assange’s identity before he leaked material. Though he may have waited before he leaked the big databases: the Afghan and Iraq War logs, and the State Department cables.

The Alleged Software

So did he wait to do something else until he had verified Assange’s identity?

First of all, note that Manning tied having privileged submission ability to a time after two items of big PR interest were hypothetically leaked.

02:56:35 PM) Manning: long term sources do get preference… i can see where the “unfairness” factor comes in
(02:56:53 PM) Lamo: how does that preference work?
(02:57:47 PM) Manning: veracity… the material is easy to verify…
(02:58:27 PM) Manning: because they know a little bit more about the source than a purely anonymous one
(02:59:04 PM) Manning: and confirmation publicly from earlier material, would make them more likely to publish… i guess…
(02:59:16 PM) Manning: im not saying they do… but i can see how that might develop
(03:00:18 PM) Manning: if two of the largest public relations “coups” have come from a single source… for instance

Which brings me back to my discussion yesterday: the government’s allegation that Manning introduced software onto his computer some time between November 19, 2009 and April 3, 2010.

SPECIFICATION 4: In that Private First Class Bradley E. Manning, U.S. Army, did, between on or about 19 November 2009 and on or about 3 April 2010, at or near Contingency Operating Station Hammer, Iraq, violate a lawful general regulation, to wit: Paragraph 4-5(a)(3), Army Regulation 25-2, dated 24 October 2007, by wrongfully adding unauthorized software to a Secret Internet Protocol Router network computer.

It’s the date I find so interesting. Whereas the other final dates are, at least in theory, tied to the actual release of a particular item, this one is not (unless it’s tied to the Collateral Murder release just days later).

The relationship between WL and Manning he appears to describe in the chat logs seems to suggest it evolved over time. Given the timing, it appears that several submissions came first. Then came a tailored submission-a cable relating to the IceSave negotiations WL was targeting-and Manning working to verify Assange’s identity. But it appears the bulk of the alleged leaks, the databases, may have come after that.

And note most of that is not currently noted in Manning’s charge sheet. While Manning is charged with passing on 50 cables (possibly during the time period when Lamo was working with authorities), he is only charged with accessing and obtaining information from the 150,000 State cables, not passing them on. And there is absolutely no mention of the Iraq and Afghan War Logs.


*Note: The government lists February 19 as the last possible date when Manning could have leaked the cable, but when the document itself was released it specified,

This document, released by WikiLeaks on February 18th 2010 at 19:00 UTC, describes meetings between embassy chief Sam Watson (CDA) and members of the Icelandic government together with British Ambassador Ian Whiting.

I’m trying to figure out the discrepancy.

Related posts:

  1. Is the Government Alleging Bradley Manning Loaded Encryption Software onto DOD Computers?
  2. What the Government Might Be After with Its Twitter Subpoena
  3. Pulling Some Threads on Lamo’s Inconsistencies


Emptywheel

The First Amendment and Speech That Allegedly Threatens Public Officials

Posted by admin | Posted in The Capitol | Posted on 10-01-2011

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(Eugene Volokh)

Chris Moody (Daily Caller) writes:

Texas Democrat Rep. Rubén Hinojosa said Monday that he is open to joining Pennsylvania Democrat Rep. Robert Brady in support of a bill to curb speech that could be perceived as “threatening” to public officials.

“The level of discourse is out of control,” Hinojosa said. “Yes, I would certainly sit down with him and look at the wording and see how we could strengthen it. There’s a need to tone down the rhetoric that occurred here these last few years. In my opinion, I would support legislation, yes.”

Brady told the New York Times on Sunday that he would seek legislation banning certain types of speech in reaction to the weekend shooting in Tucson, Ariz. that left Democrat Rep. Gabrielle Giffords injured and killed six others.

“You can’t threaten the president with a bullseye or a crosshair,” Brady said Sunday. “This is not a wake-up call. This is a major alarm going off. We need to be more civil with each other. We need to tone down this rhetoric.”

Brady was referring to political messaging ads used by both parties that use crosshairs to show districts they are targeting for victory….

Brady has not yet made the specific language of the bill public….

1. The Supreme Court has made clear that threats — including threats against the life of the President — can only be punished if they are “true threats,” which is to say “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Constitutionally proscribable true threats are those “where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” The speaker need not actually intend to act on the threat, but the threat has to be reasonably perceived as a “serious expression of an intent to commit” that act. (Some lower courts have suggested that the Court didn’t really mean to limit the First Amendment exception to speech made with the deliberate purpose of placing someone in fear of bodily harm or death. But even if that is accepted, a statement would still be unprotected only if a reasonable person would interpret the speech as intended to instill such fear.)

2. In particular, the leading Supreme Court case, U.S. v. Watts (1969), held that the Constitution protects even the statement “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.,” said at antiwar rally. Statements that place the President in a bullseye or a crosshair might thus be entirely constitutionally protected, if for instance the statement is in a Democratic or Republican party mailer urging people to give money to help defeat the President in the next election. A reasonable reader would not perceive such a flyer as a threat that the author, or the author’s confederates, are going to actually shoot the President. As Jack Shafer (Slate) and many other have noted, martial metaphors are commonplace in American politics. The mere use of such a metaphor does not strip the speech of constitutional protection.

3. If the concern is not that the President will feel threatened, but that some readers might be moved by such statements to attack the President, the speech remains protected. Under Brandenburg v. Ohio (1969), speech may be restricted on such a theory only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added). Hess v. Indiana (1973) makes clear that speech doesn’t satisfy the “imminence” requirement if it is merely “advocacy of illegal action at some indefinite future time” (emphasis added). But in any event, it certainly can’t qualify for the Brandenburg exception to the First Amendment when it is not at all directed to producing lawless action, and the concern is simply that a few kooks or extremists might be moved to commit a crime at some indefinite time as a result of seeing the speech.

