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In Michigan v. Bryant, the Court 6-2 held that a declarant’s identification and description of the shooter and the location of the shooting were not testimonial statements because theyhad a “primary purpose . . . to enable police assistance to meet an on-going emergency.” Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Justice Sotomayor, writing for the Court , and joined by CJ Roberts, Justice Kennedy, Breyer, and Alito. Justice adopted an objective intent view of the Confrontation Clause. In the words of Justice Scalia’s scathing dissent, the majority opinion “creates an expansive exception to the Confrontation Clause for violent crimes.” Justice Ginsburg kinda joined Justice Scalia’s dissent. Justice Thomas concurred in judgment, and applying the Crawford test found these statements not to be testimonial. Justice Kagan recused.

Looking for the “primary purpose” of the declaration, the Court must objectively evaluate the circumstances in which the encounter between the individual and the police occurs and the parties’ statements and actions. The circumstances in which an encounter occurs—e.g., at or near a crime scene versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. And the relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements and actions and the circumstances in which the encounter occurred

The Court focused on the fact that there was an “ongoing emergency,” in that the declarant had been shot and the officers feared that there was possible harm to others. (2)
The existence of an “ongoing emergency” at the time of the encounter is among the most important circumstances informing the interrogation’s “primary purpose.” An emergency focuses the participants not on “prov[ing] past events potentially relevant to later criminal prosecution,” but on “end[ing] a threatening situation.” Here, the circumstances of the encounter as well as the state-ments and actions of Covington and the police objectively indicate that the interrogation’s “primary purpose” was “to enable police as-sistance to meet an ongoing emergency,”
The circumstances of the interrogation involved an armed shooter, whose motive for and location after the shooting were unknown and who had mortally wounded Covington within a few blocks and a few minutes of the location where police found Covington. Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.”

Justice Sotomayor has a bit to write about the nature of the emergency, and in particular the role of a firearm:

The existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation.13 As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.
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This is also the first of our post-Crawford Confrontation Clause cases to involve a gun. The physical separationthat was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat in this case;Covington was shot through the back door of Bryant’shouse. Bryant’s argument that there was no ongoing emergency because “[n]o shots were being fired,” Brief for Respondent 27, surely construes ongoing emergency toonarrowly. An emergency does not last only for the time between when the assailant pulls the trigger and the bullet hits the victim. If an out-of-sight sniper pauses between shots, no one would say that the emergency ceases during the pause. That is an extreme example and not the situation here, but it serves to highlight the implausibility, at least as to certain weapons, of construingthe emergency to last only precisely as long as the violent act itself, as some have construed our opinion in Davis.
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We reiterate, moreover, that the existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry; rather, the ultimate inquiry is whether the “primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.”

Justice Scalia, the author of Crawford and its progeny, had a rather biting dissent, even for Scalia-standards.

Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeansthis institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; itaffects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps asan intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in ashambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the Peopleadopted, as described in Crawford v. Washington, 541
U. S. 36 (2004), I dissent.

He doesn’t even “respectfully dissent.” He just dissents.

Scalia rejects an objective test, and would focus on the subjective intent of the declarant. He derides the majority’s flexible and malleable approach that looks to the mixed motives of the declarant and the police.

The only virtue of the Court’s approach (if it can bemisnamned a virtue) is that it leaves judges free to reachthe “fairest” result under the totality of the circumstances. If the dastardly police trick a declarant into giving anincriminating statement against a sympathetic defendant,a court can focus on the police’s intent and declare the statement testimonial. If the defendant “deserves” to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match perspectives to reach its desired outcome. Unfortunately, under this malleable approach “the guarantee of confrontation is no guarantee at all.”

Scalia also challenges the majority’s notion of the ongoing threat and pending emergency.

The five officers interrogated Covington primarily to investigate past criminal events. None—absolutely none—of their actions indicated that they perceived an imminent threat. They did not draw their weapons, and indeed did not immediately search the gas station for potential shooters.3 To the contrary, all five testified that they questioned Covington before conducting any investigation at the scene. Would this have made any sense if they feared the presence of a shooter? Most tellingly, none of the officers started his interrogation by asking what would have been the obvious first question if any hint of such a fear existed: Where is the shooter?
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The Court invents a world where an ongoing emergency exists whenever “an armed shooter, whose motive for and location after the shooting [are] unknown, . . . mortally wound[s]” one individual “within a few blocks and [25] minutes of the location where the police” ultimately find that victim. Ante, at 27. Breathlessly, it worries that a shooter could leave the scene armed and ready to pull the trigger again. See ante, at 17–18, 27, 30. Nothing suggests the five officers in this case shared the Court’s dystopian4 view of Detroit, where drug dealers hunt theirshooting victim down and fire into a crowd of police officers to finish him off, see ante, at 30, or where spree killers shoot through a door and then roam the streets leaving a trail of bodies behind. Because almost 90 percent ofmurders involve a single victim,5 it is much more likely—indeed, I think it certain—that the officers viewed their encounter with Covington for what it was: an investigation into a past crime with no ongoing or immediate consequences.

