Constitutional Interpretation – Page 32 – Marquette University Law School Faculty Blog

Certiorari Granted in Material Witness Detention Case That Concerns the Iqbal Pleading Standard

Post author:Jessica E. Slavin
Post published:October 19, 2010
Post category:Civil Procedure Constitutional Interpretation Federal Law & Legal System

Yesterday the Supreme Court granted certiorari in Ashcroft v. Al-Kidd, the petition in which the United States Department of Justice seeks to establish, on behalf of former Attorney General John Ashcroft, that government officials have immunity from liability for claims that they used the material witness statute to detain a U.S. citizen, not, in reality, to ensure his availability as a witness in another case, but instead as a pretext for what was actually a preventative detention.

As the New York Times explains, the former detainee in question, Abdullah Al-Kidd, is a U.S. citizen born in Kansas as Lavoni A. Kidd; he was (I have read) a football star for the University of Idaho in the mid-90s. In rejecting Ashcroft’s argument for immunity, the Ninth Circuit (in a split three-judge panel decision) first held that, at best, qualified immunity might apply, explaining its reasoning this way:

Supreme Court Takes New First Amendment Public Employment Case

Post author:Paul M. Secunda
Post published:October 13, 2010
Post category:Constitutional Interpretation Labor & Employment Law U.S. Supreme Court

Not exactly Garcetti II, but the United State Supreme Court yeserday granted certiorari in a case involving a ruling affirming a jury verdict for a police chief claiming retaliation under the First Amendment’s Petition Clause. The case is Duryea v. Guarnieri (No. 09-1476). (Here is the Third Circuit opinion below and the petition for writ of certiorari).

Although the Borough argues that this case should be handled like other free speech cases and be dismissed because the dispute does not meet the Connick “matter of public concern” test, the police chief argues that there should be different standards applied for Petition Clause claims as opposed to free speech claims.

Interestingly, a similar argument arises over whether the Connick/Pickering/Garcetti framework should apply in association claim cases under the First Amendment.

NASA v. Nelson and Public Employee Informational Privacy

Post author:Paul M. Secunda
Post published:October 6, 2010
Post category:Constitutional Interpretation Labor & Employment Law Privacy Rights

Yesterday, the United States Supreme Court heard oral argument in the public employee informational privacy case of NASA v. Nelson (oral tanscript here). Rather than reinvent the wheel on this one, I want to direct reader’s to Prof. Lior Strahilevitz’s (Chicago Law) excellent analysis of the oral argument on PrawfsBlawg.

Here are some highlights:

Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear . . . .