Eugene Volokh's Blog, page 165

[David Post] The Deal with Eric Adams is NOT a "Plea Bargain"

[Why the Eric Adams Affair is a Big Deal]

In response to my earlier post about the odious and reprehensible Eric Adams deal ("One Step Closer"), several commenters asked why this deal is any different from an ordinary plea bargain deal, in which the government agrees to drop the original charge(s) against a criminal defendant in return for the defendant agreeing to do or not do certain things - e.g., to cooperate with the prosecutors in various related cases, say, or to step down from a managerial role in a certain company, or to stop holding himself out as a financial adviser, etc. The government is agreeing not to prosecute Adams, and Adams is promising to cooperate with federal law-enforcement actions implementing its immigration policies. Why is everyone making such a big deal about it?

It's a very good question, to which there is a very good answer, which can help explain why the DOJ's actions are both unprecedented and chilling.

The Adams deal differs from business as usual in three important ways:

First, in an ordinary plea bargain, there's a plea; that is, the defendant pleads guilty to something that entails lesser punishment than would accompany the original charge.  You're indicted for murder, say, but in your plea deal the government agrees only to charge you with negligent homicide, and as part of your plea agreement you enter a plea of "Guilty" to that lesser charge.

Here, though, Adams has not entered any plea (other than his original "Not guilty" plea).  The government is simply going to ask the judge to dismiss the corruption charges against him, without requiring him to admit any guilt at all.

Second:  More importantly, in an ordinary plea deal, the court is asked to dismiss the original charges with prejudice.  This means that after the prosecutor drops the murder charge against you, that charge cannot be re-instated at a later date. You can be prosecuted later if you violate the terms of the plea deal; that is, if you promise as part of the deal to cooperate with prosecutors in related cases against your co-defendants but then refuse to do so, you can be prosecuted for that.  But the murder charge can't be revived once it has been dismissed.

Here, the DOJ is asking the judge to dismiss the criminal charges against Adams without prejudice.  That means that the original charges against Adams will be hanging over his head, and if he does not comply with the terms of the agreement, the prosecutors can re-institute the original corruption charges against Adams if it wants to.

Adams has, apparently, agreed to cooperate with federal ICE agents in a specific way - to allow ICE agents to interview detainess at the Rikers Island Detention Center.

Next week the Attorney General tells him: "ICE would like to have access to New York City high schools as well. And all their personnel records.  And tax records for all personnel."  And she reminds him - gently - that if he doesn't cooperate, they will reinstate the corruption charges against him.

You're not nervous yet?

And third: the quid pro quo requires Adams to take certain steps in his official capacity as Mayor of New York. The City of New York is not a defendant in the original action; only Eric Adams is, in his individual capacity. Adams is supposed to make official decisions based on his assessment, right or wrong, about the needs of the people of New York - not on the basis of whether it keeps his ass out of jail.

Sill not nervous?

The post The Deal with Eric Adams is NOT a "Plea Bargain" appeared first on Reason.com.

[Ilya Somin] Birthright Citizenship - A Response to Barnett and Wurman

[Their argument for denying birthright citizenship to children of undocumented immigrants born in the US has multiple weaknesses, including that it would also have denied it to former slaves.]

(NA)

In a recent New York Times op ed, legal scholars Randy Barnett and Ilan Wurman offer a partial defense of President Trump's executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. The Citizenship Clause of the Fourteenth Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." The standard view of this provision is that it covers everyone born in the United States that is subject to US law, and thus, as the Supreme Court explained in the 1898 Wong Kim Ark case "includ[es] all children here born of resident aliens, with the exceptions or qualifications… of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." The Indians "owing direct allegiance to their several tribes" were excluded because Indian nations were distinct sovereigns exempt from many US laws. For this reason, four federal courts have ruled against Trump's order.

Barnett and Wurman argue that only people born in the United States at a time when their parents have traded "allegiance" for "protection" truly qualify as under the jurisdiction of the United States. They contend that illegal migrants haven't made any such compact with the US, and therefore don't qualify.

Barnett and Wurman cite an 1862 opinion by Attorney General Edward Bates stating that "The Constitution uses the word 'citizen' only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other." Barnett and Wurman claim the Citizenship Clause is based on a social contract theory under which people enter into a "social compact" with the government, trading allegiance for the protection of the laws.

There are several flaws in Barnett and Wurman's "allegiance-for-protection" theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren't part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But  the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn't qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.

Another problem with their analysis is that they rely almost exclusively on sources interpreting the nature of citizenship before enactment of the Fourteenth Amendment, such as the 1862 Bates opinion. But the whole point of the Citizenship Clause was to expand the range of people eligible for birthright citizenship, to include former slaves. Thus, we should not assume that the Citizenship Clause is limited by previous understandings.