Next Scalia, notes that the Court creates “an expansive exception to the Confrontation Clause for violent crimes.” I would not that this is similar to the Quarles public safety exception to Miranda. As I have written in the Constitutionality of Social Cost, the Court routinely carves out exceptions to constitutional liberties when social harm is at play.

The Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court’s imagination, the emergency persisted for confrontation purposes at least until the police learned his “motive for and location after the shooting.” Ante, at 27. It may have persisted in this case until the police “secured the scene of the shooting” two-and-a-half hours later. Ante, at 28. (The relevance of securing the scene is unclear so long as the killer is still at large—especially if, as the Court speculates, he may be a spree-killer.) This is a dangerous definition of emergency. Many individuals who testify against a defendant at trial first offer their accounts to police in the hours after a violent act. If the police can plausibly claim that a “potential threat to . . .the public” persisted through those first few hours, ante, at 12 (and if the claim is plausible here it is always plausible) a defendant will have no constitutionally protected right to exclude the uncross-examined testimony of such witnesses. His conviction could rest (as perhaps it didhere) solely on the officers’ recollection at trial of the witnesses’ accusations

Scalia continues to talk about confrontation rights in the 16th and 17th century England. As this case is from Michigan, and not against the United States, the appropriate inquiry is the original understanding of the Confrontation Clause in 1868 when the 14th amendment was ratified. I have described this mistake of originalism at the right time in Pandora’s Box.

Scalia also notes that this case represents an attempt to return to the Ohio v. Roberts without overturning Crawford, and chides the majority with faux judicial restraint.

The Court announces that in future cases it will look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial. Ante, at 11–12. Ohio v. Roberts, 448
U. S. 56 (1980) said something remarkably similar: An out-of-court statement is admissible if it “falls within a firmly rooted hearsay exception” or otherwise “bears adequate ‘indicia of reliability.’” Id., at 66. We tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.
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Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or toconfess that only the Justices’ preference really matters.
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The Framers placed the Confrontation Clausein the Bill of Rights to ensure that those abuses (and the abuses by the Admiralty courts in colonial America) would not be repeated in this country. Not even the least dangerous branch can be trusted to assess the reliability of uncross-examined testimony in politically charged trials ortrials implicating threats to national security. See Crawford, supra, at 67–68; cf. Hamdi v. Rumsfeld, 542 U. S. 507, 576–578 (2004) (SCALIA, J., dissenting).

Nino whips out the parchment barriers line. He is really, really upset here.

Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law. For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

I have blogged in the past about metaphyiscal umpiring in the context of Armando Galaraga’s almost-perfect game. As you may recall Detroit Pitcher Armando Galarraga was throwing a perfect game through 26 batters. 26 up, 26 down. Batter number 27 hit a ball to second base, Gallaraga covered first. It looked like the throw to first was in time but the umpire, Jim Joyce, called the runner safe. Joyce totally blew the call. At the time I wondered whether the fact that this was the 27th batter should have made a difference, and whether the Umpire should have “let ’em play” and called it an out.

Professor Mitchell Berman has a fascinating article titled ‘Let ‘em Play’: A Study in Sports and Law (HT Legal Theory Blog). Here is the abstract:

Serena Williams was eliminated in the semifinals of last year’s U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium’s Kim Clijsters. Williams’s explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams’s outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport’s rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.

Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.

This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law’s “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.

Should the umpire have just given Galaraga the perfect game, even if he thought the runner was safe, or alternatively, thought that it was a close call? If only umpires were more like judges 😉

I love sports and I love law review articles. When they intersect, I am happy. Definitely worth a read.

Michael Barone has an excellent piece in today’s Washington Examiner, praising Justice Thomas’ principled approach to relying on the Privileges or Immunities Clause, rather than the Due Process Clause in McDonald v. Chicago.

The only alarming thing about the McDonald decision was that it was decided by only a 5-4 margin and could conceivably be reversed later by the court. As a practical matter it allows reasonable restrictions on firearms while eliminating laws that attempt, futilely, to ban them altogether.

Thomas’ colleagues, like many legal scholars, were evidently unwilling to join him in overturning the Slaughter-House Cases and based their decisions on the privileges and immunities clause, presumably because that might undercut other precedents.

But Thomas, in my view, has the better logical argument. “The notion,” he writes, “that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty or property could define the substance of those rights strains credulity for even the most casual user of words.”

As he points out, the court has used the due process clause to find rights — notably the right to an abortion — that are not specified in the Constitution, while at the same time four current justices have also used it to argue that a right specified in the Second Amendment does not apply to the states.

