The Law
June 12, 2019

U.S. District Judge Raner Collins declared a mistrial Tuesday evening after a jury in Tucson, Arizona, couldn't agree on whether Scott Warren, a 36-year-old geology teacher and border aid volunteer, had broken the law by helping a pair of Central American migrants crossing a treacherous stretch of Arizona desert. Warren's lawyer, Greg Kuykendall, said eight jurors wanted to find Warren not guilty on all three federal counts and four jurors thought him guilty. He had faced up to 20 years in prison.

"The government put on its best case with the full force of countless resources, and 12 jurors could not agree with that case," Kuykendall said. Warren also read a statement, pointing to the 88 bodies recovered in the Sonoran Desert since his arrest in January 2018. "The government's plan in the midst of this humanitarian crisis? Policies to target undocumented people, refugees, and their families," Warren said. "Prosecutions to criminalize humanitarian aid, kindness, and solidarity," and plans to "build an enormous and expensive wall across a vast stretch of southwestern Arizona's unbroken Sonoran Desert."

Warren is part of the group No More Deaths, which places food and water for migrants in the most treacherous areas of the Arizona desert and recovers the remains of those who died there, as more than 2,800 did between 2000 and 2017. Prosecutors alleged that Warrent was actively trying to hide the two Central Americans from U.S. Border Patrol agents. Warren's defense team said he was simply offering shelter to two men who showed up unexpectedly at a No More Deaths staging house, suggesting the Trump administration was targeting humanitarian workers as part of its border crusade and specifically targeting No More Deaths, which had posted video of Border Patrol agents destroying water jugs just hours before Warren was arrested.

Prosecutors have not said if they intend to retry Warren. Collins has scheduled a status meeting for July 2. Warren still faces misdemeanor charges for driving through the Cabeza Prieta National Wildlife Refuge to leave water jugs. Peter Weber

September 6, 2017

In announcing the Trump administration's phase-out of the Deferred Action for Childhood Arrivals (DACA) program Tuesday, Attorney General Jeff Sessions called DACA "an unconstitutional exercise of authority by the executive branch" under former President Barack Obama and argued that President Trump was pushed to review the program by "imminent litigation" from 10 state attorneys general. Trump himself argued that "the attorney general of the United States, the attorneys general of many states, and virtually all other top legal experts have advised that the program is unlawful and unconstitutional and cannot be successfully defended in court."

That's not exactly true, The Associated Press notes, pointing to a letter that more than 100 law school professors and university lecturers wrote to Trump in August calling DACA unquestionably "a lawful exercise of prosecutorial discretion," based on their "years of experience in the field and a close study of the U.S. Constitution, administrative law, immigration statutes, federal regulations, and case law." That also appears to be the official opinion of the Justice Department's Office of Legal Counsel (OLC).

As Harvard law professor Jack Goldsmith points out, the 2014 OLC opinion declaring DACA "a permissible exercise" of executive "discretion to enforce the immigration laws" is still up on the OLC website, "implying that it's still valid for the executive branch." If the office has written a new opinion on DACA, it hasn't posted it to the website yet.

"Did Sessions consult OLC on this? If so, did OLC revise its views and/or withdraw the 2014 opinion?" Goldsmith asked on Twitter, adding, "If Sessions didn't consult OLC, what's the status of 2014 opinion? Will it be withdrawn?" He also notes that in 2016, Solicitor General Donald Virrilli argued in favor of DACA before the Supreme Court. This wouldn't be the first time Trump's solicitor general would reverse an Obama-era interpretation of federal law, Adam Liptak writes at The New York Times, but as Virrilli discovered, "such legal U-turns can try the justices' patience," especially the conservative justices. "Lawyers in the solicitor general's office, the elite unit of the Justice Department that represents the federal government in the Supreme Court, know that switching sides comes at a cost to the office's prized reputation for continuity, credibility, and independence."

In any case, if Trump really does "revisit" his DACA decision in six months, he has a legal rationale to fall back on. Peter Weber

December 30, 2015

After a Twitter user posted a video in late November purporting to show Ethan Couch violating the terms of his probation by drinking at party, Couch and his mother, Tonya Couch, threw what amounted to a going-away party, jumped in their pickup truck, disposed of their identification documents, changed their appearances, and drove from the Fort Worth area to Mexico to prevent Ethan Couch from possibly being sent to jail, Tarrant County Sheriff Dee Anderson said at a news conference on Tuesday.

Law enforcement in Texas and Mexico began a hunt for Couch, 18, and after getting a lead last Thursday, Anderson said, U.S. Marshals tracked Couch and his mother to an apartment in Puerto Vallarta, where Mexican police arrested them on Monday for being in the country illegally. They will be flown back to Texas on Wednesday, Couch will be sent to juvenile lockup, and Tonya Couch, 48, will be charged with hindering apprehension, which could send her to prison for two to 10 years.