Barnett and Wurman do not consider extensive evidence from the period during and immediately after enactment, of the kind canvassed by scholars such as Michael Ramsey in his detailed 2020 article on this subject. That evidence, as Ramsey explains, strongly supports birthright citizenship for the children of undocumented migrants.

Barnett and Wurman argue that the traditional view cannot explain seeming anomalies, such as "the status of children born to citizens residing within enemy-occupied territory, who appear to have been considered citizens if their parents remained loyal… [a]nd… the status of children born to foreigners on foreign public vessels in U.S. waters, who were not considered citizens." These aren't actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).

Finally, it's important to remember that, as Gabriel Chin and Paul Finkelman have shown, the freed slaves whose children were covered  by the Citizenship Clause included a large population that had entered the US illegally, by virtue of being brought in after the federal government banned the slave trade in 1808. This shows that illegal entry was not considered a barrier to being under US jurisdiction.

Even if valid, the Barnett-Wurman theory only partially justifies Trump's order. That order excludes not just children of illegal entrants, but those born to migrants who entered legally on temporary visas. But their argument fails with respect to children of the undocumented, as well. At the very least, it is not strong enough to overcome decades of contrary precedent and practice, thereby subjecting hundreds of thousands of innocent children to the trauma of deportation.

The post Birthright Citizenship - A Response to Barnett and Wurman appeared first on Reason.com.

[Eugene Volokh] "It Is a Fact That the Body of Water … Is Called the Gulf of America"?

[Place names in American English are defined by what American English speakers call them, not what the President tells us to call them.]

I hope to blog soon about the First Amendment questions raised by President Trump's excluding the AP from the Oval Office and Air Force One because of the AP's refusal to call the Gulf of Mexico "the Gulf of America." (Turns out the precedents on this subject are complicated.) But I wanted to start by briefly discussing the underlying language question. Here's an excerpt from Wednesday's White House press briefing:

QUESTION: But isn't it retaliatory in nature, is the argument, because the reason that the AP was barred, which they said was because they're not using the phrase Gulf of America, they're using Gulf of Mexico in line with their standards. And so the question here is, is this setting a precedent that this White House will retaliate against reporters who don't use the language that you guys believe reporters should use?

And how does that align with the First Amendment commitment that you were just talking about?

KAROLINE LEAVITT: I was very upfront in my briefing on day one that if we feel that there are lies being pushed by outlets in this room, we are going to hold those lies accountable. And it is a fact that the body of water off the coast of Louisiana is called the Gulf of America. And I'm not sure why news outlets don't want to call it that, but that is what it is. The secretary of Interior has made that the official designation, and the Geographical Identification Names Server and Apple has recognized that, Google has recognized that.

Pretty much every other outlet in this room has recognized that body of water as the Gulf of America. And it's very important to this administration that we get that right, not just for people here at home, but also for the rest of the world. Sure.

Likewise, here's a Tweet from the White House Deputy Chief of Staff Taylor Budowich:

The Associated Press continues to ignore the lawful geographic name change of the Gulf of America. This decision is not just divisive, but it also exposes the Associated Press' commitment to misinformation. While their right to irresponsible and dishonest reporting is protected by the First Amendment, it does not ensure their privilege of unfettered access to limited spaces, like the Oval Office and Air Force One. Going forward, that space will now be opened up to the many thousands of reporters who have been barred from covering these intimate areas of the administration. Associate Press journalists and photographers will retain their credentials to the White House complex.

This, it seems to me, just isn't right. The name for a geographical feature is a linguistic and sociological question: In a particular language (or dialect), a thing's name is what speakers of that language call it. Sometimes speakers have different names for the same thing, in which case each is a legitimate name. (Among American speakers of English, for instance, the U.S. can be called "America," "the U.S.," "the States," and more.)

It is not a legal question that can be settled by a "lawful geographic name change," or a scientific question, or a question that can be resolved by the government. Pennsylvania may call itself a Commonwealth, but it's also a state. If the Governor of Pennsylvania insisted that everyone should call it a Commonwealth, we could still continue to call it a state. (As it happens, the U.S. Constitution calls all the states, expressly including Pennsylvania, "states," and the Pennsylvania Constitution also refers to it as a state at times, but that's not the important point; the important point is what American speakers of English call Pennsylvania.)

