text:
[p. 94] Justice Thomas, with whom Justice Scalia joins, concurring in the judgment.
Although I agree that petitioners have failed to establish that Kentucky's lethal injection protocol violates the Eighth Amendment, I write separately because I cannot subscribe to the plurality opinion's formulation of the governing standard. As I understand it, that opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. Ante, at 52. This standard—along with petitioners' proposed "unnecessary risk" standard and the dissent's "untoward risk" standard, post, at 114 (opinion of Ginsburg, J.)—finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve. Because, in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain, I concur only in the judgment.
The Eighth Amendment's prohibition on the "inflict[ion]" of "cruel and unusual punishments" must be understood in light of the historical practices that led the Framers to include it in the Bill of Rights. Justice Stevens' ruminations notwithstanding, see ante, at 78–86 (opinion concurring in judgment), it is clear that the Eighth Amendment does not prohibit the death penalty. That is evident both from the ubiquity of the death penalty in the founding era, see S. Banner, The Death Penalty: An American History 23 (2002) (hereinafter Banner) (noting that, in the late 18th century, the death penalty was "the standard penalty for all serious crimes"), and from the Constitution's express provision for capital punishment, see, e.g., Amdt. 5 (requiring an indict- [p. 95] ment or presentment of a grand jury to hold a person for "a capital, or otherwise infamous crime," and prohibiting deprivation of "life" without due process of law).
That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment. "An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century state." Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, "[o]fficials also wielded a set of tools capable of intensifying a death sentence," that is, "ways of producing a punishment worse than death." Id., at 54.
One such "tool" was burning at the stake. Because burning, unlike hanging, was always painful and destroyed the body, it was considered "a form of super-capital punishment, worse than death itself." Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order—such as slaves who killed their masters and women who killed their husbands—burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first "as an act of charity." Id., at 72.
The principal object of these aggravated forms of capital punishment was to terrorize the criminal, and thereby more effectively deter the crime. Their defining characteristic was that they were purposely designed to inflict pain and suffering beyond that necessary to cause death. As Blackstone put it, "in very atrocious crimes, other circumstances of terror, pain, or disgrace [were] superadded." 4 Blackstone 376. These "superadded" circumstances "were care- [p. 97] fully handed out to apply terror where it was thought to be most needed," and were designed "to ensure that death would be slow and painful, and thus all the more frightening to contemplate." Banner 70.
Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause. By the late 18th century, the more violent modes of execution had "dwindled away," id., at 76, and would for that reason have been "unusual" in the sense that they were no longer "regularly or customarily employed," Harmelin v. Michigan, 501 U.S. 957, 976 (1991) (opinion of Scalia, J.); see also Weems v. United States, 217 U.S. 349, 395 (1910) (White, J., dissenting) (noting that, "prior to the formation of the Constitution, the necessity for the protection afforded by the cruel and unusual punishment guarantee of the English bill of rights had ceased to be a matter of concern, because as a rule the cruel bodily punishments of former times were no longer imposed"). Embellishments upon the death penalty designed to inflict pain for pain's sake also would have fallen comfortably within the ordinary meaning of the word "cruel." See 1 S. Johnson, A Dictionary of the English Language 459 (1773) (defining "cruel" to mean "[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting"); 1 N. Webster, An American Dictionary of the English Language 52 (1828) (defining "cruel" as "[d]isposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness").
Moreover, the evidence we do have from the debates on the Constitution confirms that the Eighth Amendment was intended to disable Congress from imposing torturous punishments. It was the absence of such a restriction on Congress' power in the Constitution as drafted in Philadelphia [p. 98] in 1787 that led one delegate at the Massachusetts ratifying convention to complain that Congress was "nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline." 2 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 111 (2d ed. 1891). Similarly, during the ratification debate in Virginia, Patrick Henry objected to the lack of a Bill of Rights, in part because there was nothing to prevent Congress from inflicting "tortures, or cruel and barbarous punishment[s]." 3 id., at 447–448.
"The prohibition of cruel and unusual punishments, marks the improved spirit of the age, which would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion." J. Bayard, A Brief Exposition of the Constitution of the United States 154 (2d ed. 1840).
"Under the [Eighth] amendment the infliction of cruel and unusual punishments, is also prohibited. The various barbarous and cruel punishments inflicted under the laws of some other countries, and which profess not to be behind the most enlightened nations on earth in civilization and refinement, furnish sufficient reasons for this express prohibition. Breaking on the wheel, flay- [p. 99] ing alive, rending asunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution." B. Oliver, The Rights of An American Citizen 186 (1832) (reprint 1970).
So barbaric were the punishments prohibited by the Eighth Amendment that Joseph Story thought the provision "wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct." 3 J. Story, Commentaries on the Constitution of the United States 750 (1833).
Consistent with the original understanding of the Cruel and Unusual Punishments Clause, this Court's cases have repeatedly taken the view that the Framers intended to prohibit torturous modes of punishment akin to those that formed the historical backdrop of the Eighth Amendment. See, e.g., Estelle v. Gamble, 429 U.S. 97, 102 (1976) ("[T]he primary concern of the drafters was to proscribe 'torture[s]' and other 'barbar[ous]' methods of punishment"); Weems, supra, at 390 (White, J., dissenting) ("[I]t may not be doubted, and indeed is not questioned by any one, that the cruel punishments against which the bill of rights provided were the atrocious, sanguinary and inhuman punishments which had been inflicted in the past upon the persons of criminals"). That view has permeated our method-of-execution cases. Thrice the Court has considered a challenge to a modern method of execution, and thrice it has rejected the challenge, each time emphasizing that the Eighth Amendment is aimed at methods of execution purposely designed to inflict pain.
In the first case, Wilkerson v. Utah, 99 U.S. 130 (1879), the Court rejected the contention that death by firing squad was cruel and unusual. In so doing, it reviewed the various [p. 100] modes of execution catalogued by Blackstone, repeating his observation that "in very atrocious crimes other circumstances of terror, pain, or disgrace were sometimes superadded." Id., at 135. The Court found it "safe to affirm that punishments of torture, such as those mentioned by [Blackstone], and all others in the same line of unnecessary cruelty, are forbidden by [the Eighth Amendment]." Id., at 136. The unanimous Court had no difficulty concluding that death by firing squad did not "fal[l] within that category." Ibid.
"Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." Id., at 447.
"The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of pun- [p. 101] ishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution." Id., at 464.
In light of this consistent understanding of the Cruel and Unusual Punishments Clause as forbidding purposely torturous punishments, it is not surprising that even an ardent abolitionist was constrained to acknowledge in 1977 that "[a]n unbroken line of interpreters has held that it was the original understanding and intent of the framers of the Eighth Amendment...to proscribe as 'cruel and unusual' only such modes of execution as compound the simple infliction of death with added cruelties or indignities." H. Bedau, The Courts, the Constitution, and Capital Punishment 35. What is surprising is the plurality's willingness to discard this unbroken line of authority in favor of a standard that finds no support in the original understanding of the Eighth Amendment or in our method-of-execution cases and that, disclaimers notwithstanding, "threaten[s] to transform courts into boards of inquiry charged with determining 'best practices' for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology." Ante, at 51.
We have never suggested that a method of execution is "cruel and unusual" within the meaning of the Eighth Amendment simply because it involves a risk of pain—whether "substantial," "unnecessary," or "untoward"—that could be reduced by adopting alternative procedures. And for good reason. It strains credulity to suggest that the defining characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like was that [p. 102] they involved risks of pain that could be eliminated by using alternative methods of execution. Quite plainly, what defined these punishments was that they were designed to inflict torture as a way of enhancing a death sentence; they were intended to produce a penalty worse than death, to accomplish something "more than the mere extinguishment of life." Kemmler, supra, at 447. The evil the Eighth Amendment targets is intentional infliction of gratuitous pain, and that is the standard our method-of-execution cases have explicitly or implicitly invoked.
