Eugene Volokh's Blog, page 149

[Josh Blackman] "You think it's time to take a seat on the bench? Lol"

["AUSA-1 hoped to convict Mayor Adams as the last notch in his belt before he took a 'seat on the bench.'"]

On Friday, the Department of Justice urged Judge Ho (SDNY) to dismiss the indictment against Eric Adams without prejudice. DOJ has apparently submitted under seal a series of communications to and from unnamed former DOJ officials. Let's just say these emails and letters do not put the officials in the best light. Here, I want to focus on one exchange in particular:

Similarly, prior to making the public claim that only a "coward" or "fool" would sign the Motion, a recently-resigned AUSA from the SDNY prosecution team (AUSA-1) wrote the following regarding the letter that SDNY filed with the Court on January 22, 2025: "[U.S. Attorney-1] obviously has political ambitions, and I think suggesting we doubt that just costs us credibility." . . .

A separate exchange of text messages beginning on November 8, 2024 illustrates why AUSA-1 was later interested in using public filings to send messages to President Trump. Just days after the 2024 election, in response to a text message asking if it was "time" for AUSA-1 to "take a seat on the bench," AUSA-1 responded: "Got to convict Adams before I can think about anything else." Ex. D. . . .

On November 8, 2024, AUSA-1 received a message with the following question: "You think it's time to take a seat on the bench? Lol." Ex. D. AUSA-1's response included, "Got to convict Adams before I can think about anything else." Id. . . .

It is thus apparent from the context that, just as AUSA-1 hoped to convict Mayor Adams as the last notch in his belt before he took a "seat on the bench,"

U.S. Attorney 1 is Damien Williams. AUSA-1 is a Hagan Scotten, whom I wrote about here. I don't think I had ever heard of Scotten before, but he was apparently talked about as as nominee for the Second Circuit.

It is true that individuals see their work in government service as a potential audition for a judicial appointment. Was the Eric Adams prosecution an audition? Or was the resignation the audition? It is impossible to escape the audition trap, right?

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[Eugene Volokh] "The Court Shouldn't Bruen-ize the Free Exercise Clause"

[Some thoughts from Michael McConnell, Douglas Laycock, Stephanie Barclay, and Mark Storslee.]

I'm delighted to be able to pass along this analysis from Profs. Michael McConnell, Douglas Laycock, Stephanie Barclay, and Mark Storslee. (McConnell and Laycock are quite likely the two most prominent Religion Clauses scholars in the nation.) The Court is poised to overrule Employment Division v. Smith, and return to the Sherbert/Yoder regime, under which religious objectors have a presumptive constitutional right to exemptions from generally applicable laws. It's therefore tremendously important to figure out what the rules are for when that presumption is rebutted; their reasoning speaks directly to that question:

With opening briefs filed this week in Mahmoud v. Taylor, the Supreme Court will have another opportunity to consider the appropriate constitutional standard for evaluating free exercise claims under the First Amendment. In Mahmoud, the Court will decide whether public schools may compel students to participate in instruction on gender and sexuality that violates their parents' religious convictions.

Some scholars and several prominent appellate court judges have recently argued that the Supreme Court should abandon strict scrutiny and Bruen-ize the First Amendment—i.e., incorporate the Second Amendment constitutional doctrine from New York State Rifle & Pistol Ass'n v. Bruen into various parts of the First Amendment (though these arguments have largely related to the First Amendment's speech protections).

Although we differ in some ways with respect our approach to constitutional interpretation, we all broadly support looking to the history surrounding ratification as a primary method of developing constitutional doctrines. But we have serious concerns about the Court adopting a Bruen-type historical analogue approach in the free exercise context. In our view, doing so would create a test that would be unworkable, theoretically dubious, and—ironically—inconsistent with the best historical understanding of the meaning of the Free Exercise Clause.

Bruen's Basic Framework

Under Bruen's test, to regulate protected Second Amendment activity, the government must demonstrate that its modern regulation is consistent with the nation's historical tradition of firearm regulation. This involves a two-step inquiry. First, courts must assess whether the "plain text" of the Second Amendment applies to the conduct in question. Second, where the initial requirement is met, the government must identify historical restrictions on the right from the Founding era or the Reconstruction era (when the Fourteenth Amendment was ratified) that are "relevantly similar" to the challenged regulation in order to save the law.

Crucially, Bruen also insisted that at this second step, judges ought to eschew so called "means-ends scrutiny" and related doctrines such as strict scrutiny, compelling government interest analysis, and interest balancing. Instead, they ought to rely solely on historical analogues of regulations. Modern factual considerations, such as the government's need to implement the regulation or the fit between the regulation and the government's interest, are not part of the analysis (although we find it impossible to believe courts will ignore such concerns in practice).

