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Arizona

Maricopa County (Phoenix) Sheriff and longtime Overlawyered mentionee Joe Arpaio did not keep close track of the military-grade gear the Pentagon gave him — in fact, his office seems to have lost some of it — and now the feds are lowering the boom: “Because of the agency’s continued failure to locate nine missing weapons issued by the Pentagon’s 1033 program, the Sheriff’s Office was terminated from the military-­surplus program, effective immediately. The agency is required to return its cache of issued firearms, helicopters and other gear within 120 days.” Arizona Republic reporter Megan Cassidy quotes me regarding the interesting timing of the announcement, following closely after events in Ferguson, Mo. helped stir a nationwide furor over the 1033 program. It’s not specified (h/t Lauren Galik) whether they’ll have to give back the hot dog machine and $3,500 popcorn machine.

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Three columns to read on the subject: Gene Healy, Glenn Reynolds (linking this site), and Nat Hentoff (like Healy, a Cato colleague) in his syndicated column (thanks for mention). I had a letter to the editor yesterday in the Frederick News-Post drawing connections with local lawmakers (as well as a blog post at Free State Notes with similar themes) and the Arizona Republic quoted me Tuesday on the federal subsidy programs that drive militarization, including transfers to the ever-controversial Maricopa County Sheriff’s Office of Joe Arpaio. Earlier here, here, here, here, here, etc.

P.S. Also quoted on NPR.

As I and many other writers have noted lately, the town of Ferguson like several nearby suburbs in St. Louis County has a reputation for raising revenue through aggressive use of tickets for minor traffic and vehicle infractions, a practice that many suspect weighs more heavily on poorer and outsider groups. Blogger Coyote, who now lives in Arizona, has some reflections about police practice in that state and also adds this recollection from an earlier stint in Missouri:

I worked in the Emerson Electric headquarters for a couple of years, which ironically is located in one corner of Ferguson. One of the unwritten bennies of working there was the in house legal staff. It was important to make a friend there early. In Missouri they had some bizarre law where one could convert a moving violation to a non-moving violation. A fee still has to be paid, but you avoid points on your license that raises insurance costs (and life insurance costs, I found out recently). All of us were constantly hitting up the in-house legal staff to do this magic for us. I am pretty sure most of the residents of Ferguson do not have this same opportunity.

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After 17 months the federal government has released heavily redacted information in response to a FOIA request, shedding new light on the probe into the systematic abuses committed by Sheriff Joseph Arpaio and allied county D.A. Andrew Thomas. We’ve been covering them for years. [Arizona Republic, auto-plays]

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I discussed it yesterday at Cato at Liberty, shortly before Arizona Gov. Jan Brewer vetoed the bill. My Cato colleague Ilya Shapiro’s thoughts are here. For those who want a deeper dive, here’s the Douglas Laycock-drafted letter on the bill in its entirety, and here is the student note he cites making a case for courts’ application of RFRA to private lawsuits. (& welcome visitors: Ramesh Ponnuru, Paul Mirengoff, Stephen Richer/Purple Elephant, Memeorandum, Hans Bader)

P.S. To clarify, the Arizona bill would have enacted into law as part of the state’s mini-RFRA two broad applications of RFRA that many courts have been unwilling to concede to advocates heretofore. One is its availability as a defense in private litigation, not just in discrimination complaints but across the entire range of legal disputes arising in some way from state (in this case) law. That’s potentially a broad intervention into otherwise available private rights, and the fact that it’s in no way limited to discrimination law is one reason I would foresee that it would wind up having some surprising or unintended consequences along the line. A second broad application which drew fire from some critics would be to make available to businesses and various other nonprofit and associational forms of organization the defenses and other remedies otherwise available to individuals. I noted in this post a few weeks ago a high-profile case in which a panel of the D.C. Circuit, parting company from the Fifth, declined to recognize business coverage under the federal RFRA.