Thomas’ concurring opinion points the way to a more principled jurisprudence, based more clearly on the text of the Constitution, while at the same time making the strongest of possible cases that Second Amendment rights are fundamental.

Read the entire thing.

Barone makes several of the same points Ilya Shapiro and I made in our Op-Ed published earlier this week in the Detroit News.

McDonald thus paints a bright picture for the future of constitutional liberty, and opens the door to reviving a long-ignored but powerful provision of our Constitution. Thomas’ clarion call for a liberty-focused originalism provides a step on which to build in future.

In the annals of Supreme Court history, solo opinions that introduce novel ideas often start a trickle of discussions. These arguments swirl and strengthen, and over time flow into a paradigm shift in constitutional law. Look no further than the monumental significance of Justice John Marshall Harlan’s dissent in Plessy v. Fergusson, which argued that separate is not equal. Harlan’s lone voice was crucial in starting the Court on a jurisprudential crescendo culminating in Brown v. Board of Education.

Thomas’s opinion in McDonald v. Chicago — even more noteworthy, because he was the decisive fifth vote for the majority opinion rather than a dissenter — has planted a similar seed, paving the way for the Privileges or Immunities Clause to protect our most basic freedoms.

While detractors of Privileges or Immunities continue to poo poo the clause, I beg to differ. To paraphrase Twain, the rumors of its death have been greatly exaggerated.

By now, you should all be familiar with perhaps the worst baseball call in a generation. Detroit Pitcher Armando Galarraga was throwing a perfect game through 26 batters. 26 up, 26 down. Batter number 27 hit a ball to second base, Gallaraga covered first. It looked like the throw to first was in time, but the umpire, Jim Joyce–now the most unpopular man in Detroit–called the runner safe.

Watch the video, judge for yourself. But it really looked like the throw beat the runner.

Now, this was not a borderline call. But assuming it was a borderline call, and it really could have gone either way, should the Ump make the call in favor of the perfect game? I mean, if the Judge was totally 50/50, and not certain, should the prospects of calling a perfect game weigh on his mind?

If Judges are like umpires, should umpires be like Judges? If so, would a Judge evaluating the equities in this situation have called the runner out.

Let’s put on our Justice Breyer hats and consider all of the relevant interests.

First, think of the poor city of Detroit. What a horrible place (see all of my Detroit posts here)! Their former mayor is in prison. The entire economy of the city is collapsing. Their professional sports franchises are miserable. I have joked that the city is slowly reverting to the state of nature. A perfect game would have been such a boon! New Orleans won a Super Bowl. Throw MoTown a Perfect Game.

To quote Michael Moore on twitter, “Congrats 2 Detroit Tiger pitcher Armando Galarraga 2nite on throwing a Perfect Ga… NOOOOOOOOO! WTF?! Now I’ve seen every type of crime here!”

(btw, I met Moore, and he was rather nice. For once, I agree with Big Mike).

Second, think of how special a 3rd perfect game in 3 weeks would have been. Totally unprecedented! What a boon to the sport. It would have generated excitement, increased popularity of the sport stil recovering from the Steroids debacle, and made America’s pasttime even more interesting.

Third, think of what would happen to umpires if you do not call the out. Joyce’s Wikipedia page has already been locked down due to vandalism. Before it was locked down, he was being attacked as one of the worst umpires ever. Taking a Barry Friedman-esque Will of the People approach to the umpires, certainly the umps need to take account of popular perception in making their calls. In the future, if a first base ump is in a similar situation, you can be certain the falling of Joyce will linger prominently in his mind.

Fourth, and perhaps most interestingly, even if the call was wrong, NO ONE WOULD CARE. The opposing manager would never come out to argue while the perfect pitcher is carried away triumphantly. No sanctions or penalties would ever be imposed. It is a total WIN-WIN.

But, I am not a fan of balancing tests. Umps should not consider the equities. Galaragga got robbed. But I am in favor of appellate review and correction of errors. This should be the nail in the coffin of purists who oppose replay cameras.

So I was walking down Lincoln Road in Miami Beach, and who do I see chilling at Starbucks?

Michael Moore! He looked a lot less grungy when he is on vacation. No glasses or Detroit hat.

I asked him if I could take a picture, and he graciously said yes. Then he asked me to shake his hand. I did.

We chatted for a moment, and he was very nice. He frequently visited my childhood home of Staten Island when he was young.

I did not ask him about politics, and I did not ask him to record a JoshCast, even though I had my flip video camera with me. This was the pinnacle of my self restraint. (I couldve handed him a constitution and asked him to locate the right to healthcare, but I realize that wouldve been futile)

I will upload the picture later.

And Saturday-Monday I will be at sea, so blogging will be at a standstill.

Happy New Year everyone!