Thus, the Court did not find it necessary in Wilkerson to conduct a comparative analysis of death by firing squad as opposed to hanging or some other method of execution. Nor did the Court inquire into the precise procedures used to execute an individual by firing squad in order to determine whether they involved risks of pain that could be alleviated by adopting different procedures. It was enough that death by firing squad was well established in military practice, 99 U.S., at 134–135, and plainly did not fall within the "same line of unnecessary cruelty" as the punishments described by Blackstone, id., at 136.
The same was true in Kemmler. One searches the opinion in vain for a comparative analysis of electrocution versus other methods of execution. The Court observed that the New York Legislature had adopted electrocution in order to replace hanging with "'the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases.'" 136 U.S., at 444. But there is no suggestion that the Court thought it necessary to sift through the "voluminous mass of evidence...taken [in the courts below] as to the effect of electricity as an agent of death," id., at 442, in order to confirm that electrocution in fact involved less substantial risks of pain or lingering death than hanging. The court below had rejected the challenge because the "act was passed in the effort to devise a more [p. 103] humane method of reaching the result," and "courts were bound to presume that the legislature was possessed of the facts upon which it took action." Id., at 447. Treating the lower court's decision "as involving an adjudication that the statute was not repugnant to the Federal Constitution," ibid., the Court found that conclusion "so plainly right," ibid., that it had "no hesitation" in denying the writ of error, id., at 449.
Aside from lacking support in history or precedent, the various risk-based standards proposed in this case suffer from other flaws, not the least of which is that they cast substantial doubt on every method of execution other than lethal injection. It may well be that other methods of execution such as hanging, the firing squad, electrocution, and lethal gas involve risks of pain that could be eliminated by switching to lethal injection. Indeed, they have been attacked as unconstitutional for that very reason. See, e.g., Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654, 656–657 (1992) (Stevens, J., dissenting) (arguing that lethal gas violates the Eighth Amendment because of "the availability of more humane and less violent methods of execution," namely, lethal injection); Glass v. Louisiana, 471 U.S. 1080, 1093 (1985) (Brennan, J., dissenting from denial of certiorari) (arguing that electrocution violates the Eighth Amendment because it poses risks of pain that could be alleviated by "other currently available means of execution," such as lethal injection); Campbell v. Wood, 18 F.3d 662, 715 (CA9 1994) (Reinhardt, J., concurring and dissenting) (arguing that hanging violates the Eighth Amendment because it involves risks of pain and mutilation not presented by lethal injection). But the notion that the Eighth Amendment permits only one mode of execution, or that it requires an anesthetized death, cannot be squared with the history of the Constitution.
It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today's challenge. It appears the Constitution is "evolving" even faster than I suspected. And it is obvious that, for some who oppose capital punishment on policy grounds, the only acceptable end point of the evolution is for this Court, in an exercise of raw judicial power unsupported by the text or [p. 105] history of the Constitution, or even by a contemporary moral consensus, to strike down the death penalty as cruel and unusual in all circumstances. In the meantime, though, the next best option for those seeking to abolish the death penalty is to embroil the States in never-ending litigation concerning the adequacy of their execution procedures. But far from putting an end to abusive litigation in this area, and thereby vindicating in some small measure the States' "significant interest in meting out a sentence of death in a timely fashion," Nelson v. Campbell, 541 U.S. 637, 644 (2004), today's decision is sure to engender more litigation. At what point does a risk become "substantial"? Which alternative procedures are "feasible" and "readily implemented"? When is a reduction in risk "significant"? What penological justifications are "legitimate"? Such are the questions the lower courts will have to grapple with in the wake of today's decision. Needless to say, we have left the States with nothing resembling a bright-line rule.
Which brings me to yet a further problem with comparative-risk standards: They require courts to resolve medical and scientific controversies that are largely beyond judicial ken. Little need be said here, other than to refer to the various opinions filed by my colleagues today. Under the competing risk standards advanced by the plurality opinion and the dissent, for example, the difference between a lethal injection procedure that satisfies the Eighth Amendment and one that does not may well come down to one's judgment with respect to something as hairsplitting as whether an eyelash stroke is necessary to ensure that the inmate is unconscious, or whether instead other measures have already provided sufficient assurance of unconsciousness. Compare post, at 118 (Ginsburg, J., dissenting) (criticizing Kentucky's protocol because "[n]o one calls the inmate's name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response"), with ante, at 60–61 (rejecting the dissent's criticisms because [p. 106] "an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures"). We have neither the authority nor the expertise to micromanage the States' administration of the death penalty in this manner. There is simply no reason to believe that "unelected" judges without scientific, medical, or penological training are any better suited to resolve the delicate issues surrounding the administration of the death penalty than are state administrative personnel specifically charged with the task. Cf. ante, at 74–75 (Stevens, J., concurring in judgment) (criticizing the States' use of the three-drug protocol because "[i]n the majority of States that use the three-drug protocol, the drugs were selected by unelected department of correction officials with no specialized medical knowledge and without the benefit of expert assistance or guidance").
In short, I reject as both unprecedented and unworkable any standard that would require the courts to weigh the relative advantages and disadvantages of different methods of execution or of different procedures for implementing a given method of execution. To the extent that there is any comparative element to the inquiry, it should be limited to whether the challenged method inherently inflicts significantly more pain than traditional modes of execution such as hanging and the firing squad. See, e.g., Gray v. Lucas, 463 U.S. 1237, 1239–1240 (1983) (Burger, C. J., concurring in denial of certiorari) (rejecting an Eighth Amendment challenge to lethal gas because the petitioner had not shown that "'the pain and terror resulting from death by cyanide gas is so different in degree or nature from that resulting from other traditional modes of execution as to implicate the eighth amendment right'" (quoting Gray v. Lucas, 710 F.2d 1048, 1061 (CA5 1983))); Hernandez v. State, 43 Ariz. 424, 441, 32 P.2d 18, 25 (1934) ("The fact that [lethal gas] is less painful and more humane than hanging is all that is required to refute completely the charge that it constitutes cruel and un- [p. 107] usual punishment within the meaning of this expression as used in [the Eighth Amendment]").
Judged under the proper standard, this is an easy case. It is undisputed that Kentucky adopted its lethal injection protocol in an effort to make capital punishment more humane, not to add elements of terror, pain, or disgrace to the death penalty. And it is undisputed that, if administered properly, Kentucky's lethal injection protocol will result in a swift and painless death. As the Sixth Circuit observed in rejecting a similar challenge to Tennessee's lethal injection protocol, we "do not have a situation where the State has any intent (or anything approaching intent) to inflict unnecessary pain; the complaint is that the State's pain-avoidance procedure may fail because the executioners may make a mistake in implementing it." Workman v. Bredesen, 486 F.3d 896, 907 (2007). But "[t]he risk of negligence in implementing a death-penalty procedure...does not establish a cognizable Eighth Amendment claim." Id., at 907–908. Because Kentucky's lethal injection protocol is designed to eliminate pain rather than to inflict it, petitioners' challenge must fail. I accordingly concur in the Court's judgment affirming the decision below.
‡ ^ . As gruesome as these methods of execution were, they were not the worst punishments the Framers would have been acquainted with. After surveying the various "superadd[itions]" to the death penalty in English law, as well as lesser punishments such as "mutilation or dismembering, by cutting off the hand or ears" and stigmatizing the offender "by slitting the nostrils, or branding in the hand or cheek," Blackstone was able to congratulate his countrymen on their refinement, in contrast to the barbarism on the Continent: "Disgusting as this catalogue may seem, it will afford pleasure to an English reader, and do honor to the English law, to compare it with that shocking apparatus of death and torment to be met with in the criminal codes of almost every other nation in Europe." 4 Blackstone 377.

