Reblogging a blog by John Elwood:

Relist Watch: 100 years of solitude

John Elwood briefly reviews Monday’s relists.

Wow. It’s been a longweek. As if the coronavirus weren’t enough all on its own, there’s fresh newsofother disasters. By which I mean parents everywhere realizing their wish they could spend more time with their familiesmight actually be coming true.

My forecast last week that “we’ll be seeing opinions in some of th[e relisted cases] soon” turned out to be correct. The Supreme Court summarily reversed in Davis v. United States19-5421, invalidating the unique rule of the U.S. Court of Appeals for the 5th Circuit holding that factual error is categorically immune from plain error review. It took the court just two paragraphs of analysis to dispatch it. The court then GVR’d (granted, vacated and remanded) in two cases raising the same issue, Bazan v. United States19-6113, and Bazan v. United States19-6431. You aren’t having some quarantine-induced mental breakdown: Both cases involve the same defendant. Finally, the court denied review in Avery v. United States19-633,involving a similarly atextual rule. Section 2244(b)(1) of Title 28 creates a rule covering applications by state prisoners for habeas relief under 28 U.S.C. § 2254. Yet six courts of appeals have interpreted the statute to cover applications filed not just by state prisoners under Section 2254, but also by federal prisoners under Section 2255, which the statute does not mention. Justice Brett Kavanaugh wrote an opinion respecting denial to emphasize that “the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor,” and essentially warned the Justice Department to start confessing error now, writing “[i]n a future case, I would grant certiorari to resolve the circuit split.”

There are three new relists this week, but the first two grow out of a single incident. There are a lot of moving parts in Brownback v. King19-546, and King v. Brownback19-718, so pay as much attention as your squalling children and blaring smoke detector permit. Douglas Brownback was an FBI special agent; Todd Allen was a detective with the Grand Rapids, Michigan, police department. Both worked for an FBI-directed fugitive task force. James King, who is of broadly the same height (within a five-inch range), build (“thin”) and age (within five years) as a known fugitive, had the misfortune to buy a soda from a particular gas station during the same two-hour period when the fugitive usually did so. Brownback and Allen, wearing plain clothes but with badges on lanyards, stopped King and had him put his hands on his head. They removed a pocketknife from his pocket, but when they also removed his wallet, King asked, “Are you mugging me?” and began running. What apparently followed was some tackling (of King), some biting (by King), and a whole lot of punching (by a bitten Allen). Michigan charged King with assault with intent to do great bodily harm, aggravated assault of a police officer and resisting arrest, but a jury acquitted him.

King then sued the United States under the Federal Tort Claims Act, which is a limited waiver of sovereign immunity allowing claimants to sue the federal government for “negligent or wrongful act[s] or omission[s]” if a private person would have been liable under those circumstances under state law. King also sued the federal government for constitutional violations on individual-capacity claims against the agents under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and under 42 U.S.C. § 1983. The district court entered judgment for the federal government on the FTCA claims because the actions were taken within the scope of the agents’ authority in good faith, denied the Section 1983 claims on the ground that the statute applies only to state officials and the FBI was running the show here (even for the state agents), and denied the Bivens claim on the merits on the ground that the police had not violated King’s constitutional rights.

King did not appeal his FTCA claims — only his Bivens and Section 1983 claims against the individual officers. The officers argued (through their government lawyers) that the claims were barred by the act’s “judgment bar,” which provides that “the judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” A majority of the U.S. Court of Appeals for the 6th Circuit concluded that because King had not adequately pleaded all the elements of an FTCA claim in district court, that court never had jurisdiction over the claim, and, as a non-merits disposition, the district court’s decision did not trigger the judgment bar. The majority then concluded that the claim was properly brought under Bivens and not Section 1983 because the conduct was fairly attributable to the FBI and not the state of Michigan. The court also determined that the officers were not entitled to qualified immunity under Bivens. Judge John Rogers (who apparently ties judge Jeffrey Sutton as the 6th Circuit’s most prolific judge) dissented on the grounds that the Bivens claims were precluded by the FTCA’s judgment bar.

Are you still here? I guess people really are hard-up for entertainment during the quarantine. In any event, the federal government sought review, and King filed a conditional cross-petition. The government argues that the final judgment in favor of the United States under the FTCA should bar the Bivens claims. King argues that Allen’s membership in a joint state-federal task force does not preclude him from acting “under color of state law” for purposes of being liable under Section 1983.

