Eugene Volokh's Blog, page 240

[Jonathan H. Adler] "The Truth of Erasure"—A Defense of Universal Remedies

The Ohio Solicitor General's office is a frequent litigant challenging federal agency action. Thus it may be no surprise the the Solicitor General supports universal remedies, such as universal vacatur under the Administrative Procedure Act.

The Ohio Solicitor General is not limiting this argument to its legal briefs. Ohio SG Elliot Gaiser and two attorneys in his office, Mathura Sridharan and Nicholas Cordova, have posted an article on SSRN, "The Truth of Erasure: Universal Remedies for Universal Agency Actions," defending this position.

Here's the abstract:

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called "universal" injunctions: the proper scope of remedies under the Administrative Procedure Act and other statutes providing for judicial review of agency action is erasure. The long-established judicial practice of vacating unlawful agency rules should continue because the Administrative Procedure Act instructs courts to review and remedy unlawful agency action itself, just as appellate courts review and vacate the erroneous judgment of a lower court. This appellate review model also permits courts to grant universal preliminary relief in the form of a stay that prevents an agency rule from taking effect until courts finally resolve its legality.

The U.S. Constitution not only permits but requires courts to have this authority to grant universal relief against unlawful agency action. When executive Branch agencies exercise delegated legislative power to make rules with universal effect, separation of powers requires that courts be vested with commensurate power to issue universal relief. Agency rules evade the front-end checks that restrain legislation, so the back-end check of stronger judicial remedies is appropriate. Article III does not prevent courts from maintaining this balance. Vacatur of an unlawful rule resolves a true case or controversy and is a statutorily authorized remedy rather than a unilateral extension of the judiciary's traditional equitable powers. Indeed, the constitutional discomfort that arises from APA cases stems from the extraordinary nature of agency rulemaking, not judicial review of it.

These features of universal APA remedies meaningfully distinguish them from nationwide or so-called "universal" injunctions against federal or state laws and direct presidential action. If courts, lawyers, and scholars want to debate the legality of both universal remedies against agency action and universal injunctions, they must have two separate debates. The APA debate, however, is largely and rightly settled.

The post "The Truth of Erasure"—A Defense of Universal Remedies appeared first on Reason.com.

[Jonathan H. Adler] Justice Pat DeWine on Interpreting the Ohio Constitution

Most discussions of constitutional interpretation focus on the interpretation of the federal constitution. But (as Judge Jeffrey Sutton likes to remind us) there are actually 51 constitutions in the United States, and constitutional doctrines can develop (and have developed) differently at the state level. Different state constitutions were adopted at different times, and many have features that are quite distinct from the federal constitution. For example, many states elect multiple executive branch officials, such that it cannot be said that they have a "unitary executive." (Whether the federal constitution creates a unitary executive is, of course, a matter of some academic debate.)

Ohio Supreme Court Justice Pat DeWine has a forthcoming paper on the interpretation of the Ohio Constitution, titled (appropriately enough) "Ohio Constitutional Interpretation." It is a welcome contribution to the under-developed literature on state-level constitutional interpretation.

Here is the abstract:

There has been a good deal written about why state courts should independently interpret state constitutions.  But not much on how they should do that.  We shouldn't just assume that the interpretive methodologies for state constitutions are necessarily the same as for the Federal Constitution.  I focus here on some key interpretive issues for the Ohio Constitution, but the issues addressed will be relevant in the interpretation of other state constitutions as well.

I argue for an original public meaning approach to the Ohio Constitution.  Such an approach is rooted in our earliest caselaw.  And there is a compelling normative case for original public meaning because every provision of the Ohio Constitution was approved by popular vote of the people and because the Ohio Constitution is relatively easy to amend. Most proponents of a "living constitution" focus their arguments on the difficulty of amending the federal constitution, but because the Ohio Constitution can be easily updated by the people, there is no justification for judges to do that work for them.

So how do judges discern original public meaning?  Text is paramount, but what should judges look at when text is not determinative?  I explore several possibilities including: (1) Ohio's prior constitution and other state constitutions, (2) constitutional convention proceedings and other historical materials, (3) ballot language and other officially promulgated materials, and (4) campaign materials, news articles and other contemporaneous materials available to voters considering a constitutional amendment.

Finally, I take up the problem of how to deal with prior "lockstep precedent" that says that a provision of the Ohio Constitution has the same meaning as a similar provision in the federal Constitution.  I argue that we should only give minimal stare decisis effect to such pronouncements and in most cases should abandon them when text and history demonstrate a different meaning.