matches: v. v. v. v. v. v. v. v. v. v. v. v.


Sean Alastair Keane-Dawes, Law Offices of Sean Keane, San Antonio, TX, for Petitioner.
Thomas Ward Hussey, Director, U.S. Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, Mario R. Ortiz, U.S. Immigration Naturalization Service, District Directors Office, San Antonio, TX, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals, BIA No. A 094 722 814.
Before JOLLY, WIENER, ELROD, Circuit Judges.
Petitioner Artan Brdakic, a citizen of the former Serbia and Montenegro, has filed a petition for review of a decision of the Board of Immigration Appeals (BIA). The BIA dismissed Petitioner's appeal of an order of an immigration judge (IJ) which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The BIA concluded that Petitioner had not met his burden of showing eligibility because of major inconsistencies between Petitioner's testimony and that of his witness, as well as prior inconsistent statements made by Petitioner. In so ruling, the BIA upheld the IJ's finding that Petitioner was not credible, and vacated the IJ's finding that Petitioner's asylum claim was frivolous. Petitioner now contests the IJ's adverse credibility finding and argues that the BIA's decision is not supported by substantial evidence in the record.
On a petition for review of a BIA decision, we review the order of the BIA, but we also consider the IJ's underlying decision if it influenced the BIA's determination. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). This court reviews factual findings for substantial evidence and questions of law de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
Because Petitioner filed his asylum claim after May 11, 2005, this case is governed by the standards set forth in the REAL ID Act for determining witness credibility in asylum and withholding of removal cases. See 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); REAL ID Act § 101, Pub.L. 109-13, 119 Stat. 231, 302-05 (May 11, 2005). An adverse credibility determination is a finding of fact that must be reviewed for substantial evidence. See Vidal v. Gonzales, 491 F.3d 250, 254 (5th Cir. 2007). "The substantial evidence standard requires only that the BIA's decision be supported by record evidence and be substantially reasonable." Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). This court must review the BIA's factual determination to determine "not only that the evidence supports a contrary conclusion, but also that the evidence compels it." Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005)). The alien bears the "burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion." Id.
Petitioner has failed to meet this onerous standard. The IJ's findings regarding numerous discrepancies in Petitioner's testimony, including testimony regarding a key incident in which Petitioner's store was invaded by masked men, are sufficient to support the IJ's credibility determinations. Petitioner's testimony that he was personally threatened by the masked men diverged from his witness's testimony in key areas. Although Petitioner alleges that the witness's testimony nevertheless supports his overall claim of persecution, the discrepancies remain. "[I]t is the fact-finder's duty to make determinations based on the credibility of the witnesses," and "[w]e cannot substitute our judgment for that of the BIA or IJ with respect to . . . factual findings based on credibility determinations." Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). Petitioner also disputes the IJ's determination that his story of persecution was implausible since Petitioner, while in Kosovo, had been a successful businessman who drove "fancy cars." Although such a conclusion may be strained, the IJ's determination rested on numerous other inconsistencies in Petitioner's testimony which suffice to support the IJ's finding that Petitioner was not a credible witness.
The evidence in the record does not compel us to reverse the IJ's adverse credibility determination. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Therefore, the petition for review is DENIED.


44-710b. Rate of contributions, benefit cost rate and benefit liability, notification; review and redetermination; judicial review; periodic notification of benefits charged. (a) By the secretary of labor. The secretary of labor shall promptly notify each contributing employer of its rate of contributions, each rated governmental employer of its benefit cost rate and each reimbursing employer of its benefit liability as determined for any calendar year pursuant to K.S.A. 44-710 and 44-710a, and amendments thereto, on or before November 30 of the calendar year immediately preceding the calendar year in which such rate takes effect. Such determination shall become conclusive and binding upon the employer unless, within 15 days after the mailing of notice thereof to the employer's last known address or in the absence of mailing, within 15 days after the delivery of such notice, the employer files an application for review and redetermination, setting forth the reasons therefor. If the secretary of labor grants such review, the employer shall be promptly notified thereof and shall be granted an opportunity for a fair hearing, but no employer shall have standing, in any proceeding involving the employer's rate of contributions or benefit liability, to contest the chargeability to the employer's account of any benefits paid in accordance with a determination, redetermination or decision pursuant to subsection (c) of K.S.A. 44-710, and amendments thereto, except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for the employer and only in the event that the employer was not a party to such determination, redetermination or decision or to any other proceedings under this act in which the character of such services was determined. Any such hearing conducted pursuant to this section shall be heard in the county where the contributing employer maintains its principle place of business. The hearing officer shall render a decision concerning all matters at issue in the hearing within 90 days.
(b) Judicial review. Any action of the secretary upon an employer's timely request for a review and redetermination of its rate of contributions or benefit liability, in accordance with subsection (a), is subject to review in accordance with the Kansas judicial review act. Any action for such review shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under subsection (i) of K.S.A. 44-709, and amendments thereto, and the workmen's compensation act.
(c) Periodic notification of benefits charged. The secretary of labor may provide by rules and regulations for periodic notification to employers of benefits paid and chargeable to their accounts or of the status of such accounts, and any such notification, in the absence of an application for redetermination filed in such manner and within such period as the secretary of labor may prescribe, shall become conclusive and binding upon the employer for all purposes. Such redeterminations, made after notice and opportunity for hearing, and the secretary's findings of facts in connection therewith may be introduced in any subsequent administrative or judicial proceedings involving the determination of the rate of contributions of any employer for any calendar year and shall be entitled to the same finality as is provided in this subsection with respect to the findings of fact made by the secretary of labor in proceedings to redetermine the contribution rate of an employer. The review or any other proceedings relating thereto as provided for in this section may be heard by any duly authorized employee of the secretary of labor and such action shall have the same effect as if heard by the secretary.
History: L. 1945, ch. 220, § 7; L. 1971, ch. 180, § 6; L. 1973, ch. 205, § 8; L. 1976, ch. 370, § 64; L. 1977, ch. 181, § 5; L. 1986, ch. 318, § 60; L. 1997, ch. 182, § 80; L. 2004, ch. 179, § 61; L. 2010, ch. 17, § 76; L. 2013, ch. 106, § 9; July 1.


STATE OF LOUISIANA v. DARRYL SUMMERS.
Writ granted; stay denied. The ruling of the district court granting the defendant's motion to suppress physical evidence and inculpatory statements is reversed, and this matter is remanded to the district court for further proceedings consistent with this opinion.
While conducting surveillance at an intersection, a police narcotics officer observed two men on either side of a street. A sedan approached one of the men and then stopped. The officer observed a hand to hand exchange, in which the man outside the sedan gave money to an occupant of the vehicle in return for an object.
Believing this to be a narcotics transaction, the surveilling narcotics officer contacted his “takedown” team to follow the individual who had been at the intersection and was involved in the hand-to-hand transaction. That individual met up with the defendant-the man standing on the other side of the street. Defendant was holding a paper bag which appeared to contain a beverage can. The two men began walking down the street.
As the takedown team approached, the two men were still alongside each other. Upon seeing the police takedown vehicle, defendant went onto a nearby porch, then returned to the yard empty-handed. The takedown team of two officers pulled up beside the men, exited their police vehicle, and stopped the men for questioning.
While the takedown team had been tracking the individual involved in the hand-to-hand transaction, the narcotics officer who originally surveilled the transaction was watching the defendant. The narcotics officer observed the defendant go to the porch, but return without the paper bag he had been carrying. Once at the scene, the narcotics officer directed one of the takedown officers to go to the porch and look for the bag. The takedown officer returned with the bag and viewed its contents, which included a can containing what would later test positive as crack cocaine.
Police advised defendant of his Miranda1 rights. The defendant expressed a willingness to cooperate with the investigation and advised one of the officers that the crack cocaine was his and that he had an addiction.
