Laura Rovner argues before the 10th Circuit Court of Appeals

Ronald Y. Yegge Clinical Director and Associate Professor of Law Laura Rovner argued before a U.S. Appeals Court panel from the 10th Circuit on November 17, 2011, representing four prisoners who seek a return to less restrictive imprisonment after spending ten or more years in solitary confinement. Convicted of terrorism and imprisoned prior to September 11, 2001, three of the four were moved to solitary confinement following the 9/11 attacks. The fourth prisoner was moved to solitary confinement in 1997. Students from the Denver Law Civil Rights Clinic, working under Professor Rovner’s supervision, drafted the appellate brief submitted to the 10th Circuit Court, supporting the prisoners’ plea to be returned to general prison populations.

Alan Chen comments on the constitutional challenge to the Stolen Valor Act

The Stolen Valor Act (18 U.S.C. § 704), passed by Congress in 2005 and signed by President G. W. Bush in 2006, makes it a crime to falsely claim to have earned military honors. In August of 2010, a U.S. Appeals Court panel from the 9th Circuit struck down the law and in March, 2011, a petition for a rehearing en banc was denied. The U.S. Supreme Court granted a petition for cert on October 17 and will hear arguments in the case next year. Commenting on scotusblog Associate Dean and Professor Alan Chen writes that “there are important speech values at stake in this case.” False speech, he notes, is not always devoid of value and thus receives First Amendment protection. Because the Stolen Valor Act punishes “pure speech activity that causes no direct harm to a third party,” the government’s interest in criminalizing that activity is purely symbolic. Defending the new law before the Supreme Court will not be easy, suggests Professor Chen, noting that recent claims made by government to carve out new exceptions to the general rule that content-based restrictions on speech are subject to strict scrutiny have failed to gain the Court’s approval.

Chris Lasch: Local governments have constitutional grounds to resist federal immigration enforcement

Some states and localities argue the Tenth Amendment empowers them to adopt and enforce their own robust anti-immigrant measures to supplement and amplify federal efforts. Commenting on the Immigration Prof Blog Denver Law Assistant Professor Christopher Lasch describes a different tack: Some local governments rely on the Tenth Amendment to “resist overzealous federal immigration enforcement and uphold the civil rights of immigrants” by not enforcing the Department of Homeland Security’s Secure Commission program. Critics of the program, Professor Lasch says, charge that it “encourages racial profiling, diverts local resources from crime control, and makes communities less safe by discouraging immigrants from reporting crimes or cooperating with police.” Localities have good grounds to opt out of enforcing the program, for “[t]he Tenth Amendment forbids unfunded mandates that allow the federal government to commandeer state resources without reimbursement.” Thus, counsels Professor Lasch, “On firm constitutional footing, [localities resisting enforcement] have taken a stand against [a federal] enforcement mechanism that co-opts local resources to serve the widely criticized and dubiously effective Secure Communities program.”

CR&R Program counsels public defenders to raise and seek remedies for the causes of minority overrepresentation in the criminal justice system. In her article, “Raising Race”, appearing in the April 2011 issue of THE CHAMPION, published by the National Association of Criminal Defense Lawyers (see http://www.nacdl.org), Professor Robin Walker Sterling argues that disproportionate minority contact (DMC – the overrepresentation of minorities in the criminal justice system) is caused by day-to-day practices embedded in the investigation and prosecution of crime. She outlines concrete tactics and strategies criminal defense attorneys might use to bring to the attention of courts and of lawmakers these systemic sources of bias and discrimination.

Professor Walker-Sterling’s article has received positive comment from and distribution among public defenders around the country. According to Mark Rabil, Co-Director of the Innocence & Justice Clinic at Wake Forest University School of Law, “Race and racism – whether explicit or implicit – is always a hard topic to approach. Robin does a great job pointing out to practitioners how they can incorporate the issues of race in their trial level motions and strategy.”