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[Eugene Volokh] Religious Discrimination Claims Related to Ex-Employee's Objecting to Participating in "LGBTQ+" Events Can Go Forward

From Pumariega v. Basis Global Technologies, Inc., decided Monday by Judge Lindsay Jenkins (N.D. Ill.):

{The following factual allegations are taken from Pumariega's Second Amended Complaint and are accepted as true for the purposes of the motion. In setting forth the facts at the pleading stage, the Court does not vouch for their accuracy.}

Pumariega worked remotely from Florida for an Illinois-based company, Basis. In November 2022, Pumariega received an email from Basis's Diversity, Equity, and Inclusion (DEI) Department announcing an upcoming virtual, mandatory training on December 6, 2022. The email laid out the agenda which included (1) reviewing "LGBTQ+ terminology related to sexual orientation, gender identity, and expression – including words to avoid;" (2) discussing "a variety of gender-expansive pronouns that [one] may encounter in the workplace;" and (3) considering "a variety of ways that [one] can demonstrate … allyship to folks who are transgender and/or nonbinary, as well as resources to help … learn more." Pumariega, who is a devout Christian, did not request a religious accommodation to be excused from the event and attended the DEI training.

During the training presenters discussed gender identity, sexuality, sexual orientation as a scale, use of inclusive language, and preferred pronouns. Employees were instructed to use inclusive language when referring to groups in the workplace, and to consider where they fell on the sexual orientation scale—presented as a continuum stretching from "straight" to "gay/lesbian." In Pumariega's view, these concepts conflict with his Christian ideology, specifically the belief that there is no "sexuality scale" and that romantic relationships should only be between a man and a woman.

In approximately February 2023, Pumariega submitted anonymous feedback to the DEI team about the December training. Without disclosing his religious beliefs or indicating a religious objection to the training, Pumariega explained that, in his opinion, the topics discussed were inappropriate for the workplace.

In a May 2023 meeting with his supervisor, Drew Schuch, Pumariega revealed his Christian beliefs, expressed that the mandatory training conflicted with those beliefs, and requested an accommodation to skip future mandatory DEI trainings. Schuch assured Pumariega that Basis could not fire him on account of his religious beliefs and directed him to discuss the issue with Cassie Clark, Basis's Manager of Talent Partners.

On June 1, 2023, the DEI team sent a company-wide email announcing various activities for Pride Month, beginning with Drag Brunch Trivia on June 16, 2023. Pumariega believed these events were mandatory. The same day Pumariega contacted Clark asking to set up a call with the appropriate person to address his concerns about discussing sexuality in the workplace. He did not reveal his religious objection to these discussions or request a religious accommodation. Clark directed him to Alyssa Dietch, Basis's Talent Relations Specialist, and the two spoke on June 6, 2023.

Pumariega told Dietch about his religious beliefs, explained the DEI events—the mandatory December 2022 training and planned Pride Month events in June—conflicted with those beliefs, and he should not be required to attend. In addition, he requested a meeting with Basis's executive team and DEI team to discuss his view that these types of events were not appropriate.

On June 15, 2023, before any Pride Month events, Pumariega was fired.

Pumariega sued, and the court allowed his Title VII religious discrimination claim to go forward:

For his claims to survive a motion to dismiss, all Pumariega must allege is that he was subjected to an adverse employment action because of his religion….

Pumariega met this requirement. He alleges that Basis fired him because of his sincerely held religious beliefs. Taking Pumariega's allegations as true, Basis knew about his Christian beliefs and fired him days after he complained about DEI training on that basis and requested an accommodation. At the motion to dismiss stage, that is sufficient….

The court likewise allowed Pumariega's retaliation claim to go forward:

Pumariega alleges he was fired in retaliation for his complaints about engaging or participating in discussions of sexuality at work…. To qualify as protected activity the employee must root their objection in "[religious] discrimination" or allege "sufficient facts to raise that inference." It doesn't matter whether the DEI trainings and Pride Month events are "actually prohibited by Title VII; the employee need only have a good-faith and reasonable belief that he is opposing unlawful conduct."

Pumariega adequately pled a claim of retaliation. He alleges that during the May 2023 meeting with his supervisor and the June 6, 2023, call with Dietch he explained that his objection to DEI events was founded on his membership in a protected class—being Christian. Therefore, his complaints are "sufficient to constitute a report of discrimination under Title VII." Furthermore, Pumariega alleges that his complaints derived from his genuine belief that the DEI events conflicted with his religious beliefs, not from any personal bias….

The court rejected Pumariega's failure to accommodate claim, though:

To maintain his failure to accommodate claims, Pumariega must allege that "(1) the observance, practice, or belief conflicting with an employment requirement is religious in nature; (2) the employee called the religious observance, practice, or belief to the employer's attention; and (3) the religious observance, practice, or belief was the basis for the employee's discriminatory treatment." Central to a failure to accommodate claim is the employer's awareness of the employee's protected class. Pumariega must allege that he told Basis about his Christian beliefs. He must also identify an "employment requirement."

Pumariega's complaint dances around what "employment requirement" is at issue, citing "discussions of sexuality in the workplace." The only two relevant events alleged in the complaint are (1) the December 6, 2022, mandatory DEI training and (2) the Pride Month events which he believed were mandatory. He does not allege other mandatory DEI events were planned or that Basis had a stand-alone policy requiring discussions of sexuality.