In United States v. Rahimi, the Court clarified that Bruen's historical analogue approach is a search for "the principles that underpin our regulatory tradition," not an unguided hunt for whatever historic regulations happened to exist at the relevant period. We think Rahimi's attempt to rescue Bruen from a focus on brute historical facts alone was a positive development. After all, originalism is a search for meaning, not history for its own sake. Even so, we do not think that Bruen's approach easily translates to the free exercise context, for at least two reasons.

A Bruen Approach Is Incapable of Grappling with Some of Our Nation's Tradition that Does Not Live Up to the Meaning of Free Exercise Protections

First, Bruen instructs courts to focus primarily on "the Nation's historical tradition of … regulation"—defining the boundaries of a right in terms of laws that existed at the relevant historical period. But Bruen's approach has no good way — maybe no way at all internal to its premises — to distinguish times and events when historical government regulation was honoring constitutional rights from times and events when we were violating them, sometimes flagrantly.

Just consider a few examples from the free exercise context. One: almost every state had blasphemy laws at the Founding and well into the nineteenth century. Another is that teachers caned and expelled Catholic children in public schools for refusing to read the King James Bible—and courts upheld those actions. Our history and tradition includes the long-running persecution of the Mormons (members of the LDS Church). It includes attempts to impose Protestant forms of governance on Catholic Churches, to force all children to attend public schools, and to stamp out the Native American sun dance. We could go on, but we think the point is plain.

The fact that we can point to certain historical analogues of government regulation in support of such practices, either at the Founding or later, does not mean those regulations were living up to the constitutional promise of free exercise. Sometimes practices flying under the banner of "tradition" are nothing more than flagrant violations, made possible by bigotry or unreflective inertia.

To be sure, historical regulations that existed contemporaneous with ratification might sometimes provide limited indirect evidence about the Constitution's meaning. But determining the value of that evidence requires a serious attempt to discern the positive meaning of a constitutional provision. And just as importantly, it sometimes requires recognizing that the full implications of a constitutional right—even from the moment of its ratification—may not have been immediately accepted or fully understood.

Constitutional rights are aimed at remedying historic abuses. And the defenders of those abuses do not instantly acquiesce or comply as soon as the new amendment is ratified. They often carry on as before, making history and tradition. The will to enforce the newly announced right, or even the ability to understand its implications, may be long delayed. After all, the longest lasting history and tradition of the Reconstruction Amendments is still Jim Crow.

Nor was any of this news to the Framers. Madison, for example, noted in introducing the Federal Bill of Rights that while many states already had their own bills of rights, there were "few particular states in which some of the most valuable articles have not, at one time or other, been violated." Despite recognizing that enumeration alone could not guarantee rights, Madison nonetheless advocated for the inclusion of a federal Bill of Rights in the Constitution to lessen the chances of rights violations. He was candid, however, that the Founding era government, engaged in a new experiment of popular sovereignty, often acted in ways that fell short of the constitutional ideal. Containing no obvious way of weeding out those shortfalls, a Bruen-style approach risks entrenching them.

Strict Scrutiny Is the More Historically Justified Judicial Doctrine

Some jurists and scholars have criticized strict scrutiny as a judge-made doctrine, and praised Bruen, in contrast, as being rooted in history. But the truth is, Bruen's two-part test is a judge-made doctrine too. Identifying a relevant analogue requires a theory about what matters and what is incidental, and a bare knowledge of historical facts and episodes cannot supply that History does not and cannot dictate answers to any of those questions.

The irony is that incorporating a Bruen approach into the Free Exercise Clause risks ignoring the ways that something like strict-scrutiny analysis is the best doctrinal tool for implementing the Free Exercise Clause's historic meaning.

It is true that, as Bruen noted, strict-scrutiny as a modern doctrine emerged in the twentieth century, not long after the First Amendment was incorporated against the states through the Fourteenth Amendment. But some of us have argued that the founding-era approach to free exercise bears a conceptual similarity to strict scrutiny. Most of the early state constitutional protections for free exercise contained "provisos" that limited the scope of the right to actions that did not invade the natural rights of others or endanger the "peace and safety of the State." In other words, the exercise of religious is protected unless it produces some kinds of harm.

And Founding-era courts likewise protected religious liberty in ways that resembled modern strict scrutiny analysis in other important respects, including asking evidentiary questions that looked like some version of means-ends scrutiny.  For example, an early New York case about the priest-penitent privilege noted that the practice of confession often resulted in voluntary remediation, while punishment of the priest would be futile.