Likewise, the government of Turkey apparently wants people to call the country Turkiye, but that imposes no obligation on English speakers who have long called it Turkey—just as the Turks have no obligation to call the country they call "İngiltere" by its English name of "England." It's not a "lie" when Americans call the country Turkey, no matter what the Turkish government thinks. It's not "a fact that the" country that occupies that territory "is called" Turkiye. Indeed, it's a fact that it's not generally called Turkiye in English (though perhaps one day it might be, if English speakers eventually decide to go along with this).

Likewise, it's not a "lie," "irresponsible," or "dishonest" when people call the Gulf of Mexico "the Gulf of Mexico," and it's not a fact that it's called "the Gulf of America." It may be called that by President Trump and his subordinates in the Executive Branch, but he doesn't get to determine what's a "fact" on this for the rest of us.

Now that seems to me particularly clear for geographical features that are mostly outside the U.S., such as the Gulf. (What would we think if the Governor of Kentucky announced that the Ohio River should henceforth be called the Kentucky River?) But I don't think my point relies on that. The English name of "Turkey" isn't subject to the control of the Turkish government, and the English name of places even within the U.S. isn't subject to the control of the U.S. government.

When Mount McKinley was renamed Mount Denali by the Obama Administration, that didn't make it a "lie" for people to keep calling it Mount McKinley. The "fact," I expect, was that the mountain had two names at that point, with some people calling it one thing and others another. Now it's been renamed back to Mount McKinley, and the fact remains that it's both Mount McKinley and Mount Denali.

To be sure, over time place names do change, and a governmental renaming can help influence that. I expect very few people still call "New York" "New Amsterdam," except as some sort of historical joke. And of course a governmental decision can lead to one name having one political connotation and another having another. (In this respect, it's those decisions that are "divisive.") I am told, for instance, that this is so with the Burma vs. Myanmar question, and with .

Again, whether the President may retaliate this way against a media entity that doesn't go along with his wishes is a separate matter, which I hope to blog about soon. I also appreciate that the whole dispute is likely mostly absurdist political theater.

But, theater or not, framing this as a matter of "lies" or "dishonest[y]" or "misinformation" or rejection of "lawful" decisions strikes me as wrong. It mischaracterizes the way place names actually operate in English (and I expect in most other languages). And it seeks to arrogate to the government—or, more precisely, to the President—power over the English language and its speakers.

The post "It Is a Fact That the Body of Water … Is Called the Gulf of America"? appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: February 15, 1790

2/15/1790: Justice John Rutledge takes oath.

Justice John Rutledge

 

The post Today in Supreme Court History: February 15, 1790 appeared first on Reason.com.

[Eugene Volokh] Friday Open Thread

[What's on your mind?]

The post Friday Open Thread appeared first on Reason.com.

[Eugene Volokh] "On Emil Bove's Directive to Danielle Sassoon"

A perspective from the decidedly conservative Ed Whalen, writing at the National Review Online:

In an act of courage and integrity, Danielle Sassoon, Donald Trump's own hand-picked interim United States Attorney for the Southern District of New York, resigned yesterday over acting Deputy Attorney General Emil Bove's insistence that she move to dismiss without prejudice the pending criminal charges against New York City mayor Eric Adams. For fuller background on the matter, I encourage you to read Andy McCarthy's excellent Corner post yesterday.

Here I will offer some observations on the remarkable exchange between Bove and Sassoon: Bove's February 10 directive to Sassoon, Sassoon's February 12 letter to Attorney General Pam Bondi, and Bove's February 13 reply….

Read the post for more, and see also Whalen's Hagan Scotten, Lead Prosecutor of Eric Adams, Resigns in Awesome Letter. I don't have well-informed views on the controversy myself, but Whalen's views struck me as worth passing along, especially given that Whalen has supported at least some of the Trump Administration's other recent actions.

The post "On Emil Bove's Directive to Danielle Sassoon" appeared first on Reason.com.

[Josh Blackman] "Fools" Rush In the Department of Justice

[Another day, another resignation letter.]

The fallout continues from the Eric Adams case. Yesterday, I wrote about Danielle Sassoon's resignation, and Emil Bove's response. Today, Hagan Scotten, another Assistant United States Attorney resigned with a formal letter.

Again, there is much to discuss about the Sassoon-Bove exchange, which I will do in the future after I've had some more time to reflect. Here, I will reflect on one passage in Scotten's letter:

I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.

In recent years, the Department of Justice has prosecuted public officials in high profile cases. In several of those cases, the Supreme Court unanimously reversed the convictions.

In McDonnell v. United States (2016), the Court held that an "official act" must involve a formal exercise of governmental power on something specific pending before a public official. DOJ though it knew what was a proper exercise of government power. The Supreme Court disagreed. Could it be said that the scores of DOJ employees who brought this ill-fated prosecution were "fools"? Do you know who was the Chief of the DOJ Public Integrity Section at the time? Jack Smith. Was it foolish for a prosecutor to indict a former Governor in a case that garnered zero votes at the Supreme Court?