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Longtime Maricopa County, Arizona sheriff Joe Arpaio talks quite a game as a populist defender of the ordinary citizen. His actual record, however, has been one of grave abuse of power. One of the worst incidents has now come home to roost: The Maricopa County Board of Supervisors has unanimously approved a $3.75 million settlement over an incident in which Arpaio’s deputies arrested two critical journalists at their homes in the middle of the night. [Phoenix New Times]

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Unfair to the hearing?

by Walter Olson on November 4, 2013

Federal officials at HUD are making life difficult for a popular Arizona housing complex that specializes in serving hearing-impaired residents because they say it is failing to attract and serve non-hearing-impaired persons. [Arizona Republic]

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  • Next big church-employee bias case? Teacher signed “abide by Catholic teachings” contract, wins $170K anyway [AP] ACLU, which cheers that ruling, upset that new ENDA version would give more liberty to religious entities [BuzzFeed]
  • “Employee Who Changed Word Secretly in Severance Agreement Allowed to Proceed With Discrimination Claim” [Daniel Schwartz]
  • Sleeper Supreme Court case, University of Texas Southwestern Medical Center v. Nassar, tackles mixed-motive retaliation, oft-recurring fact pattern [podcast with Emory lawprof Charles Shanor, Fed Soc Blog]
  • You needn’t be anti-gay to oppose ENDA [Coyote, Scott Shackford] Case for public-accommodations version in state of Washington must be symbolic since it’s light on substance [Shackford]
  • English-only policies at workplace an “interesting and seldom litigated issue.” [Jon Hyman]
  • Bad, unfair move: “California Senate Passes Law to Revoke Status of Nonprofits With Anti-Gay Policies” [Philanthropy News Digest; Scott Walter, Philanthropy Daily]
  • Among those seeking broad religious exemptions from anti-bias laws, prohibition of discrimination on grounds of religion ought to be more controversial [BTB] Arizona bill carving out religious exception to bias laws also authorizes new suits against business [AZCentral]
  • “Across the country, human rights commissions cause more harm than they prevent.” [Scott Beyer, City Journal; Mark Hemingway, Weekly Standard]
  • New Colorado law allows workers to collect from small businesses in discrimination lawsuits [Judy Greenwald, Business Insurance]

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Taxpayers of the Arizona county are shelling out millions in settlements to compensate victims of the systematic abuses committed by Sheriff Joe Arpaio and D.A. Andrew Thomas. The latest settlement, $1.4 million, was to a developer whose office was ransacked as part of a series of raids conducted against Arpaio’s and Thomas’s political enemies, purportedly in search of evidence of political corruption. “Thomas was disbarred for his actions last year, but Arpaio was re-elected to a sixth term as sheriff in November.” When organized lawyers display higher ethical standards than an electorate, I’m not sure it reflects well on the electorate. [Aaron Kase, Lawyers.com, Phoenix New Times; earlier on Arpaio and on Thomas]

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…you don’t actually need to have driven under the influence. If it’s an illegal substance, metabolites in your blood may suffice whether or not you were impaired at the time you actually did the driving. At least that’s the ruling of a state court of appeals; the Arizona Supreme Court could still reverse it. [John Ross/Reason, Scott Greenfield]

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Paul Karlsgodt at Class Action Blawg reports that the bill “sets forth some specific requirements for class certification that are much more exacting than those required under federal Rule 23 and most state class action rules” and summarizes the provisions as follows (quoting directly):

  • clear and convincing evidence would be required to justify a grant of class certification
  • orders granting class certification would have to be supported by a detailed written statement of the reasons and evidence justifying the decision
  • in assessing superiority, the court would be required to consider, among other things, ”whether it is probable that the amount which may be recovered by individual class members will be large enough in relation to the expense and effort of administering the action to justify maintaining the case as a class action”
  • there would be a rebuttable presumption against class certification in cases involving claims where individual knowledge, causation, and reliance are required elements
  • certification of a case as a class action would not relieve any class member of the requirement of proving individual injury or damages
  • class notice must include a statement of ”the possible financial consequences for the class”
  • the law would expressly provide that the plaintiff would bear the initial cost of distributing notice to the class
  • appeals from orders granting or denying class certification could be taken as a matter of right the same as a final judgment, and trial court proceedings would be automatically stayed pending the appeal.