4. Note that Watts and Brandenburg both came in 1969, at the end of a decade that saw the assassination of a President, of one of the leading candidates for President, and of one of the leading political leaders in the nation. It was also a decade that generally saw far more homegrown political violence than this past decade has seen. Nonetheless, the Court firmly concluded that even speech that specifically calls for violence, or even seems to explicitly threaten violence, is unprotected only if it fits within the narrow “true threats” or “incitement” exceptions — and, as I said, political maps with targets painted on them, the “If they bring a knife to the fight, we bring a gun” line, and the like certainly fall far outside those exceptions.

5. As it happens, federal law already provides that “Whoever transmits in interstate or foreign commerce any communication containing … any threat to injure the person of another.” (A separate law provides that anyone who “makes any … threat [to inflict bodily harm] against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.”) So if any proposed law merely bans true threats, then it would be unnecessary (with one exception noted below). And if it tries to go beyond true threats — which is what the proposer’s rhetoric seems to suggest — then it would be unconstitutional.

6. The one way Congress could broaden the ban on threats against Congressmen to match the ban on threats against the President is to cover all true threats, and not just true threats “transmit[ted] in interstate or foreign commerce.” The “commerce” requirement is not hard to satisfy — communications that are routed through computers in other states, for instance, would suffice — but it sometimes won’t be satisfied, for instance when they are made face-to-face or even in a purely intrastate telephone call. But all the supposedly threatening/inciting/menacing/violent/etc. speech that I’ve heard faulted in the Arizona incident went out across state lines. And I know of no evidence that purely intrastate threats against federal legislators are somehow a serious problem that is being inadequately dealt with under state law.

7. Shifting from the First Amendment to the enumerated powers of Congress, I assume that a federal ban on true threats against members of Congress would be within an enumerated federal power for the same reason that I assume the ban on true threats against the President would be within an enumerated power: It would be within the constitutional authorization of “Laws which shall be necessary and proper for carrying into Execution” the various powers created by the Constitution, since threats that may have the purpose or effect of intimidating federal officials tend to undermine the federal government’s ability to soundly decide policy. (If federal officials believe that voting in particular way, or going to meet constituents in particular ways, could get them killed, they may fail to do what is required to serve the nation’s interests; and threats that convey this message of danger thus interfere with the making and execution of federal laws.)




The Volokh Conspiracy

Iranian human rights lawyer gets 11-year prison term, including 5 years for allegedly appearing in videotaped message without veil

Posted by admin | Posted in The Capitol | Posted on 10-01-2011

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One consistent hallmark of abusive laws is how often they lend themselves to being used to settle scores, to frighten a subjugated class into continued submission, or to pile on additional punishments out of sheer contempt. Sharia is replete with such examples.

Pakistan’s blasphemy law is one such law, and here is another illustration of the cavernous gap between Sharia as advertised for Western consumption (where, for example, the hijab is always portrayed as a personal choice) and Sharia as implemented in Islamic societies. Funny how the same human rights abuses keep turning up, from Aceh to Tehran, to Chechnya, and beyond. “Iran: Leading human rights lawyer ‘jailed for 11 years’,” from AdnKronos International, January 10:

Tehran, 10 Jan. (AKI) - Prominent Iranian human rights lawyer Nasrin Sotoudeh has been sentenced to 11 years in jail, according to her family. She was also banned from practising law and travelling abroad for 20 years, her family said.

The New-York based International Campaign for Human Rights in Iran deplored Sotoudeh’s sentence as a “gross miscarriage of justice” and said that it should be overturned by an appeals court.

The judge sentenced her to five years in prison on charge of “acting against national security,” another five years for “not wearing hijab (the face-covering Islamic veil) during a videotaped message,” and one year for “propaganda against the regime,” The International Campaign for Human Rights in Iran said.

Reza Khandan, Sotoudeh’s husband, said she was also found guilty of membership of the Human Rights Defenders’ Centre, a group headed by Iranian Nobel peace prize winner Shirin Ebadi.

Reza Khandan, Sotoudeh’s husband, in an interview with the Campaign described the ruling as “highly strange and unjust.”

The accusations were levelled against Sotoudeh, mainly over interviews with foreign-based media about her clients jailed after Iran’s disputed June 2009 presidential election, Khandan said.

Sotoudeh has defended Iranian opposition activists and politicians and has defended many of those arrested during and after the 2009 presidential polls. The Iranian opposition alleges the polls were rigged to ensure hardliner Mahmoud Ahmadinejad’s re-election.

Ebadi, is one of Sotoudeh’s clients and has campaigned strenuously for due process to be observed in her case. Ebadi is reported to have organised a sit-in at the UN Human Rights Council to raise awareness about the case and to plead for more international support.

Sotoudeh, a 45-year-old mother of two, was arrested on 4 September 2010, accused of acting against national security. Detained for long periods in solitary confinement, and denied contact with her family and lawyer, she nearly died after three dry hunger strikes to protest her prison conditions and violations of due process, according to the Campaign for Human Rights in Iran.

She has reportedly been tortured in prison in order to force her to confess to crimes. Her physical condition had deteriorated to the point that her children cried in shock when they were finally allowed to see her, the group said….

Jihad Watch

Pakistani Governor Assassinated By Own Security Guard, Allegedly Because of Governor’s Opposition to Blasphemy Punishment

Posted by admin | Posted in The Capitol | Posted on 04-01-2011

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(Eugene Volokh)

The Washington Post reports:

The governor of Pakistan’s largest province was assassinated Tuesday at a genteel market in the nation’s capital — allegedly by one of his own security guards ….