Jack Smith also led the prosecution of John Edwards, the former Senator and Vice Presidential Candidate. Smith relied on a dubious theory of campaign finance law, and the case yielded a deadlocked jury and a mistrial. (When Smith reported that he had enough evidence to convict Trump, I thought back to the Edwards case.) DOJ did not try that theory again. Was it foolish to bring this prosecution of a former public official when the jury wouldn't even convict?

Fast forward to Kelly v. United States (2020). This prosecution arose from the so-called Bridgegate scandal. The United States indicted members of Governor Chis Christie's administration. The Supreme Court unanimously reversed the conviction. Justice Kagan ruled that the scheme, which did not aim to obtain money or property, could not violate the federal fraud law. Was it foolish to indict a public official in a case that garnered zero votes at the Supreme Court?

In 2023, the Supreme Court decided Ciminelli v. United States and Percoco v. United States. These cases arose over scandal involving funding for a Buffalo Bills stadium project. In both cases, the Supreme Court unanimously reversed the convictions. Was it foolish to bring these cases that garnered zero votes at the Supreme Court?

Sensing a pattern? Another public corruption case pending this term, Kousisis v. United States, will likely yield a reversal. And I think the prosecution against Senator Menendez will meet a similar fate, if he is not pardoned. That doesn't even factor in Alvin Bragg's conviction of Trump, which will almost certainly not stand up on appeal. Lawfare all the way down. Maybe, just maybe, federal prosecutors are not in the best position to determine whether public official abused their power.

I appreciate that Scotten thinks that the Trump DOJ's approach to criminal prosecution is "foolish." I think much the same can be said for how federal prosecutors have approached public corruption cases for some time. And you don't have to take my word for it. Add up all of the unanimous Supreme Court rulings.

What we have here are two very different conceptions of the federal criminal justice system. On the one hand, Sassoon and her colleagues defend the traditional notion that "independent" prosecutors have the benighted power to define what is in the public good. They can define when public officials abuse their power, and can punish those actions with criminal sanctions. (We saw similar arguments during the first Trump impeachment.) Those defending Sassoon are invested in the DOJ club, and the continuation of its longstanding practices.

President Trump, through Bove, articulate a different perspective. The President, as head of the executive branch, can make his own determination of what is in the public good, and determine when public officials are abusing their power. Trump, perhaps more than any living person, is uniquely situated to make this sort of judgment. From the moment he was sworn in, he faced nonstop litigation (remember the Emoluments Clauses?) and two impeachment trials. After he left office, he was indicted in several courts based on novel and dubious theories of criminal liability. Who can forget the efforts to disqualify him under Section 3--which also led to a unanimous Supreme Court reversals? And despite all that happened, Trump still won re-election. Distinguished prosecutors thought they knew what was in the public good. The voters disagreed.

There will likely be more resignations. But I think little more is left to be said here. There are two diametrically-opposed views on display. And only one such view can prevail.

The post "Fools" Rush In the Department of Justice appeared first on Reason.com.

[Josh Blackman] FTC Bans Political Appointees From Being ABA Members

[The ABA has been planting the seeds of its own demise for decades. ]

In April 2023, I wrote a column for the ABA Journal titled "The ABA needs ideological diversity to ensure its future." I concluded:

If the ABA does not arrest its progressive lurch, the organization risks its own obsolescence. Model Rules will not be adopted. Evaluations of judicial nominees will be ignored. The accreditation monopoly will cease. And so on. A decline in membership will be the least of the ABA's problems. The ABA can either adapt to a new political reality or fade away like the guilds of yore.

Over the following year, I attempted to work within the ABA to reform the organization. I joined a caucus formed to promote viewpoint diversity within the ABA. I even spoke at the Midyear Meeting, where I explained in clear terms how the ABA's fixation on leftist politics and DEI would spell its demise. My remarks were met with shock. I was called a racist and worse. People objected to my presence on the panel. One person in the audience said that she would defend the ABA's DEI efforts till the bitter end, even if she was the last member. She may yet get her wish. For reasons I will discuss more fully another time, I resigned from the Caucus. In short, I thought the ABA was beyond repair, and my time could be spent better doing other things.

Today, Andrew Ferguson, the Chairman of the Federal Trade Commission, hammered what may be the first nail in the ABA's coffin.