Taking those two events in turn, the December 6, 2022, mandatory DEI training was plainly an employment requirement; employees were required to affirm that they attended the training. However, Pumariega did not notify anyone at Basis of his religious beliefs prior to that event. Consequently, he cannot maintain a failure to accommodate claim based on that mandatory training.

Turning to the Pride Week events, even accepting that Pumariega believed the events were mandatory, and therefore an "employment requirement," he was fired before any events occurred and before his accommodation request was denied. While Pumariega's allegations sound in employment discrimination they are a poor fit for a failure to accommodate claim. The crux of his complaint is not that Basis failed to accommodate him; he does not allege Basis made a decision on his request one way or the other. Instead, the heart of his complaint is that he was fired after voicing his disagreement with discussions of sexuality in the workplace and requesting an accommodation. Those allegations are cognizable under Pumariega's other causes of action.

{Basis argues that Pumariega failed to allege a conflict between his religious beliefs and Basis's DEI events. However, judges are not to "dissect religious beliefs" because "it is not within the judicial function and judicial competence to inquire whether the [plaintiff] … correctly perceived the commands of their … faith."} …

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[Eugene Volokh] From Prof. Michael McConnell: Meta Oversight Board Steps Up To Protect Conservative Political Speech

I'm delighted to pass along this item from my Hoover Institution colleague Michael McConnell, who is also a professor at Stanford Law School and the co-chair of the Facebook Oversight Board:

Increasingly, the most significant gatekeepers for political speech are not elected governments or courts, but the social media companies that control Facebook, Instagram, Threads, YouTube, X, and the like. That is why I signed on to co-chair Meta's independent Oversight Board, which handles appeals from users and referrals from the company in high-profile cases from all over the world. Necessarily, the Board cannot take a large number of cases; it decided just over 50 last year and is on track to decide a few more this year. The hope (and I think to some extent the reality) is that these high-profile cases, most of which have reversed Meta's original decision, will have an impact on the content moderation system as a whole.

Conservatives in the United States have long complained that the social media companies discriminate against right-of-center speech. It is hard to know how systemic this problem might be, because there are no good data—but there certainly are disturbing examples. Even Mark Zuckerburg has admitted that, in hindsight, the censorship of, for example, the Hunter Biden Laptop story, was wrong, and that the company has been too ready to comply with Administration demands to take down posts based on claims about misinformation and disinformation. In all likelihood, this ideological discrimination, to the extent it exists, is a product less of deliberate company policy than the tendency of on-the-ground content moderators (who are typically drawn from the Bay Area technocracy, which is not evenly divided between the parties) to make close calls in a way that skews left.

People wonder why, then, there have been relatively few interventions by the Oversight Board to protect right-of-center users from suppression of their speech on the platform. Based on my experience, there are at least two reasons. First, when users point out obvious errors in taking down legitimate posts, Meta's internal system often corrects the decision within a few days or a week. A few days or a week is long enough to do the harm; speech on political issues is usually stale after that time has passed. But if errors are corrected in that time frame, the case will never come to the Oversight Board.

Second, it is my impression that many conservatives have persuaded themselves that institutions like the Oversight Board are part of the left-progressive blob, and that it would be a pointless waste of time to appeal. A number of times when I have read complaints in the media about biased content moderation and have inquired why the users did not take their complaint to the Board, I hear some version of this response.

That is why the Oversight Board decision today is so important. In August, a Facebook user posted a satirical picture based on the movie "Dumb and Dumber," substituting the faces of Kamala Harris and Tim Walz. Facebook removed the post under its Bullying and Harassment Community Standard, apparently because the two figures were portrayed (as in the movie) touching each other's nipples through their clothing. The case was quickly brought to the Oversight Board, which used summary procedures to get a decision out before the election. The Board concluded, unsurprisingly, that this political message was protected speech, and Facebook has complied. The full decision can be found here.

I hope this will signal that people of all political stripes, including conservatives, can get help when overenforcement of Meta's content standards results in suppression of legitimate speech. And I hope that, like other Oversight Board decisions, this will reenforce to Meta content moderators that they need to be more careful when taking down political speech. The Oversight Board process may appear clunky, but it is worth the effort.

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[Eugene Volokh] Public Defender Disqualified from Case for Race-Related Statement in Plea Bargain Negotiations

From Sanchez v. Superior Court, decided yesterday by California Court of Appeal Justice Richard Fields, joined by Justice Manuel Ramirez:

In this writ proceeding, defendant and petitioner Enrique Sanchez seeks a writ of mandate ordering respondent superior court to vacate its order directing the San Bernardino County Public Defender (public defender) to assign a new attorney from its office to represent petitioner in his criminal proceedings. The trial court issued the order after receiving evidence that the deputy public defender currently assigned to represent him made remarks invoking defendant's race as a factor to consider during plea negotiations, potentially in violation of the Racial Justice Act (RJA). We conclude that petitioner has failed to establish an abuse of discretion warranting reversal of the trial court's order under the circumstances presented in this case. As such, we deny the petition….