Interior Minister Rehman Malik said one of the governor’s guards surrendered to police after the shooting and told them he was angered by Taseer’s recent public endorsement of a pardon for a Christian woman sentenced to death for blasphemy.

That position had earned Taseer threats from Islamist parties, who held a strike last week against proposed changes to the nation’s controversial anti-blasphemy laws. Taseer stood by his stance, posting on Dec. 30 on his Twitter account: “I was under huge pressure sure 2 cow down b4 rightest pressure on blasphemy. Refused. Even if I’m the last man standing.” …

Militancy “has infiltrated and creeped into every segment of society, whether they are police force or army or bureaucracy,” Khwaja Asif, a leader of the political opposition, told Pakistani reporters Tuesday. “This intolerance has become a sort of disease in our society.” …

“Extremist people are not in the majority,” Taseer said [in an interview last June following the massive bombings of two minority sect mosques in Lahore]. “This is a very narrow minority, but … they are always prepared to do and die. That is their strength.”

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.




The Volokh Conspiracy

Testimony: FBI Agent Investigated ‘Broker’ Who Allegedly Recruited Pigford Claimants for Commission Cash

Posted by admin | Posted in The Capitol | Posted on 23-12-2010

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The following comes from a former FBI agent who was involved in the investigation of fraudulent Pigford claims in Arkansas:

We were brought in because there were numerous reports that fraudulent claims were being filed under Pigford.  Our investigation focused in part on the actions of a federal government employee who was reportedly helping to “broker” Pigford claims. This individual allegedly recruited people to file claims and then actually filled out the paperwork for them.  In exchange this individual apparently received a cut of the settlement.

In my mind there was ample evidence to proceed with legal action once our investigation was completed.  But the decision was made by the U.S. Attorney’s Office not to pursue them. Why?  I really don’t know.

By my estimation, perhaps 50% of all Pigford claimants in this instance were fraudulent.


Big Government

“[A] Muslim Boy [Allegedly] Got a Stiffer Sentence Because of the Fact That [His] Offense [Was Committed] During … Ramadan[]”

Posted by admin | Posted in The Capitol | Posted on 21-12-2010

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(Eugene Volokh)

In Pucci v. Nineteenth District Court (6th Cir. Dec. 16), plaintiff Julie Pucci was dismissed from her job as deputy court administrator. She alleges that she was dismissed partly in retaliation for her complaining about one judge’s “practice of interjecting his personal religious beliefs into judicial proceedings and the business of the court.” The judge was later appointed chief judge, and dismissed her. Another factor in the dismissal was allegedly Pucci’s living with a different judge, with whom the chief judge had a good deal of friction. And another factor, according to the documents I’ve seen, may have been the chief judge’s moral disapproval of Pucci’s living with the other judge without their being married.

In any case, here is the Sixth Circuit’s summary of the complaints about the judge (though note that I could see no indication of whether any government official had definitively decided whether the Ramadan incident had happened as alleged):

Pucci was not alone in complaining. Sharon Langen, the clerk of the court, also testified that she complained to the [State Court Administrative Officer], and another court employee filed a complaint with the state judicial tenure commission. Foran stated that, during his brief ten-month tenure as chief district judge, he received upwards of fifteen complaints from local attorneys “about Judge Somers interjecting his religious beliefs from the bench or imposing sentences based on religion.” [Citing the district court decision.] The record provides several examples:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage[;] … [according to then-Chief Judge Foran’s summary of a lawyer complaint,] a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during … Ramadan[]”; [o]thers complained that Judge Somers lectured defendants about marijuana, declaring that it was the devil’s weed or Satan’s surge, and that he would ask litigants in court if they go to church.

Id. In response, the regional court administrator instructed Somers to stop using court stationary to send religious messages.

What struck me as interesting is that the alleged Ramadan-related action — which would be clearly unconstitutional religious discrimination if it happened as described — does not seem to have been a reflection of any Islamist perspective of the judge’s part. Rather, the allegations describe what one might think of as ecumenical pro-religiosity, which may include specially punishing religious people for violating the dictates of their religions as well as, in other circumstances, specially favoring religious people.

It reminded me of McLemore v. McLemore, a 2000 Mississippi Supreme Court case in which the court ordered the parents to take a child to church, and responded (in my view incorrectly) to an Establishment Clause argument by stressing that “church” was used generically, and that any religious worship, Christian or not, would has sufficed. Likewise, Michigan trial courts often favor the more religious parent in child custody cases (see, e.g., the list of cases at PDF pp. 92–93 of my Parent-Child Speech and Child Custody Speech Restrictions article), though without any ostensible preference for this religion or that; still unconstitutional, I think, but reflective of a broad pro-religion mindset.

In any event, I thought I’d note this, though I should stress again that the Ramadan story is just a lawyer’s allegation; I know of no confirmation or rejection of the story.




The Volokh Conspiracy

“[A] Muslim Boy [Allegedly] Got a Stiffer Sentence Because of the Fact That [His] Offense [Was Committed] During … Ramadan[]”

Posted by admin | Posted in The Capitol | Posted on 21-12-2010

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(Eugene Volokh)

In Pucci v. Nineteenth District Court (6th Cir. Dec. 16), plaintiff Julie Pucci was dismissed from her job as deputy court administrator. She alleges that she was dismissed partly in retaliation for her complaining about one judge’s “practice of interjecting his personal religious beliefs into judicial proceedings and the business of the court.” The judge was later appointed chief judge, and dismissed her. Another factor in the dismissal was allegedly Pucci’s living with a different judge, with whom the chief judge had a good deal of friction. And another factor, according to the documents I’ve seen, may have been the chief judge’s moral disapproval of Pucci’s living with the other judge without their being married.

