MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 10th of December, 2018. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Christmas comes early for the U.S. Supreme Court. No oral arguments between now and January 7th of 2019.
But it is possible this morning the court will hand down an opinion or two.
REICHARD: But that leaves us with plenty to do over the next few weeks to catch up on the cases argued so far.
Today we start with a raucous outdoor festival known as “Arctic Man” in remote, interior Alaska. Ten thousand people show up for a multi-day festival of extreme “snowmachining.”
Now, if you’re not from Alaska, that means “snowmobiling.”
EICHER: Yeah, Arctic Man is the cold-weather version of the desert festival Burning Man, and what the festivals share in common includes extreme alcohol consumption and the stuff that often goes with it: underage drinking, sexual assault, missing people, accidents, and, at Arctic Man, hypothermia.
As we mentioned, this festival happens in remote Alaska. That means the state has to fly in troopers to provide some security, but the numbers just aren’t enough: only around 6 to 8 officers per shift. And they’re housed 30 miles away when off shift.
REICHARD: Mix a bunch of rowdies whose inhibitions are down, bring in some overworked law enforcement, and what could go wrong, right?
See if you can figure out what happened in this comment from Justice Elena Kagan:
KAGAN: It’s an encounter between a police officer and a citizen that goes south. And part of going south is that the person who is stopped, engages in lots of backtalk to the police officer, which in combination with some forms of conduct gives the police officer reason to think that the person should be arrested to prevent some real harm.
REICHARD: That’s the sketch of what happened here. In 2014, a state trooper was on the beat looking to head off underage drinking. He asked festival attender Russell Bartlett to put his beer keg out of sight. Bartlett refused and told the officer it wasn’t against the law to have it out.
Later, around 1:30 a.m., the same officer was questioning a teenager when Bartlett got involved by offering more legal commentary: He told the teen not to answer the officer.
What happened next is in dispute. What we know is that a scuffle ensued. Another officer jumped in, and the officers arrested Bartlett for disorderly conduct.
Bartlett then sued the officers, alleging they’d only arrested him because he exercised his free-speech rights. Retaliation.
Lawyer for the police argued law enforcement need some leeway to maintain order for misdemeanors like disorderly conduct. Alaska’s Assistant Attorney General, Dario Borghesan, thought the 9th Circuit just didn’t think through the ramifications.
BORGHESAN: The court’s rule should recognize that police officers arrest based on the course of conduct and they aren’t legal technicians…and the court doesn’t want a rule where an officer can be hauled into court on any routine arrest and forced to defend the purity of his motives, however reasonable his actions.
REICHARD: Here’s the legal dilemma: Arrest is one thing. Prosecution is another. The difference between the two is important. The rule now is that if police have probable cause to refer you for a felony prosecution—say probable cause for rape or murder—then it’s illogical to say the police arrested you because he didn’t like your shirt.
Obviously, there’s a much larger societal goal at play.
But the Court’s ruling explicitly left out anything about retaliatory arrest.
Ever since, the 9th circuit has ruled that someone in Bartlett’s situation can sue for retaliatory arrest. Even though police had probable cause to arrest him.
These retaliatory arrest claims typically arise in relatively minor situations. Like this one. Misdemeanors. Disorderly conduct or vagrancy, for example. Police have lots of discretion in these situations because the definitions are kind of vague.
And it’s really hard to tell just exactly what motivates an individual police officer, as Justice Kagan put it:
KAGAN: You can think of it as a case where an individual police officer, you know, decides to arrest for jaywalking somebody wearing a Black Lives Matter T-shirt or, alternatively, a Make America Great Again cap… The person jaywalked. He jaywalked. And the point is that there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.
REICHARD: That’s a use of state power most of us would not like used against us.
Lawyer for Bartlett, Zane Wilson, argued that’s why the 9th Circuit got it right in allowing Bartlett’s case to proceed. And he characterized what happened quite differently:
WILSON: Your Honor, my client was expressing disagreement with how the officer was conducting his investigation, what he was doing there. In City of Houston v Hill, this court identified the right to criticize a police officer as one of the distinguishing features between a police state and a free country.