In October 2023, the People filed an information alleging petitioner committed multiple criminal offenses arising out of an incident that occurred on January 7, 2023. {[From the dissent: -EV] Sanchez was charged with kidnapping to commit rape, rape by force or fear, infliction of corporal injury on a spouse or cohabitant, forcible oral copulation, and assault with a deadly weapon. Kidnapping to commit rape carries a sentence of life without parole.}

The public defender was appointed as defendant's counsel and a specific deputy public defender from its office (deputy public defender) was assigned to handle defendant's case. On December 4, 2023, the prosecutor … stat[ed] that she engaged in a plea negotiation with the deputy public defender and, in the course of that negotiation, the deputy public defender became frustrated and stated: "'I really don't care.' … [R]ead between the lines …. I am a white man. What do I care? It's not my people we are incarcerating.'"

When the prosecutor asked for clarification about the remarks, the deputy public defender stated that he expected the prosecutor to show more leniency because the prosecutor and defendant appeared to be the same race, stating: "'[Y]ou are part of the problem. Look around you, all the people being incarcerated are your people. I will just look like a mean defense attorney. You should be part of the solution.'"

Based upon this exchange, the prosecutor requested that the deputy public defender's remarks be disclosed to petitioner and that the trial court evaluate whether a conflict existed requiring removal of the deputy public defender from petitioner's representation in this matter…. The deputy public defender did not dispute that he made the comment: "I'm just a white guy; why should I care?" and did not dispute that he urged the prosecutor to consider defendant's race in considering her plea offer. Instead, the deputy public defender explained that his comment was made "sarcastically" and that his only intent was to pursue petitioner's best interests….

[T]he trial court ordered that (1) the public defender's office assign a new attorney to handle defendant's case, and (2) the public defender take steps to isolate any persons who have worked on defendant's case thus far from further involvement in the case. In making its order, the trial court concluded that the deputy public defender assigned to defendant's case made comments that "at least trigge[r] the potential of an issue with the Racial Justice Act"; the failure to raise such a claim could potentially constitute ineffective assistance of counsel; any appointed appellate counsel would be bound to investigate and raise the claim in a future proceeding; and that it would be reasonable to take steps to avoid this necessity in future proceedings….

The majority of the appellate panel agreed with a trial court; here's an excerpt from the long opinion:

The RJA, "effective January 1, 2021, added section 745 to the Penal Code. The Legislature enacted the [RJA] with the express intent 'to eliminate racial bias from California's criminal justice system' and 'to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.'" As written, the RJA includes a mandatory provision providing that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." It also includes permissive provisions providing a procedural mechanism for a criminal defendant to seek relief for a violation of the statute. Where a violation of the RJA has occurred, any resulting conviction or sentence may be rendered legally invalid, requiring retrial of an entire case after declaration of a mistrial, empaneling of a new jury, or vacatur of a judgment….

The RJA Created an Actual Conflict of Interest in This Case …

"Criminal defense counsel has the duty to investigate carefully all defenses of fact and of law that may be available to the defendant…. 'The defendant can reasonably expect that before counsel undertakes to act, or not to act, counsel will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.'"This duty extends to investigation and evaluation of potential claims under the RJA, since the failure to timely raise an RJA violation can constitute ineffective assistance of counsel. Thus, when defense counsel becomes aware of a potential violation of the RJA, counsel has a duty to conduct an investigation of the circumstances surrounding such a claim and make an informed decision with respect to how best to advance his client's interests based upon the results of that investigation. As the trial court correctly observed, the failure to do so could constitute ineffective assistance of counsel.

However, defense counsel is placed in an untenable position when the duty to investigate an RJA claim arises from counsel's own comments. In such instances, the subject of such investigation is whether counsel himself harbors racial bias or animus, and the inquiry must include whether counsel's decision may be influenced in an unintentional or unconscious manner by implicit bias. Thus, because the nature of any investigation in this case necessarily includes an assessment of whether a specific deputy public defender may harbor an unintentional or unconscious implicit bias, it is simply not an inquiry which that specific deputy public defender is equipped to conduct. By definition, implicit bias includes unconscious assumptions, and the specific deputy public defender cannot reasonably be expected to even recognize its existence absent input from another, objective attorney. It is this tension—between petitioner's right to have counsel fully investigate and pursue any potentially meritorious RJA claim and the specific deputy public defender's inability to objectively perform this task—that creates the conflict in this case.