In contrast, we are aware of no recorded court decisions that protected religious exercise by implementing something like the historical regulatory analogue approach. And when Madison debated with George Mason about the limits of religious liberty, he did not articulate a list of prior laws that provided analogies to limit such liberty. He focused on the types of reasons for which government could regulate religious exercise. And those reasons, he thought, should be exceedingly limited. The "happiness" of society was not sufficient. Regulation needed to be justified based on government interests like the need to preserve "equal liberty" of other citizens, or because the religious exercise could "endanger[]" the "existence of the state."

To be clear, we do not deny that different doctrinal tools may sometimes be appropriate, even in the free exercise context. For example, identifying historical analogues can be a valuable way of identifying absolute constitutional rights, such as the ministerial exception. Under the ministerial exception doctrine, in certain contexts the government is flatly prohibited from forcing a religious organization to hire or maintain an employment relationship with an individual that the church does not wish to have as its leader. But note that in that context, the historical analogue does not look to a background of historic regulation. Instead, it involves identifying a zone of protected private activity in which the government cannot intrude.

The regulatory historical analogue approach in Bruen functions in the opposite manner. Rather than looking for historic analogues of protected activity, Bruen looked to the universe of historic regulation, then defined permissible modern regulation in those terms. At first glance, that kind of approach might seem attractive to those who believe in a robust version of the free exercise right. But the reality is something closer to the opposite.

The key insight involves understanding the flip-side of Bruen. By focusing on historic regulation rather than protected conduct, Bruen's approach creates a limited permission for regulation rather than a limited prohibition on governmental means and ends. In the Second Amendment context, this has meant a limited range of permissible government action, because there was so little gun regulation in the early years of the Republic. But for reasons we have already explained, in the free exercise context, the results will be a mixed bag, sometimes protective of the liberty, but often not.

In some areas the regulatory historical analogue approach might even open the door to religious persecution. The American history and tradition toward Native religion, Catholicism, and Mormonism was not a model of respect for the rights of others. An approach that would hold up blasphemy laws or laws discriminating against religious minorities as presumptively permissible is hardly an approach protective of religious freedom. Yet that is the approach Bruen's framework would seem to invite.

In other areas of modern regulation, there may be no relevant historic analogue that government can point to, at least at a low level of generality. That presents a different quandary under Bruen, one related to limits on judicial discretion. In such a context, construing historical analogues at a low level of generality might mean that any regulation limiting religious exercise would be categorically invalid. That approach would overprotect religion as applied to whole swathes of regulation unknown to the founding generation. For example, the legal category of "child abuse" did not exist until well after the Founding. That does not mean that religiously-motivated child abuse, however severe, should now get a free pass.

That leaves the second option. On this approach, courts can dial up the level of generality to make modern-day regulation more permissible even if it is more loosely analogous. We think this result the more likely one after Rahimi. In the free exercise context, however, that approach means far less protection for religious claimants, and a categorical affirmance of nearly all modern regulations limiting religious exercise.

Consider this level of generality dilemma in the context of parental rights, relevant to Mahmoud. There were no public schools in the United States before the 1830s, and in some parts of the country until after the Civil War, and the history of public school education in the late nineteenth and early twentieth centuries was infected by a Protestant hegemony that brooked little dissent. That history and tradition would not lead to a happy result in Mahmoud.

It is far more workable, and more consistent with constitutional text and history, for courts to force government to prove with a robust evidentiary showing that a regulation that limits religious activity is a narrowly tailored means of actually protecting an interest like the peace and safety of the state. That is what historical materials concerning the meaning of free exercise point towards. And that, more or less, is what strict scrutiny requires.

[* * *]

See, e.g., Mark Storslee, History and the School Prayer Cases, 110 Va. L. Rev. 1619, 1684–1691 (2024) (discussing the practice of compelled religious observance in nineteenth century public schools).

See Stephanie H. Barclay, Constructing Constitutional Rights, Harv. L. Rev. F. (forthcoming 2025) (quoting 11 Documentary History of the First Federal Congress of the United States of America: 4 Mar.–3 Mar. 1791, at 825 (Charlene Bangs Bickford et al. eds., 1992) (emphasis added)).

Id. (citing 11 Documentary History of the First Federal Congress 825 (emphasis added). Conversely, while Founding-era governments often exceeded their legitimate authority in infringing on rights, they also sometimes stopped short of the limits of their authority. Justice Barrett has recognized this point, noting that the Founding era government could have chosen not to enact a regulation because it believed the regulation unnecessary, rather than because it felt the regulation would be constitutionally prohibited. See United States v. Rahimi, 602 U.S. 680, 739–40 (2024) (Barrett, J., concurring).

