Eugene Volokh's Blog, page 144

[Ilya Somin] My US News and World Report Article on Trump's Dictatorial Immigration Power Grabs

[The article is coauthored with Cato Institute scholar David Bier.]

Yesterday, US News and World Report published my article, "Trump Claims Dictatorial Powers on Immigration," coauthored with David Bier. Here is an excerpt:

During his campaign for president, Donald Trump said he'd only be a dictator on "Day One," when he would "close the border" to nearly all immigrants. True to his word, when Trump entered office, he signed executive orders that sought to rewrite the Constitution and explicitly override the law to restrict immigration.

But those executive orders didn't expire on Day Two. The president is still exercising dictatorial powers on immigration, and it isn't yet clear that anyone will stop him. Several court decisions have sought to rein him in, and the Supreme Court should also intervene, if necessary. Whatever one thinks of immigration, any limits must be imposed lawfully.

Trump's theory of presidential control over immigration goes well beyond his predecessors'. In an executive proclamation issued within hours of being inaugurated, Trump asserted that he has total power to shut down virtually all legal immigration and ignore laws that protect immigrants from wrongful detention and deportation.

The president indicated that he can unilaterally suspend Congress' immigration laws because they are "ineffective," even though the Constitution gives Congress – not the president – the authority to make laws.

To justify ignoring laws such as the Refugee Act of 1980, which allows those who claim they are escaping persecution to enter the U.S. to apply for asylum, Trump relied on the idea that the president is constitutionally authorized to stop "invasions." But illegal migration is not an invasion. Under the Constitution, as Founding Father James Madison put it, "Invasion is an operation of war," not a civilian violating a bureaucratic regulation on where to cross a border….

 

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[Eugene Volokh] Anti-DEI Executive Orders Can Go Forward, for Now, Says Federal Appeals Court

[A district judge had "found the provisions likely unconstitutional and issued a nationwide injunction" against them; the Fourth Circuit just stayed that injunction, pending full consideration of the issue on appeal.]

From yesterday's decision in Nat'l Ass'n of Diversity Officers in Higher Ed. v. Trump, by Chief Judge Albert Diaz, with Judges Pamela Harris and Allison Rushing concurring:

Pending before the court is the government's Motion for a Stay Pending Appeal. The case concerns two Executive Orders [14,151 & 14,173] that instruct executive agencies to end "diversity, equity, and inclusion" (or "DEI") programs within federal grant and contract processes. The plaintiffs—the Mayor and City Council of Baltimore, Maryland and three national associations—moved to preliminarily enjoin the government's enforcement of the Orders, challenging the constitutionality of three of the Orders' provisions under the First and Fifth Amendments.

The district court found the provisions likely unconstitutional and issued a nationwide injunction barring defendants from enforcing those provisions against both the plaintiffs and "similarly situated non-parties." After the government appealed that injunction to this Court, the district court entered an order clarifying that its preliminary injunction "applies to and binds Defendants … as well as other federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions." The government now seeks a stay of the district court's preliminary injunction, or asks that it be limited only to the plaintiffs and named defendants.

Having reviewed the record, the district court's opinion, and the parties' briefing, we agree with the government that it has satisfied the factors for a stay under Nken v. Holder (2009). We therefore grant the government's motion for a stay of the preliminary injunction. The Clerk will set an expedited briefing schedule after consultation with the parties.

Chief Judge Diaz also wrote a separate opinion:

I'm satisfied for now that the government has met its burden justifying a stay of the district court's injunction pending appeal. So I join in the order granting the government's motion and in Judge Harris's separate opinion explaining why. {Like [Judge Harris], I too reserve judgment on how the administration enforces these executive orders, which may well implicate cognizable First and Fifth Amendment concerns. I likewise reserve judgment on the extent to which the government relies on the Orders' savings clause provisions as it enforces the Orders' directives against federal contractors, grantees, and private entities. See, e.g., City & Cnty. of San Francisco v. Trump (9th Cir. 2018) (declining to give effect to savings clause where that clause "in [] context" would "override clear and specific language," and render "judicial review a meaningless exercise").}

But I'm compelled to write separately to address what seems to be (at least to some) a monster in America's closet—Diversity, Equity, and Inclusion initiatives.

The Executive Orders charge that DEI (and the related DEIA, which also denotes Accessibility) policies include "dangerous, demeaning, and immoral race- and sex-based preferences" that "deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system." The Orders seek to terminate all "'equity-based' grants or contracts" that apparently have led to "immense public waste and shameful discrimination."

But neither Order ever defines DEI or its component terms. {As a result, it's unclear what types of programs—formal or informal—the administration seeks to eliminate, and it could not respond to the district court's hypotheticals about the same. At this preliminary stage of the litigation, where the Orders only purport to direct executive policy and actors, we don't find vagueness principles outcome determinative. But I repeat that agency action that goes beyond the narrow scope set out in this motion could implicate Fifth Amendment vagueness concerns.}

And despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium. For when this country embraces true diversity, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?

Under the most basic tenets of the First Amendment, there should be room for open discussion and principled debate about DEI programs, and whether its corresponding values should guide admissions, hiring, scholarship, funding, or workplace and educational practices. And all Americans should be able to freely consider how to continue empowering historically disadvantaged groups, while not "[r]educ[ing]" the individuals within those groups "to an assigned racial [or sex-based] identity."