The reason they [the police] were there is because they believed some other crime had been committed.
There was no verification that that crime was committed. So, stopping these two people based on the belief that a crime was committed when they didn't verify that in any form or fashion, there is simply no basis. There was simply no basis to stop them without having verified that a crime, in fact, was committed.
What they [the police] said was they observed a person talking to two people in a car, and they saw what appeared to them to be money transpire [sic], and something else transpired after the money was transferred.
To verify that that was a crime would entail stopping those two people in the car, finding something on them, and then that then justifies everything else, but there is no justification here.
“In reviewing the trial court's ruling on defendant's motion to suppress, this Court looks to the totality of the evidence presented at the motion to suppress hearing․” State v. Burkhalter, 428 So.2d 449, 455 (La.1983). The purpose of this comprehensive review is to ascertain whether there has been an abuse of discretion. State v. Montejo, 06–1807, p. 21 (La.5/11/10), 40 So.3d 952, 967.
As a preliminary matter, we find that the district court's reasoning is not responsive to the facts presented. The district court insisted that for police to be justified in following and ultimately stopping the defendant, police were required to stop the sedan that had appeared at the intersection and verify that the sedan contained crack cocaine. Such verification might be required before pursuing an anonymous tip;2 however, this case does not involve an anonymous tip as police directly observed a hand-to-hand transaction.
Therefore, we find instead that the crux of this matter is whether the police were justified in searching the bag on the porch, which an officer observed the defendant deposit there as police approached. The defendant concedes police could permissibly search the porch if they had probable cause and a warrant exception to conduct a search. Under the totality of the circumstances, such justifications—and others—existed here.
In U.S. v. Silva, 957 F.2d 157, 160 (5th Cir.1992), the court reviewed a defendant's claim that he was unlawfully stopped when police were executing an arrest warrant on the defendant's companion. The defendant took flight during his companion's arrest and later argued that “the mere fact of his flight does not support a finding of reasonable suspicion” for an investigatory stop. Id . During the defendant's flight, he discarded a firearm, for which he was later criminally charged. Id., 957 F.2d at 158. The court agreed with the defendant that flight does not per se give rise to probable cause, but held that “flight may ․ be considered as a factor in support of a finding of reasonable suspicion.” Id., 957 F.2d at 160. Collecting cases, the Silva court further ruled: “We agree ․ that a suspect's companionship with or propinquity to an individual independently suspected of criminal activity is a factor to be considered in assessing the reasonableness of a seizure.” Id., 957 F.2d at 160–61.
Under Louisiana law, police are authorized “to stop a person in a public place whom he reasonably suspects is committing, has commited, or is about to commit an offense and may demand ․ an explanation of his actions.” La.C.Cr.P. art. 215.1.
Thus, it was reasonable for police to stop and detain the defendant, based on both his propinquity to the participant in the apparent drug transaction and the defendant's efforts to conceal the contents of the brown bag he was carrying following the transaction upon spotting the police.
The defendant abandoned the brown bag when he saw a police vehicle approaching; therefore, police were entitled to retrieve it, since there was no expectation of privacy at that point. As established long ago in Hester v. United States, 265 U.S. 57, 58 (1924), where “[t]he defendant's own acts, and those of his associates, disclosed the jug, the jar and the bottle ․ there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned,” The instant case, therefore, is distinguishable from Florida v. Jardines, 133 S.Ct. 1409 (2013), on which the defendant relies. In Jardines, the Court found a canine drag search of a porch exceeded the police's constitutional authority because “the officers learned what they learned only by physically intruding on Jardines' property to gather evidence” and that was “enough to establish that a search occurred.” Id., 133 S.Ct. at 1417. Here, and in contrast to Jardines, but for the defendant's own furtive efforts to conceal the evidence and abandon the bag when he saw police, the officers would have had no reason to believe that the bag was connected with criminal activity and, similarly, would have had no reason to go onto the porch.
Although the police here apparently later learned that the porch where the defendant discarded the bag was attached to the defendant's residence, that fact does not change our analysis. Without doubt, police were entitled to enter the open porch, just as any member of the public could. See State v. Deary, 99–0627 (La.1/28/00), 753 So.2d 200, 201. The question is not, therefore, as defendant characterizes it, whether the defendant gave up his property right by placing the bag on the porch.3 Instead, it is well-settled that the question is whether the defendant surrendered his expectation of privacy. See State v. Tucker, 626 So.2d 707, 710 (La.1993) (“If ․ a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen's right to be free from governmental interference, then such property may be lawfully seized and used against the citizen in a resulting prosecution. In this ․ case, there is no expectation of privacy․”). Moreover, the fact that police were apparently unaware at the time that the porch was attached to the defendant's residence weighs greatly against suppression because there appears to have been no police overreaching. See Herring v. U.S., 555 U .S. 135, 141 (2009) (“[T]he exclusionary rule is not an individual right and applies only where it result[s] in appreciable deterrence.”) (internal quotations omitted).
Also, while a warrant is generally required to search a home or its curtilage, “the exigencies of the situation” can “make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment” State v. Lee, 05–2098, pp. 14–15 (La.1/16/08), 976 So.2d 109, 122, quoting State v. White, 399 So.2d 172, 175 (La.1981). To determine whether sufficiently exigent circumstances exist to justify a warrantless search or seizure, the court must “consider the totality of the circumstances and the inherent necessities of the situation at the time.” State v. Warren, 05–2248, p. 10 (La.2/22/07), 949 So.2d 1215, 1224 (internal quotations omitted).
Under the principles just noted, even if one accepts the defendant's argument that the evidence was not abandoned (abandonment is a situation for which constitutional protections would not apply), the evidence should still not have been suppressed. The series of events witnessed by police provided probable cause to search the bag on the porch. First, police observed the hand-to-hand transaction and watched one of the participants directly join up with the defendant, who had up to that point been standing across the street. Then, police observed the defendant carrying a bag with what appeared to be a can as he walked along with the person just involved in the hand-to-hand transaction. When the police takedown unit approached the defendant, the defendant responded by going to the porch, where he left the bag. Under the totality of these circumstances, we find police had probable cause to believe the defendant had involvement in a drug transaction and the exigency of securing and preserving likely narcotics evidence justified the minimal intrusion of entering the porch and viewing the contents of the bag.
Because we have found the police acted lawfully in stopping the defendant and in obtaining narcotics evidence, we likewise find no reason to suppress the defendant's inculpatory statements made after being advised of his Miranda rights.
I concur in the per curiam and agree that the trial court abused its discretion.
In this case there was no abandonment, no concealment, no flight, no exigency, and no connection to the crime supposedly being investigated. “Propinquity” to one suspected crime not supported by any evidence does not provide probable cause to search for a new, unknown crime.
Police observed a supposed drug transaction between Whittington and a sedan but there is no evidence of this crime before us. Instead, we have the defendant, whom the state admits was not involved in the transaction, setting down a drink-in-a-bag on his own porch. This is not criminal activity, nor is it evidence of the observed transaction involving others that was being investigated. Defendant's actions are described in the per curiam as an attempt to “hide” or “conceal” the bag, but the bag is also described as “discarded” or “abandoned,” inconsistent conclusions not supported by the facts.
Defendant has a reasonable expectation of privacy in his own home. The fact police may not know who owns a home does not negate the need for probable cause to search it. Lawful activity on one's own property does not provide an exception to the warrant requirement. The rationale of this court's per curiam only makes sense if the bag had been placed on the porch by Whittington, not the defendant.
Nor was there any “exigency.” There was no flight, no crime in progress, and no issue of officer safety. The defendant was standing in his front yard.