For many years, federal antitrust enforcers and the private antitrust bar have enjoyed a cozy relationship facilitated by the Antitrust Law Section of the American Bar Association (ABA). The ABA's long history of leftist advocacy and its recent attacks on the Trump-Vance Administration's governing agenda, however, have made this relationship untenable. I therefore have concluded that it does not advance the interests of the United States government for Federal Trade Commission (FTC) political appointees to hold leadership positions in the ABA or to participate in ABA events. Accordingly, I prohibit FTC political appointees from holding leadership positions in the ABA, participating in or attending ABA events, or renewing any existing ABA memberships. I further prohibit the FTC from expending any funds to facilitate any employee's membership in the ABA or participation in, or attendance at, an ABA event.

The FTC is first, but it will not be last. I suspect all federal agencies will follow suit. Whatever difficulties the ABA had with membership numbers will become far worse. And I fully expect the Department of Education to revoke the ABA's accreditation power. The ABA will be left with little reason to exist--at least not at such a large size. There will be no real influence left.

It didn't have to end this way. The ABA could have arrested its decline. Instead, it was captured by leftist groups, and tied itself to the DEI mast.

The post FTC Bans Political Appointees From Being ABA Members appeared first on Reason.com.

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

[Pole cameras, real estate RICO, and the Eighth Circuit island.]

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

Of late, the Eleventh Circuit has been at the cutting-edge of excessive-fines litigation. And in a recent case—United States v. Schwarzbaum—the court got some important things right (e.g., that the Excessive Fines Clause does indeed apply to multi-million-dollar civil penalties). But it also got some important things wrong (e.g., the legal standard for determining what's excessive), and wrong in ways that are hard to square with Supreme Court precedent and the precedent of other courts. In a modest but insightful paper, two of IJ's excessive-fines mavens break things down and explain why Schwarzbaum might be a decent candidate for an en banc rethink—whether or not either side asks for it!

Friends, this week marks the official Tenth Anniversary of Short Circuit. Zounds! Please do come and join us at this big thing with important people we're doing live and in person on April 3 in D.C.

New on the Short Circuit podcast: Hear from Prof. Rebecca Haw Allensworth about her new book, The Licensing Racket.