See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1414–15, 1511–13 (1990); Douglas Laycock, The Supreme Court's Assault on Free Exercise, and the Amicus Brief That Was Never Filed, 8 J.L. & Religion 99, 102 (1990); Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1795–96 (2006); Stephanie  H. Barclay, Replacing Smith, Yale L.J. F. (2024) [hereinafter Barclay, Replacing Smith]; Stephanie H. Barclay, Constitutional Rights as Protected Reasons, 92 U. Chi. L. Rev. __ (forthcoming 2025).

See Barclay, Replacing Smith (collecting sources).

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[David Bernstein] Freedom of Speech and Campus Antisemitism

People love to accuse me of hypocrisy on campus speech and antisemitism, given my longstanding support for speech over conflicting antidiscrimination laws, but my position remains consistent.

There are three separate but related issues with regard to campus antisemitism and speech (note that vandalism, threats, disruptive behavior etc., aren't in the ambit of free speech, nor is enforcing content-neutral reasonable time, place, and manner restrictions on protests an infringement of freedom of speech).

Q. Should speech (even grossly offensive speech) be protected vs. claims that speech, as such, creates a hostile environment, including vs. Jews?
A. Yes. Universities should not be held liable for permitting even grossly offensive speech.

Q. Should universities be held liable for discrimination for treating Jews differently when they complain of a hostile environment than how they treat other groups?
A. Yes, because that's a content-neutral question of equal treatment as required by civil rights law, not suppressing speech. Whatever policies a university has, formal or informal, they can't be different for Jews than for everyone else.

Q. Third, is the proper solution to avoid the latter problem to protect speech equally or to suppress speech equally?
A. Protect speech equally.

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[David Bernstein] Downplaying Antisemitism at Columbia

The Trump Administration has announced that it's suspending $400 million in federal grants to Columbia University in response to Columbia's failure to protect Jewish students from harassment and discrimination as required by federal law. I think Columbia richly deserves this, but I don't know whether this is lawful, or whether federal law requires hoops to be jumped through before such sanctions can be levied.

In this post, though, I want to respond to some of the left who have seen denying that Columbia has an antisemitism problem to begin with, despite my pointing to a report from the antisemitism task force at Columbia which, after it authors interviewed hundreds of Jewish Columbia students, found that antisemitism was "severe and pervasive."

It's remarkable the extent to which people on the left will wax eloquent about the lived experiences of this or that group, and how we should never question their interpretation of such experiences, but somehow when hundreds of Jewish students at Columbia report experiencing an intensely hostile environment, so much so that some left the dorms to live at home, some transferred, etc., suddenly the same folks will be not just skeptical, but entirely dismissive.

It's also remarkable the extent to which some folks on the left will insist that we understand current controversies over racism, sexism, Islamaphobia, homophobia, and so forth in light of the history of those isms and phobias, and be sensitive to the fact that we aren't starting afresh as if these isms and phobias were not strongly embedded in societal consciousness.

Meanwhile, we are supposed to interpret students openly supporting a genocidal antisemitic terrorist group on college campuses as if it's a natural reaction to Israel's (nonexistent) "genocide" in Gaza, without noting the long history of state-sponsored and popular antisemitism in countries from which many of the protestors originate, without noting the fact that the far left was successfully propagandized with Soviet antisemitism for decades, and without noticing the long tail of Nazi-style conspiratorial antisemitism that is reflected in much of the rhetoric one sees on campus.

In short, when it comes to Jews and Western Christian and Islamic civilization we are apparently supposed to be assuming we are working from an entirely blank slate, whereas with every other minority group we must be exquisitely sensitive to the burdens of history.

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[Josh Blackman] Today in Supreme Court History: March 8, 1841

3/8/1841: Justice Oliver Wendell Holmes's birthday.

Justice Oliver Wendell Holmes

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[Josh Blackman] Has There Never Been A Deferred Prosecution Agreement For A Public Official?

["That prospect explains the absence of deferred prosecution agreements involving public officials."]

Since Judge Ho appointed Paul Clement as an amicus in the Eric Adams case, I have been trying to find an answer to a question: has there ever been a deferred prosecution agreement for a public official. The United States routinely enters into civil consent decrees with public officials. And the United States enters into deferred prosecution agreements with government contractors. At least in the case of Boeing, the government was likely motivated by a concern that barring the aerospace giant would impact American interests.

But I've asked around, and could not find an answer to my question about DPAs for public officials.

Clement's brief makes this assertion:

There is an inherent risk that once an indictment has been procured, the prospect of re-indictment could create the appearance, if not the reality, that the actions of a public official are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents. That prospect explains the absence of deferred prosecution agreements involving public officials.