In any case, here is the Sixth Circuit’s summary of the complaints about the judge (though note that I could see no indication of whether any government official had definitively decided whether the Ramadan incident had happened as alleged):

Pucci was not alone in complaining. Sharon Langen, the clerk of the court, also testified that she complained to the [State Court Administrative Officer], and another court employee filed a complaint with the state judicial tenure commission. Foran stated that, during his brief ten-month tenure as chief district judge, he received upwards of fifteen complaints from local attorneys “about Judge Somers interjecting his religious beliefs from the bench or imposing sentences based on religion.” [Citing the district court decision.] The record provides several examples:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage[;] … [according to then-Chief Judge Foran’s summary of a lawyer complaint,] a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during … Ramadan[]”; [o]thers complained that Judge Somers lectured defendants about marijuana, declaring that it was the devil’s weed or Satan’s surge, and that he would ask litigants in court if they go to church.

Id. In response, the regional court administrator instructed Somers to stop using court stationary to send religious messages.

What struck me as interesting is that the alleged Ramadan-related action — which would be clearly unconstitutional religious discrimination if it happened as described — does not seem to have been a reflection of any Islamist perspective of the judge’s part. Rather, the allegations describe what one might think of as ecumenical pro-religiosity, which may include specially punishing religious people for violating the dictates of their religions as well as, in other circumstances, specially favoring religious people.

It reminded me of McLemore v. McLemore, a 2000 Mississippi Supreme Court case in which the court ordered the parents to take a child to church, and responded (in my view incorrectly) to an Establishment Clause argument by stressing that “church” was used generically, and that any religious worship, Christian or not, would has sufficed. Likewise, Michigan trial courts often favor the more religious parent in child custody cases (see, e.g., the list of cases at PDF pp. 92–93 of my Parent-Child Speech and Child Custody Speech Restrictions article), though without any ostensible preference for this religion or that; still unconstitutional, I think, but reflective of a broad pro-religion mindset.

In any event, I thought I’d note this, though I should stress again that the Ramadan story is just a lawyer’s allegation; I know of no confirmation or rejection of the story.




The Volokh Conspiracy

Video Interview With Nazi Who Allegedly Signed First Order For Mass Execution Of Jews

Posted by admin | Posted in The Capitol | Posted on 17-12-2010

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Daled Amos

‘Lol!’ How Kwame Kilpatrick Allegedly Planned Mass Extortion

Posted by admin | Posted in The Capitol | Posted on 16-12-2010

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We just got through the 38-count federal indictment against former Detroit mayor Kwame Kilpatrick and a handful of his cohorts, alleging that the group operated as a criminal organization that extorted tens of millions of dollars from city contractors. The…





TPMMuckraker

Two Men Charged With Hate Crimes For Allegedly Assaulting Imam

Posted by admin | Posted in The Capitol | Posted on 10-12-2010

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Two men have been charged with assault and robbery as a hate crime after attacking a Muslim religious leader on a New York City subway platform.

According to prosecutors, the two men, Albert Melendez, 30, and Eddie Crespo, 28, spotted the unidentified imam on the A train in Manhattan at about 3 a.m. Wednesday morning.

“What are you, a camel jockey? I don’t like Muslims,” Melendez said, according to the criminal complaint.

The imam got off the train at the Canal Street station, and the two men allegedly followed him. One allegedly tried to kick him, and a struggle ensued, with the imam managing to wrestle Melendez to the ground. Crespo then allegedly held the imam down so Melendez could get up, rip the kufi from the imam’s head and throw it on the subway tracks.

Then, according to prosecutors, Melendez punched the imam several times in the face. He was reportedly treated by paramedics and not hospitalized.

The two men were arraigned today and charged with two counts each of robbery as a hate crime and one count each of third-degree assault as a hate crime.

The Council on American-Islamic Relations identified the Muslim man as an imam. CAIR, which said it has been in touch with the imam, said in a press release that the men also said, “Fuck all you Muslims. All of you are terrorists.”

In late August, a 21-year-old film school student in New York City was arrested on hate crimes charges after allegedly slashing a Muslim cab driver in the face and neck with a knife.







TPMMuckraker

Ex-Minuteman Demands Spousal Support From Estranged Wife He Allegedly Threatened At Gunpoint

Posted by admin | Posted in The Capitol | Posted on 03-12-2010

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In the divorce case of former Minuteman leader Chris Simcox, the plot has gotten molasses-thick.

Simcox, who helped found the anti-immigration Minuteman group and incurred a $ 200,000 debt in a failed bid for John McCain’s Arizona Senate seat, has requested that his estranged wife, who has previously alleged that Simcox threatened her and their children at gunpoint, pay him spousal support and take on half of his campaign debt.

Alena Simcox was granted a restraining order from her husband in June, after she alleged Simcox had drunkenly threatened her, her children, and police officers on multiple occasions while wielding a gun.

In this latest filing, Stephen Lemons of the Phoenix New-Times reports that Simcox claims:

he’s eking by on $ 1,000 a month, and he wants his estranged wife Alena Simcox to pay him “spousal maintenance” in the amount of $ 1,500 for a full 24 months, a nice $ 36K.

Simcox complains that the $ 1,075 per month in child support asked of him is too much, and he thinks Alena should shoulder 50 percent of all he owes, including a $ 200,000 debt from his failed Senate bid.

In February 2010, he dropped out of the Republican primary for McCain’s seat, and endorsed and went to work as a consultant for Tea Party favorite J.D. Hayworth (who eventually got thrashed by McCain in the August primary). Simcox writes in the filing that since Alena Simcox “supported Husband’s decision to run for the Senate and Husband’s victory would have greatly benefited the community financially and in other meaningful ways,” she should be responsible for half of the debt.