Looking to read a super gross opinion about what a monster convicted sex-offender R. Kelly is? The Second Circuit has you covered. Teen spends 65 days in jail on suspicion of double murder at a Wheaton, Md. mall before fingerprints, DNA, and cellphone records clear him. (The perpetrator is caught and convicted.) Can the teen sue the detective who got him arrested for sloppy police work? Fourth Circuit: Nope, a school-resource officer said he recognized the teen from school and in the surveillance footage. Dissent: The school-resource officer didn't actually say that, and the detective's statement that a second officer also ID'd the teen is outright shenanigans. Lawsuit claims Prosper, Tex. school bus driver sexually abused two children and school officials failed to stop the abuse. District court: Wow, this looks super bad. MTD for supervisor liability is denied. Fifth Circuit: Qualified immunity. Also, the concurrence shouldn't be saying that if the plaintiffs find new evidence in discovery—while pursuing what's left of the case—that they could replead and bring these claims against the officials back in. A judge "is not a knight-errant." Concurrence: District courts can allow amended pleadings "when justice so requires," including "for the victims of a pedophile." St. Tammany Parish, La. is scandalized to learn that its public libraries not only had "Pride Month" displays but also carried LGBT-related books! Looking for ways to remove the members of the Library Board of Control, one newly elected councilman realizes that the council failed to stagger the board members' terms when the board was first created, as required by Louisiana law. The board is declared vacant, new members are appointed to staggered terms, and three of the ousted members sue for First Amendment retaliation. Fifth Circuit: No standing; the decision to stagger the board's terms does not create any individualized injury. Back in 1997, Austin, Tex. made it illegal for candidates for city office to raise campaign contributions more than six months before the general election. Fifth Circuit (2018): That violates the First Amendment. Austin: Okay, what if we extend it to a year? Fifth Circuit (2025): Still unconstitutional. Former San Marco, Tex. mayor was a prominent local businessman and notorious KKK member. He installed a Juliet balcony on his home with a wrought iron "Z" for his last name, which remains today, and which the home's current owners (non-KKK members) wish to remove. Alas, the home is in a historic district, and the local historic commission declines the request. District court: You can't sue about that, and even if you could, you lose. For one, you relied on a 1921 SCOTX case that can't possibly still be good law. Fifth Circuit (unpublished): They can, and they might not. "[P]recedent has no expiration date." Prisoners sue the Louisiana State Penitentiary, and after two trials the district court rules that prison conditions violated the Eighth Amendment, Rehabilitation Act, and Americans with Disabilities Act. The court enters what it styled a "Judgment" on liability but also a "Remedial Order" contemplating that the actual injunctive remedy would follow later after a special masters' report. Louisiana appeals. Fifth Circuit: There's no final judgment—and hence we have no appellate jurisdiction—until that remedy is actually ordered. Dissent: The district court has been dragging this case out for a decade, imposing major costs on Louisiana, and violating the Prison Litigation Reform Act; it's time for an appeal. Freight hauler in Kentucky pulls over to rest when he sees a car hit a ditch and flip. The driver asks if the hauler will hang onto a bag for him—a bag that appears to contain guns and drugs. The hauler declines. The driver asks for a ride, which the hauler also declines, after which the driver flags down another vehicle, steps in, and speeds away. The cops find the bag, and the driver is prosecuted; the hauler is the star witness. But wait! By then, the hauler had gotten into his own unrelated—but also gun-and-drug-related—legal trouble. It's raised (but not formalized) that perhaps the hauler could get a deal if he testifies against the driver. At the driver's trial, which results in a conviction, this subject is barred from cross-examination of the hauler. Confrontation Clause violation? Sixth Circuit: Um, yeah. New trial. After the FBI busts Detroit narcotics officers for robbing and extorting suspects and selling drugs themselves, some officers go to prison and some officers go into a newly formed unit with a whole new acronym—but no additional training, protocols, etc. Oh no! Members of the new unit are soon busted for serious corruption and misconduct. Can a woman whose home was raided after an officer lied to get a warrant—and who was then prosecuted after officers planted evidence and she refused to pay a bribe—sue the city? Sixth Circuit (unpublished): "Although the allegations in this case are profoundly troubling," no. When is an otherwise-lawful campaign contribution an illegal bribe? Sixth Circuit: When a jury says it is. Concurrence: That seems to be the law, and the Supreme Court should straighten that out. Dissent: It's actually our job to police that line, and this ruling is going to criminalize a lot of ordinary politics. The owner of a beer-serving coffee shop (!) in Lexington, Ky. sues the governor and several state officials, in their official and personal capacities, alleging that they revoked the owner's alcohol license in retaliation for criticism of the governor's COVID-19 response on social media. The lower court dismisses, holding that the owner's claims are barred by quasi-judicial, quasi-prosecutorial, qualified, and sovereign immunity. Sixth Circuit: The owner plausibly alleged that the governor and two other officials retaliated in violation of his clearly established First Amendment rights. No QI. Affirmed in part, reversed in part, and remanded. Concurrence/dissent: All that *and* two additional officials shouldn't receive absolute immunity. Last year, the Seventh Circuit, in a divided opinion, held that two prison officials might be on the hook for accidentally keeping a Wisconsin man on probation for nearly a year beyond his statutory maximum (leading to some jail time as well). Following a sua sponte order for en banc rehearing, the full court now holds that, actually, they get qualified immunity. Dissent: The officials were on notice that they'd been making systemic mistakes in calculating people's probation, and the majority's qualified-immunity jiu-jitsu slices the bologna a bit too thin. Allegation: Man fires gunshots from his house after a plainclothes officer bangs on the door to execute a search warrant. No officers are hurt, and after a 911 operator convinces him that it's police outside, the man and his wife come out peaceably. A Maple Grove, Minn. officer throws the wife, who is 38 weeks pregnant, down onto the concrete driveway on her belly and punches her in the back, causing agonizing pain. District court: If that's all true, that's excessive force. But because the complaint didn't say whether the officer was being sued in her official or individual capacity, you lose. ("[W]e