Clement does not offer a citation. I realize it is hard to prove a negative here. How can you show that something has never happened? What if the government has used a DPA for a public official? And though I take officer stuff carefully, Clement does not distinguish between elected and appointed officials. What about civil servants? Has there really never been any person in government who received a DPA from the federal government? And if the answer is yes, then why would Mayor Adams be different.

I often tell my students to never say the word never. If someone finds a single instance where something happened, your argument is shot.

Let's see what turns up.

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[Orin S. Kerr] Paul Clement Recommends Dismissing the Eric Adams Charges—But With Prejudice

[A new development in the Eric Adams case.]

Paul Clement has filed his court-appointed friend-of-the-court brief in the Eric Adams case, recommending that Judge Ho dismiss the case—but with prejudice, not without prejudice.  From the brief:

The government's own recent filings reflect a belief that this prosecution was initiated in bad faith. See Dkt.122 ¶5; see also Dkts.125-1, 125-2. Other information that has become public casts doubt on that claim and suggests the decision to dismiss the indictment was undertaken in bad faith. See, e.g., Dkts.150-3, 150-8. It is almost certainly beyond the judicial ken to definitively resolve that intramural dispute among executive-branch prosecutors. It is also unnecessary. Under either view, there is little justification for preserving the possibility of re-indictment by dismissing without prejudice. While the "salient issue" for the court concerns the decision to terminate, not initiate, the prosecution, Rinaldi, 434 U.S. at 30, if political considerations improperly influenced the initial decision to seek the defendant's indictment, then dismissal with prejudice would definitively eliminate that taint. And if improper considerations tainted the decision to seek dismissal, then there is a fortiori every reason to protect the defendant from the threat of re-indictment.

Three additional, closely related factors support dismissal with prejudice as the appropriate remedy here. First, the fact that this case involves a currently serving elected official raises distinct concerns that are eliminated by a dismissal with prejudice but exacerbated by a without-prejudice dismissal. Prosecutions of incumbent public officials are among the Justice Department's most sensitive undertakings and raise inevitable suspicions of political motivations or improper leverage over the official's discharge of his duties to constituents. Even the appearance that the prospect of re-indictment would cause public officials to be more attendant to the executive branch than to constituents is deeply troubling and raises serious accountability concerns. A dismissal without prejudice fuels those concerns by expressly preserving the possibility of re-indictment.

Second, dismissal with prejudice more closely resembles the options the executive can achieve unilaterally, while dismissal without prejudice leaves the accused subject to re-indictment at the executive's discretion. Nothing a court can do under Rule 48 can prevent the President from issuing a pardon that ends the prosecution and typically precludes further jeopardy for the offense (and even a conditional pardon must make any conditions explicit). Similarly, the unreviewable executive decision to refrain from prosecution leaves the individual's liberty untouched. Dismissal without prejudice, by contrast, leaves a once-indicted defendant in a uniquely vulnerable position.

Third, dismissal with prejudice best accords with the principal office of Rule 48(a) in particular and the separations of powers more generally—namely, the promotion of individual liberty. The prospect of the court ordering the prosecution to proceed runs directly counter to the court's usual liberty-preserving role in a criminal trial. Insisting on dismissal with prejudice, by contrast, preserves individual liberty while eliminating the problematic incentives and appearance issues occasioned by a without-prejudice dismissal of an incumbent public official.

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

[Measles outbreaks, navigable rivers, and a winey circuit split.]

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

This week on the Short Circuit podcast: the panel looks at the Sixth Circuit's look at a Cincinnati councilman's bribery conviction.