The beverage can in a brown paper bag, a common occurrence, was in no wise connected to the observed suspected criminal transaction between Whittington and the sedan. There is no evidence of any transfer between Whittington and the defendant. We have here not the preservation of evidence of the suspected crime involving Whittington and the sedan, but rather an unwarranted seizure leading to the discovery of a new, unknown crime. Discovery of the contents of the bag after a warrantless search cannot be added to the “totality of the circumstances” in order to justify the search. If the officers somehow suspected the bag on the porch was in some way connected to the transaction they observed between Whittington and the sedan, they should have asked those questions first, before simply seizing the defendant's drink off his porch. The ends do not justify the means.
I respectfully dissent and would deny the writ, as the rulings of the trial court and court of appeal appear correct.
1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. See, e.g., State v. Robertson, 97–2960, p. 5 (La.10/20/98), 721 So.2d 1268, 1270.
3. The defendant urges his placement of the bag on the porch indicates an intent to later return and finish the beverage contained inside the bag.
1. The evidence here was on the porch attached to defendant's residence, which is the “curtilage” of the home for Fourth Amendment purposes. State v. Deary, 99–0627, p. 1 (La.1/28/00), 753 So.2d 200, 201. However, a front porch “does not necessarily enjoy the same measure of protection accorded the home” itself. Id. (quotation omitted).
2. I decline to join the portion of the opinion that addresses abandonment. Because the porch at issue was attached to the defendant's residence, in my view, the record does not support the conclusion that this defendant “abandoned” the evidence. I also note that the per curiam is a plurality opinion and therefore “lack[s] precedential authority.” See Warren v. La. Med. Mutual Ins. Co., 2007–0492 (La.12/2/08), 21 So.3d 186, 210 (Knoll, J., concurring).


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Ann. Cas. 54, 113 N. W. 941; Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154 (semble) ; Poage v. Wabash, St. L. & P. Ry. Co., 24 Mo. App. 199; Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633; Finley v. Simpson, 22 N. J. L. 311, 53 Am. Dec. 252; Hagerty v. Lee, 54 N. J. L. 580, 20 L. R. A. C31, 25 Atl. 319; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556; Bowen v. Beck, 94 N. Y. 86, 46 Am. Rep. 124; May-nard v. Moore, 76 N. C. 158 (semble) ; Ring v. Mayberry, 168 N. C. 563, 84 S. E. 846; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 23 L. R. A. 396, 46 Am. St. Rep. 543, 36 N. E. 72; Doty v. Chattanooga Union Ry. Co, 103 Tenn. 564, 53 S. W. 944. 48 L. R. A. 160, 6 L. R. A. (N. S.) 436.
5. Piatt, Covenants, 10; Hins dale v. Humphrey, 15 Conn. 431; Stabler v. Cowman, 7 Gill & J. (Md.) 284; Western Md. R. Co. v. Orendirff, 37 Md. 335; Newell v. Hill, 2 Mete. (Mass.) 180; Martin v. Drinan, 128 Mass. 515; Kennedy v. Owen, 136 Mass. 199; Maule v. Weaver, 7 Pa. St. 329; First Congregational Meeting House Soc. v. Town of Rochestei, 66 Vt. 501, 29 Atl. 810.
6. Platt, Covenants. 28; Har-tung v. Witte, 59 Wis. 285, 18 N. W. 175; Midgett v. Brooks, 34 X. C. 145, 55 Am. Dec. 405; Taylor v. Preston. 79 Pa. St. 436; Trull v. Eastman, 3 Mete. (Mass.) 121; Electric City Land & Improvement Co. v. West Ridge Coal Co., 187 Pa. St. 500, 41 Atl. 458.
9. Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53; Howard Mfg. Co. v. Water Lot Co., 53 Ga. 689; Martin v. Martin, 44 Kan. 195, 24 Pac. 418; Goudy v. Goudy, Wright (Ohio), 410.
10. Pollock, Contracts (Willis-ton's Ed.), 300; Sims, Covenants Running with Land, 136; Fergumade by the grantor or grantee of land as an incident of the conveyance, that is, by one who has some relation to the title. The question has, however, occasionally arisen whether one who is neither a grantor nor grantee of the land may make a covenant with the owner thereof, the benefit of which will pass to a subsequent owner of the land, that is, whether the benefit of a covenant may run, though there is lacking what is ordinarily referred to as "privity of estate" between the covenantor and covenantee. The authorities are about equally divided upon the question.11 Apart, however, from any question of covenants running with the land, the transfer of the land might be construed as intended to pass the right of action for subsequent breaches of the covenant, that son v. Omaha & S. W. R. Co., 227 Fed. 513, 142 C. C. A. 145; St. Louis, I. M. & S. Ry. Co. v. O'baugh, 49 Ark. 418, 5 S. W. 711; Sterling Hydraulic Co. v. Williams, 66 111. 393; Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 328, 5 Am. St. Rep. 680, 35 N. W. 424; Gaines' Adm'x v. Poor, 3 Mete. (Ky.) 503, 79 Am. Dec. 559; Leader v. La Flamme, 111 Me. 242, 88 Atl. 859; Maryland Coal Co. v. Cumberland & Pennsylvania R. Co., 41 Md. 343; National Union Bank at Dover v. Sfgur, 39 N. J. L. 173; Vmtnor Investment Co. v. Record Devel. Co. (N. J. Ch.), 80 Atl. 952; Raby v. Reeves, 112 N. C. 688, 16 S. B. 760; Ford v. Oregon Electric R. Co., 60 Ore. 278, 36 L. R. A. (N. S.) 358, Ann. Cas. 1914A, 280, 117 Pac. 809.
Pollock, Contracts (7th Ed.) 237, note; Holmes, The Common Law. 405; 1 Smith's Leading Cases (8th Am. Ed.) at p. 176; Shaber v. St. Paul Water Co., 30 Minn. 179, 14 N. W. 874; Dickinson v. Hoomes' Adm'r, 8 Grat. (Va.) 353 (dictum) ; Gaines' Adm'x v. Poor, 3 Mete. (Ky.) 503, 79 Am. Dec. 559; Rawle, Covenants, Sec. 203, note. The contrary view is taken in Sims, Covenants Running with the Land, 196; Sugden, Vendors (14th Ed.) 584 ct seq.; Mygatt v. Coe, 124 N .Y. 212, 11 L. R. A. 646, 26 N. E. 611, 147 N. Y. 456, 42 N. E. 17; Lyon v. Parker, 45 Me. 474; Hurd v. Curtis, 19 Pick. (Mass.) 459 (dictum) Pack-enham's Case, Y. B. 42 Edw. Hi. 3, pi. 14 (translated in Rawle, Covenants, Sec. 203, note), is cited on both sides of the discussion,- a not unnatural result of the obscurity of the report.

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PEOPLE OF THE PHILIPPINES, Petitioner, v. LIBERTAD LAGON AND HON. JUDGE ISIDRO O. BARRIOS, AS PRESIDING JUDGE OF THE CITY COURT OF ROXAS CITY, Respondents.
1.	REMEDIAL LAW; CRIMINAL PROCEDURE; SUBJECT-MATTER JURISDICTION OF COURT IN CRIMINAL LAW MATTERS; MEASURED BY THE LAW IN EFFECT AT THE TIME OF THE COMMENCEMENT OF CRIMINAL ACTION. — At the time of the institution of the criminal prosecution on 7 July 1976, the penalty imposable for the offense charged in Criminal Case No. 7362 had been increased by P.D. No. 818 (effective 22 October 1975) to prision mayor in its medium period. It is firmly settled doctrine that the subject matter jurisdiction of a court in criminal law matters is properly measured by the law in effect at the time of the commencement of a criminal action, rather than by the law in effect at the time of the commission of the offense charged. 1 Thus, in accordance with the above rule, jurisdiction over the instant case pertained to the then Court of First Instance of Roxas City considering that P.D. No. 818 had increased the imposable penalty for the offense charged in Criminal Case No. 7362 to a level in excess of the maximum penalty which a city court could impose.
