Monday, March 26, 2012

Anti-Injunction Act - A Simple Explanation Of The Issues Being Argued Today

There are many long and detailed articles about the Anti-Injunction Act issues being discussed in the Supreme Court today such as this one. However, since most of them may be a little dense for many people, here is a simpler and shorter explanation of the issues.

For over one hundred and fifty years there has been a law that says a person cannot challenge a tax law until the tax has actually been assessed and they pay the tax or challenge an IRS collection action. That law is the Anti-Injunction Act. If the law applies to a suit then, almost uniformly, courts have ruled that they cannot even hear the case. It must be thrown out because the court lacks jurisdiction.

Today the Court is hearing arguments on whether the Anti-Injunction Act applies to the suits challenging the Affordable Care Act.

The two main issues are whether the ACA provision that requires people to pay a penalty if they don't have insurance constitutes a tax, and whether a suit challenging the mandate is really a suit challenging that tax.

(There are some minor issues which are excluded here but explained in the linked article.)

One case challenging the ACA was dismissed on this ground but it is not before the court today. In another suit that is before the Court today, there is a dissenting opinion by a Judge Kavanagh in which he says that the case should be dismissed because of the Anti-Injunction Act.

The hearing today on the Anti-Injunction Act is a fairly rare event. The government is not arguing for it and of course the plaintiffs don't think it applies. However the Supreme Court itself decided that it wanted to hear arguments on the issue. To get the issue presented the Court appointed an outside lawyer to argue the Anti-Injunction Act issue before the court.

What is the significance of this issue? If the court finds that the penalty is a tax, and that the challenge to the mandate is really a challenge to that tax, then the Court will dismiss these ACA challenges on the Anti-Injunction Act grounds.

Some people think that such a ruling would merely be punting the issue down the road. I don't share that view for the following reasons. Substantively, if the penalty is a tax then it will almost certainly be upheld in any later suit. Keep in mind that if it is a tax it can only be challenged based on Congress' taxing authority, not the Commerce Clause or the other things being used to challenge the law now. Congress' taxing authority is very broad and I don't think there has been a case since the thirties that has overturned a tax.

Secondly, if it is a tax, no suits can be filed until 2015. It would be until 2017 before they make it to the Supreme Court. By then the entire landscape will have changed. Obama will not be President. Since the idea of a mandate was invented by Republicans one doesn't have to be cynical to conclude that the challenges to the ACA are merely challenges to Obama. Once the law is implemented it will be clear to all that the hysteria about "socialized medicine" is nonsense.

Additionally, the ACA has budgetary savings provisions that even the Republicans like. Those savings and the additional revenues will be built into future budgets. All the hue and cry will be tamped down in light of that reality.

Lastly, the state exchanges will be facts on the ground, The insurance companies will have adjusted and will be participants. People will see all the benefits in their own lives. There will be little appetite to go back to 2009.

Do not be surprised if this case is dismissed on AIA grounds. For Justices like Scalia who have written very expansive opinions on the Commerce clause it would be a really convenient way to avoid eating his past words if he ruled against the ACA or disappointing his base if he ruled in favor of the ACA.

Saturday, March 24, 2012

What Does The Florida "Stand Your Ground" Law Really Say

The Florida Justifiable Use Of Force Statute, often referred to as the "Stand Your Ground" law, is an overreaching and violence inducing law for many reasons. But in the case of the killing of Trayvon Martin the problem may be less about the law than about the way it was interpreted and applied by the police and prosecutors.

One central problem with this case is how little concrete information we have about that night. The reason is that after George Zimmerman killed Trayvon he was taken to police headquarters, apparently interviewed for a short period of time, and released. His weapon was not seized, forensics weren't taken and there was apparently very little investigating done at the scene.

Why would that be? The police say that they could not hold him, let alone arrest him, because he had asserted self defense and was therefore protected by the Florida self-defense statute. That is horsepuckey and here is why.

The Florida law covers justifiable force by police and civilians. There are three categories of justifiable force by non-police officers: self-defense, home protection and defense of others. The only one applicable here is the first. That section says that you can use deadly force if you reasonably think it is necessary to prevent death or great bodily harm. You can't use deadly force if you are only trying to prevent the use of unlawful force against you. The distinction between fear of "death or great bodily harm" versus protecting your self from "unlawful force" can be critical. Here is the language of the statute:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to (the section dealing with Home Protection)

As discussed below there is an exception to the "no duty to retreat" language for anyone who instigates an altercation. But before looking at this more closely it is important to understand the section of the law that the police asserted as the reason why they were prohibited from detaining or arresting Zimmerman and keeping his gun.

There is a section of the law that says the police can use "standard procedures" for investigating the use of force but any person whose actions are protected by this law is immune from detention, arrest or prosecution. These restrictions on detention and so on don't apply if the police have "probable cause" to think the self-defense claim is invalid. Taken together, this means Zimmermann had to be released, but not if the police had probable cause to believe his claim of self defense was not covered by the statute. Here is the actual text of the relevant portion of this section,

776.032  Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in (self-defense, home protection or defense of others) is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . . As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

. . . . . .

So the police could not detain or arrest Zimmermann unless they had probable cause to believe that his actions were not covered by the law. If they had probable cause they could proceed with their investigation as if the law didn't exist.

The facts clearly suggest probable cause to question Zimmermann's self-defense claim. His assertion that he feared fears death or imminent bodily harm requires an analysis of the relative size, age, weight and strength of Zimmermann and Trayvon. This was not a case of a 120 pound eighty year old being assaulted by a 220 pound weight lifter. Based on pictures and other information Zimmermann's physical presence appears to be at least equal to Trayvon's. Next, one looks to see if the individuals have weapons. The reasonableness of any fear on Zimmermann's part is seriously undercut by the fact that he had a 9 mm handgun and Trayvon had no weapon of any sort. Additionally, when analyzing the validity of Zimmermann's claims it would also be noteworthy that he had a history of making bogus 911 calls about imaginary wrong doing. Finally, and as discussed below probably most importantly, Zimmermann told the 911 dispatcher he was following Trayvon Martin and was told to cease his pursuit. These facts clearly suggest there was probable cause to believe that Zimmermann's self-defense claim was invalid.

As mentioned above, there is a section of the law that really blows a hole in Zimmermann's self-defense claim and put the lie to the police assertion that he could not be detained or arrested. The law specifically provides that the self-defense protection does not apply for anyone who "provokes the use of force" against himself. The fact that Zimmermann pursued Trayvon Martin clearly suggests that he provoked whatever subsequently transpired. And this section goes on to say that if you provoke the confrontation then you cannot use force unless you have retreated and the person is still attacking you with overwhelming force. Here is the relevant portion of that section,

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

The evidence indicates that Zimmermann initiated and provoked this incident. There is no indication he retreated. There is no indication that he was faced with force that was likely to result in his death or great bodily harm.

Taken together Zimmermann's action do not appear to be covered by the self-defense law and, at the very least, the police had grounds to detain him and arrest him and conduct a thorough investigation to determine whether his actions were covered. Unfortunately, the failure to conduct a proper investigation at the time may make it hard to secure enough evidence to obtain a conviction now. Hopefully that will not be the case.