For almost 250 years, this nation's North Star has been the self-evident truth, "that all men are created equal." Even when we have fallen short—badly at times—we have stood up, made amends, and moved forward. But a country does itself no favors by scrubbing the shameful moments of its past. Because while history may be static, its effects remain.

From boardrooms to courtrooms to operating rooms to classrooms, previously marginalized Americans are thriving in spaces long closed to them. And we are the better for it. Yet despite this success—or because of it—we owe it to ourselves to continue forging conversations that may help us achieve that "more perfect Union." …

As with most monsters in the closet, what lurks is but a mere shadow, for which the remedy is simply light.

Judge Harris likewise wrote a separate opinion:

I concur in the order granting the government's motion for a stay pending appeal. This is a difficult case that will benefit from more sustained attention than we can give it in the present posture. But for now, I believe the government has shown a sufficient likelihood of success to warrant a stay until we can hear and decide its appeal.

As the government explains, the challenged Executive Orders, on their face, are of distinctly limited scope. The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood. Instead, the so-called "Certification" and "Enforcement Threat" provisions apply only to conduct that violates existing federal anti-discrimination law.

Nor do the Orders authorize the termination of grants based on a grantee's speech or activities outside the scope of the funded activities. Rather, the "Termination" provision directs the termination of grants, subject to applicable legal limits, based only on the nature of the grant-funded activity itself. On this understanding, the government has shown the requisite likelihood that the challenged provisions do not on their face violate the First or Fifth Amendment.

But my vote to grant the stay comes with a caveat. What the Orders say on their face and how they are enforced are two different things. Agency enforcement actions that go beyond the Orders' narrow scope may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court. This case, however, does not directly challenge any such action, and I therefore concur.

Finally, my vote should not be understood as agreement with the Orders' attack on efforts to promote diversity, equity, and inclusion. In my view, like Chief Judge Diaz's, "people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium." I appreciate Chief Judge Diaz's concurrence and share his sentiments.

And Judge Rushing also wrote a separate opinion as well:

I concur in the order granting the government's motion for a stay pending appeal. The scope of the preliminary injunction alone should raise red flags: the district court purported to enjoin nondefendants from taking action against nonplaintiffs. But, more than that, the judges of this panel unanimously agree that the entire substance of the preliminary injunction must be stayed, not just trimmed back in scope. That's because the government has made a "strong showing" that it "is likely to succeed on the merits" and that the district court erred in concluding otherwise. In other words, the government is likely to succeed in demonstrating that the challenged provisions of the Executive Orders—all of which are directives from the President to his officers—do not violate the First or Fifth Amendments.

In addition, as Judge Harris rightly points out, this case does not challenge any particular agency action implementing the Executive Orders. Yet, in finding the Orders themselves unconstitutional, the district court relied on evidence of how various agencies are implementing, or may implement, the Executive Orders. That highlights serious questions about the ripeness of this lawsuit and plaintiffs' standing to bring it as an initial matter. Ripeness and standing doctrines "prevent the judicial process from being used to usurp the powers of the political branches," by keeping courts within their "province"—deciding "the rights of individuals" in actual controversies, Ignoring these limits on judicial power results in courts becoming "virtually continuing monitors of  the wisdom and soundness of Executive action."

We must not lose sight of the boundaries of our constitutional role and the imperative of judicial impartiality. Any individual judge's view on whether certain Executive action is good policy is not only irrelevant to fulfilling our duty to adjudicate cases and controversies according to the law, it is an impermissible consideration. A judge's opinion that DEI programs "deserve praise, not opprobrium" should play absolutely no part in deciding this case.

Catherine Padhi, Mark R. Freeman, Daniel Tenny, and Jack Starcher represent the government.

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[David Post] Paul, Weiss Next on the Chopping Block

[War is Peace. Freedom is Slavery. Ignorance is Strength. And Donald Trump is "Ending the Weaponization of Government"]

Yesterday the President issued another Executive Order, this time targeting all "employees of Paul, Weiss" - quite coincidentally, the 2024 AmLaw and 2024 NY Law Journal "Law Firm of the Year"! - "and Mark Pomerantz," a lawyer formerly, but no longer, employed by the firm.**

Under the terms of the Executive Order, (1) security clearances for every one of the thousands of Paul Weiss employees (and Mark Pomerantz) are "immediately suspended, pending a review of whether their access to sensitive information is consistent with the national interest"; (2) the government "will halt all material and services . . . provided to Paul Weiss and restrict its employees' access to government buildings"; (3) the government "will terminate contracts that involve Paul Weiss"; and (4) federal agencies will "refrain from hiring Paul, Weiss employees unless specifically authorized."

** Pomerantz was of counsel to the litigation department at Paul Weiss when, in 2021, he left the firm to join the New York City DA's office as a Special Assistant DA, to assist DA Cyrus Vance Jr. in his investigation of Donald Trump's business and financial dealings. He resigned that position in 2022, when the new DA, Alvin Bragg, announced that the office would not be pursuing an indictment of the former president.  Pomerantz wrote an angry letter of resignation, and he wrote an angry book about his experience in the DA's office (The People v. Donald Trump). According to a Paul, Weiss spokesperson, he has no current affiliation with the firm.

That is, to put it mildly, a pretty serious blow to the firm's business activities. And what had Paul, Weiss done to deserve all this? The Order spells it out in gruesome detail:

Paul Weiss hired unethical attorney Mark Pomerantz, who had previously left the firm to join the Manhattan District Attorney's office solely to manufacture a prosecution against President Trump.  According to his coworkers, Pomerantz had unethically led witnesses in ways designed to implicate President Trump. After being unable to convince Manhattan District Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged in a media campaign to gin up support for this unwarranted prosecution.