Simcox only worked for Hayworth from March 1 to April 16 of this year, because, the filing claims, Alena Simcox’s allegations “have resulted in extremely negative press for [Chris Simcox] and caused [him] to lose his job with the J.D. Hayworth Senatorial Campaign.”

But there’s more: At the time of the restraining order, the court also ordered Simcox to surrender his weapons, but he was reportedly not immediately served with the order. So Alena Simcox hired bounty hunter Stacey O’Connell to find him.

It so happens that O’Connell was previously kicked out of the Minuteman group for fighting with Chris Simcox, so there was already some bad blood between the two before Simcox claimed that Alena Simcox and O’Connell were having an affair. The two, he said, were “engaged in a pattern of devious and malicious conduct including statements of iniquity, to torment me emotionally in an apparent attempt to drive me out of my marriage.”

In this filing, the New Times reports, Simcox also claims his ouster from the Hayworth campaign was partially their doing: “Wife and boyfriend got me fired.”

The hearing on this case is scheduled for February 28, 2011.









TPMMuckraker

Bad news: Kathleen Parker allegedly walks off set of “Parker/Spitzer”

Posted by admin | Posted in The Capitol | Posted on 01-12-2010

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Too good to check.


Three possibilities. One: It’s all true. Two: It’s a lie planted by CNN brass who are upset about the show’s horrific ratings and looking for a pretext to dump her. Three: It’s a lie fed to the Post by righty bloggers who are desperate for content and who know only too well that their readers [...]

Read this post »

Hot Air » Top Picks

Standing to Challenge Laws that Allegedly Endorse or Disapprove of Religion

Posted by admin | Posted in The Capitol | Posted on 10-11-2010

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(Eugene Volokh)

I blogged yesterday about the Oklahoma anti-sharia amendment case, and suggested that the plaintiff may not have the legally sufficient standing to challenge the law. Among other things, I wrote:

1. The plaintiff argues that the amendment is unconstitutional because it impermissibly expresses governmental hostility to Islam, and provides for discrimination against Muslims. But the mere existence of the law does not, I think, amount to a constitutionally sufficient injury on which a lawsuit can be founded. (That’s the legal requirement of “standing.”)

It’s true that the Supreme Court has sometimes allowed standing in Establishment Clause cases based on symbolic injuries. But the Court has never allowed standing simply based on the existence of a law that allegedly conveys an impermissible message of endorsement, and lower courts have not accepted such claims. See Newdow v. Lefevre (9th Cir. 2010):

Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes “In God We Trust” is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the “unwelcome direct contact” with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an “abstract stigmatic injury” resulting from such outsider status is insufficient to confer standing.

People can have standing to object to the placement of religious symbols in particular places, when the objectors have “frequent regular contact” with the symbols (in the sense of often being around where the symbols are visible). But the presence of words in a law — even words that express endorsement or disapproval of religion — does not yield standing.

Some comments reminded me of a recent case that took the opposite view from what I expressed, so I did some more research. Here’s what I found.

Generally speaking, courts have indeed held that a person may not challenge a state law merely because its existence endorses or disapproves of religion. (Recall that there’s considerable Supreme Court precedent stating — whether rightly or wrongly — that government action that endorses or disapproves of religion generally violates the Establishment Clause. That’s the substantive standard, and the question is whether a particular challenger indeed is in a legally sufficient position to sue for an alleged violation of this standard.) If the law has been applied to the person, then he can sue; likewise if there’s a sufficiently imminent threat of application. Also, the objector can sue if the government creates some display — a creche, a monument, a city seal on government vehicles, and the like — that the objector will routinely see. But there mere existence of a law out there on the books does not suffice. Thus,

  1. Flora v. White (8th Cir. 1982) held that an atheist lacked standing to challenge the mere existence of a law that disqualified atheists from being officeholders or witnesses. The court concluded that the challenger didn’t face sufficient risk of impending tangible harm (e.g., in not being able to testify in some future action). And it also rejected the argument that the very existence of the law itself created a psychological harm:

    Both appellants also allege that, as atheists, they have suffered adverse psychological consequences as a result of the continued presence of this section in the Arkansas Constitution. The Supreme Court, however, recently held that this type of general psychological impact does not constitute the requisite injury in fact. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The plaintiffs in Valley Forge, like appellants herein, failed

    to identify any personal injury suffered … as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that [the plaintiffs] are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant’s interest or the fervor of his [or her] advocacy. “[T]hat concrete adverseness which sharpens the presentation of issues” is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.

    102 S.Ct. at 765–66 (emphasis in original, citations and footnote omitted); see also id. at 766 n.22 (rejecting a “spiritual stake” in the outcome as sufficient to confer standing).