Denver Law Civil Rights Clinic lawyers are contesting the use of solitary confinement in federal penitentiaries like the supermax prison in Florence, Colorado. Professor Laura Rovner, Clinical Fellow Brittany Glidden, and the student lawyers they supervise, Erica Day and Nick Catanzarite (both 3Ls), are handling a lawsuit filed in U.S. District Court on behalf of Thomas Silverstein, a convicted murderer who has spent nearly three decades in indefinite solitary confinement, including the past six years in the Florence supermax. The suit details conditions of Silverstein’s 28 years in solitary confinement and asks the court to lessen his isolation within the prison where he is serving a sentence of three life terms plus 45 years. See the Denver Post article here: http://www.denverpost.com/news/ci_17954968?source=pop

The lawsuit points out that that extensive use of long-term solitary confinement in the United States has drawn negative attention from tribunals and councils outside the U.S. and jeopardized judicial process here. For example, in 2010 the European Court of Human Rights halted the extradition of four terrorism suspects from the United Kingdom to the United States, in part because of concerns that, if convicted, these men would be put in ADX Florence. The court concluded that treatment might violate Article 3 of the European Convention on Human Rights, which prohibits “torture or … inhuman or degrading treatment or punishment.”

Denver Law Professor from CR&R Program contributes to amicus curiae briefs in Supreme Court cases. Alan Chen, CR&R Program Director, commented on and signed onto briefs submitted to the U.S. Supreme in two current constitutional law cases. In Snyder v. Phelps, the grieving father of a Marine killed in Iraq filed a lawsuit against Fred Phelps and the Westboro Church of Topeka, Kansas, citing physical and mental trauma resulting from church members’ protests at Snyder’s son’s funeral in 2006. First Amendment scholars, including Professor Chen, filed a brief supporting the “constitutional rights of speakers to express unpopular and even contemptible opinions without fear of government sanctioned punishment.” (see p. 1 of the brief here: Snyder_brief.pdf) Oral arguments were heard October 6, 2010. The Supreme Court’s decision, made on March 2, was that the First Amendment shields these speakers from tort liability. See http://www.supremecourt.gov/opinions/10pdf/09-751.pdf

Ashcroft v. Al-Kidd, Abdullah al-Kidd sued President G.H. Bush’s Attorney General John Ashcroft, claiming he was illegally detained and treated as a terrorist. Ashcroft claimed immunity from damages resulting from policies he implemented resulting in al-Kidd’s detention. The Ninth Circuit denied Ashcroft’s claim; the Supreme Court will hear argument on March 2. Law scholars with a special interest and expertise in the doctrine of absolute immunity, including Professor Chen, filed a brief arguing the former Attorney General “is not entitled to absolute immunity from suit over his policy of using material witness warrants as pretexts to investigate and detain terrorism suspects.” (see p. 4 of the brief here: Al-Kidd_brief.pdf)

Denver Mayoral Candidate Forum on April 7 addresses issues of Police Accountability. Eight candidates seeking to become Denver’s next mayor attended a candidate forum on Thursday April 7, from 6 to 8 p.m., at the Central Presbyterian Church, 1660 Sherman Street. The topic for discussion was police accountability, in particular complaints of DPD’s use of excessive force in Denver’s recent past. Denver Law Professor Jessica West participated on the panel of experts questioning the candidates. The Candidate Forum was presented by the Colorado chapters of the ACLU and the National Lawyers Guild. The Constitutional Rights & Remedies Program was also a sponsor. (See the flyer here: Mayoral_Forum-APR11.pdf)

Denver Law student Kristopher Craw, Vice President & Colorado Liaison of the NLG Chapter at the law school, helped set up the Forum. “Police misconduct and a lack of accountability in Denver are systemic,” he says. “This forum presented an opportunity to do more than listen to candidates; it provided an opportunity to demonstrate that we, as a community, expect more from our police and elected officials—that we expect real commitment, real solutions, and real progress.”

CR&R faculty member Sam Kamin publishes “The Challenges of Marijuana Law Reform.” Professor Kamin traces the difficult federalism issues raised by the moves to reform. “In addition to the ambiguity and conflict between the states (some of which purport to legalize marijuana) and the federal government (which continues to criminalize it) there is a third level of the federalism implications of marijuana law reform—the role of local governments.” He concludes that “after more than 70 years of prohibition, the state of marijuana enforcement in the United States is in a period of flux.” The article is part of an Aspatore Special Report, published in 2010.