have to obey the rules of the Eighth Circuit island" and "you've got to use the magic words. You didn't use the magic words.") Eighth Circuit (en banc, over a dissent): The case can proceed. We hereby renounce our clear-statement rule, which conflicted with SCOTUS guidance and put us on the wrong side of a 12-1 circuit split. Mille Lacs County, Minn. has a falling out with the Mille Lacs Band of Ojibwe (one of the six Mississippi bands of Chippewa), and the county sharply limits the Band's law enforcement abilities. The Band sues, and the county argues that the Band's reservation was disestablished by a series of treaties and laws between 1863 and 1902. While the case is pending, the state amends a law to give the Band the law enforcement authority it sought in the case. Eighth Circuit: Great, so the case is moot. And here's 15 additional pages of facts wading through the complex history about whether the Band's reservation has been disestablished, a question that will have to be resolved in a future, non-moot case. Concurrence: The facts are interesting but should be wrestled with based on the record developed in a non-moot case. A mother disappears to Mexico with her minor child, and, upon returning to the U.S., is indicted for international parental kidnapping. Yikes! The mother relies on a defense, applicable where "the defendant was fleeing an incidence or pattern of domestic violence," based on allegations that she was protecting her child from sexual abuse by the father. The lower court prohibits the mother from introducing that evidence and she was found guilty. Eighth Circuit: If Congress wanted to include protecting a third party as a basis for the affirmative defense, it could have said so. Child-custody proceedings are the place to present evidence of child abuse. Dissent: I doubt the defense prohibits the mother from fleeing because of the child's abuse while allowing the mother to flee—with her child—if she is being abused herself. A medical institute in Seattle, Wash. wants to treat late-stage and terminal cancer patients with psilocybin, the psychedelic compound that gives certain mushrooms their "magic" properties. Because psilocybin is a schedule I substance under the Controlled Substances Act, it may be prescribed only in the context of "bona fide research," which requires the DEA's approval. The institute petitions the DEA, requesting that one of its doctors be exempted from the research registration requirement. When the DEA declined, the institute sued, arguing that the DEA's response was arbitrary and capricious. Ninth Circuit: It was neither. It's sufficient that the DEA provided several reasons for refusing to exempt the doctor. Petition denied. Woman who runs a marijuana dispensary in Oregon, where pot is legal, is arrested for possession of the drug in Idaho, where it is not. She consents to an electronic search of her phone, resulting in a copy of its contents. The charges are dropped. Meanwhile, back at home, the Grant County, Ore. sheriff's office gets wind of this and requests the copy, ostensibly to check if her boyfriend—who is a deputy—is on the up-and-up. The data turns out to have nude photos of the two of them. She starts running into people who tell her they've heard rumors of folks gathering around the water cooler at the sheriff's office to admire her in the buff. She sues, arguing this is a Fourth Amendment violation. Ninth Circuit: Pretty creepy, and also unconstitutional. But—womp womp—qualified immunity. Concurrence: We shouldn't even say if it's unconstitutional. Allegation: Two law-enforcement officers from the L.A. District Attorney's Office forcibly barge into a pair of Vietnamese immigrants' homes, brandishing weapons and interrogating them about their disability applications without English interpreters. Refugees sue under Section 1983, which allows lawsuits for constitutional violations "under color" of state law. Ninth Circuit: But these officers were acting under federal law because they were in a joint state-federal task force investigating Social Security fraud and led by a federal agent. (Which matters a lot because federal officers have de facto immunity from most civil-rights lawsuits.) Plaintiff sues and settles civil-rights claims based on injuries he suffered at the San Diego county jail. Media organizations intervene to unseal reports and related documents created by the county's Critical Incident Review Board, which consults with legal counsel after incidents to assess litigation risk and recommend remedial actions. Ninth Circuit: Those reports are covered by attorney-client privilege, and they should be returned to the county or destroyed. Concurrence: Our circuit's case law on the standard of review for privilege determinations is a mess and reflects a circuit split. Dissent: There is no privilege; if there was, it was waived; and in any event, much of the information in the reports clearly isn't privileged and could be disclosed. The Supreme Court has oft admonished that lower courts have a "virtually unflagging obligation" to hear cases within their jurisdiction. And yet! Attend to this (unpublished) Tenth Circuit decision, and you will see the panel apply the Middlesex factors like they are the test for Younger abstention, inexplicably ignoring Sprint v. Jacobs, wherein the Court ruled unanimously that you don't even get to Middlesex unless one of three exceptional circumstances exist. But attend, we beseech you, and you will see that none—none!—exist. The mind boggles. The circuits are rent. How? How could this happen? (Plaintiff was pro se, so perhaps the briefing wasn't of much help.) Florida real estate investment advisor suspects rival advisor of posting negative reviews. With an intent to "crush[] this douche" and destroy his business and his personal life, the first advisor, his wife, and accomplices crush out some fake websites, reviews, and emails containing misleading statements about the rival, including some regarding his "alleged prurient nature." Eleventh Circuit (unpublished): And it was OK for the jury to conclude that this was indeed the RICO. Judgment of $12.5 mil is affirmed. Birmingham, Ala. drug dealers are convicted partly based on pole cameras that looked at the front and back of a house and ran for 10 months. Eleventh Circuit: Which is good police work. The cameras could only see what actual people could see from a public place. And even though no human cop would have just stood there for that long, you can't stop progress. Concurrence: Not sure the public-view doctrine per se justifies pole cameras, "regardless of the length of time they record nearby human activities." And in en banc news, the Fifth Circuit will not reconsider its decision that a Texas federal judge exceeded her authority when she imposed $100k in daily fines against state defendants for allegedly violating a remedial decree to overhaul the state's foster care system. The original panel found that the fines violated state sovereign immunity and that the state had substantially complied with the remedial decree. It also ordered the case reassigned to a different district judge on remand. Four judges dissented from denial, disagreeing with all of that.