{We disagree with the dissent's effort to resolve the meaning or intent of the deputy public defender's comments to reach the merits of a potential RJA claim that has yet to be fully investigated or litigated in the trial court. We observe that the threshold for establishing the right to an investigation and evidentiary hearing on an RJA claim is low, and may be satisfied even if, in the opinion of a reviewing court, there was clearly a permissible and race-neutral purpose for the statements in question. (People v. Howard (2024) 104 Cal.App.5th 625, 653 [The trial court must hold a full evidentiary hearing on an RJA claim even if "the record shows a permissible purpose for the [attorney's statements] and fails to show the [attorney] harbored express racial bias or animus …."].)}

It may be that after a thorough investigation, there is insufficient evidence to support a claim that the RJA has been violated or other factors may support a reasonable tactical decision to forego pursuing any RJA claim. However, it is inescapable that if petitioner is entitled to such an investigation and informed decision by counsel, the specific deputy public defender subject of the claim cannot be the one charged with performing this task. It is the inability of the specific deputy public defender to impartially fulfill this duty that creates the conflict of interest. Because the record in this case shows that an actual conflict of interest exists, the trial court did not abuse its discretion in ordering that a specific deputy public defender be removed from the case.

{We disagree with the dissent's analytical approach of seeking to first resolve whether the record evidences a meritorious RJA claim. In our view, any such analysis is entirely premature…. [T]he issue before the trial court here was whether an actual or potential conflict required removal of counsel. To require that the record already be sufficient to show the existence of an RJA claim against defense counsel before the trial court can remove counsel essentially requires that a conflict actually ripen into an act that has already caused defendant detriment before removal is appropriate. This approach contradicts longstanding precedent that the trial court has discretion to remove counsel for the purpose of preventing an unripe conflict from actually materializing to the defendant's detriment….

The Trial Court Could Also Remove the Deputy Public Defender To Prevent a Risk of Substantial Impairment of the Proceedings

Even in the absence of an actual conflict, we would find no abuse of discretion warranting reversal. In addition to expressing its concern that the failure to raise an RJA claim might constitute ineffective assistance, the trial court also stated that its order was intended to forestall any potential future RJA claim. Indeed, petitioner concedes that the trial court was concerned with insulating the proceedings from a future RJA claim, and further acknowledges that this was a legitimate concern, separate and apart from any conflict of interest. In our view, removal of counsel to prevent a potential violation of the RJA was also within the trial court's discretion under the circumstances presented in this case….

Potential for Waiver

Finally, we address petitioner's argument that any concerns related to conflict of interest or a future RJA claim can be adequately addressed by a knowing and intelligent waiver. We disagree that the offer of waiver establishes an abuse of discretion warranting relief in this case. We agree with defendant that the right to conflict-free counsel may be waived. However, we express serious reservation with the proposition that the trial court's concerns regarding the potential for an RJA claim may be adequately addressed by waiver…. "… 'Although a defendant may waive rights which exist for his own benefit, he may not waive those which belong also to the public generally.' …" …

[T]he purpose of the RJA is not only to remedy the effects of racial bias on individual criminal defendants but to eliminate the impact of such bias "on our system of justice as a whole" because "[d]iscrimination undermines public confidence in the fairness of the state's system of justice." Thus, the interests protected by the RJA are not merely those of the criminal defendant but the public's interest in eliminating racial bias from the criminal justice system.

To be sure, the RJA includes a provision that an RJA claim which is not timely raised by a criminal defendant "may be deemed waived." However, it is far from clear that the defendant's waiver in this manner can relieve the trial court or prosecution from the duty to ensure a proceeding free from racial bias or animus. After all, section 745, subdivision (a)'s language places a mandatory duty on the state to "not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." It would seem contrary to the Legislature's intended purpose to hold that a criminal defendant may relieve the state of its mandatory duties under the statute by entering a waiver, thereby permitting the trial court or prosecutor to knowingly and openly proceed in a manner that the Legislature has declared is in violation of public policy.

Ultimately, we need not decide whether an RJA claim is subject to express waiver because the trial court retains discretion to remove counsel even where a defendant offers to enter an otherwise valid waiver of his interests….

Justice Frank Menetrez dissented; again, here is a short excerpt from the long full opinion:

A deputy public defender sought a more favorable plea offer and expressed the view that the criminal justice system is biased against Hispanic defendants like his client. As a result, the district attorney moved to disqualify both the deputy public defender and the entire public defender's office on the ground that the deputy public defender's "race/ethnicity-based remarks" gave rise to a potential claim against the deputy public defender under the California Racial Justice Act of 2020, creating a conflict of interest. The trial court granted the motion in part, removing the deputy public defender and "anybody who has touched the case" but not disqualifying the entire public defender's office.

The record contains no evidence of a potential RJA claim against the deputy public defender. The trial court's ruling was therefore erroneous and prejudicial, depriving defendant Enrique Sanchez of an attorney whom he wanted to keep and who was zealously representing him….

On October 13, 2023, the deputy public defender representing Sanchez met with the deputy district attorney to discuss a plea bargain. The deputy district attorney offered 14 years, and the deputy public defender sought a better offer. Their accounts of ensuing events overlap in certain respects but diverge in others.