2.	ID.; ID.; ID.; ID.; APPLICATION OF DOCTRINE NOT A DISREGARD OF THE RULE AGAINST RETROACTIVITY OF PENAL LAWS; RATIONALE. — The real question raised by the petitioner is: would application of the above-settled doctrine to the instant case not result in also applying Presidential Decree No. 818 to the present case, in disregard of the rule against retroactivity of penal laws? Article 22 of the Revised Penal Code permits penal laws to have retroactive effect only "insofar as they favor the person guilty of a felony, who is not a habitual criminal, . . . ." We do not believe so. In the first place, subject-matter jurisdiction in criminal cases is determined by the authority of the court to impose the penalty imposable under the applicable statute given the allegations of a criminal information. In People v. Purisima, 69 SCRA 341 (1976), the Court stressed that: ". . . The issue here is one of jurisdiction, of a court’s legal competence to try a case ab origine. In criminal prosecutions, it is settled that the jurisdiction of the court is not determined by what may be meted out to the offender after trial, or even by the result of the evidence that would be presented at the trial, but by the extent of the penalty which the law imposes for the misdemeanor, crime or violation charged in the complaint. If the facts recited in the complaint and the punishment provided for by law are sufficient to show that the court in which the complaint is presented has jurisdiction, that court must assume jurisdiction." (Citations omitted; Emphasis supplied.) The same rule was set forth and amplified in People v. Buissan (105 SCRA 547 ) in the following terms: ". . . [i]n criminal prosecutions, jurisdiction of the court is not determined by what may be meted out to the offender after trial (People v. Cuello, 1 SCRA 814) or even by the result of the evidence that would be presented during the trial (People v. Co Hiok, 62 Phil. 503) but by the extent of the penalty which the law imposes, together with other legal obligations, on the basis of the facts as recited in the complaint or information (People v. Purisima, 69 SCRA 347) constitutive of the offense charged, for once jurisdiction is acquired by the court in which the information is filed, it is retained regardless whether the evidence proves a lesser offense than that charged in the information (People v. Mision, 48 O.G. 1330)" (Emphasis supplied.) Thus, it may be that after trial, a penalty lesser than the maximum imposable under the statute is proper under the specific facts and circumstances proven at the trial. In such a case, that lesser penalty may be imposed by the trial court (provided it had subject-matter jurisdiction under the rule above referred to) even if the reduced penalty otherwise falls within the exclusive jurisdiction of an inferior court.
3.	ID.; ID.; ID.; ID.; ID. — In the case at bar, the increased penalty provided for the offense charged in Criminal Case No. 7362 by P.D. No. 818 (prision mayor in its medium period) is obviously heavier than the penalty provided for the same offense originally imposed by paragraph 2(d) of Article 315 of the Revised Penal Code (up to prision correccional in its minimum period). Should the criminal information be refiled in the proper court, that is, the proper Regional Trial Court, that court may not impose that more onerous penalty upon private respondent Libertad Lagon (assuming the evidence shows that the offense was committed before 22 October 1975). But the Regional Trial Court would remain vested with subject-matter jurisdiction to try and decide the (refiled) case even though the penalty properly imposable, given the date of the commission of the offense charged, should be the lower penalty originally provided for in paragraph 2(d) of Article 315 of the Revised Penal Code which is otherwise within the exclusive jurisdiction of the City Court of Roxas City. In other words, the circumstance that P.D. No. 818 would be inapplicable to the refiled case would not result in the Regional Trial Court losing subject-matter jurisdiction, nor in the case falling back into the City Court’s exclusive jurisdiction.
The case proceeded to trial and the prosecution commenced the presentation of its evidence. However, in an Order dated 2 December 1976, the City Court dismissed the information upon the ground that the penalty prescribed by law for the offense charged was beyond the court’s authority to impose. The judge held that the jurisdiction of a court to try a criminal action is determined by the law in force at the time of the institution of the action, and not by the law in force at the time of the commission of the crime. At the time of the alleged commission of the crime in April 1975, jurisdiction over the offense was vested by law in the City Court. However, by the time the criminal information was filed, paragraph 2(d) of Article 315 of the Revised Penal Code had already been amended and the penalty imposable upon a person accused thereunder increased, which penalty was beyond the City Court’s authority to impose. Accordingly, the court dismissed the information without prejudice to its being refiled in the proper court.
Hence this Petition for Review brought by the People, arguing that the City Court of Roxas City had jurisdiction over Criminal Case No. 7362 and that it had erred in issuing its Order dismissing the case. Because the Petition for Review was signed by the City Fiscal and Assistant City Fiscal of Roxas City as counsel for the People, the Court referred the petition to the Office of the Solicitor General for comment. Responding to the Court’s resolution, the then acting Solicitor General Vicente Mendoza stated that the Office of the Solicitor General, having been previously consulted by the Assistant City Fiscal of Roxas City, agreed with the position taken by the latter that the City Court had jurisdiction over the criminal case involved, and asked that the petition be given due course.
After deliberation on the instant Petition for Review, the Court considers that petitioner has failed to show that the City Court had committed reversible error in dismissing the criminal information in Criminal Case No. 7362 without prejudice to its refiling in the proper court.
Under the penultimate paragraph of Section 87 of the Judiciary Act of 1948, as amended, the law governing the subject matter jurisdiction of municipal and city courts in criminal cases in 1975 and 1976," [m]unicipal judges in the capitals of provinces and sub-provinces and judges of city courts shall have like jurisdiction as the Court of First Instance to try parties charged with an offense within their respective jurisdictions, in which the penalty provided by law does not exceed prision correccional or imprisonment for not more than six (6) years or fine not exceeding P6,000.00 or both . . . ." It appears that at the time of the commission of the offense charged on 5 April 1975, the penalty imposable for the offense charged under paragraph 2(d) in relation to the third sub-paragraph of the first paragraph, Article 315 of the Revised Penal Code, was arresto mayor in its maximum period to prision correccional in its minimum period; at that time therefore, the offense clearly fell within the jurisdiction of the City Court of Roxas City.
It is firmly settled doctrine that the subject matter jurisdiction of a court in criminal law matters is properly measured by the law in effect at the time of the commencement of a criminal action, rather than by the law in effect at the time of the commission of the offense charged. 1 Thus, in accordance with the above rule, jurisdiction over the instant case pertained to the then Court of First Instance of Roxas City considering that P.D. No. 818 had increased the imposable penalty for the offense charged in Criminal Case No. 7362 to a level in excess of the maximum penalty which a city court could impose.
The real question raised by the petitioner is: would application of the above-settled doctrine to the instant case not result in also applying Presidential Decree No. 818 to the present case, in disregard of the rule against retroactivity of penal laws? Article 22 of the Revised Penal Code permits penal laws to have retroactive effect only "insofar as they favor the person guilty of a felony, who is not a habitual criminal, . . . ." We do not believe so.
Thus, it may be that after trial, a penalty lesser than the maximum imposable under the statute is proper under the specific facts and circumstances proven at the trial. In such a case, that lesser penalty may be imposed by the trial court (provided it had subject-matter jurisdiction under the rule above referred to) even if the reduced penalty otherwise falls within the exclusive jurisdiction of an inferior court.
Should the criminal information be refiled in the proper court, that is, the proper Regional Trial Court, that court may not impose that more onerous penalty upon private respondent Libertad Lagon (assuming the evidence shows that the offense was committed before 22 October 1975). But the Regional Trial Court would remain vested with subject-matter jurisdiction to try and decide the (refiled) case even though the penalty properly imposable, given the date of the commission of the offense charged, should be the lower penalty originally provided for in paragraph 2(d) of Article 315 of the Revised Penal Code which is otherwise within the exclusive jurisdiction of the City Court of Roxas City. In other words, the circumstance that P.D. No. 818 would be inapplicable to the refiled case would not result in the Regional Trial Court losing subject-matter jurisdiction, nor in the case falling back into the City Court’s exclusive jurisdiction.
