Under both the influence of U.S. Supreme Court Chief Justice John Roberts, and corporate spending in state courts around the country, procedural wins have imposed new onerous hurdles on individuals aiming to hold businesses accountable for their wrongdoing. Two new analyses out this week point to the real costs of these losses for individuals. In one study, researchers found that dismissals of housing and employment discrimination claims spiked from 62 percent before two major Supreme Court cases made it harder to state a claim, to 71 percent afterwards. Even more noteworthy, that spike in dismissals fell largely on Republican-appointed judges, whose dismissal rate spiked from 61 percent to 74 percent in cases where defendants disputed the legitimacy of the plaintiffs’ initial filing.

In a second analysis, two antitrust lawyers point to the “scant recognition” of the costs imposed on attorneys, courts, and experts when new decisions make the requirements at each stage of litigation increasingly more onerous, meaning these new barriers and corporate-driven “tort reform” make the legal system more expensive. J. Douglas Richards and Michael Eisenkraft write:

Contrary to widely propagated but fictitious notions unlike many corporate defendants and most corporate defense counsel, plaintiffs generally want to get their case before a fact-finder as quickly and inexpensively as possible. Helping them attain this end without repetitive prior evaluations of a case’s merits would promote judicial efficiency and reduce litigation expenses for all parties as well as for the courts.

In spite of these findings and increasingly business-friendly rulings both at the Supreme Court and in the state courts, the U.S. Chamber of Commerce came out with a study finding that the U.S. “liability system” is the most expensive of 13 countries analyzed because of so-called “lawsuit abuse” in which too many claims are filed that cost too much.

While this Chamber study was painted in a Corporate Counsel report as ranking the U.S. legal system overall the most costly, its only measure is the cost of liability insurance for businesses. The study seems to acknowledge that these costs are simply “liability costs” that affect businesses. But whether the Chamber is griping about costs to the legal system or costs to businesses, recent statistics show that individuals filing tort lawsuits that the Chamber has dubbed “frivolous” in a long-running PR campaign are not to blame. Statistics from the National Center for State Courts show that between 1999 and 2008, the tort caseload decreased by 25 percent, while the number of contract cases – primarily cases between one business and another – spiked by 63 percent.

(Credit: National Center for State Courts)

As of 2008, the number of incoming contract cases was six times the number of tort cases. This means that it is actually other businesses that are filing more cases against each other, and potentially (though not necessarily) driving up their own price of liability insurance. So-called “tort reform” movements in the states that seek to limit corporate liability and cap damage amounts rely upon the assumption that frivolous civil lawsuits alleging injuries and wrongdoing flood our courts. But it is actually business-to-business cases whose numbers are growing.

There are no doubt other factors that make our legal system more expensive, as is pointed out by the Chamber’s study. The costs of our common law system, for example, in which each case is argued on the basis of precedent and lawyers are required to navigate an impenetrable web of case law and statutes, make the costs of legal counsel sometimes astronomical. And, as compared to the European countries with more robust social safety nets, Americans must turn to the court system to recover for more types of losses (for example, in countries where health care is public, private corporations do not have liability in that area).

But however expensive an increasingly onerous litigation system is for businesses, it is that much more expensive for individuals, particularly when procedural hurdles and damage caps prevent them from ever recovering their losses.

Summer has not even begun and children across America have barely gotten bored with last year’s Christmas presents. Yet Texas is already gearing up for the season when conservatives accuse liberals like the two people pictured above of waging a War on Christmas.

A measure labeled the “Merry Christmas bill,” which is currently awaiting Gov. Rick Perry’s (R-TX) signature, provides that public school staff may “offer traditional greetings” including “Merry Christmas” or “Happy Hanukkah” to their students, and it permits school districts to “display on school property scenes or symbols associated with traditional winter celebrations, including a menorah or a Christmas image such as a nativity scene or Christmas tree” so long as the display includes either a “secular scene” or symbols from more than one faith. The bill’s lead sponsors also put up a website promoting the bill, where they warn about a world where children ask “Daddy, why do we have a Christmas tree at home and a Holiday tree at school?”

Religious displays that merely comply with the minimum requirements of this bill are likely unconstitutional under existing law — although the law in this space is quite garbled. Although the Supreme Court did uphold a government-sponsored display that included a nativity scene in its 5-4 decision in Lynch v. Donnelly, Justice Sandra Day O’Connor cast the key fifth vote upholding that display, and her opinion made clear that government cannot take action whose “actual purpose is to endorse or disapprove of religion” or which “conveys a message of endorsement or disapproval.” Subsequent decisions make clear that a religious displays which violate the Constitution do not always cease to do so just because they appear alongside non-religious icons. A crucifix is still a crucifix, even if it is displayed next to the Golden Arches.