Allegation: In 2013, Long Island, N.Y. school bus driver has medical emergency, crashes into parked car. (No students harmed.) He passes three breathalyzers, and a medic tells the officer he really needs to be taken to the hospital. He's arrested anyway, suffers renal failure, and nearly dies. Despite passing drug tests, he's charged with DUI. Jury: Which was false arrest/malicious prosecution. Pay him $515k. Second Circuit (unreported): And pay his lawyers $850k. What do you call it when DEA agents put up a video camera that records the exterior of your property 24/7—without a warrant for 50 days? Second Circuit: As long as you don't call it a "search," call it whatever you want. Following measles outbreak in 2018-19 (the worst in 25 years), New York—the epicenter of the outbreak—repeals its religious exemption for its vaccination requirement for students attending public, private, or parochial schools. Amish parents and schools challenge the law, alleging that it violates their right to direct the religious upbringing of their children. Second Circuit: The Supreme Court has upheld vaccination requirements for 120 years, this one isn't any different. D.C.-area property management companies use targeted advertising to promote their rental housing to people aged 50 or younger. Fifty-five-year-old D.C. resident doesn't see the advertising, which she says might have led her to rent one of the units. Instead, she bought a home. She files a class action alleging age discrimination. Fourth Circuit: Not being targeted by targeted advertising is not an injury in fact. No standing. Allegation: After the air conditioning breaks at a Virginia prison, pretrial detainee complains about the heat and suggests other inmates do so as well. For his trouble, he gets 125 days in solitary. He sues for First Amendment retaliation. Fourth Circuit: And that very much states a claim. Case un-dismissed. Third Circuit: New Jersey's alcohol regulations (which, among other things, allow retailers to ship wine to consumers only if the retailer has a physical location in New Jersey) absolutely discriminate against interstate commerce, but we're pretty sure the Supreme Court has said that's okay in this context. Allegation: Innocent man spends nearly two years in hellish jail conditions after being accused of murder by a jailhouse informant who was high on meth (or withdrawing). Fifth Circuit: This Jackson, Miss. detective (as well as all officers everywhere) had "fair warning" that it's unconstitutional to rely on such an accusation (which was amply contradicted by other evidence), manipulate a photo lineup, and withhold the other evidence from a grand jury. It is also noted that, while we can't do anything with it, the argument that the doctrine of qualified immunity is itself unlawful is preserved. Three female Texas former inmates allege they were groped and sexually harassed by a guard and bring claims under the Eighth and Fourteenth Amendments. District court: No claims under the Eighth Amendment, but yes under the Fourteenth Amendment. Fifth Circuit: Nope, it was the Eighth Amendment. Harris County, Tex. sheriff's office employees allege a new overtime policy violates their civil rights in a long list of ways. One is that the cut in comp violates their freedom of association by denying them time "to enjoy private activities at their leisure." Fifth Circuit (unpublished): What? Dismissal affirmed. The latest Sixth Circuit news regarding a Rowan County, Ky. clerk who refused to issue marriage licenses to same-sex couples after Obergefell v. Hodges is that she and qualified immunity will not be exchanging nuptials. Allegation: Seeking to apprehend man who fired a gun in a Bottineau County, N.D. bar, officers mistakenly confront unrelated man who has a similar name (wrong middle name, wrong ethnicity, wrong build) and shoot him dead without warning. Eighth Circuit to his pro se mother: One can't bring constitutional claims against the feds. The tort claims are dismissed (without prejudice) for failure to exhaust administrative remedies. Des Moines, Iowa driver passes a police car and extends his middle finger for a stately eleven blocks as they tail him. At which point the officers arrest him (ostensibly for cutting off another car) and engage in the sort of manhandling you'd expect of cops who'd been on the receiving end of an eleven-block bird. First and Fourth Amendment litigation ensues. Eighth Circuit: And at the summary-judgment stage, we agree with the district court that the officers aren't entitled to qualified immunity. Might be they had absolutely no basis for the stop. (Some longform local journalism on the incident can be enjoyed here.) Ninth Circuit (over a partial dissent): Arizona's alcohol regulations (which, among other things, allow retailers to ship wine to consumers only if the retailer has a physical location in Arizona) absolutely do not discriminate against interstate commerce. (Longtime Short Circuit readers will remember a contrary Third Circuit opinion on exactly this question about 30 lines up from this one. This may be the first circuit split to break out within a single edition of Short Circuit.) Washington State man who is on supervised release is charged with assault and reincarcerated—without a jury trial. Man: Which I concede is fine under the Sixth Amendment. But Article III, Section 2, using slightly different wording, also guarantees jury trials, and there is no on-point precedent saying I can't invoke that. Ninth Circuit: There is now. Kirkland, Wash. church held a health insurance plan for its employees that excluded abortion coverage. Its carrier, however, then said the plan was no longer available. This was after the state passed the "Parity Act," requiring abortion coverage if an employer's plan covered maternity care, but before regulations clarifying the Act did not affect conscience-based objectors like the church. So, does the church have standing to challenge the Act because it indirectly made the original plan unavailable? Ninth Circuit (2021) (unpublished): Seems like it. Case undismissed. Ninth Circuit (2025): I guess not. There's other plans out there that exclude abortion. Just go get one. Dissent: They assumed there's standing from last time and no one briefed it this time. "Imagine everyone's surprise when they read the majority opinion." For more than 20 years, Montana, the United States, and hydroelectric dam owners have litigated about which government owns the riverbeds where the dams sit, and, thus, to whom the dam owners must pay rent. The case has gone from the Montana Supreme Court to SCOTUS and now to the Ninth Circuit. The question is whether the rivers (on a segment-by-segment basis) were "navigable in fact" at Montana's statehood in 1889. If yes, title goes to Montana; if no, the U.S. And the court says the feds have it. Powerful rare earth magnets make for a fun desk toy. They can also lead to necrosis in the intestines, sepsis, and death, when people (children) swallow them. To combat this, the CPSC limited the size and strength of magnets that could be sold. Tenth Circuit (2016): The CPSC ignored data showing that a rule might be unnecessary, so the rule is struck down. The CPSC went back to the drawing board and crafted a new rule. Tenth Circuit (2025): The new rule is fine, and following our recent precedent, the CPSC is constitutionally structured. Feds get a warrant to test DNA of a biker arrested at a Las Vegas, N.M. saloon to show he was illegally carrying a gun. Uh oh! The warrant was based largely on statements of an off-duty officer at the saloon that contradict what he said at the time of the arrest. District court: That violates the constitutional rule that warrants can't be based on intentionally false statements; DNA suppressed. Gov't: Surely, that rule doesn't apply to an off-duty officer? Tenth Circuit: It surely does, at least when he was involved in the investigation as this fellow was. And in en banc news, a D.C. Circuit panel decided to stay its mandate for at least 12 months in a case where it had earlier set aside a rule affecting an air tour management program. The panel said little about how in the meantime a majority of the full en banc court denied en banc review but nevertheless described the mic drop portion of the panel's opinion (that CEQ rules are not binding) as dicta.