  2. Freedom from Religion Found., Inc. v. Zielke (7th Cir. 1988) likewise held — in a Ten Commandments monument case — that objectors’ allegations “that they have suffered ‘a rebuke to [their] religious beliefs respecting religion by virtue of being subjected to a governmental endorsement of unequivocally religious precepts and confusions’” are “exactly the type of psychological harm that the Supreme Court has held cannot confer standing on an aggrieved party” (citing Valley Forge).
  3. Washegesic v. Bloomingdale Public Schools (6th Cir. 1994) held that plaintiffs continued to have standing to object to a portrait of Jesus in a public school, but only because they were likely to return to the school and see the portrait, and thus have “‘unwelcome’ direct contact with the offensive object,” and not just “psychological harm alone” stemming from the knowledge that the painting exists.
  4. Several cases in the Tenth Circuit, which are binding on the Oklahoma federal district court is located, seem to take the same view; all found standing, but because of the presence of “personal contact with a state-sponsored image.” See O’Connor v. Washburn Univ. (10th Cir. 2005) (professor and student had standing to challenge allegedly anti-Catholic sculpture when the “claim[ed] they were constantly exposed to its presence and were forced to alter their schedules and routes across campus to avoid it” because of its “prominent location on campus”); Green v. Haskell County Board of Comm’rs (10th Cir. 2009) (citizen had standing because “whenever he visits the courthouse square for [various] purpose[s], he cannot avoid the [Ten Commandments] Monument”); American Atheists, Inc. v. Duncan (10th Cir. 2010) (citizens had standing because they alleged they had “direct personal and unwelcome contact with the crosses” that were used as roadside memorials).
  5. Caldwell v. Caldwell (9th Cir. 2008) held that plaintiff lacked standing to challenge a web site related to evolution that was maintained by the University of California, which in the plaintiff’s view disapproved of her religious beliefs. The court concluded that Caldwell did not have “unwelcome direct contact with an allegedly offensive religious or anti-religious symbol” — at least in any way different from the contact that any member of the public could have by visiting the site. Her position was “not sufficiently differentiated and direct to confer standing on her to challenge the University of California’s treatment of religious and anti-religious views on evolution.” “[H]er connection to the University of California website is not similar to the relationship in Schempp [one of the Supreme Court’s school prayer cases] between parents whose children are directly exposed to unwelcome religious exercises in the classroom and the school district.
  6. Likewise, in Doe v. Tangipahoa Parish School Bd. (5th Cir. 2007), the court held that standing to challenge religious invocations at school board meetings “has not previously been based solely on injury arising from mere abstract knowledge that invocations were said. The question is whether there is proof in the record that Doe or his sons were exposed to, and may thus claim to have been injured by, invocations given at any Tangipahoa Parish School Board meeting.” In the absence of such direct exposure to the invocations — beyond just the knowledge that the invocations are authorized and taking place — plaintiffs did not have standing.
  7. And, as I mentioned in the original post, Newdow v. Rio Linda Union School Dist. (9th Cir. 2010) took the same view.
  8. Finally, the Supreme Court’s decision in Valley Forge Christian College v. Americans United for Separation of Church & State (1982) likewise points against standing. In Valley Forge, Americans United challenged the federal government’s conveyance of property to Valley Forge Christian College. The case is not squarely on point, because it involved a claim premised on unconstitutional use of taxpayer money, rather than unconstitutional conveyance of a message by the government. Still, the Court did discuss the “psychological injury” argument, and rejected it. “[Challengers’] fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms.”

Nonetheless, as some commenters noted, the recent Ninth Circuit en banc 6-to-5 decision in Catholic League for Religious & Civil Rights v. City & County of San Francisco (9th Cir. 2010) held that objectors did have standing to challenge a San Francisco Board of Supervisors resolution that condemned certain actions by the Catholic Church. The en banc majority seemed to cast some doubt on the the Ninth Circuit panel opinions I quoted above. But it didn’t expressly overrule them, or expressly disavow the other circuits’ views. Rather, it seems to have taken the view that standing should be more easily found when an action involves an (1) unambiguous (2) condemnation of a religion (3) “in one’s own community” (though it also suggested that endorsements of religion and condemnation of religion should be treated the same) (paragraph breaks added):

Judge Graber [who wrote the 5-judge dissent on the standing issue] cites many, many standing cases and faults us for not discussing all of them to the same extent. The reason why all need not be patiently explicated is that not a single one of Judge Graber’s cited cases involves a government condemnation of a particular church or religion. The attempt to tease out of the rhetoric explaining the holdings in other, quite different, factual circumstances fails because the language in every case explained a different result.

True, there are so many Establishment Clause standing cases that the language (as opposed to the holdings) in some furnishes ammunition for Judge Graber’s view. Newdow v. LeFevre upholds standing to challenge federal statutes requiring “In God We Trust” on currency, but not the federal statute making “In God We Trust” the national motto. 598 F.3d 638, 642 (9th Cir. 2010). Newdow v. Rio Linda Union School District has dicta that a parent and child lacked standing to challenge the federal statute adding “under God” to the pledge of allegiance, but holds that they had standing to challenge the California law requiring the pledge’s recitation in the schools even though no child was required to recite it. 597 F.3d 1007, 1016 (9th Cir. 2010). Judge Graber’s stretch from federal statutes regarding traditional patriotic formulas that include vague and general religiosity, to a local ordinance condemning the church and religious views of some of the municipality’s residents, takes the explanatory language of these cases too far.

Additionally, Judge Graber argues that a one-page Eighth Circuit per curiam opinion, Flora v. White, is “indistinguishable” from this case. 692 F.2d 53 (8th Cir. 1982) (per curiam). Hardly. The Eighth Circuit held that the plaintiffs lacked standing to challenge a provision in the Arkansas Constitution making atheists incapable of holding public office or to testify as a witness, where the plaintiffs had no plans to do either. Id. at 54. Their being offended because they were atheists was analogized to the plaintiffs offended but not affected in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982). See Flora, 692 F.2d at 54.

Unlike either of these cases, the plaintiffs here are not suing on the mere principle of disagreeing with San Francisco, but because of that city’s direct attack and disparagement of their religion.

The Catholic League analysis would support the court’s conclusion that the Oklahoma Muslim plaintiff had standing to challenge the constitutional provision banning the consideration of Sharia law, on the grounds that it too involves a “[state]‘s direct attack and disparagement of [his] religion.”