Yesterday, however, the Supreme Court agreed to hear a case that could easily give Texas free reign to tear down much of the wall between separation of church and state. Admittedly, conservative Justice Anthony Kennedy has balked in the past at efforts to make public school students to attend religious ceremonies, so it is possible that he would balk at similar efforts by public schools to endorse a religious viewpoint. At the very least, however, the law is likely going to become much more permissive of lawmakers who wish the government to broadcast their religious beliefs to others.

In March, Colorado came close to becoming the 19th state to abolish the death penalty, but the bill failed after Gov. John Hickenlooper (D) voiced opposition and suggested a possible veto. A few months later, Colorado’s death penalty is still firmly in place, and the state is poised to complete what would be only the second execution in 45 years (the last was in 1997). Few dispute that Nathan Dunlap committed a horrific crime and murdered several people at a Chuck E. Cheese. But judges, university professors, and other prominent state leaders are urging Gov. Hickenlooper to commute Dunlap’s sentence, both because crucial errors that defined his trial may have led him to get a harsher sentence than others, and because killing anyone under the perverted state system would be a miscarriage of justice. According to letters filed with Hickenlooper’s office:

• All three people on death row are black men. In a state that is only 4.3% African American, Colorado’s death row is 100% African American.
• All three men on death are from the same one county, out of Colorado’s 64.
• All three men committed their crime when they were under the age of 21.
• Two law professors who studied Colorado’s application of the death penalty concluded it was unconstitutional, after finding that prosecutors pursue the death penalty in less than one percent of the cases where it is an option, and that the state failed to set “clear statutory standards for distinguishing between the few who are executed and the many who commit murder.”

“It appears that race, geography and youth largely determines who gets the death penalty in Colorado,” wrote a group of NAACP leaders in a letter urging Gov. Hickenlooper to grant clemency. They note that not a single black juror served on the panel that sentenced Dunlap to death.

In addition to the injustices that define the Colorado system, a group of former Colorado judges also point out that Dunlap’s bipolar disorder and psychotic tendencies were not even mentioned at trial. In fact, according to their letter, Dunlap’s lawyer told the jury that there was no explanation for his violence.

The judges add that “no clear evidence exists that the death penalty deters violent crime. What it does in our current system, as in this case, is to drain our judicial system of millions of dollars as mandatory appeals drag on for decades.” Studies have shown that the death penalty does not lower the homicide rate. In fact, the murder rate is lower in states without the death penalty. Hickenlooper says he continues to wrestle with the death penalty, and whether to commute Dunlap’s sentence.

Olegs Kozacenko after the police assault. (Credit: NBC Bay Area)

A Berkeley truck driver is suing the California High Patrol for a brutal assault that brought him to the brink of death — provoked, according to a report by the local NBC affiliate, only by the man’s request to read the ticket he was being given before he signed it.

On September 2nd, 2011, Russian immigrant Olegs Kozacenko was driving his truck when he was pulled over by Officer Andrew P. Murrill of the California Highway Police. Murrill attempted to ticket him for driving too many hours in the truck. Kozacenko refused to sign the ticket before reading it.

At this point, NBC Bay Area reporters learned, Murrill decided he needed to make a “forcible arrest.” He and his partner, Officer Jim Sherman, claim that Kozacenko was “actively resisting” and “exhibiting extraordinary strength” in doing so. The consequences were “life-threatening injuries including a crushed left orbital eye socket, multiple facial fractures, a broken left arm, a concussion, unconsciousness and possible neurological damage.”

Kozacenko nearly died, as the nearest hospital did not have an emergency room advanced enough to treat his injuries.

According to court testimony obtained by NBC, Murrill concedes that Kozacenko was not even guilty of the offense he was attempting to ticket the driver for:

In his testimony during an evidentiary hearing on a defense motion to suppress evidence gathered after the ticket was written, officer Murrill admitted that he was confused, either by the law governing the hour limits for truck drivers or by reading the truck driver’s log book. Murrill also admitted on the witness stand that he was not a trained commercial vehicle specialist and did not call to ask for a commercial vehicle specialist to help at the scene. And he admitted on the stand that the hours Murrill was reading on Kozacenko’s truck driver log book were recorded two days earlier when Kozacenko was driving through Nebraska, Iowa and Wyoming.

NBC reports that “the Valley Division, where Murrill works, led the state in the number of disciplinary actions against officers for 2011, the same year of Kozacenko’s arrest.” Police officials claim that there is no video of the altercation and that all associated radio logs have been deleted by system malfunctioning for this time period.”