REICHARD: Just because the police say they had probable cause to arrest, that should only be one factor among many to decide if the arrest was in retaliation, he argued.
But Wilson may have crossed the line a bit, judging by this exchange with Chief Justice Roberts:
WILSON: The only thing a police officer needs to be concerned about is to focus on enforcing the law. And as long as a police officer remains loyal to enforcing the law, then this situation takes care of itself.
ROBERTS: That’s a very cavalier assertion. I get back to the fact you have eight officers. You have 10,000 people. You have a lot of drinking. I would say the police officers are worried about a lot of things. And one of them is the first time you get an in- your -face interaction with one of these people, you want to get them cuffed and out of the way if it’s something within the range of disturbing or disorderly.
REICHARD: And so it went. The justices cast about for sensible and workable rule: One that works for a disorderly conduct situation and for more alarming abuses of power, such as a journalist targeted for a speeding ticket after publishing a piece critical of law enforcement.
Justice Samuel Alito wasn’t satisfied by solutions either side offered.
ALITO: So do you have any way of solving this, other than asking us to decide which of these unattractive rules we should adopt?
REICHARD: So the justices have to figure out how to strike that balance between people who’ll sue at the drop of a hat versus giving too much power to police to invent a ruse to violate someone’s rights.
Kind of makes you glad for your own job, doesn’t it?
Now, this last case today involves something I just never thought I’d find myself reporting on Legal Docket.
But here I go, into the breach! I’ll keep it professional and factual.
It’s 2013. A man named Troy Lambert of Long Beach, California, is perusing his local drug store shelves. He spots a bright red box with the likeness of a cobra on it. The product’s name, “Cobra Sexual Energy,” with the slogan “perform your best with animal magnetism.”
That persuaded him to give the pill supplement a try.
Well, let’s just say it fell short of expectations.
So Lambert and some other disappointed men sued the manufacturer, Nutraceuticals. They allege the company is taking advantage of vulnerable men, taking their money with misleading and false advertising, just as the snake oil merchants of yesteryear did.
Now, thankfully, in this case, I can retreat to the abstract legal questions:
The issue before the Supreme Court is whether a missed deadline to file something kills the whole case. Lambert’s lawyer missed it.
The 9th Circuit waved aside any fixed deadline. Nutraceuticals appealed that and wants the Supreme Court to impose the deadline without an exception for lawyer goof-ups.
So, even more narrowly: what excuse is good enough to overlook a missed deadline?
Lambert’s lawyer pointed to earlier Supreme Court rulings that said some time rules can be set aside in unique circumstances.
Justice Alito came up with something truly unique: not mere catastrophe, nor apocalypse. Nope, apparently not unique enough. Check this out, invasion from outer space:
ALITO: The problem with unique circumstances, a potential problem, is that every lawyer who is in trouble thinks that the circumstances of that lawyer’s case are unique and every judge who wants to get to a particular result can characterize the facts of the case before the judge as unique.
But maybe there’s such a thing as the catastrophic exception. Or the apocalyptic exception. (Laughter.) So, if there’s a Martian invasion, there would be an exception for that. But something short of that, you know, like the attorney is sick, wouldn’t work.
REICHARD: And the Chief Justice invoked simple grammar to clarify things.
ROBERTS: Unique is defined as the only one. There have been many hurricanes, there have been many fires, there hasn’t been a Martian invasion yet, but what do you think it is? Unique is not unusual, right? So, if you’re going to create an exception for unique circumstances, it can’t mean the situation where judges misadvise litigants about how much time they have. That doesn’t happen all the time, but we’ve certainly seen more than one case of that. So, if you’re going to say unique circumstances, what exactly does it mean, if it doesn’t mean what the dictionary says?
REICHARD: Martian invasion, that seems unique.
But I’ve got no sense how the justices might craft a ruling in this one.
The backdrop is that the Food and Drug Administration isn’t involved much with the supplement industry. One study I saw from the Council for Responsible Nutrition says 68% of Americans use dietary supplements. Big marketplace, so lots of money will attract scoundrels along with legitimate supplement makers.
Perhaps the case will push Congress to do something about cases like this. Somehow that just seems appropriate and I’ll leave it right there.
And that’s this week’s Legal Docket.