Nonetheless, it seems to me that the weight of circuit opinion, and the implications of the Supreme Court’s Valley Forge case, point against standing; and the Catholic League majority was mistaken in trying to distinguish those cases on grounds of the supposed specificity and localism of the condemnation of religion (since those grounds, even if relevant to the substantive question, aren’t relevant to the standing issue). Catholic League is of course binding in the Ninth Circuit, but I suspect that the Tenth Circuit would not follow the view of the Catholic League majority. The suspicion is not a certainty, partly because the Tenth Circuit cases I cite found standing by stressing the need for direct contact, rather than rejecting standing because of the absence of direct contact — it’s possible that the Tenth Circuit would conclude that direct contact is sufficient but not necessary for standing, or adopt the distinction urged by the Catholic League majority. Still, I would think that in the Tenth Circuit the likely result would be no standing in the Oklahoma case.




The Volokh Conspiracy

Standing to Challenge Laws that Allegedly Endorse or Disapprove of Religion

Posted by admin | Posted in The Capitol | Posted on 10-11-2010

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0

(Eugene Volokh)

I blogged yesterday about the Oklahoma anti-sharia amendment case, and suggested that the plaintiff may not have the legally sufficient standing to challenge the law. Among other things, I wrote:

1. The plaintiff argues that the amendment is unconstitutional because it impermissibly expresses governmental hostility to Islam, and provides for discrimination against Muslims. But the mere existence of the law does not, I think, amount to a constitutionally sufficient injury on which a lawsuit can be founded. (That’s the legal requirement of “standing.”)

It’s true that the Supreme Court has sometimes allowed standing in Establishment Clause cases based on symbolic injuries. But the Court has never allowed standing simply based on the existence of a law that allegedly conveys an impermissible message of endorsement, and lower courts have not accepted such claims. See Newdow v. Lefevre (9th Cir. 2010):

Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes “In God We Trust” is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the “unwelcome direct contact” with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an “abstract stigmatic injury” resulting from such outsider status is insufficient to confer standing.

People can have standing to object to the placement of religious symbols in particular places, when the objectors have “frequent regular contact” with the symbols (in the sense of often being around where the symbols are visible). But the presence of words in a law — even words that express endorsement or disapproval of religion — does not yield standing.

Some comments reminded me of a recent case that took the opposite view from what I expressed, so I did some more research. Here’s what I found.

Generally speaking, courts have indeed held that a person may not challenge a state law merely because its existence endorses or disapproves of religion. (Recall that there’s considerable Supreme Court precedent stating — whether rightly or wrongly — that government action that endorses or disapproves of religion generally violates the Establishment Clause. That’s the substantive standard, and the question is whether a particular challenger indeed is in a legally sufficient position to sue for an alleged violation of this standard.) If the law has been applied to the person, then he can sue; likewise if there’s a sufficiently imminent threat of application. Also, the objector can sue if the government creates some display — a creche, a monument, a city seal on government vehicles, and the like — that the objector will routinely see. But there mere existence of a law out there on the books does not suffice. Thus,

  1. Flora v. White (8th Cir. 1982) held that an atheist lacked standing to challenge the mere existence of a law that disqualified atheists from being officeholders or witnesses. The court concluded that the challenger didn’t face sufficient risk of impending tangible harm (e.g., in not being able to testify in some future action). And it also rejected the argument that the very existence of the law itself created a psychological harm:

    Both appellants also allege that, as atheists, they have suffered adverse psychological consequences as a result of the continued presence of this section in the Arkansas Constitution. The Supreme Court, however, recently held that this type of general psychological impact does not constitute the requisite injury in fact. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The plaintiffs in Valley Forge, like appellants herein, failed

    to identify any personal injury suffered … as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that [the plaintiffs] are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant’s interest or the fervor of his [or her] advocacy. “[T]hat concrete adverseness which sharpens the presentation of issues” is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.

    102 S.Ct. at 765–66 (emphasis in original, citations and footnote omitted); see also id. at 766 n.22 (rejecting a “spiritual stake” in the outcome as sufficient to confer standing).