The third relist requires way less wind-up. Priscilla Daydee Valdez put an acquaintance in Mexico in touch with someone she knew in Tucson, Arizona, to buy ammunition. Valdez transferred money between the two and then traveled to the store, where her Tucson acquaintance bought 10,000 rounds of ammunition in a transaction I’m confident the clerk thought was completely above-board. They then drove to a spot near the Mexican border and left the car for a time, returning to an empty car after receiving a call that the car was “ready.” Valdez pleaded guilty to charges of attempting to export ammunition, which included a forfeiture count. Although the relevant firearm statute, 18 U.S.C. § 924, provides only for forfeiture of ammunition used in a federal offense, other statutes, namely 21 U.S.C. §§ 853(a) and 2461(c), provide for the forfeiture of “any other property of the defendant” if, as a result of any act or omission of the defendant, the forfeitable property is unavailable. The district court ordered Valdez, who is indigent, to forfeit money of her own because the forfeitable ammunition had disappeared, and the U.S. Court of Appeals for the 9th Circuit affirmed.

Valdez seeks review, arguing that the government can require her to forfeit substitute property only if the original forfeitable property was also hers, and the ammunition here was not. If we have learned anything from the relists and opinions in Davisand Avery, and for that matter the relist in Brownback, it’s that the justices take the wording of provisions seriously. They’re undoubtedly taking a very close look at the forfeiture statutes here.

That’s all this week. Everyone enjoy your familytime!

Manny’s blog opinion:

First of all, John sells himself short on the entertainment factor. A guy buying a soda, getting mugged by police/FBI task force, then running because he thought he was getting mugged, gets tackled and then biting the officers and the officers punching him repeatedly in the face is pretty entertaining. Then the obvious flaw in a judicial system that makes it so hard to hold people accountable for their actions is also pretty fun to read. Now if SCOTUSBLOG had gone the extra mile of re-enacting the situation, that would have been pretty amazing.

As for my opinion, that is of course of a guy sitting on his couch eating twinkies while watching law and order, which makes me expert on all things judicial, Valdez, who had her ammunition stolen, is going to lose her case. The property was hers until she personally hands it off. If I bought a TV for my friend and he gave me the money and it was stolen from my car as I entered the bodega to buy my twinkies, I would have to file the stolen items report, not my friend, even though he gave me the money to buy it. The TV is mine until I give it to him, or transfer the property personally, that of course, is just my opinion, in laymen twinkie terms. I can see Valdez losing this case but who knows, the law is weird.




weintein accusers
Brave women who found their date in court

Ever wonder why someone would do something as horrific as what Ol’ Harvey did and get away with it for such a long time? We’ve entered the third millennium of the calendar of the lord, if you believe in that, if not, then since one of the Ceasars decided to make his birth the beginning of time, either way that’s more than two thousand years minus the twenty or thirty thousand prior to that and we still have some bad hombres that feel that they can force, coerce, threaten or otherwise intimidate women into sex. Ol’ Harvey, with his sad heart condition, still feels that he did nothing wrong. That it was his right or, I don’t know, his authority maybe…. that women should cower, be at his beck and call, allow themselves to be taken advantage of, for his pleasure. The State of New York disagreed and sentenced Ol’ Harvey to 23 years of prison, where I am sure he will be in his own production of Harvey does Sing Sing, I wonder what tune he will be singing though (fill in your own song, I won’t even take a shot at it) which his lawyer said that at his age amounts to a life sentence. That of course doesn’t include the pending charges in Los Angeles, which I say, good for LA for not turning a blind eye to someone who would do that. Ol’ harvey didn’t really care what he did when he was doing it, ruining families and creating trauma, but now he’s sorry. My guess is that he is just sorry that he got caught, because prior to that he didn’t seem contrite at all. I do have one question, being that this behavior happened in two different states, where the hell are the Feds? Why haven’t they filed their own charges given that they aren’t bound by statute of limitations and these crimes are some of the most horrific that can be done to another person, where the hell are my tax dollars, if I paid taxes, going? I don’t know but at least NY and LA decided to take Ol’ Harvey’s deeds to task and good for them.


census letter

I received one of these fake census letters. I thought it was real and it didn’t mention any political messages that I recall. The problem with a fake census letter is that you don’t know who sent it and for it to state that it was from the Department of Commerce, it would be impossible for it to have a political message as it would violate the Hatch Act, a violation of federal law that would put someone in jail. My guess is that ICE mailed these letters in a scam to try and find illegal citizens. It wouldn’t be the first time that ICE would set up a sting to try and get information about citizens. I don’t know who got the letter but I’m Hispanic and it might be interesting to find out who else received the letter.


scotus 1

Another reason why the Supreme Court should pick their own nominees for the position of judges. In a recent article, the writer who is reporting on a case currently in the Appellate court, makes mention of who appointed the judges deciding the case. While this has no bearing on their decision, the mention of it, which is totally appropriate, gives the allusion of partisanship. Read the part of the article below and tell me if it didn’t stick in your mind


“Griffith, a Republican appointee, and Judge Judith Rogers, a Democratic appointee, questioned the administration’s arguments that the House panel has no legal standing to enforce its subpoena and that there is broad presidential immunity that applies to efforts to seek testimony from close advisers.