WHEREFORE, the Court Resolved to DENY the Petition for Review for lack of merit. The Order dated 2 December 1976 of the public respondent Presiding Judge of the City Court of Roxas City is hereby AFFIRMED. No costs.
1.	People v. Pegarum, 58 Phil. 715 ; People v. Romualdo, 90 Phil. 739 ; People v. Pecson, 92 Phil. 172 ; Lee v. Presiding Judge, 145 SCRA 408 ; Dela Cruz v. Moya, 160 SCRA 838 .
2.	69 SCRA 341 (1976).
3.	69 SCRA at 347.
4.	105 SCRA 547 (1981).
5.	105 SCRA at 552-553.
7.	105 SCRA at 551-552.


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Today, the Supreme Court issued its decision in Salman v. United States, clarifying the personal benefit standard of insider trading under the federal securities laws. In resolving what it called a “narrow” issue, the Court reaffirmed the long-standing “guiding principle” of Dirks v. SEC that disclosing nonpublic material information to a “trading relative or friend,” even without any showing of pecuniary or tangible gain to the tipper, can give rise to criminal insider trading liability.1 In such situations, the Court concluded, giving is as good as receiving, “the commonsense point . . . made in Dirks.”2 That is, the “tip and trade resemble trading by the insider followed by a gift of the profits to the recipient.”3 Salman thus underscores that market participants should continue to exercise vigilance when disseminating or receiving any material nonpublic information.
The Court’s decision today resolves a brewing dispute among the lower courts concerning the scope of tipper-tippee liability in insider trading cases. In particular, the Supreme Court took up Salman to decide whether a tipper had received a personal benefit for purposes of insider trading liability when he or she makes a gift of material nonpublic information to a relative who thereafter trades on that information. The Supreme Court answered in the affirmative, overturning some lower courts, including the Second Circuit, which had previously held that a tipper must also receive something of a “pecuniary or similarly valuable nature” in exchange for the tip.
In 2014, the Second Circuit in United States v. Newman held that a corporate insider who made a gift of confidential information could not be held criminally liable unless the insider also received a personal benefit that “represent[ed] at least a potential gain of a pecuniary or similarly valuable nature.”5 In the 2015 United States v. Salman decision, however, the Ninth Circuit rejected the Second Circuit’s limited reading of Dirks and affirmed an insider trading conviction on the basis of an insider who had simply “ma[de] a gift of confidential information to a trading relative or friend.”6 Today, the Supreme Court affirmed the Ninth Circuit’s decision and thereby overruled the Second Circuit’s more limited reading of insider trading liability.
Notably, however, the Court’s Salman narrow ruling is limited to tips made to friends and family. It leaves open the possibility that tips made to acquaintances may be subject to a different standard and may, for example, still require the exchange of something “pecuniary or similarly valuable” to result in insider trading liability. And it leaves undisturbed the requirement that the government show that a trading defendant knew that a corporate insider received a personal benefit in exchange for the tip.
Salman makes clear that the Court’s decades-old Dirks decision set forth the correct standard for the definition of personal benefit. Under the right circumstances, as exemplified by Salman, the government may prosecute tippers and tippees where the insider conferred gifts or profits to a relative or friend. Thus, in Salman’s wake, government regulators will likely pursue insider trading cases with increased vigor. Absent a need to show that a corporate tipper disclosed confidential information for a tangible benefit or pecuniary gain, the government will likely launch more investigations and litigate more cases involving exchanges with only social or reputational benefits to the tipper. In particular, arrangements in Salman’s mold, where a corporate insider disseminates confidential information to a family member in order to obtain private advantage, may attract increased scrutiny from the government. All told, Salman may make it easier for the government to go after downstream tippees, including those who are multiple levels removed from the corporate insider, as long as they possess knowledge of the initial exchange that was made for direct or indirect personal benefit.
After Salman, corporate professionals are advised to trade with at least the same diligence and care as they have always undertaken. Legal and compliance departments are encouraged to continue monitoring trading activity and encouraging an open dialogue with employees regarding the dissemination and receipt of material nonpublic information. That said, the personal benefit test is a legal issue that need not influence trading decisions. Regulators will likely assess whether there was a personal benefit only after the government has issued a subpoena or otherwise initiated an investigation. But in the meantime, government enforcement activities carry the risk of reputational harm to the business, distraction from core business concerns, and added legal fees and expenses.
If you have any questions, or would like to discuss the above or any related matter, please contact the Ropes & Gray attorney with whom you regularly work.
1 Salman v. United States, 580 U.S. __, Op. at 8 (2016).
3 Id. at 10 (quoting Dirks v. SEC, 463 U.S. 646, 663 (1983)).
4 463 U.S. 646, 663-64 (1983).
5 773 F.3d 438, 451- 452 (2d Cir. 2014).
6 792 F.3d 1087, 1092 (9th Cir. 2015).
16 Op. at 10 (2016).

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Pictured: Girl, wearing a small backpack, holding school books in one hand and holding her backpack strap with another hand.
Uncertainty and fear are two feelings that are prevalent in the immigrant community. President Donald J. Trump’s administration has emphasized that one of its primary objectives is to reduce illegal immigration, which has consequently brought increasing changes (1) to policy and more notably (2) in how agencies enforce said policies. These polices have a dangerous effect in public schools where many immigrant children are legally obtaining their education. Their aspirations are being threatened by the looming fear that the U.S. Immigration and Customs Enforcement (ICE) will be acquiring information about their lives through school resource officers; however, this acquisition of information leads to negative consequences and a violation of the students’ constitutional rights.
President Trump has signed several Executive Orders, and judges have established precedent through case law, that affect the immigrant population in different ways. One such example is the Executive Order of January 25, 2017, in which President Trump delineated how he was going to enhance public safety in the interior of the United States. The order announced a substantial broadening of immigration enforcement powers via ICE. Most importantly, the order revitalized what is known as the 287(g) program of the Immigration and Nationality Act (INA), which authorizes state and local police officers to collaborate with the federal government to enforce federal immigration laws. The program had been dormant after years of funding cuts and low levels of participation by law enforcement agencies. Under this program, the government encourages ICE to enter into agreements with local law enforcement agencies. These agreements do not involve the school administrators; local law enforcement and ICE unilaterally enter into them. There is no communication between schools and local law enforcement or with the community at large.
Under this order, ICEwas to increase its presence in America’s schools and create more agreements with local law enforcement, which allowed for an increase in the number of school resource officers (SROs) in public schools. SROs are law enforcement officers deployed to schools nationwide through a U.S. Department of Justice program called Community Oriented Policing Services (COPS). They are primarily responsible for maintaining safety and preventing crime in public schools. Currently, as many as 20,000 police officers work inside American schools, and many schools, due to multiple factors, have opted to exclusively use these SROs as opposed to having more school counselors or mental health workers. Although local police or sheriff’s agencies, who historically have had few ties to immigration authorities, directly employ these officers, since the order was enacted, ICE has been increasingly training local law enforcement officials in immigration enforcement and has given them federal authority to perform the functions of an immigration officer. Therefore, SROs have quickly become a channel through which ICE is gaining personal information about students and their families, including their immigration status,even though their immigration status is supposed to be protected under Plyler v. Doe and federal student privacy laws, such as the Family Educational Rights and Privacy Act. Schools are not allowed to share certain personal information about students without their parent or guardian’s consent, and schools may not deny access to public education to any undocumented or non-citizen student.