According to the deputy district attorney's declaration, when the deputy public defender failed to obtain a better offer, he "exclaimed 'I really don't care.' [The deputy district attorney] proceeded to ask him what he meant by that statement and [he] stated, 'read between the lines …, I am a white man, what do I care? It's not my people we are incarcerating.' [¶] In response, [the deputy district attorney] stated 'what do you mean exactly? Are you asking me to give Mr. Sanchez a better deal because he is brown and I am brown?' to which [the deputy public defender] immediately responded 'Yes! Exactly! Because you are part of the problem. Look around you, all the people being incarcerated are your people. I will just look like a mean defense attorney. You should be part of the solution.'" The deputy district attorney then "immediately stood up and stated 'it did not matter what the Defendant's race is, whether they are brown, White, Asian, or Black, a crime has been committed and I am seeking what is fair and just.' [The deputy district attorney] proceeded to state, 'I am done with this conversation, I will not allow you to upset me. I am completely done.'" As the deputy district attorney left the conference room and entered the courtroom, she was "emotionally distraught from [the deputy public defender's] race/ethnicity-based commentary." The deputy public defender "was agitated" and "continued to follow" the deputy district attorney, asking her "multiple times" if she "'was going to take it out on his client'" because she was "mad" at him. The deputy district attorney "responded 'yes, yes, yes' to him so that he would leave [her] alone."

The deputy public defender's declaration describes the incident somewhat differently and adds some factual context. The same deputy public defender had represented Sanchez at the preliminary hearing, and he intended to call the victim, Jane Doe, as a witness. Doe "was present all morning waiting to be called as a witness by the defense" and "was also present after the lunch break," but "[w]hen it was time for the defense to call Jane Doe to the stand, she was gone." Doe later informed the deputy public defender that she had left because "she was told by the District Attorney Victim Advocate to go home." Doe subsequently told the police that "all the sexual intercourse was consensual, she was not raped, and she did not want to lie."

When the deputy public defender received the prosecution's offer of 14 years, he "felt this offer was very unreasonable considering all the circumstances, the wishes of Jane Doe, and the fact that Jane Doe was recanting the kidnapping and rape allegations." He accordingly "attempted to persuade [the deputy district attorney] to consider many mitigating factors in an attempt to persuade her to make Mr. Sanchez a more reasonable offer." The deputy public defender asked "if she had considered that Mr. Sanchez was a youth offender in deciding upon her offer," and he "asked her if she had considered any RJA implications" as well as "the wishes of the victim Jane Doe."

The deputy public defender's declaration provides the following description of what happened next: "I used sarcasm to make a point about the systemic and pervasive racism that permeates every aspect of our justice system. I sarcastically said, I'm just a white guy why should I care. You are just sending another poor young Hispanic man to prison. I discussed Mr. Sanchez's race with [the deputy district attorney] because I recognize the history of racial bias, implicit bias, and systemic racial injustice in the criminal justice system. I felt like Mr. Sanchez and victim Jane Doe, both Hispanic individuals, had no voice in our justice system. [The deputy district attorney] responded by threatening Mr. Sanchez with life in prison if he did not take the fourteen-year offer."

According to the deputy public defender, the deputy district attorney became "upset and even angry to the point where [the deputy public defender] felt that [the deputy district attorney's] impartiality as a prosecutor might be compromised." He asked her "if she was going to take it out on" Sanchez "because she was so mad at" the deputy public defender. "She responded with one simple 'yes.'" The deputy public defender's declaration states that he did not know the deputy district attorney's race, did not comment on it, and did not use the phrase "'your people.'" He claimed that the statements attributed to him in the deputy district attorney's declaration were all "either inaccurate or false" and that the deputy district attorney did not make the statement about "'seeking what is fair and just'" that appears in her declaration….

The majority opinion reasons that the trial court properly disqualified the deputy public defender because his conduct evidences "a potential violation of the RJA." That is incorrect. [details omitted. -EV] … [And g]iven the complete absence of any evidence that the deputy public defender harbors any conscious or unconscious bias against Sanchez or that any such bias has adversely affected his representation of Sanchez, there is no basis to investigate him for such bias. In sum, the record does not contain a shred of evidence of any potential violation of the RJA by the deputy public defender. There is nothing to investigate, no potential conflict, and no basis to disqualify the deputy public defender from representing Sanchez. The district attorney's motion was wholly without merit and should have been denied….

The dissent also discussed waiver, and various other points.

Philip Stemler represents the State.

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[Josh Blackman] 2024 Ron Rotunda Memorial Webinar: Profiles in Courage in the Legal Profession

I had Professor Ron Rotunda for Constitutional Law in 2007. But for Ron, I doubt I would have become a constitutional law professor. He inspired me in ways I still think about to this day. In 2018, Ron suddenly passed away, far too young. The following year, I wrote a remembrance about Ron in the Chapman Law Review.