A prerequisite for a high school diploma in Arizona, if some lawmakers there get their way. [Mike Sunnucks, Phoenix Business Journal]

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Law enforcement roundup

by Walter Olson on August 10, 2012

  • Domestic law enforcement use of drones should require a warrant [Richmond Times-Dispatch editorial] “Are license readers an invasion of privacy? ACLU asks police agencies to elaborate on use of readers, data collection” [Baltimore Sun]
  • “Sheriff Joe Arpaio is hands down my favorite Sacha Baron Cohen character” [Matt Oswalt, background]
  • “Protester accused of bank robbery for holding ‘You’re Being Robbed’ sign” [CBS Philadelphia]
  • “How a Single Oxycontin Pill Nearly Ruined One Man’s Life” [Mike Riggs, Reason] Good Samaritan shields could help in overdose emergencies [Reason] Milton Friedman on the Drug War [Tim Lynch]
  • After Washington Post exposed widespread unreliability in forensics, DoJ, FBI to investigate thousands of cases [WaPo]
  • Lynne Stewart 10-year rap upheld: “stark inability to understand the seriousness of her crimes” [Reuters, earlier]
  • “Illinois Supreme Court Upholds Eight-Year Sentence for Taking Pictures of Legal Sex” [Reason] One family’s nightmare with the sex offender registry [Mary DeVoy, Virginian-Pilot via Lenore Skenazy]

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Torts roundup

by Walter Olson on July 6, 2012

  • House Judiciary passes measure (FACT Act) promoting transparency of asbestos trusts, could preserve assets for honest claimants by curbing n-tuple dippers [Harold Kim/US Chamber, Ted Frank] “$48 million jackpot justice asbestos award for 86-year-old” [Frank]
  • Canadian court: car crash caused chronic cough [Magraken]
  • Push in Connecticut legislature to ease expert testimony threshold, thus enabling more med-mal suits [Zachary Janowski, Raising Hale]
  • Georgia court: residents on notice of wild alligators, golf club not liable for elderly woman’s demise [Daily Report]
  • “NYT is inconceivably shocked that NYC defends itself in lawsuits instead of blindly writing multimillion $ checks.” [@tedfrank]
  • Arizona court declines Third Restatement’s invitation to gut duty prerequisite in tort law [David Oliver]
  • Vintage insurance fraud: “The Slip-and-fall Queen” [Brendan Koerner via @petewarden]
  • Relaxation of fault in auto cases: “Richard Nixon’s Torts Note” [Robinette, TortsProf] “Reforming the Reform: No-Fault Auto Insurance” [same]

Environment roundup

by Walter Olson on May 30, 2012

  • “A loose coalition of eco-anarchist groups is increasingly launching violent attacks on scientists.” [Nature]
  • “Jury Blames ‘Erin Brockovich’ Doc For His Patient’s Illness, Not Defendants” [Daniel Fisher, Forbes]
  • “Judge declines to toss Chevron RICO case against lawyer over $18bln award” [Reuters, Folkman/Letters Blogatory] Videos tell Chevron side of story in hotly disputed Ecuador Lago Agrio dispute ["Amazon Post"]
  • NGOs’ bag of tricks: Greenpeace helped pack International Whaling Commission thirty years ago by paying dues for small states to join [Skodvin/Andresen via Spiro/OJ]
  • Distinguishing the areas of clear vision from the blind spots in Chicago Tribune’s flameproofing series [Coyote, earlier]
  • Wilderness regs prevent town of Tombstone, Ariz. from rebuilding water pipes destroyed in fire [Daily Caller]
  • Look! Over that factory! It’s a plume of (shudder) … water vapor! [Coyote]
  • National Science Foundation grantee: “Tort actions may impel industry to … redesign chemical molecules … to be less toxic.” [David Oliver, Ted Frank]

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As noted earlier, last week U.N. Human Rights Council rapporteur James Anaya (who also happens to be a lawprof at the University of Arizona) declared the U.S. to be trampling the aboriginal land rights of Indian tribes. I have a new Daily Caller piece pointing out (as I detail at more length in Schools for Misrule) that the U.N.’s involvement with American law school projects is nothing new: “Now the plaintiff’s counsel [in the Western Shoshone claim] of a few years back re-surfaces as the official instrument of a U.N. body, a revolving-door arrangement that is actually quite typical of the international human rights establishment, where a rather small band of crusading law professors, ‘civil society’ activists and Guardian readers around the world seem to take turns investigating each others’, or as the case may be their own, countries for putative human rights violations.” (& Julian Ku, Opinio Juris)

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