The other judge, Republican appointee Karen Henderson, said little.” Reported by Reuters

If that article had read that the judges were appointed by the Supreme Court, then it would make you feel different about any partisanship. Optics matter, even if they aren’t true. I think it’s time to find a reasonable solution that allows the Supreme Court or a cabinet appointed by them, to select who will be on the judiciary.


deported veterans

This article is going to be short. I notice that most, if not all, deported veterans are of Hispanic descent. I understand that coming into the country illegally is wrong but if you wanted to deport these brave souls who put their lives on the line for our country, wouldn’t it have made more sense to have done it prior to their enlistment and their service to our and their country? What no news article has ever researched or reported on is how many illegal citizens have died in these foreign wars for us. When I served in the military, joined during the first gulf war, they checked my immigration status. The military found me legally able to serve, doesn’t that automatically give these people the right to stay in the country when an arm of the government finds them lawfully able to put their lives on the line? Isn’t a DD-214 just as good as a green card? It’s unseemly to be seen as a country that doesn’t fight it’s own wars and battles. It almost looks like we kidnap people from other countries, make them fight our wars and then kick them back out. We should give these people their citizenship and then, if they break a law, treat them like someone who has broken a law, not an a foreign intruder or enemy combatant.

Other countries that allow foreign fighters offer these soldiers citizenship after a certain amount of time of service, most notably the French Foreign Legion who offers these soldiers French Citizenship after three years of service.



As the ongoing impeachment process turns its wheel like a soap opera straight from the day time writers, one thing is evident, there is no neutrality. Both sides made arguments that could be seen as correct and both sides are holding to their respective arguments like security blankets. As I listened, I tried my best to be impartial and what I learned was that I was not even remotely qualified to make a decision on whether impeachment is the way to go. After it was all over, I was more confused about the legitimacy of the proceedings then before it started. This article is not, though, about impeachment but how could you fix a problem that seems to be over the common persons ability to decipher and obviously does not belong in the realm of partisan politics. The answer seemed extremely obvious, at least to me. You need an impartial and neutral arena.

The government, for better or for worse and as a flight attendant that I once dated would say, is what it is. The questions that were asked by lawmakers seemed to be both relevant and irrelevant at the same time. A perfect example is the question about donations to political parties to the legal scholars arguing whether impeachment was the proper avenue to take. It was a real relevant question as it seemed to hit a bias right on the nose, the problem is though that the person that was asking the question, for better or for worse, probably did not contribute to his opposing party either and he is being a staunch defender for his side, making the question almost irrelevant. These questions are a two way street and they seemed to bog down the testimony. As I was listening to the legal scholars, I would think they are right, then I would hear the opposing view and think he is also right. Both sides can’t be right unless both sides are also wrong, it is what it is, thanks Kimberly.

So how do you get past this impasse? You need a third and neutral referee that could make that decision and they would also have to be legal scholars so they can get into the minutia of the argument and decipher the elements of the case and come up with a just decision. Wait, we do have a third part of government, the judicial branch, who happened to be experts on the law. How lucky. Or is it? This is why in past silly blogs that I have written, I expressed my concern on how judges are chosen and why they aren’t chosen by the branch of government that they work for but chosen by the two other branches of government whose fate could be ultimately be decided by them.

This article is renewed effort in trying to fix a problem which can be seen as glaring in circumstances like these. It is my belief that the judicial branch should pick their own members (judges), have the executive branch choose from one on the list and then have the legislative body confirm them. This would almost erase any conflict of interest that could come up in cases like this. While I feel that the judicial branch is as neutral as it gets, some will still argue and have argued that some judges are or were bias due to who appointed them. The phrase Obama judges and Bush judges and Trump judges have taken a toll on the impartiality that once prior seemed unquestionable in the judicial branch.

The constitution is over 200 years old, if my computer was over two hundred years old, it would definitely need updates. Maybe the constitution, which I always held was a living document because its writing affects living lives, should be resuscitated and given some new life. Our forefathers did their best to think of every scenario possible and they were pretty smart people, but as times roll along, their might have been problems that they did not foresee and that should be addressed. I believe giving the judicial branch more autonomy should be on the top of that list, at least in who should be hired to represent them.

What I am ultimately saying is that impeachment, a extremely powerful decision, should fall to the people that have nothing to gain or lose by the verdict, which should be the judicial branch and that’s why they should be free of attachments, as much as possible, to the other branches.


KINDNESS IS FREE, sprinkle it all over the world and 😁 smile