Wait . . .  that's it? Because they hired "unethical attorney Mark Pomerantz," we need to keep their lawyers and paralegals and administrative staff out of government buildings? And terminate all contracts we have with the firm? And revoke all of their security clearances?  Because they hired someone who, "according to his coworkers," had "unethically led witnesses in ways designed to implicate President Trump," and then tried to gin up support for what he did in a "media campaign"? Seriously? That's why we are hitting them with these rather extraordinary sanctions?

Nervous, yet?  "First they came for the law firms, but I wasn't a law firm, so I didn't care." One definition of authoritarian tyranny is that you are subject to punishment entirely at the whim of one person. We seem to have gotten there. Cross Donald Trump and he'll drop the hammer on you. Acting entirely alone, by Executive Order, he can destroy - or, at the very least, substantially harm - you and your business. He can even single you out as an individual!: "and Mark Pomerantz." The President is judge, jury, and executioner.  That's how it works, now.

Presumably, the Administration will be enjoined from implementing most, and perhaps all, of this Executive Order, just as it has been enjoined from implementing many of the similarly punitive restrictions on the Perkins, Coie firm. But lots of damage has been done, and, more importantly, the message has been sent: Stand in this guy's way and you will be punished. Cross him at your peril. Could it be any clearer?

And to top things off, the Executive Order contains a section on "Ending the Weaponization of Government":

President Trump is delivering on his promise to end the weaponization of government and protect the nation from partisan actors who exploit their influence.

President Trump is refocusing government operations to their core mission—serving the citizens of the United States. President Trump signed an Executive Order to end the weaponization of the Federal Government on his first day in office after promising to "end forever the weaponization of government and the abuse of law enforcement against political opponents."

It is, truly, absurd and Orwellian: declaring that you are ending "weaponization of the government," and the "abuse of law enforcement against political opponents" while simultaneously bringing the full sweep of executive power (and more!) to impose some pretty savage punishment on your personal and political enemies! It's a nice trick, if you can pull it off.

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[Josh Blackman] Today in Supreme Court History: March 15, 1933

3/15/1933: Justice Ruth Bader Ginsburg's birthday.

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[Paul Cassell] The Bondi Sentencing Memorandum Has Important Implications in the Criminal Prosecution of Boeing

[The Justice Department's new guidance requiring prosecutors to disclose to a sentencing judge all relevant facts should require that, in any new plea deal, Boeing must acknowledge that it directly and proximately killed 346 people.]

Today I made a filing for the victims' families in the criminal case against Boeing, flagging an important point about how the new Administration's approach to criminal sentencing should lead to a more transparent plea agreement with Boeing. Under the Bondi Memorandum, the new Administration now requires prosecutors to disclose all relevant facts to the sentencing judge—a requirement of "complete candor." As the Justice Department and Boeing continue negotiating a new agreement for Boeing to plead guilty to its conspiracy of defrauding the FAA, an extremely relevant sentencing fact will have to be candidly disclosed: that Boeing killed 346 people.

For the last several years, I have represented (pro bono) families who lost loved ones in the two crashes of Boeing 737 MAX aircraft. (See earlier posts here, here, and here.) The families want Boeing held fully accountable for the harms stemming from its federal crime of defrauding the FAA about the safety of the 737 MAX—a crime that the district judge handling the matter (Judge Reed O'Connor in the Northern District of Texas) has found directly and proximately killed 346 people.

Several years ago, the Justice Department and Boeing reached a deferred prosecution agreement (DPA), requiring Boeing to take appropriate steps to comply with federal anti-fraud laws. In exchange, Boeing's prosecution was deferred for three years to give it time to get its house in order. During the deal's three-year term, Boeing failed to meet its obligations—a failure shockingly brought to light on January 5, 2024, when a door plug on a new Boeing 737 MAX blew out, causing an uncontrolled decompression of the aircraft. In May of last year, the Justice Department found that Boeing had breached its obligations under the DPA. And in July of last year, the Justice Department and Boeing reached a plea agreement, under which Boeing would plead guilty to the pending conspiracy charge. But the plea deal did not require Boeing to acknowledge that its crime killed 346 people--the deadliest corporate crime in U.S. history.

On behalf of the families I represent, last July I objected to the plea deal. And last December, Judge O'Connor agreed that the agreement should be rejected, citing concerns about the DEI and other problems in the agreement's corporate monitoring provisions. Since then, the Department and Boeing have been working on negotiating a new plea deal.

Today, the Department and Boeing filed their third motion for a continuance to allow further plea negotiations, citing the need to brief the new leadership in the Justice Department. The parties sought until April 11 to report back to the district court. I filed a notice that the families did not object to the third continuance now, but would object to any further continuances. In addition, my notice discussed how the Bondi Memorandum (which is a later iteration of an earlier Bove Memorandum) would require a new plea agreement that was more forthcoming about the deadly consequences of Boeing's crime:

The families appreciate that the parties' discussion will require extensive revisions to the earlier plea agreement that the Government agreed to under the previous Administration. In the opening days of the current Administration, the Justice Department announced new guidance for how criminal cases such as this one are to be handled. On January 21, 2025, the Justice Department released the "Bove Memorandum," which restored the Department's long-standing charging position articulated in the May 10, 2017, Memorandum entitled, "Department Charging and Sentencing Policy." As required by the recent Bove Memorandum—and as articulated in the 2017 Memorandum (and even earlier guidance dating back to the Bush and Reagan Administrations)—it is once again Department policy that prosecutors must reveal to a sentencing judge all relevant facts in the case:

prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

As the families explained last summer in objecting to the proposed plea agreement negotiated during the previous Administration, that (now-rejected) plea agreement failed to reveal that Boeing's conspiracy crime directly and proximately killed 346 passengers and crew on two 737 MAX flights. See ECF No. 268-1 at 11-19; see also ECF No. 268-2 at 816. The truth about Boeing's lethal crime is quite obviously relevant to sentencing, and yet it was not mentioned. While such factual omissions were apparently allowed during the previous Administration, they are (quite properly) forbidden in the current Administration by the Bove Memorandum. The families' filings straightforwardly set out how to correct that omission and appropriately describe Boeing's deadly conspiracy crime in any future plea agreement.

Notice of Victims' Families (citing U.S. Dept. of Justice, Bove Memorandum (Jan. 21, 2025), citing U.S. Dept. of Justice, Charging Memorandum (May 10, 2017) (emphasis added)).

On February 5, 2025, Attorney General Bondi reiterated the principles of the Bove Memorandum in her own Memorandum, adding additional clarity on the need for revealing all relevant facts:

As with other steps in the criminal justice process, sentencing requires complete candor with the court, the defendant, the probation office, and the public. Prosecutors must alert the court and the defendant to all known relevant facts and criminal history.

Bondi Memorandum (Feb. 5, 2025) (emphases added).

The Bondi (and Bove) Memoranda restore an important principle in federal criminal sentencing: truth in sentencing. Under the Memoranda, the parties to a plea agreement cannot distort facts to achieve some desired outcome. Over the next four weeks, the Department and Boeing will continue working on a new plea agreement under which Boeing will plead guilty. (In the DPA, Boeing admitted it was guilty of conspiring to defraud the FAA.) I hope that Boeing's new plea agreement will be drafted in accord with the direction from Bondi (and Bove) Memoranda and acknowledge the lethal consequences of Boeing's crime.

 

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

[Intellectual strait jackets, vulgar language, and dodging judicial inquiry.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Friends, come join us at the Studio Theatre in Washington, D.C. on Thursday, April 3 to celebrate ten years of Short Circuit. It's going to be super swell, and some important people will be there. RSVP today! We're getting mighty close to waitlist territory.

New on the Short Circuit podcast: Northwestern Professor Dan Rodriguez discusses his new book on the police power and why it ain't everything.