Friends, here at IJ we believe that federal agents should not mistakenly SWAT raid an innocent family's home because agents couldn't be bothered to double check that they had the right address. Importantly, Congress shares this belief. In the wake of a series of wrong-house raids in 1973, it enacted legislation guaranteeing a remedy to victims of assault, battery, false arrest, and other intentional torts by federal law enforcement. So, we're happy to say that on April 29th the Supreme Court will hear Martin v. U.S. and consider whether lower courts have been ignoring Congress and inventing spurious reasons to kick righteous claims out of court. Click here for case info. And click here for our just-filed merits brief.

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[Eugene Volokh] Alleged Rape Victim Can't Litigate Against Sean Combs (P. Diddy) Pseudonymously …

[though she had been temporarily allowed to do so at first.]

From yesterday's decision in Doe v. Combs by Judge Lewis Liman (S.D.N.Y.) (for more on the split among the Doe v. Combs judges on this, see this post; for more on the split among federal judges generally on pseudonymity in lawsuits alleging sexual assault, see PDF pp. 78-85 of this article):

Plaintiff alleges that nearly 30 years ago, in or around June 1995, she was raped by Combs at a party at Elks Plaza in New York City…. Federal Rule of Civil Procedure 10(a) requires that the title of a complaint name all the parties to a litigation. This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." "[W]hen determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." "The people have a right to know who is using their courts." … The presumption is that a plaintiff will disclose her identity. "[P]seudonyms are the exception and not the rule, and in order to receive the protections of anonymity, a party must make a case rebutting that presumption." …

[One] factor, whether the litigation involves matters of a sensitive or personal nature, "favors the plaintiff's use of a pseudonym." … "Allegations of sexual assault are 'paradigmatic example[s]' of highly sensitive and personal claims'" …. "However, allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." … "A claim by an adult plaintiff to have been the victim of sexual abuse and to have suffered physical or psychological damage as a result, accompanied by sufficient facts to support that claim, is not enough to entitle a plaintiff to proceed anonymously. Were it otherwise, virtually all claims of adult sexual assaults would ipso facto proceed anonymously." …

[As to the risk of physical or mental harm, as opposed to privacy harm,] "[c]ourts in this District have held that speculative claims of physical or mental harms are insufficient to bolster a request for anonymity." Rather, "[o]vercoming the presumption of openness requires particularized evidence that disclosure will cause injury."

Plaintiff argues that there is a significant risk of physical harm if her identity is disclosed because Combs said to her after the rape that, "[y]ou better not tell anyone about this, or you will disappear," and counsel declares that an overwhelming number of his clients have stated that Combs threatened them similarly. However, the complaint relates to an event nearly thirty years ago; there is no evidence that Combs has been in contact with Plaintiff or made any threats in the last three decades. As important, the Court takes judicial notice that Combs is now under criminal indictment and is in federal custody at the Metropolitan Detention Center. The complaint identifies by name a number of persons who have accused Combs of rape and/or sexual assault. Plaintiff offers no evidence that those persons have been subject to threats as a result of their accusations. Although counsel declares generally that others have similar fears, the declaration is not sworn or made under penalty of perjury under the laws of the United States and is thus inadmissible. Plaintiff has not shown that Combs poses any threat to Plaintiff now or in the future or that the disclosure of Plaintiff's identity will create any harms to any third party.