Alan Chen, CR&R Program Director, wins “the Robert B. Yegge Excellence in Teaching Award”: DU Sturm College of Law has named Professor Chen one of its Law Stars for 2011. Awarded since 1993, Law Stars recognizes distinguished alumni and faculty for their achievements. The Yegge Award, says Denver Law Dean Martin Katz, ”recognizes a faculty member for outstanding contributions to the legal educational mission and for fostering DU Law’s relationship with the community. The Law Stars Nominating Committee was also impressed by Alan’s work mentoring students and junior faculty.” See http://www.law.du.edu/documents/news/lawstars2011release.pdf

Constitutional Rights & Remedies Program co-sponsors “Razing Arizona” panel on February 17. The event’s four speakers criticized Arizona’s controversial SB 1070 and discussed attempts—failed so far—to pass copycat legislation in Colorado. Denver Law grad Chris Newman, Legal Director for the National Day Laborer Organizing Network (http://www.ndlon.org/), described legal challenges his organization is making against the state of Arizona and a number of its municipalities over treatment of day laborers. “Arizona,” he told the audience of 150,” is driving the development of immigration law and policy in this nation right before our eyes.” He described laws being considered and passed around the country as “unconstitutional, unjust, and immoral.” Alfredo Gutierrez, former president of the Arizona state senate, described Arizona’s law as “the codification of evil.” The panel was organized by the Colorado Immigration Rights Coalition (http://www.coloradoimmigrant.org/). Flyer (PDF) ».

Constitutional remedies at the U.S. Supreme Court. January 25th’s edition of the Cleveland Plain Dealer cited Denver Law Professor Alan Chen in an article discussing the U.S. Supreme Court’s unanimous ruling that supported an Ohio woman who, after being sexually assaulted by a state prison guard, was punished for reporting the attacks. See the article here: http://www.law.du.edu/index.php/news/details/u.s.-supreme-court-decision-sends-clear-signal-to-courts-says-prof.-alan-ch/. Professor Chen asserts the high court’s ruling clarifies the rules for challenging government-employee immunity if it is rejected before trial. “It’s important to understand that this decision is not about the underlying merits of the plaintiff’s serious constitutional claims that Ohio prison guards not only failed to protect her from sexual assault but also retaliated against her reporting the assault,” he states. “A jury found the officers were liable for this egregious conduct. The Court’s ruling is a narrow, procedural one about when public officials can raise claims that they are immune from suits for violating the Constitution. The Court’s decision holds that when officials’ pre-trial motions claiming such immunity are rejected and they fail to appeal that ruling, they must meticulously follow federal procedural rules if they wish to have the court reconsider their claims of immunity. Because the officers’ lawyers failed to follow those procedures in this case, the officers could not assert immunity to escape the jury’s verdict.” Professor Chen directs Denver Law’s Constitutional Rights & Remedies Program, one focus of which is an understanding of the procedures that govern the litigation of federal constitutional rights.

Two new casebooks co-authored by Denver Law CR&R faculty members. Justin Marceau is co-author of the recently published FEDERAL HABEAS CORPUS: CASES AND MATERIALS, 2d. ed. a treatment of the topic both comprehensive and current. The casebook traces the origin and history of habeas corpus, from the Magna Carta up through thorny and contentious issues arising under AEDPA and from the Guantanamo cases. (From Carolina Academic Press, 2011.) Sam Kamin is co-author of INVESTIGATIVE CRIMINAL PROCEDURE: A CONTEMPORARY APPROACH (2011), an entry in West-Thompson’s Interactive Casebook Series. It traces the development of pretrial rights guaranteed by the Fourth, Fifth, and Sixth Amendments.

Professor Kristian Miccio is the recipient of a Fulbright. It is her second award from the Fulbright Scholar Program, and it sends her to Ireland for 2011, where she is teaching at the University College of Dublin Law School. She is a keynote speaker on February 12, 2011, at the Issues in Family Law Symposium, sponsored by the Irish Times, the Irish Fulbright Commission and the Dublin Institute of Technology. Professor Miccio will address the topic, “Domestic Violence and State Accountability after Castle Rock v Gonzales.” In April she will be part of the Irish Fulbright Commission delegation to Northern Ireland and a keynote speaker at Queens College, Belfast, on the issue of Reconciliation in Law & Politics.