Friends, IJ is hiring. Come litigate the kinds of cases that made you want to go to law school. Positions are open at our offices in Phoenix, Austin, Seattle, and Arlington, Va. Click here to learn more and apply.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

[Eugene Volokh] Woman Convicted for Mass-Mailing Sexual Misconduct Accusations About Former Teacher

From State v. Scatton, decided Jan. 30 by Judge Carl Taylor of the Connecticut Supreme Court, New Britain Jud. Dist. It seems pretty clearly wrong to me, but part of a broader trend in which states are reviving criminal libel through criminal harassment or cyberstalking laws (and without even a requirement that the prosecution show the allegations were false). More broadly, whether or not the concern is about reputation, it's part of a trend of using criminal harassment laws and harassment restraining orders to punish speech about a person rather than unwanted speech to the person; when that's challenged on First Amendment grounds, appellate courts generally uphold the First Amendment claim, but strange things can happen in trial court:

JG indicated that the defendant, Annette Scatton, was a former student who had been harassing him since 2018. JG indicated that Scatton had been sending harassing letters to funeral directors statewide.

"TO WHOM IT MAY CONCERN,

[JG], PROGRAM DIRECTOR OF FUNERAL SERVICE IN CONNECTICUT IS HAVING SEX WITH HIS MALE STUDENTS. ONE OF THE STUDENTS IS GAVIN DEMAURO.

IN ADDITION, HE IS SEXUALLY ACTIVE WITH MANY MEN IN THE FIELD OF FUNERAL SERVICE IN THE STATE OF CONNECTICUT. PLEASE - BE AWARE. HE IS EXTREMELY DECEITFUL AND DANGEROUS."

JG indicated to APD that he believed that the perpetrator was Annette Scatton. JG indicated that Scatton had been harassing him in a similar manner since 2018…. Ms. Scatton is charged with one count of harassment in the second degree, in violation of Conn. Gen. Stat. § 53a-183[(a),]

{A person is guilty of harassment in the second degree when with intent to harass, terrorize or alarm another person, and for no legitimate purpose, such person … [c]ommunicates with a person … in a manner likely to cause terror, intimidation or alarm ….}

The State has represented that the defendant sent the letters to all of the funeral directors in the State of Connecticut. In addition, the State also represented that the defendant sent the same letter to the complainant and to all forty-three faculty members of Godwin College. As a result of this conduct, some of the funeral directors who received a copy of this letter contacted JG….

Based upon the representations of the state, this case is not an issue … of the First Amendment. The state has indicated that the contents of the defendant's alleged letters and statements are not the subject of the prosecution and that the prosecution is based upon the defendant's conduct in sending this mass communication to many people….

The case law indicates that the harassing conduct may be proscribed, as opposed to communication. This includes harassing conduct by mail. See State v. Murphy (Conn. 2000) and State v. Nowacki (Conn. App. 2015).

Pursuant to State v. Nowacki, the court finds that the prosecution is based upon the harassing conduct by mail and not upon the defendant's communications…. The prime issue in this matter is whether it can be shown that the mass mailing of a letter by itself could likely to cause alarm to a person. The court finds that the mass mailing of a letter by itself could cause alarm based on the mailing, not the content. The mass mailing of this letter could result in alarm to the victim without reliance on the contentions of the letter. The conduct of the defendant in sending the letter to the funeral directors and faculty members could certainly have the effect of these persons contacting the victim, with resulting alarm to the victim.

The contents of the letter would not be relevant to the case in chief, only the fact that the defendant engaged in this mass mailing to people who be likely to contact the victim. However, the contents of the letter cause be used for circumstantial evidence concerning intent. See Gormley v. Director (2d Cir. 1980).

The court's claim that "the prosecution is based upon the harassing conduct by mail and not upon the defendant's communications" can't be right: If Scatton had mass-mailed political flyers urging people to vote for some candidate, for instance, that surely wouldn't have been punishable. What makes the letter "alarming" to the victim is precisely that its content is about him, and places him in a bad light.

That can be punished if the speech falls into a First Amendment exception, such as for true threats or for libel. But here there was no such finding; for instance, the court decision doesn't even consider whether the allegations were true. (I have no reason to think they were, but I don't see how one can punish such mass speech without a finding of falsehood, and the other elements needed under libel law.)

The post Woman Convicted for Mass-Mailing Sexual Misconduct Accusations About Former Teacher appeared first on Reason.com.