The Federalist Society has created a new annual webinar in Ron's memory. Last year, I interviewed Greg Jacob, who served as a counselor to Vice President Pence on January 6, 2021. This year, I interviewed Erin Murphy. The theme was "Profiles in Courage in the Legal Profession." Erin and I spoke about the two occasions in which she left a firm, that was unwilling to stand up for a client. Erin's story is an important one that all aspiring lawyers should learn.

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[Josh Blackman] Today in Supreme Court History: October 23, 1991

10/23/1991: Justice Clarence Thomas takes oath.

Justice Clarence Thomas

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[Eugene Volokh] Tuesday Media Recommendations: Nonfiction Science Books

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[Stephen Halbrook] Second Amendment Roundup: Supreme Court Grants Cert in Mexico v. Smith & Wesson

On October 4, the Supreme Court granted in Smith & Wesson Brands v. Estados Unidos Mexicanos.  It involves Mexico's suit against the American firearms industry, which alleges that the industry enables the drug cartels to empower their stranglehold over Mexican society.  The First Circuit upheld the claim by reversing the dismissal of the case granted by the District Court in Massachusetts.

The absurdity of Mexico's lawsuit is illuminated by action in another case just days later. On October 16, U.S. District Judge Brian Cogan in Brooklyn sentenced Genaro Garcia Luna to 460 months imprisonment for engaging in a continuing criminal enterprise, international cocaine distribution conspiracy, conspiracy to distribute and possess with intent to distribute cocaine, and conspiracy to import cocaine. But Luna wasn't just another El Chapo, whom Judge Cogan sent to the big house five years ago.

For over a decade, Luna was the head of Mexico's Federal Investigative Agency, and then became Secretary of Public Security.  According to the U.S. Department of Justice, Luna "used his official positions to assist the violent Sinaloa Cartel (the Cartel) in exchange for millions of dollars in bribes."  That included "facilitating safe passage of the drug shipments, providing sensitive law enforcement information about investigations into the Cartel and helping the Cartel attack rival drug cartels…."  He thereby enabled over a million kilograms (over 2.2 million pounds) of cocaine to be imported into the United States.

But corruption-ridden Mexico wants to blame America's lawful gun industry for its status as a failed state.  In the cert petition, the petitioners describe the background to the question presented as follows:

The Mexican Government has sued leading members of the American firearms industry, seeking to hold them liable for harms inflicted by Mexican drug cartels. According to Mexico, America's firearms companies have engaged in a series of business practices for decades—from selling semi-automatic rifles, to making magazines that hold over ten rounds, to failing to impose various sales restrictions—that have created a supply of firearms later smuggled across the border and ultimately used by the cartels to commit crimes. Mexico asks for billions of dollars in damages, plus extensive injunctive relief imposing new gun-control measures in the United States.

The district court dismissed the case under the Protection of Lawful Commerce in Arms Act (PLCAA), which generally bars suits against firearms companies based on criminals misusing their products. But the First Circuit reversed. It held that PLCAA does not bar this suit because Mexico stated a claim that defendants' business practices have aided and abetted firearms trafficking to the cartels, proximately harming the Mexican government.

The petition states that the following two legal issues under PLCAA require resolution by the Court:

Whether the production and sale of firearms in the United States is the "proximate cause" of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico. Whether the production and sale of firearms in the United States amounts to "aiding and abetting" illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.

PLCAA was enacted to require dismissal at the inception of lawsuits like this.  Other courts have recognized that.  The First Circuit's decision creates a circuit split.

Back in the 1980s, unable to convince legislatures to ban handguns, the anti-gun movement began filing lawsuits against the industry for crimes committed by third parties.  It didn't matter that the courts disagreed with the theory of liability, because the industry could be bankrupted by legal fees.  Over time, municipalities became plaintiffs in such suits, only to be rebuffed by the courts.  Congress finally stepped in by passing PLCAA to stop these abusive lawsuits.

The anti-gun movement continues to pursue the same strategy.  One of Mexico' lawyers listed on the is Jonathan Lowy, counsel for BRADY (formerly Handgun Control, Inc.). BRADY supports repeal of PLCAA, but resorts to the courts to undermine the law since Congress has not done so.

Mexico's complaint parrots the same kinds of allegations which PLCAA was designed to bar.  As summarized by the First Circuit, Mexico alleges that "by passing along guns knowing that the purchasers include unlawful buyers, and making design and marketing decisions targeted towards those exact individuals, the manufacturer is aiding and abetting illegal sales."  As everyone knows, the manufacturers sell to distributors, which sell to dealers.  Each of these entities is licensed under the Gun Control Act and is subject to ATF inspection and oversight. The complaint includes no allegation that any of the defendants violated U.S. laws or knew that others with whom they did business did so.