Murrill and Sherman remain employed by the CHP. Olegs Kocazenko is currently unemployed and seeking legal redress from both the Highway Patrol and the state of California.

After months of evidence from more than 100 witnesses suggesting the New York Police Department sets quotas on the number of stop-and-frisks, instructs officers to target black men, and taunts young teens, federal judge Shira A. Scheindlin ended the trial by expressing considerable alarm about the “high error rate” of the controversial stop-and-frisk program, and questioned whether police racially profile. The New York Times reports:

“A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun,” Judge Scheindlin, of Federal District Court in Manhattan, said on Monday during closing arguments in the trial. “So the point is: the suspicion turns out to be wrong in most of the cases.” […]

Observing that only about 12 percent of police stops resulted in an arrest or summons, Judge Scheindlin, who is hearing the case without a jury, focused her remarks on Monday on the other 88 percent of stops, in which the police did not find evidence of criminality after a stop. She characterized that as “a high error rate” and remarked to a lawyer representing the city, “You reasonably suspect something and you’re wrong 90 percent of the time.”

“That is a lot of misjudgment of suspicion,” Judge Scheindlin said, suggesting officers were wrongly interpreting innocent behavior as suspicious.

Scheindlin was referring to the constitutional standard — “reasonable suspicion” —  required for a police stop. She also questioned whether NYPD officers who make the “worrisome” argument that a higher stop and frisk rate among blacks and Hispanics mirrors higher crime rates in those populations are therefore using race as a basis for making otherwise inexplicable stops.

Plaintiffs in the class action lawsuit now underway allege an expansive and racist use of police stops has been applied without legal justification, subjecting vast swaths of the city’s young African American and Hispanic men to invasive frisks, unwarranted searches, and detention at police centers for alleged minor crimes, often marijuana possession. Scheindlin has already ruled in another stop-and-frisk case that police stops in the Bronx are likely unconstitutional.

The aggressive stop-and-frisk program has been justified as reducing crime, but new figures show that the crime rate went down with a drop in the number of stop-and-frisks under public pressure.

Last Friday the United States Court of Appeals for the First Circuit ruled a warrantless search of a cell phone during the arrest of a Boston man that contributed to his conviction on drug and weapon charges was unconstitutional. The decision adds to a growing court divide on whether access to digital devices and the personal information they often contain requires judicial oversight.

The court concluded:

Since the time of its framing, “the central concern underlying the Fourth Amendment” has been ensuring that law enforcement officials do not have “unbridled discretion to rummage at will among a person’s private effects.” Gant, 556 U.S. at 345; see also Chimel, 395 U.S. at 767-68. Today, many Americans store their most personal “papers” and “effects,” U.S. Const. amend. IV, in electronic format on a cell phone, carried on the person. Allowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create “a serious and recurring threat to the privacy of countless individuals.”

Brima Wurie was convicted by a jury in February 2010 of distribution of crack cocaine, possessing additional crack cocaine with intent to distribute, and being a felon-in-possession of a firearm. Officers allegedly observed Wurie engaging in a drug sale in a car, picked him up, and used information from one of the two cell phones on his person to discover his home address and obtain a warrant to search it, resulting in the additional weapon and drug charges. The government argued that Wurie’s phone was “indistinguishable from other kinds of personal possessions, like a cigarette package, wallet, pager, or address book” which are subject to the search incident to arrest exception to Fourth Amendment protections.

The U.S. Supreme Court ruled searches at the time of arrest without a warrant are permissible in United States v. Robinson, but that was before advent of mobile computing technology. There is significant legal question surrounding whether digital devices like cell phones and laptops can be searched in the course of an arrest because, as the opinion in the Wurie case notes, “individuals today store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers” and the Fourth Amendment specifically guarantees papers and effects not be subject to warrantless searches.

The Florida Supreme Court ruled 7-2 that a similar police search of an arrested person’s phone without a warrant was unconstitutional earlier this month, but four other federal appeals court have ruled searching a cellphone found on someone arrested is fair game. In 2012 the United States Court of Appeals for the Ninth Circuit shut down suspicionless unwarranted searches of computers and other similar digital devices at the border, noting they served as “simultaneously offices and personal diaries.”

A series of posters appeared around the Washington State Capitol in the last several days linking gay rights and opposition to gun laws. One poster even suggests that laws intended to prevent gun violence are the moral equivalent of discrimination:

Another poster proposes armed vigilantism to “defend” the right to marry:

The source of these posters is unclear, although the QR code on the posters leads to a pro-gun website featuring an elaborate quiz on gun rights.