Because Ethan Couch was prosecuted as a juvenile, for killing four people in a drunk-driving incident when he was 16, he can only be held until he turns 19 on April 11, Tarrant County District Attorney Sharen Wilson said. Four months of confinement, "in my opinion, is not a sufficient punishment for the taking of four lives," she added, but "I don't write the law.... We're still bound by the original sentence." In a Jan. 19 court hearing, prosecutors will attempt to get Couch's probation transferred to adult court.

Couch's case gained national attention when a psychologist testified that the 16-year-old was unable to tell right from wrong because he suffered from "affluenza," meaning essentially that his wealthy parents had spoiled him. The case garnered outrage when a judge apparently agreed with that diagnosis and sentenced Couch to 10 years of probation. On Tuesday, Anderson argued that an international manhunt for a juvenile probation violator was justified because "the details of the crime, and then the lack of justice in the sentence, outraged people in this area in a way that I haven't ever seen people outraged." As for Tonya Couch, he added, "there's just no chance that she will ever think [Ethan] needs to be punished or held accountable." Peter Weber

April 15, 2015

On Tuesday, the Marana, Arizona, police department released dashboard-camera footage of a Feb. 19 incident in which a police cruiser rammed into an armed robbery suspect at high speed, sending him flying into the air. The suspect, 36-year-old Mario Valencia, survived the crash. The police officer driving the car, Michael Rapiejko, was put on administrative leave but is now back on the job after the Pima County Attorney's Office cleared him of wrongdoing, The Associated Press reports.

According to Marana police Sgt. Chris Warren, Valencia first robbed a convenience store in nearby Tucson, then broke into a church and a home, before stealing a car and driving it to a Walmart, where he stole the rifle he was carrying when he was hit. The video below shows the incident from two angles, and AP stops the clip before it shows anything too gruesome. —Peter Weber

March 30, 2015

What's on SCOTUS' docket? The justices met Friday to decide whether or not to hear Dariano vs. Morgan Hill Unified School District, an appeal that asks if wearing an American flag shirt is a right protected under the First Amendment or a fashion statement that could provoke violence.

The Los Angeles Times reports that the controversy began in 2010 at Live Oak High School, south of San Jose, California. Several students, responding to a group of Mexican-American students who had paraded campus with a Mexican flag on Cinco de Mayo the year before, wore U.S. flags on the Mexican holiday in protest. The Mexican-American students, protesting racism, complained to the school's principal, who told the students to turn their shirts inside-out or go home.

Families in favor of free expression filed suit, while the school asserts necessary measures were taken to avoid violence. The L.A. Times reports that school officials said there were at least 30 fights between white and Latino students.

The justices will decide as early as today whether or not they'll hear the case. Teresa Mull

January 20, 2015

The Supreme Court ruled unanimously today that inmate Gregory Holt's half-inch beard could not be proven to be a security risk, making Arkansas one of more than 40 states to allow inmates to maintain beards.

According to AP, Holt, a Muslim also known as Abdul Maalik Muhammad, "claimed that he has a right to grow a beard under a federal law aimed at protecting prisoners' religious rights."

The law that won Holt this right is similar to the Religious Freedom Restoration Act cited by Hobby Lobby over the summer in the craft company's case against being forced to pay for employees' contraceptives.

Justice Ruth Bader Ginsburg, who wrote the dissent in the Hobby Lobby case, provided her opinion on the difference between the contraceptive case and Holt v. Hobbs, 13-6827, saying: "Accommodating petitioner's religious belief in this case would not detrimentally affect others who do not share petitioner's belief." Teresa Mull

December 30, 2014

The New York Police Department is staging a virtual work stoppage, the New York Post says, citing sharp drops in actions on everything from crimes to misdemeanors and parking violations. Since the Dec. 20 fatal ambush of NYPD Officers Rafael Ramos and Wenjian Liu, traffic tickets and summons for other minor violations have plummeted by 94 percent, and overall arrests last week were down 66 percent versus the same week in 2013, the Post says. Drug arrests dropped from 382 to 63, an 84 percent plummet.

Part of the decrease in enforcement is due to safety concerns, sources tell the Post, but there's also what the newspaper descries as an "undeclared slowdown in protest of [Mayor Bill] de Blasio's response to the non-indictment in the police chokehold death of Eric Garner." Later Tuesday, De Blasio and Police Commissioner Bill Bratton are meeting with the heads of the five police unions, which have strongly suggested that cops put their own safety before public safety, and even stage the kind of work slowdown New York is seeing now. Peter Weber

December 1, 2014

More than two dozen states, including California, have called for a new constitutional convention to potentially rewrite major portions of the United States' founding document. Just 34 states are required to be on board before this convention — which does not require the consent of Congress — could convene.

Though various political groups have pushed for a new constitutional convention in the past, Bloomberg reports that the bulk of the current momentum comes from fiscal conservatives who are interested in amending the federal government's fiscal power. However, were such a convention called, constitutional experts say it would not be feasible to limit the topic under consideration to any one issue.

Changes to the Constitution at the convention would come in the form of amendments, each of which would have to be ratified by three quarters of the states. Nevertheless, critics of the idea have expressed concern over the possibility of radical changes; in the words of Supreme Court Justice Antonin Scalia, "Whoa! Who knows what would come out it?" Bonnie Kristian

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