President issues executive order denying birthright citizenship for people born in the country while their parents were here illegally or temporarily. District court preliminarily enjoins the order, finding that state-plaintiffs are likely to succeed in arguing that the order violates the Fourteenth Amendment, which extends citizenship to "[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof." The administration appeals, moving to stay the injunction pending litigation. First Circuit: Negative, the injunction holds. Motion denied. In 2020, Vermont Superior Court transitions to electronic filing. When filed documents are received, they're reviewed to ensure they meet all filing requirements and don't contain confidential information, after which they're made available electronically. Courthouse News Service can't abide that delay and sues, alleging the procedures violate their First Amendment right of access to court documents. Second Circuit: And it does seem like the process could be more narrowly focused on protecting confidential information than proper margin widths. 2012: New York woman pleads guilty to promoting prostitution. (Evidently this was big news a decade ago, though your correspondents confess to having no memory of it.) 2021: She asks the state trial judge to unseal various transcripts from her criminal case. The request is partly denied. She appeals. And, separately, files a Section 1983 suit in federal court against the state judge, asking the federal court to order the state court to release the transcripts. Second Circuit (2-1): Younger abstention! Violent, high-risk inmate is placed in a cell with low-risk pretrial detainee in Philadelphia jail. After telling a guard he's going to kill his cellmate, the former proceeds to render the latter a quadriplegic. Third Circuit: "Not every jail tragedy makes a municipality liable. …" Myrtle Beach, S.C. bar owner challenges municipal ordinance that restricts the broadcasting of "obscene, profane or vulgar language from any commercial property" above certain volumes at certain times. The district court upholds the ordinance, concluding that the "vulgar language" prohibition applies only to speech that is constitutionally obscene. Fourth Circuit: But that ruling (1) isn't binding on state courts, and (2) doesn't make any sense. North Carolina man pleads guilty to being a felon in possession of a firearm, with a guideline sentencing range of 41-51 months. He's sentenced to 114. Fourth Circuit: That was unreasonable. Dissent: Well, he did do an awful lot of stabbing while he was in pretrial detention. When you gaze down at a roll of 3M Scotch tape you probably don't imagine that you're staring into the eyes of an officer of the United States. Yet, according to the Fourth Circuit (over a dissent) that might be true in certain circumstances—or at least that the tape was following the orders of an officer—as it pertains to removal from state to federal court. "Suffer any wrong that can be done you rather than come here!" is the warning no one gives in Chapter 1 of Bleak House. Apparently there was also an absence of such a warning in a dispute involving New Orleans breast surgeons, insurance companies, and a lawyer because the district court christened it "the Bleak House of arbitration." Close to a dozen arbitration proceedings examined what seems to have been the same dispute resulting in four wildly inconsistent arbitration awards. Fifth Circuit: And the awards mostly stand, but it's OK to have one more arbitration to rule them all. It may seem surprising that prosecutors felt the need to withhold Brady material in order to secure the conviction of a 23-year-old who stabbed an octogenarian 58 times, bludgeoned him with an iron, and then shoved a lamp down his throat while he was still alive. But that's what they did, failing to disclose that a key witness—who later recanted her testimony—was a compensated gov't informant. Fifth Circuit: And so we grant habeas. Dissent: The Brady material would have made no difference; the self-defense theory was "ludicrous." Have you ever wondered how the "inherently transitory" exception to the mootness doctrine in class actions relates to the "capable of repetition yet evading review" exception to the mootness doctrine for individual claims? Probably not, but the few of you who said yes will really like this Sixth Circuit opinion. HHS, which funds family-planning projects across the country, requires fund recipients to provide neutral counseling and abortion referrals to patients when requested. After Dobbs, Tennessee mostly banned abortions and committed only to conduct counseling and referrals for options deemed legal in the state. So HHS cut off funding. Sixth Circuit: Which likely doesn't violate the Spending Clause or the APA. Partial dissent: Loper Bright, which came out while this appeal was pending, changes the calculus of the APA claim such that the abortion-referral requirement should be enjoined. Allegation: University of Illinois Chicago law professor has long given a civil procedure exam with a question about a discrimination case involving an expurgated racial slur; but when students complain in 2020, the university hunts through everything he's ever said in class for anything that could be seen as offensive to justify disciplining him. First Amendment retaliation? University: State university professors don't have free-speech rights, they're just mouthpieces for the gov't. Seventh Circuit: No. "To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation." Allegation: Fearing physical harm from his cellmate, Nevada prisoner requests a cell change. Instead, an officer says, "Fight him or fight me" and takes the prisoner's legal papers, Quran, prayer rug, etc. And though the cell transfer happens later that day, his belongings are never returned. Ninth Circuit: It is clearly established that prison officials can't retaliate against prisoners for complaining about prison officials. It is not clearly established that prison officials can't retaliate against prisoners who complain about other prisoners. Denial of QI reversed. Driver on the Nevada stretch of I-80 is pulled over and has his cash seized. (No, it's not Marine veteran and Friend of IJ Stephen Lara.) It's over a million dollars. Yikes! In the civil-forfeiture action that ensues, the driver tries to recover the money, but when pressed by the gov't about how he came to own it, he provides only a cursory response. District court: You gotta provide more information. Driver: Here's some more information. District court: That's not enough. Your claim for the money is stricken and the gov't wins. Ninth Circuit: Affirmed. Under special civil-forfeiture rules, the gov't gets to send out extra-early interrogatories to test a claimant's standing, which is what the gov't did here, and the driver didn't do a good enough job responding. Dissent: "The majority . . . validates an extremely troubling government strategy that allows the government to use the fruits of a potentially illegal search to set up a supposed discovery violation, while dodging any judicial inquiry into the search itself." Pro tip: If you are the chief security officer of a large technology company, you should not cover up a major data breach lest you wish to become a felon. Uber's now-former CSO learned this the hard way after concealing a 2016 data breach while the FTC was investigating a 2014 data breach. The CSO got the hackers to sign an NDA for $100k that recharacterized the hack as "research" into "vulnerabilities" while lying about it all to the FTC, Uber's CEO, and Uber's attorneys. And the Ninth Circuit lets the conviction stand. Another professor, another First Amendment retaliation case. This time, it's a Nevada community college math prof alleging he was retaliated against for criticizing a school policy change to water down curriculum standards. Ninth Circuit: We're on the same page as the Seventh Circuit, supra. Like celebrity deaths, circuit decisions involving school administrators retaliating against protected speech apparently come in threes. This one involves allegations that the superintendent of Los Lunas, N.M.'s public schools threatened frivolous litigation against parents who created a Facebook group to talk about the schools. The Tenth Circuit says this one can go forward, too. Denver man calls 911 saying he'd just been shot by a masked intruder. Police discover a locked door, no sign of forced entry, and a shell casing on the man's desk. They then get a warrant and discover a loaded handgun in a locked drawer in the man's desk with one bullet missing from the magazine. Surgeons remove the bullet, which is later matched to the handgun from the man's desk. Not the world's hardest whodunit. He's convicted of being a felon in possession of a firearm. Tenth Circuit: Which stands. The man consented to the bullet's removal and never attempted to claim an ownership or privacy interest in the bullet. Regular readers of Short Circuit will be familiar with constitutional claims alleging that gov't officials kept someone in jail for too long, but this Eleventh Circuit case presents the rare constitutional claim alleging that an official let someone out of jail too soon (allegedly to avoid paying for medical care for the heart attack that the prisoner was having at the moment he was released). This Eleventh Circuit decision is a good reminder that you shouldn't escape from prison and then create a new life by stealing a dead man's identity. Or, at least, if you do that, when you're caught and finish out your sentence, you shouldn't keep using the dead man's last name upon your release. Or, at least, if you do that, you shouldn't get a passport with your fake last name. Or, if you do, don't renew that passport. But if you really must do all that, when the second passport is about to expire, don't try to get a new passport using your birth name. Because that, my friend, will be what gets you charged with federal crimes. School in Tallahassee, Fla. hides from parents the fact that a 13-year-old girl is now presenting as a boy at school. Parents claim a violation of parental and familial-privacy rights. As one does, a three-judge panel of the Eleventh Circuit issues four opinions. Majority: It doesn't shock the conscience. We don't even say that when students die! Concurrence 1: I'm all about protecting rights, just not those Lochner ones! Concurrence 2: Substantive due process delenda est. Dissent: Judges can't amend the Civil Rights Act of 1871. Sarasota, Fla. voter challenges the state's system of closed party primaries. He wants to be able to influence who the Republican Party nominates for office but doesn't want to have to join the party to do it. Eleventh Circuit: That's a genuine injury, but binding precedent forecloses his claim. Dissent: The inability to influence the choices of private groups you're not a member of isn't an injury at all. Allegation: In 2020, Atlanta police officers are fired and arrested for tasing two college students who'd been flouting curfew and ignoring orders to leave the downtown area during George Floyd-related unrest. (The officers are reinstated and all charges dropped.) Can the officers sue the mayor, the police chief, and the DA (who'd held press conferences and gone on podcasts to "publiciz[e] their roles in effectuating the officers' terminations and arrests")? Eleventh Circuit (unpublished): No. << deep breath>> State-law qualified and official immunity. And absolute, qualified, and municipal immunity on the federal constitutional claims. (The city settled with the students for $1 mil each.)