School administrators or superintendents who allow student information to be shared with ICE may be violating the FERPA, which protects the confidentiality of school records. The central provision of FERPA upon which immigrant students and their parents may rely says that schools may not release the personal information of a student without the parent or eligible child’s prior consent to any outside agency. Additionally, under Plyler v. Doe, the Supreme Court recognized a constitutional right of access to education for all students, regardless of their immigration status. Any action that might deter access to schools, including engaging in activities that increase absenteeism of students, may violate Plyler. Plyleralso protects students and their parents from having to provide birth certificates, Social Security information or other personal information as part of enrollment, which is important because undocumented students might lack those forms of identification.
Regardless of these protections, under the umbrella of this program, students around the United States are being detained and deported because of questionable evidence these resource officers submit. ICE is using school records to arrest immigrant students who have not been charged with any crime but who might be “suspected”of being involved with gangs. For example, in a prominent case from Long Island, ICE used information from a school resource officer regarding classroom drawings and other incidents in its report to ICE officials, which made inferences about how this student might be affiliated with gangs. These cases have demonstrated how schools’ administratorsare unaware of the purpose of these agreements with ICE under the 287(g) program. In fact, it was not until after this case had gained attention that the Long Island school district finally demanded to see the contract to clarify the duties of the SROs working in the schools.
School’s administrators do not fully comprehend the specific duties that these school resource officers have under the law, particularly the duties to work closely with ICE and report any “suspicious activity” related to the students. Consequently, public schools should review these formal agreements between local enforcement and the federal government and start defining clear guidelines. The current information sharing policy is causing anxiety among immigrant children who are trying to obtain an education, therefore decreasing their overall attendance. Not to mention, students’ parents or guardians may be held criminally liable for truancy, jurisdictions may be required to involve a child protective agencies after a certain number of absences, and students may be referred to court. These consequences are particularly concerning for undocumented students and their families, who might be sought after by officials cracking down at courts or whose status might be discovered through interactions with the court system.
Navigating the current administration’s immigration policy changes has proven to be difficult for schools. A need for full transparency from ICE and local law enforcement regarding the extension of the SRO duties and education for school administrators about how these agreements are established are critical. It is vital for public schools administrators to be aware of theprotections available to undocumented students and their families. Presently, the manner in which SROs directly share information with ICE may be violating undocumented students’ constitutional rights. These students deserve an education—in fact, it is their constitutional right. Students should not have to avoid school for fear of deportation. School must remain a safe place for learning, which is vital to the growth and development of all children.
 See Wendy Cervantes, Rebecca Ullrich & Hannah Matthews, Compromising Our Nation’s Future, Our Children’s Fear Immigration Policy’s Effects on Young Children 4 (2018), available at https://www.clasp.org/sites/default/files/publications/2018/03/2018_ourchildrensfears.pdf (stating that their report revealed a distressing picture for young children characterized by fear, stress, and disruptions of their normal lives).
 See, e.g, Immigration, The White House, https://www.whitehouse.gov/issues/immigration/(last visited Mar. 29, 2019).
 See Plyler v. Doe., 457 U.S. 202, 226 (1982) (stating that the Court does not perceive a national policy that supports the State in denying these undocumented immigrant children an elementary education).
 See Lauren Camera, When Police Partner with ICE, Hispanic Students Disappear,U.S. News (Nov. 26, 2018, 4:23 PM), https://www.usnews.com/news/education-news/articles/2018-11-26/when-police-partner-with-ice-hispanic-students-disappear.
 See generally In re A- B-, 27 I. & N. Dec. 316, 344 (A.G. 2018); Exec. Order No. 13768, 82 Fed. Reg. 8,799 (Jan. 25, 2017); Exec. Order No. 13767, 82 Fed. Reg. 8,793 (Jan. 25, 2017).
 SeeExec. Order No. 13768, 82 Fed. Reg. 8,799 (Jan. 25, 2017).
 Id. at 8,800 (stating that the Secretary, through the Director of ICE, “shall […] take all appropriate actions to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform law enforcement functions described in section 287 of the Immigration and Nationality Act (INA) (8 U.S.C. 1357)”).
 See Under Donald Trump, More Cops Are Acting as Immigration-Enforcement Agents, The Economist, https://www.economist.com/graphic-detail/2018/07/27/under-donald-trump-more-cops-are-acting-as-immigration-enforcement-agents (last visited Apr. 12, 2019).
 SeeExec. Order No. 13768, 82 Fed. Reg. 8,800 (Jan. 25, 2017) (asserting that “the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA”).
 See What are 287(g) Agreements?, ACLU Md., https://www.aclu-md.org/en/what-are-287g-agreements(last visited Apr. 12, 2019).
 See Supporting Safe Schools, Office of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice,https://cops.usdoj.gov/supportingsafeschools(last visited Apr. 8, 2019) (explaining that the SROs are similar to other police officers and have the ability to perform all of their same duties like making arrests).
 See Education Under Arrest: The Case Against Police in Schools,Justice Policy Institute 1 (Nov. 2011), available at http://edsource.org/wp-content/uploads/old/educationunderarrest_fullreport.pdf.; Mark Keierleber, Trump Order Could Give Immigration Agents a Foothold in US Schools, The Guardian (Aug. 22, 2017, 6:00 AM), https://www.theguardian.com/us-news/2017/aug/22/trump-immigration-us-schools-education-undocumented-migrants.
 See Hannah Dreier, Long Island Schools Move to Curb Police Role in Detaining Immigrant Students, ProPublica (Jan. 10, 2018, 5:00 AM), https://www.propublica.org/article/long-island-schools-move-to-curb-police-role-in-detaining-immigrant-students [hereinafter Dreier, Long Island Schools].
 See Family Educational and PrivacyRights Act, 20 U.S.C. § 1232g (2019) (explaining that no funds shall be made available “under any applicable program to any educational agency or institution that has a policy or practice of permitting the release of educational record without the written consent of their parents”); Plyler v. Doe., 457 U.S. 202, 229 (1982) (stating that undocumented children are “basically indistinguishable” from legally resident alien children).
 See generally Family Educational and Privacy Rights Act, 20 U.S.C. § 1232g (2019); Plyler v. Doe., 457 U.S. 202, 229 (1982).
 See Family Educational and Privacy Rights Act, 20 U.S.C. § 1232g.
 See Plyler v. Doe., 457 U.S. 202, 229-30 (1982) (recognizing that a state may not deny free public education to undocumented children).
 See id. at 234 (Blackmun, J., concurring) (explaining how “denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage”).
 See Complaint at 1, Center for Law and Education, Inc. v. City of Boston, No. 1884CV01938 (Super. Ct. Suffolk Cty. Mass. June 21, 2018), available at https://www.cleweb.org/sites/cleweb.org/files/assets/CLE%20et%20al.%20v.%20City%20of%20Boston%20-%20Boston%20Public%20Schools.pdf.
 See Hannah Dreier, He Drew His School Mascot- and ICE Labeled Him a Gang Member, ProPublica and the N.Y. Times (Dec. 2018), https://features.propublica.org/ms-13-immigrant-students/huntington-school-deportations-ice-honduras/[hereinafter Dreier, He Drew His School Mascot] (stating that this suspicion is questionable, and often unreliable).
 Id. (noting that the student had drawn the number 504 and devil horns; the devil was the school mascot, however).
 SeeDreier, Long Island Schools, supra note 18.
 See, e.g., D.C. Code§ 38-203(d) (2019) (“The parent, guardian, or other person who has custody or control of a minor covered by § 38-202(a) who is absent from school without a valid excuse shall be guilty of a misdemeanor.”); D.C. Code § 38-208(c)(1) – (2).
 See Am. Civil Liberties Union, Freezing out Justice: How Immigration Arrests at Courthouses are Undermining the Justice System 1 (2018), available at https://www.aclu.org/sites/default/files/field_document/rep18-icecourthouse-combined-rel01.pdf.
 SeeDreier, He Drew His School Mascot, supranote 27.
 See Dreier, Long Island Schools, supra note 18.