Welcome to the first installment of Subrosas Semi-Regular SCOTUS Summary, a quasi-weekly column dedicated to keeping the SuicideGirls.com community abreast (hey-o!) of the Courts important decisions, argument schedule and whatever else is relevant for that particular week. As always, a record of the opinions published by the Court can be found on their blog.

Open Up, this is the Police! I Have a Warrant to Stare at Your Snatch!
Los Angeles County v. Rettelle

Lets pretend for a moment that you have just finished getting busy or knocking boots or hitting dem skins or whatever you crazy kids are calling it these days. Youre lounging around under the covers, naked as the dawn. Perhaps youre already asleep while your girlfriend out of frustration begins to reach for her massager in the top drawer of her nightstand. I dont know, I can only speak to my experience.

Regardless, lets say this tranquil scene is rudely interrupted by your local police department coming to serve a warrant. Just for the sake of argument, imagine that youre both white and those police are here to serve a warrant on an African American couple. The police then tell you to get out of bed, refuse to let you get dressed or cover up in any way, and keep you that way for several minutes before realizing their mistake, apologizing and then letting you go.

What would you do? Youd sue the bastards for not letting you get your skivvies on, right? Wrong.

When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search. . . . .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. The test of reasonableness under the Fourth Amendment is an objective one. Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. . . . .

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.

This opinion was delivered per curiam, which means literally by the court. It was joined by seven justices. Stevens and Ginsberg wrote a concurring opinion and Souter would have let the Ninth Circuits ruling (that the couples suit had enough merit to pass the summary judgment stage) stand.

Antitrust-Busted!
Bell Atlantic v. Twombly.

While everyone is (justifiably) concerned about the erosion of personal liberties that could occur with the current ultra-conservative Court, also of concern is the effect that turn to the right will have on consumer protection and non-governmental economic regulation. Twombly is an excellent example of the latter phenomenon.

Among many other statutes designed to prevent anti-competitive behavior among corporations, the Sherman Antitrust Act provides for enforcement either through the Federal Trade Commission or by private aggrieved parties. One way that those private parties checked against those alleged monopolists and price-fixers was through class action suits. When filing a suit, the complaint must allege facts that rise to a cause of action (in this case, that two or more companies were illegally conspiring to fix prices or divide the market or other prohibited behavior.)

The problem that those plaintiffs run into is that there is usually no way for them to allege evidence of those facts before the discovery phase of the trial (until after the complaint was filed and the parties started exchanging documents.) In the past, it was sufficient to simply allege that there was an illegal agreement. Not anymore.

Today, in a 7-2 opinion, in Bell Atlantic v. Twombly, the Supreme Court ruled that the mere assertion in a complaint of an underlying agreement violating Section 1 of the Sherman act was insufficient to withstand a motion to dismiss when the parallel behavior in question could just as easily be explained as independent behavior. The majority opinion, authored by Justice Souter, emphasizes the high costs associated with antitrust discovery. In reaching its conclusion, the Court retiresas it puts itits 1957 decision in Conley v. Gibson in which the Court spoke of the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

As the link above points out, the Court gave little guidance as to how antitrust plaintiffs in the future should deal with this asymmetry of information. In addition, there is much confusion among the legal world as to whether the holding in Twombly is limited only to antitrust suits or whether it will be applied to other federal suits as well.

Justice Stevens, a former antitrust attorney, wrote a scathing dissent loudly trumpeting the unfairness inherent in the opinion. He was joined by Justice Ginsberg.

Pro Se You, Pro Se Me. Pro Se it For Always. Thats the Way it Should Be.
Winkleman v. Parma School District.

Under the Individuals with Disabilities Education Act, parents of children with disabilities can sue to force public school districts to pay for private schooling for their children if those public schools cannot provide adequate educational opportunities for their disabled children. The Act left some uncertainty as to whether parents are able to pursue such claims pro se (without an attorney.) Under Parma, those parents suits can not be dismissed for lack of counsel.

The ruling handed a victory to Sandee and Jeff Winkelman of Cleveland, who said they couldn't afford a lawyer to pursue their case against the Parma City School District once it reached federal court.

"I'm very overwhelmed. I'm very grateful," Sandee Winkelman told The Chronicle after learning of the court's 7-2 decision in her favor. "All parents now have the ability to do something if they can't afford an attorney.

The Council of the Great City Schools, a coalition of the nation's largest urban school systems, joined the case in opposition and said the ruling will lead to more lawsuits over special education programs and result in higher legal costs for public schools.

Although parents have long been permitted to represent themselves in state cases against schools, most courts have said parents need a lawyer in federal court.

The Winkelmans' story, which changed that rule, is like thousands across California and the nation in which parents opt for private over public education for their disabled children. Under the federal Individuals with Disabilities Education Act, IDEA, the parents are often able to have taxpayers pay the tuition.

Sometimes that's because the local public school has no appropriate program to address the child's particular educational needs, and both sides agree that private school is required. But in a growing number of cases, parents don't like the program offered by the public schools and sue for private tuition and services.

Parma was decided on a 7-2 vote and the opinion was delivered by Justice Kennedy. Justice Scalia wrote an opinion concurring in part and dissenting in part, which was joined (as usual) by Justice Thomas.

If you think this new feature is simply Subrosas transparently jealous reaction to the fabulous Suicide Bookshelf columns that PointBlank and _DictionaryGirl_ have been putting up, you are absolutely correct.

_kungfoo_

Los Angeles, CA

April 2005

MAY 25, 2007 06:17 AM

If you think this new feature is simply Subrosa's transparently jealous reaction to the fabulous Suicide Bookshelf columns that PointBlank and _DictionaryGirl_ have been putting up, you are absolutely correct.

I knew it!