Law students! Come to our annual law student conference in Arlington, Va., May 30 - June 1! You'll learn all about public interest litigation, including all manner of strategies, tactics, and the nuts and bolts of putting together a great public interest case. IJ will pay for travel and lodging expenses (if you're not in the D.C. area). This year's theme will focus on the constitutional right to just compensation in cases like wrong-door SWAT raids and also right-door SWAT raids, tying in with our upcoming (wrong-door) Supreme Court case, Martin v. USA. Click here to learn more and apply!

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[Eugene Volokh] Utah Court Strikes Down Injunction Banning Speech "Annoy[ing] or Caus[ing] Distress" to Neighbor Running a Mental Health Residential Treatment Center,

[but upholds limits on speech to plaintiff (or her visitors).]

A short excerpt from the long opinion in Ragsdale v. Fisher, decided yesterday by Utah Court of Appeals Judge Gregory K. Orme, joined by Judges Ryan M. Harris and John D. Luthy:

For over ten years, George Fishler has shown his vehement opposition to Kristi Ragsdale operating her residential treatment center in his neighborhood by displaying provocative yard signs and by mouthing or shouting profanities, coupled with rude hand gestures, at anybody entering, leaving, or on the business's property…. Ragsdale is the founder and owner of the Eva Carlston Academy (ECA)—a residential treatment center for adolescent girls experiencing mental health issues, including anxiety and depression. In 2013, ECA opened a location at the end of a cul-de-sac in a Salt Lake-area neighborhood. Fishler and his wife are long-time residents of the cul-de-sac. Their home is located directly north of ECA.

Fishler and other neighbors vehemently opposed the opening of the ECA location in their neighborhood. Several neighbors voiced their opposition at community council meetings and displayed yard signs concerning "commercial businesses 'invading' the neighborhood." Fishler drafted a flier that he distributed to neighbors that stated, without specifically identifying Ragsdale or ECA, that the "commercial enterprise will degrade th[e] neighborhood" and urged neighbors to contact the local authorities.

Despite Fishler's and the neighbors' efforts, ECA was able to obtain the necessary permits, and it began operating in the cul-de-sac. Believing that the resulting noise and traffic "ruined the neighborhood," Fishler continued to "protest" ECA. He did so by displaying two yard signs—one in the front and one in the back of his property—stating,

TROUBLED TEEN MONEY MACHINE BECOME DISABLED FOR ONLY $10,000/MONTH

and another sign at the front of his property stating, "DELIVER US FROM EVA." These signs have remained on Fishler's property for many years. Additionally, whenever Fishler saw Ragsdale, he would hold up his middle finger and sometimes mouth or shout profanities at her. Fishler exhibited the same behavior toward others on ECA property and vehicles leaving or arriving at ECA. Fishler would also raise his middle finger toward the ECA building whenever he drove past it. Fishler did not alter this conduct even after ECA responded by installing security cameras. [Further details omitted. -EV] …

[T]he district court issued a stalking injunction against Fishler containing the following provisions:

Personal Conduct Order. Do not stalk [Ragsdale]. This means you must not follow, threaten, annoy, harass, or cause distress to [Ragsdale]. For a legal definition of stalking, see Utah Code 76-5-106.5. No Contact Order. Do not contact, phone, text, mail, e-mail or communicate either directly or indirectly in any way with [Ragsdale]. Do not contact, communicate with, or gesture to others as they enter or exit [ECA] or while they are located on the ECA premises….

On appeal, the court upheld much of the order, but reversed part of it on First Amendment grounds:

In assessing whether a civil stalking injunction violates the respondent's free speech rights, district courts must, "at a minimum, determine whether each provision of a proposed injunction is content-based or content-neutral, and evaluate each provision under the corresponding level of scrutiny." …

[The No Contact Order] is content-neutral as it prohibits Fishler from contacting Ragsdale and others on, entering, or leaving ECA property in any way—regardless of the substance of the message. The provision thus does not distinguish a friendly wave "hello" from the rude hand gestures Fishler frequently employed….

[But a]lthough certain actions enjoined by [the Personal Conduct Order] are not entitled to First Amendment protection, other actions constitute expressive conduct, the prohibition of which, in this context, does not withstand strict scrutiny….

[T]he prohibition against following Ragsdale does not warrant any further First Amendment scrutiny. Similarly, true threats are a category of speech that has historically fallen outside the bounds of First Amendment protection…. Thus, to the extent the Personal Conduct Order's prohibition of threatening or harassing Ragsdale falls within the parameters of true threats, it too withstands Fishler's First Amendment challenge.

