Monday, July 3, 2017

Last Call For No Ground To Stand On

Florida's now infamous "Stand Your Ground" self-defense law cost Trayvon Martin his life and allowed his killer, George Zimmerman, to walk free.  In part, the law helped catalyze the Black Lives Matter movement as a national issue.  Now, Florida's latest iteration of the law has been declared unconstitutional by a Miami judge in what will surely be a major court battle ahead.

Miami-Dade Circuit Judge Milton Hirsch ruled that lawmakers overstepped their authority in creating the law this year that forces prosecutors to disprove a defendant’s self-defense claim at a pre-trial hearing. 
The judge ruled that under Florida’s constitution, that change should have been crafted by the Florida Supreme Court, not the Legislature. 
“As a matter of constitutional separation of powers, that procedure cannot be legislatively modified,” Hirsch wrote in a 14-page order. 
The ruling is a victory for prosecutors who have firmly opposed the law they believe makes it easier for defendants to get away with murder and other violent crime.

The law, an update to the already controversial “Stand Your Ground” statute passed over a decade ago, was pushed by the politically powerful National Rifle Association. Gov. Rick Scott signed the new law into effect in last month. 
First passed in 2005, Florida’s controversial self-defense law has been criticized for fostering a shoot-first mentality – and giving killers a pass at justice. The law eliminated a citizen’s duty to retreat before using deadly force to counter an apparent threat. 
More problematic for prosecutors, the law made it easier for judges — before ever getting to a jury — to dismiss criminal charges if they deem someone acted in self-defense. 
The Florida Supreme Court later ruled that defendants, in asking for immunity from criminal prosecution, must be the ones to prove they were acting in self-defense
In Miami-Dade, judges have thrown several high-profile murder cases after pre-trial immunity hearings, but have also allowed many more to go to a jury. 
But the NRA-backed bill, passed in May despite fierce opposition by prosecutors and gun-control advocates, upended the legal framework. 
Now, at those pre-trial hearings, prosecutors shoulder the burden of disproving a defendant’s self-defense claim. State Attorneys contended that it essentially forces them to unfairly to try the case twice, making it easier for criminals to skate on violent charges. 
Under the law, prosecutors must prove by “clear and convincing” evidence that a defendant was not acting in self-defense.

In other words, Florida's GOP legislative super-majority responded to the Florida Supreme Court's ruling that proof of "Stand Your Ground" was on the defendant who used force by changing the law to nullify the ruling and put the burden on the state to disprove self-defense, and GOP Gov. Rick Scott simply signed the law to ignore Florida's state Supreme Court entirely.

It seems patently obvious that Judge Hirsch is correct here, but Republicans given total control simply no longer care about rule of law anymore.  We have plenty of national examples of this from the Trump regime, so why would Florida be any different?

Imagine that I shoot and kill someone in Florida.  The state would have to prove with "clear and convincing" evidence that it wasn't self-defense.  In other words, I'd be treated the way nearly every other state treats police officers who use deadly force.

Keep a close eye on this one, guys.

Supreme Disappointment

The Anthony Kennedy Retirement Watch (aka The End Of The Civil Rights Era) is still on, folks, and the target is this time next year.

One week ago, the persistent rumor that Justice Anthony Kennedy’s retirement was imminent was put to rest when the 2016-2017 Supreme Court term ended with no announcement from the 80-year-old jurist. Now it’s back. 
Rick Hasen of Election Law Blog noticed this new clue hiding in an NPR story on Justice Neil Gorsuch that was published on Saturday. Nina Totenberg reported:

But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement
Clerk hiring can offer clues about whether a justice is mulling retirement. Current justices get four clerks each and retired justices get one, so sometimes justices only hire one clerk if they don’t think they’ll finish out their term. Though, as Above the Law’s David Lat explained, that’s not a hard and fast rule:

Now, hiring clerks for 2017-2018 and 2018-2019 is not dispositive evidence that a justice will remain on the bench. There’s a nice tradition at the Court of justices picking up “orphaned” hires of their colleagues (which is what happened with Justice Antonin Scalia’s displaced clerks), so the clerks aren’t necessarily left in the lurch. But as a matter of collegiality and consideration — and whether or not you like his jurisprudence, Justice Kennedy is collegial and considerate — it’s not nice to impose upon your colleagues by hiring clerks you know will never work for you, putting pressure on these colleagues to sacrifice their own hiring discretion to scoop up your leftovers (because of SCOTUS tradition).

It could be that Kennedy is taking things one term at a time.  But if he retires at the end of June 2018 just before the midterms, it would definitely allow Trump enough time to appoint his successor, no matter what happens to the GOP in November of 2018.  Mitch McConnell has already eliminated the filibuster for a Supreme Court nominee, so Dems wouldn't be able to stop Trump.  The Senate could have that all wrapped up in September or next year, and that would basically be it for civil rights, voting rights, reproductive rights, and the New Deal.  All that would come to an end by 2020.

If Trump is able to appoint a second justice like Neil Gorsuch, America will suffer for decades and may never recover, even if Trump is removed from office (and as Judd Legum reminds us, Trump's removal remains an dangerous and damaging fantasy among liberals. He's not going anywhere.) None of the Trump drama will matter because the Roberts Court will make sure we lose everything since Jim Crow was struck down.

So pray that Kennedy, Ginsberg and Breyer make it to 2021 and we get a Democratic president and Senate by then, because if Trump is allowed to replace any of the three, the America you know will be gone overnight.

Meanwhile, In Washington...

Meanwhile as everyone is looking on in horror at Trump and his garbage fire of a weekend, Mitch McConnell and Senate Republicans like Ted Cruz are quietly moving ahead with taking away health care from tens of millions.

Senate Republicans have asked the Congressional Budget Office to analyze Sen. Ted Cruz's proposal for further health insurance deregulation, and they've asked for one estimate of a health care bill that includes his changes and one that doesn't, according to a GOP aide familiar with the discussions.

The bottom line: That would give Republicans a better idea of the impact of his proposal, which would let insurers sell health plans that don't meet Affordable Care Act standards — including, potentially, waiving the pre-existing condition rules — as long as they also sell plans that comply with all of the ACA insurance regulations.

What to watch: Among the issues CBO would have to weigh: would the non-ACA plans be cheaper, what would happen to premiums in the ACA plans, and what would happen to the cost of federal subsidies.

As Jack Moore at GQ points out, having the ACA gutted of all measures to stabilize the market would be a disaster.

On first blush this seems great. More options! As long as there's one plan that has Obamacare protections, then there can be skimpy cheap plans. Everyone wins! Except... this is not how the health care industry works. Health care premiums only stay low if healthy people buy into the system; that's the reason the individual mandate exists. You need the pool of insured people to be balanced between healthy and sick.

What this plan would do is lead to sick people buying the Obamacare-compliant packages because they need the protections, while healthy people would buy the cheaper plans because they don't need them in the moment. This would lead to the Obamacare-compliant plans featuring giant premiums to offset the unbalanced pool. Put simply: This will not actually save those protections, it will just appear to save those protections. Ted Cruz is acting like this is a genius policy move when it's actually just a crock of shit.

But the real issue is this allows Senate Republicans to blame states, insurance companies,  insurance regulators, governors, basically anyone who's not a Senate Republican for the coming disaster.  "We gave you the options.  You failed to use them correctly.  You can't blame us."

And then the stage is set for full repeal.


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