  2. Freedom from Religion Found., Inc. v. Zielke (7th Cir. 1988) likewise held — in a Ten Commandments monument case — that objectors’ allegations “that they have suffered ‘a rebuke to [their] religious beliefs respecting religion by virtue of being subjected to a governmental endorsement of unequivocally religious precepts and confusions’” are “exactly the type of psychological harm that the Supreme Court has held cannot confer standing on an aggrieved party” (citing Valley Forge).
  3. Washegesic v. Bloomingdale Public Schools (6th Cir. 1994) held that plaintiffs continued to have standing to object to a portrait of Jesus in a public school, but only because they were likely to return to the school and see the portrait, and thus have “‘unwelcome’ direct contact with the offensive object,” and not just “psychological harm alone” stemming from the knowledge that the painting exists.
  4. Several cases in the Tenth Circuit, which are binding on the Oklahoma federal district court is located, seem to take the same view; all found standing, but because of the presence of “personal contact with a state-sponsored image.” See O’Connor v. Washburn Univ. (10th Cir. 2005) (professor and student had standing to challenge allegedly anti-Catholic sculpture when the “claim[ed] they were constantly exposed to its presence and were forced to alter their schedules and routes across campus to avoid it” because of its “prominent location on campus”); Green v. Haskell County Board of Comm’rs (10th Cir. 2009) (citizen had standing because “whenever he visits the courthouse square for [various] purpose[s], he cannot avoid the [Ten Commandments] Monument”); American Atheists, Inc. v. Duncan (10th Cir. 2010) (citizens had standing because they alleged they had “direct personal and unwelcome contact with the crosses” that were used as roadside memorials).
  5. Caldwell v. Caldwell (9th Cir. 2008) held that plaintiff lacked standing to challenge a web site related to evolution that was maintained by the University of California, which in the plaintiff’s view disapproved of her religious beliefs. The court concluded that Caldwell did not have “unwelcome direct contact with an allegedly offensive religious or anti-religious symbol” — at least in any way different from the contact that any member of the public could have by visiting the site. Her position was “not sufficiently differentiated and direct to confer standing on her to challenge the University of California’s treatment of religious and anti-religious views on evolution.” “[H]er connection to the University of California website is not similar to the relationship in Schempp [one of the Supreme Court’s school prayer cases] between parents whose children are directly exposed to unwelcome religious exercises in the classroom and the school district.
  6. Likewise, in Doe v. Tangipahoa Parish School Bd. (5th Cir. 2007), the court held that standing to challenge religious invocations at school board meetings “has not previously been based solely on injury arising from mere abstract knowledge that invocations were said. The question is whether there is proof in the record that Doe or his sons were exposed to, and may thus claim to have been injured by, invocations given at any Tangipahoa Parish School Board meeting.” In the absence of such direct exposure to the invocations — beyond just the knowledge that the invocations are authorized and taking place — plaintiffs did not have standing.
  7. And, as I mentioned in the original post, Newdow v. Rio Linda Union School Dist. (9th Cir. 2010) took the same view.
  8. Finally, the Supreme Court’s decision in Valley Forge Christian College v. Americans United for Separation of Church & State (1982) likewise points against standing. In Valley Forge, Americans United challenged the federal government’s conveyance of property to Valley Forge Christian College. The case is not squarely on point, because it involved a claim premised on unconstitutional use of taxpayer money, rather than unconstitutional conveyance of a message by the government. Still, the Court did discuss the “psychological injury” argument, and rejected it. “[Challengers’] fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms.”

Nonetheless, as some commenters noted, the recent Ninth Circuit en banc 6-to-5 decision in Catholic League for Religious & Civil Rights v. City & County of San Francisco (9th Cir. 2010) held that objectors did have standing to challenge a San Francisco Board of Supervisors resolution that condemned certain actions by the Catholic Church. The en banc majority seemed to cast some doubt on the the Ninth Circuit panel opinions I quoted above. But it didn’t expressly overrule them, or expressly disavow the other circuits’ views. Rather, it seems to have taken the view that standing should be more easily found when an action involves an (1) unambiguous (2) condemnation of a religion (3) “in one’s own community” (though it also suggested that endorsements of religion and condemnation of religion should be treated the same) (paragraph breaks added):

Judge Graber [who wrote the 5-judge dissent on the standing issue] cites many, many standing cases and faults us for not discussing all of them to the same extent. The reason why all need not be patiently explicated is that not a single one of Judge Graber’s cited cases involves a government condemnation of a particular church or religion. The attempt to tease out of the rhetoric explaining the holdings in other, quite different, factual circumstances fails because the language in every case explained a different result.

True, there are so many Establishment Clause standing cases that the language (as opposed to the holdings) in some furnishes ammunition for Judge Graber’s view. Newdow v. LeFevre upholds standing to challenge federal statutes requiring “In God We Trust” on currency, but not the federal statute making “In God We Trust” the national motto. 598 F.3d 638, 642 (9th Cir. 2010). Newdow v. Rio Linda Union School District has dicta that a parent and child lacked standing to challenge the federal statute adding “under God” to the pledge of allegiance, but holds that they had standing to challenge the California law requiring the pledge’s recitation in the schools even though no child was required to recite it. 597 F.3d 1007, 1016 (9th Cir. 2010). Judge Graber’s stretch from federal statutes regarding traditional patriotic formulas that include vague and general religiosity, to a local ordinance condemning the church and religious views of some of the municipality’s residents, takes the explanatory language of these cases too far.

Additionally, Judge Graber argues that a one-page Eighth Circuit per curiam opinion, Flora v. White, is “indistinguishable” from this case. 692 F.2d 53 (8th Cir. 1982) (per curiam). Hardly. The Eighth Circuit held that the plaintiffs lacked standing to challenge a provision in the Arkansas Constitution making atheists incapable of holding public office or to testify as a witness, where the plaintiffs had no plans to do either. Id. at 54. Their being offended because they were atheists was analogized to the plaintiffs offended but not affected in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982). See Flora, 692 F.2d at 54.

Unlike either of these cases, the plaintiffs here are not suing on the mere principle of disagreeing with San Francisco, but because of that city’s direct attack and disparagement of their religion.

The Catholic League analysis would support the court’s conclusion that the Oklahoma Muslim plaintiff had standing to challenge the constitutional provision banning the consideration of Sharia law, on the grounds that it too involves a “[state]‘s direct attack and disparagement of [his] religion.”

Nonetheless, it seems to me that the weight of circuit opinion, and the implications of the Supreme Court’s Valley Forge case, point against standing; and the Catholic League majority was mistaken in trying to distinguish those cases on grounds of the supposed specificity and localism of the condemnation of religion (since those grounds, even if relevant to the substantive question, aren’t relevant to the standing issue). Catholic League is of course binding in the Ninth Circuit, but I suspect that the Tenth Circuit would not follow the view of the Catholic League majority. The suspicion is not a certainty, partly because the Tenth Circuit cases I cite found standing by stressing the need for direct contact, rather than rejecting standing because of the absence of direct contact — it’s possible that the Tenth Circuit would conclude that direct contact is sufficient but not necessary for standing, or adopt the distinction urged by the Catholic League majority. Still, I would think that in the Tenth Circuit the likely result would be no standing in the Oklahoma case.




The Volokh Conspiracy