[But as to] the prohibition against annoying or causing distress to Ragsdale[,] "[l]isteners' reaction to speech is not a content-neutral basis for regulation." And here, the prohibition on annoying and causing distress focuses solely on the impact any speech or expressive conduct by Fishler would have on Ragsdale—Ragsdale's reaction is the only means by which it may be determined whether what Fishler did annoyed or caused distress. Accordingly, this prohibition is content-based.

Furthermore, the prohibition against annoying or causing emotional distress to Ragsdale does not withstand strict scrutiny because, in the context of this case, it is not the least restrictive means of furthering "the state's compelling interest in protecting its citizens from threatening or harmful behavior." In light of the No Contact Order, Fishler is already enjoined from contacting Ragsdale in any manner either directly or indirectly. The additional prohibition against annoying or causing distress could potentially enjoin Fishler from talking about Ragsdale (or ECA more generally) to others.

For example, any appearances Fishler might make before the local governing authorities to complain about ECA's presence in his neighborhood could likely cause Ragsdale, as the owner of ECA, emotional distress or would, at the very least, annoy her. Given the facts of this case, the No Contact Order is sufficient to address the complained-of course of conduct, and these additional prohibitions in the Personal Conduct Order go beyond what is necessary. See Towner v. Ridgway (Utah 2008) (holding that the civil stalking injunction did not violate the First Amendment because it enjoined the respondent from communicating directly to the petitioner but did not enjoin him from speaking about the petitioner)….

The court also upheld the trial court's refusal to order Fishler to "take down the signs currently posted on his property and refrain from posting any additional signage on his property that he knows or reasonably should know threatens, annoys, harasses, communicates to, or otherwise causes [Ragsdale] distress":

As concerns the prohibition against annoying or causing Ragsdale distress, for the same reasons articulated … above, this constitutes a content-based restriction on Fishler's speech.

Moreover, as concerns the prohibition against communicating to Ragsdale, the district court made no finding regarding whether the signs were communications directed at Ragsdale and the other identified persons. {Additionally, the three signs that remain on Fishler's property—two suggesting that one can become "disabled" for $10,000 per month and one stating, "DELIVER US FROM EVA"—cannot be said to constitute true threats.} …

For more on such overbroad injunctions restricting speech, see this article.

The post Utah Court Strikes Down Injunction Banning Speech "Annoy[ing] or Caus[ing] Distress" to Neighbor Running a Mental Health Residential Treatment Center, appeared first on Reason.com.

[Eugene Volokh] Cornell Students and Student Group Face Possible Suspension for Disrupting Event

[UPDATE 3/14/2025, 7:25 pm: My headline originally erroneously said "Suspended," but the students and the group at this point have been referred for possible disciplinary measures, and face the possibility of suspension; they haven't actually been suspended. My apologies for the error, and thanks to reader Jordan Brown for the correction.]

From a statement released Tuesday by the Cornell Interim President:

The Pathways to Peace event Monday night provided an educational discussion on the complex history of the Israeli-Palestinian conflict and negotiations. Cornell successfully hosted a panel of esteemed former Middle East leaders and U.S. ambassadors who shared historical perspectives and unique insight for achieving a peaceful future. The hundreds of members of the Cornell community who came to Bailey Hall to listen, learn, and respectfully debate experienced an evening of information, introspection, and critical self-examination.

Unfortunately, the event was marred by disappointing disruptions. The ability of speakers to present opinions and ideas, and to engage in thoughtful dialogue with the university community, is critical to the educational process and fundamental to university life. Individuals attempting to shout down speakers and disrupt dialogue seriously compromise our values. Those who disrupted the Pathways to Peace event were swiftly removed.

Cornell University Police identified 17 people responsible for this unacceptable disruption. Nine students will be referred to the Office of Student Conduct and Community Standards for appropriate action, including the imposition of interim measures up to and including suspension. Staff members involved in the disruption will be referred for disciplinary actions through Human Resources. Outside disrupters will be issued persona non grata status, barring them from Cornell's campus.

Additionally, for advertising and organizing this disruption, Students for Justice in Palestine (SJP), a student-run organization, faces suspension as a registered campus organization.

Events like Pathways to Peace represent our ambition to embrace diverse viewpoints and engage in difficult conversations. Cornell must be a place where all voices can be heard and none are silenced.

For more, see the Ithaca Voice (Judy Lucas):

Protestors criticized the university for inviting former Israeli Foreign Minister Tziporah Livni to participate in the panel, calling Livni a war criminal. Livni, a former center-left Israeli leader, was previously accused of war crimes in a suit filed by a UK pro-Palestinian group for her role in a major military offensive in Gaza in 2008….

The event featured Livni, former Palestinian Authority leader and prime minister Salam Fayyad and former U.S. ambassador to Israel Daniel B. Shapiro. The panel was moderated by retired diplomat Ryan Crocker, who served as U.S. ambassador to a host of Arab nations.

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[Eugene Volokh] Indiana Defendants Get "Benefit of Hindsight When It Reveals Their Conduct Was Necessary in Self-Defense," …

["even though that necessity wasn't fully apparent in the moment."]

A brief excerpt from Wednesday's 11,000-word Indiana Supreme Court decision in Turner v. State, written by Justice Derek Molter:

This is a case about a good guy with a gun shooting a bad guy with a gun when the only choices were to shoot or be shot.