While there is thus no proximate harm from America's lawful firearms industry to Mexico, the First Circuit proposes the following incredible analogy:

Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing assaults.

The Mexican government itself, through bad actors such as Genaro Garcia Luna, has facilitated the ability of the cartels to attack people in Mexico.  We frequently read stories of Mexican villages that form militias to protect themselves from the drug gangs. The Mexican government has failed at the most fundamental duty of any government: protecting the population under its rule.

While allowing, and being bribed to allow, the cartels to run rampant over the country, the government has only a single gun store in the entire country to allow law-abiding citizens to purchase firearms – and it's run by the military in Mexico City.

As it colludes with American actors to destroy the Second Amendment – after all, that's the point of the whole exercise of bringing its lawsuit – the Mexican government reinforces its own contempt for civil liberties, such as the fundamental human right to defend life.

Mexico's 1857 constitution (Art. 10) provided: "Every man has the right to have and to carry arms for his security and legitimate defense. The law will indicate which arms are prohibited and the penalty for those that will carry prohibited arms."  That was whittled down in the same article of its 1917 constitution to say that the inhabitants have "a right to arms in their homes, for security and legitimate defense, with the exception of arms prohibited by federal law and those reserved for the exclusive use of the [military]. Federal law will determine the cases, conditions, requirements, and places in which the carrying of arms will be authorized to the inhabitants."

In other words, Mexican citizen have a "right" to arms only as granted by the government.  For further insights on the topic, see David Kopel's article "Mexico's Gun Control Laws: A Model for the United States?"

After the briefs were filed, Mexico made a last-minute attempt to scuttle the case. Smith & Wesson notified the Supreme Court that, just recently, six manufacturers had been dismissed by the district court for lack of personal jurisdiction.  However, the suit remained live against Smith & Wesson and Interstate Arms.  Mexico responded that the dismissals undermined the petitioners' arguments about the importance of the case.  The Court ignored Mexico's filing and granted cert.

Understanding the issues in Mexico v. S&W requires a deep dive into PLCAA.  While not framed as a Second Amendment case, the issues profoundly affect whether that right will be protected.  PLCAA itself begins with a reaffirmation of Second Amendment rights and how lawsuits have been brought against the industry for crimes committed by third parties.  See 15 U.S.C. § 7901 et seq.  It declares that a "qualified civil liability action," defined as an action against a federal firearms licensee for damages or other relief resulting from the criminal or unlawful misuse of a firearm, "may not be brought in any Federal or State court."

There is a predicate exception from the ban on such lawsuits if the manufacturer or seller of a firearm "knowingly violated a State or Federal statute applicable to the sale or marketing of the product [firearm], and the violation was a proximate cause of the harm for which relief is sought…."  That exception includes false entries in required records and conspiracy to sell a firearm knowing that the actual buyer is a prohibited person.  Ignoring that the plain meaning of the exception encompasses violations only of specific firearm statutes, the First Circuit decided that Mexico's common-law claims qualified and that Mexico sufficiently alleged that the defendants' actions were the proximate cause of harm.

The survival of America's gun industry, and thus the Second Amendment, depends on the resolution of those claims.  The Supreme Court should dispose of the case with an order pursuant to § 7902 of PLCAA: "A qualified civil liability action … shall be immediately dismissed by the court in which the action was brought or is currently pending."

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[Ilya Somin] Institute of Economic Affairs Paper on Immigration and the Economic Liberty of Natives

The Institute of Economic Affairs, a prominent UK think thank, has published my paper on "Immigration and the Economic Freedom of Natives." Here is a summary of the main points:

• Immigration restrictions severely undermine the economic freedom of receiving-country citizens, as well as that of potential migrants.

• This impact affects both the 'negative' economic freedom valued by libertarians, classical liberals and many conservatives, and the 'positive' freedom most valued by many on the political left.

• Immigration restrictions harm negative economic freedom by depriving UK citizens of the opportunity to engage in valuable transactions with migrants, such as employing them, renting property to them, buying goods and services they produce, working for businesses established by immigrants, and more.

• Restrictions harm natives' positive freedom by depriving citizens of the production and innovation created by migrants, and especially their contributions to advances in technology and health care.

• These effects are exacerbated by the fact that immigrants disproportionately contribute to entrepreneurship and scientific innovation.

• When it comes to both positive and negative freedom, the effects of immigration restrictions are enormous – undermining both to a greater extent than virtually any other government policies adopted by liberal democracies such as the UK and US.

• Some argue that immigration actually threatens the economic freedom of natives. These concerns are largely overblown. Where valid, they can be addressed by 'keyhole solutions' less onerous than large-scale migration restrictions.

The paper expands on arguments developed in my 2023 Public Affairs Quarterly article on the same topic, and adapts them for a British audience.

IEA has also published a substack post (currently available only to subscribers) in which I summarize  the key themes of the paper. In July, I published an article in the Spectator on the economic benefits of immigration for Britain.

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