Plaintiff additionally argues that having her experiences played out in a public forum, including "unwanted attention from the media," would result in "extreme psychological distress." However, Plaintiff relies only on "generic allegations" of mental harm applicable to any litigant bringing a sexual assault claim.

Similarly, the potential for media attention is present in every case against a public figure, but those are correspondingly the cases for which the public interest in understanding the allegations is highest. Without trivializing the difficulties of litigating a sexual assault claim against a high-profile defendant, the fact that a claim is of this type is not by itself sufficient to allow a plaintiff to proceed anonymously. Plaintiff has not introduced particularized medical or other evidence that revelation of Plaintiff's identity would cause "exceptional" emotional harm of the type that justifies anonymity….

In examining {whether the defendant is prejudiced by allowing the plaintiff to press her claims anonymously} …, "courts look at the damage to a defendant's reputation caused by the anonymous proceeding, the difficulties in discovery, as well as at the fundamental fairness of proceeding in this manner." … If Plaintiff's name is kept from the public, information about only one side may thus come to light. In particular, "persons with information about [Plaintiff] or [her] allegations that would be helpful to the defense but were unknown to the defendant might not come forward." "This asymmetry between the parties not only would prejudice [Defendants], but would hinder 'the judicial interest in accurate fact-finding and fair adjudication.'"

Moreover, "courts have found that defending against such allegations publicly, while a plaintiff is permitted to make her accusations from behind a cloak of anonymity, is prejudicial." "Additionally, the plaintiff's anonymity may undermine the defendants' efforts to mitigate the alleged reputational damage stemming from these serious allegations."

[As to the public interest, t]he public has an interest in knowing who has made an allegation against a public figure for, as the case comes before the Court, it may be that the allegation is untrue…. [T]he Court "must not … make any assumptions about whether [plaintiff's] allegations are true or false" … However, "[t]his interest is weighed against the public's competing 'interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes.'" …

Plaintiff allegedly was a victim of a heinous sexual assault and has kept that assault confidential. But Plaintiff cannot be granted anonymity merely because she brings a sexual assault claim, regardless of the severity of her allegations. The very gravity of the charges, combined with the fact that Plaintiff has presented no evidence of specific and concrete harm from disclosure of her identity and the severe prejudice to Defendants from keeping that identity confidential, undermine her claim to proceed anonymously….

Here is the preliminary decision from October, which temporarily allowed pseudonymity:

Plaintiff has made a preliminary showing sufficient to permit the filing of the complaint and the issuance of a summons.  The nature of Plaintiff's sexual assault allegations is highly personal, and Plaintiff states that Defendant Sean Combs threatened her with violence if she spoke of the alleged assault.  Given that Defendant is a public figure, revelation of Plaintiff's identity may also lead to significant, potentially harmful attention from media and the public.  However, Defendants have a right to be heard, the Court must take the interests of the public into account, and "the balance between a party's need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses."

Therefore, Plaintiff shall file a renewed motion to continue to proceed anonymously within 30 days after service of the complaint.  In the absence of a timely filed motion, the Court shall order the name of the Plaintiff be disclosed.

Mark Cuccaro, Michael Tremonte, Erica Wolff & Raphael A. Friedman (Sher Tremonte LLP) represent Combs.

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[Josh Blackman] Twenty States Challenge Termination Of Probationary Federal Employees

[The states claim that the terminations "impeded the ability of many Plaintiff states to support affected employees," thereby creating an Article III injury.]

Yesterday, a new complaint was filed challenging the firing of probationary employees. The plaintiffs in this case, however, were not the fired employees. They could challenge their removal through the usual civil service process, and not in federal court. But here, twenty states sued almost every department in the federal government.

What is the basis for Article III standing? Are the states suing parens patriae on behalf of their residents who work for the federal government? No, the states have articulated some sort of pocketbook injury:

This campaign is harming Plaintiff States, too. In addition to the informational and procedural injuries resulting from the deprivation of notice to which they were entitled, the lack of notice has impeded the ability of many Plaintiff States to support affected employees and thereby mitigate the financial and other impacts on state services. In fact, pursuant to federal statutory requirements, Plaintiff States operate rapid response teams that provide immediate services and resources to workers subject to mass layoffs. These services include job placement and job training services as well as connections to social services like unemployment insurance and health insurance. Because of Defendants' failure to adhere to the RIF notice procedures, many Plaintiff States have had to scramble and expend additional resources to identify even which agencies have conducted layoffs and which affected employees require support.

As best as I can tell, this is even more attenuated than anything Texas asserted. If this ground of standing is acceptable, than nearly any action the federal government takes, with regard to federal employees, can be challenged in federal court.

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