Antonio Turner was one of three students studying organic chemistry at a classmate's home, tucked away in a quiet neighborhood just outside of Indianapolis. While they were studying, the classmate's jealous love interest, Dequan Briscoe, repeatedly called her. And when he learned Turner was at her home, Briscoe twice threatened to "pull up" on Turner—to attack him—which Turner heard over the speakerphone.

Shortly after hearing the threat, Turner walked outside to his car, and moments later, he sensed that the unfamiliar car screeching towards him down the sleepy street was an ambush. Since he didn't have time to reach the house and had nowhere to hide, he turned while running and fired four shots into the car, wounding Briscoe. Turner fired based on his intuition—he didn't recognize the car, couldn't see through its darkly tinted windows, and wouldn't have recognized Briscoe if he saw him. But that intuition proved prescient. It turns out Briscoe was aiming a handgun to shoot Turner just before Turner began firing.

Because Turner shot Briscoe before Briscoe shot Turner, Turner is the defendant rather than the victim in this case; the State charged Turner with battery by means of a deadly weapon, a Level 5 felony. And following a bench trial, the magistrate judge convicted him. Yet the judge agreed with Turner that, in hindsight, it was necessary for Turner to fire at Briscoe to avoid being shot.

But the judge rejected Turner's self-defense justification because, without the benefit of hindsight, it was objectively unreasonable for Turner to fire at a car into which he couldn't see. Turner made the best choice, the judge explained, and it was unfortunate that his only choices were a felony or funeral. But that paradox followed from the objective reasonableness standard governing Indiana's self-defense law, and the law gave the judge no choice but to convict, he believed.

Fortunately for Turner, that isn't how Indiana's self-defense law functions. To be sure, the judge was correct that the self-defense statute justifies using force when the defendant's actions are objectively reasonable in the circumstances. And many cases explain we don't use hindsight to second-guess the reasonableness of the defendant's decisions in the heat of the moment.

But this case presents a question of first impression in Indiana: Do we deprive defendants of the benefit of hindsight when it reveals their conduct was necessary in self-defense, even though that necessity wasn't fully apparent in the moment? The answer is that we do not, and we base that answer on a sentence in the self-defense statute that our Indiana appellate courts have never interpreted before, which says: "No person, employer, or estate of a person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary."

This, of course, is just a short excerpt; read the full opinion for more. And here's an excerpt from Judge Christopher Goff's concurrence in the judgment:

Should the merits of a self-defense claim depend on the defendant having acted with knowledge of the justifying circumstances, even if his conduct is objectively justified in hindsight? Facing this very question well over a century ago [in 1892], this Court held that a defendant who acted out of no apparent necessity to preserve life or limb may not "interpose the defense of self-defense" simply because it "subsequently appears that there was actual danger, of which he was at the time ignorant."

The Court today reaches the opposite conclusion, holding sua sponte that, under an obscure and otherwise dormant provision of our self-defense statute, "Turner's use of force was justified not because his belief that he was about to be shot was reasonable but because that belief was correct, and force really was necessary to protect himself." Defendants like Turner, the Court opines, enjoy "the benefit of hindsight" when the evidence "reveals their conduct was necessary in self-defense, even though that necessity wasn't fully apparent in the moment."

In my view, the statutory provision on which the Court relies is less than clear. And its novel interpretation, I fear, will create uncertainty in the law, leading to potentially harmful consequences. What's more, even if I were to agree with the Court's interpretation, its holding rests on a flawed premise—there's simply nothing in the record to support the conclusion that "Turner avoided being shot by Briscoe only by shooting Briscoe first." For these reasons, and because I believe the Court's novel statutory interpretation is entirely unnecessary to give Turner relief, I concur only in the Court's judgment….

Finally, the Court's novel interpretation of the statute, in my view, is entirely unnecessary to give Turner relief….

Indiana's self-defense statute establishes "both an objective and subjective standard" to evaluate the reasonableness of a defendant's belief that force was necessary to protect against the imminent use of unlawful force. Under the subjective standard, the defendant must have "actually believed" force was necessary. And under the objective standard, the defendant's belief must be one that a "reasonable person" would form given the circumstances.

Applying these standards, the circumstances here, in my view, clearly justify Turner's actions: he knew that Briscoe owned a gun; he overheard Briscoe make angry, profanity-laced remarks to Nyah (his study partner) over the phone; Briscoe threatened to "pull up on" Turner, which Turner understood to mean that he'd be "coming to harm" him; and, not long after that tense exchange, a vehicle sped up to Turner—its engine revving and tires squealing—just as Turner had walked away from his own car parked in the cul-de-sac of a suburban, residential neighborhood.

Though Turner couldn't definitively say whether it was Briscoe in the car or whether Briscoe was pointing a gun at him, as the trial court stressed, the law didn't require him to. The touchstone of self-defense is reasonable belief, not absolute certainty. And Turner testified that, given the circumstances, he believed it "had to be" Briscoe "pulling up," that there was "[no] way it wasn't." In short, Turner wasn't acting based on "threats alone," as the trial court found, but, rather, on the circumstances before him at the time, which he reasonably believed placed him in grave danger….

Bryan L. Cook represents defendant.

The post Indiana Defendants Get "Benefit of Hindsight When It Reveals Their Conduct Was Necessary in Self-Defense," … appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: March 14, 1932

3/14/1932: Justice Benjamin Cardozo takes oath.

Justice Benjamin Cardozo

The post Today in Supreme Court History: March 14, 1932 appeared first on Reason.com.