Eugene Volokh's Blog, page 258

[Eugene Volokh] N.J. S. Ct. Will Decide Whether Journalist May Publish Police Chief's Home Address

The N.J. intermediate appellate court held such publication wasn't protected by the First Amendment law; the state high court just agreed to reconsider that. The question presented is,

Is Daniel's Law, N.J.S.A. 56:8-166.1 and N.J.S.A. 2C:20-31.1, which prohibits disclosing the home addresses of certain public officials, including judges, prosecutors, and law enforcement personnel, unconstitutional as applied to plaintiff?

Here's an excerpt of the lower court opinion, Kratovil v. City of New Brunswick:

Plaintiff is a journalist who writes for and edits New Brunswick Today, an online publication…. Defendant Caputo is a retired police officer who then became Director of the City's Police Department. Caputo was also a Commissioner of the City's Parking Authority. He served in both those positions through 2023 and retired from those positions in early 2024.

In 2023, plaintiff noted that Caputo was not attending City Council meetings, nor was he regularly attending Parking Authority meetings in person. On March 14, 2023, plaintiff sent Caputo an email asking if Caputo still lived in the City. The Deputy Director of Police responded on Caputo's behalf, stating, in relevant part: "The public release of a law enforcement officer's place of residence is protected under Daniel's Law."

Plaintiff came to believe that Caputo was living in Cape May. To confirm that belief, plaintiff filed a request under the Open Public Records Act (the OPRA) with the Cape May County Board of Elections (the Cape May Board), requesting Caputo's voter profile. Initially, the Cape May Board provided a redacted version of Caputo's voting profile to plaintiff in March 2023. After follow-up communications from plaintiff, in April 2023, the Cape May Board produced a voter profile with fewer redactions. That voter profile included Caputo's home address.

At meetings of the City's Parking Authority and the City Council conducted on March 22, 2023 and April 5, 2023, respectively, plaintiff asked if Caputo still lived in the City. Neither Caputo nor anyone else from the City definitively responded to plaintiff's question.

On May 3, 2023, plaintiff attended another City Council meeting…. During the public comment portion of the meeting, plaintiff discussed Caputo's change of residence, that Caputo's residence in Cape May was approximately a two-hour drive from the City, and that Caputo was serving on the City's Parking Authority even though he was a non-resident. During that discussion, plaintiff stated the street name in Cape May where Caputo was registered to vote. He also provided City Council members with copies of Caputo's voter profile, which included Caputo's complete home address.

On May 15, 2023, plaintiff received a letter notifying him that Caputo was invoking Daniel's Law to prevent re-publication of his home address. That letter stated:

On Wednesday, May 3, 2023, you published and/or announced my home address at a public meeting of the New Brunswick City Council. Kindly accept this letter [as] a written notice as required by [Daniel's Law].

Pursuant to N.J.S.A. 2C:20-31.1 and N.J.S.A. 56:8-166.1, and as an authorized and otherwise covered person whose home address and unpublished home telephone number are not subject to disclosure, I do hereby request that you cease the disclosure of such information and remove the protected information from the internet or where otherwise made available.

I trust you will be guided accordingly.

Plaintiff sued, "stat[ing] that he planned to publish an article about Caputo living in Cape May, which would include Caputo's home address" and seeking "a declaration that Daniel's Law was unconstitutional as applied to his intended publication." The court held for defendants, reasoning thus:

Daniel's Law … was named for Daniel Anderl, the son of United States District Court Judge Esther Salas. In 2020, a disgruntled attorney went to Judge Salas' home and shot and killed Daniel. The assailant also severely wounded Judge Salas' husband. The assailant had found Judge Salas' home address on the internet.

Daniel's Law is intended to prevent further attacks on certain government officials and their families. It prohibits the disclosure of residential addresses and personal phone numbers of "covered persons," including active and retired judges, prosecutors, and law enforcement officials. Moreover, Daniel's Law provides that on notice, a person, business, or association shall not disclose or re-disclose the home address or telephone number of a covered person. Daniel's Law imposes civil penalties for violations, including $1,000 per violation, punitive damages, and attorney's fees. In addition, a "reckless violation of [Daniel's Law] is a crime of the fourth degree," and a "purposeful violation of [Daniel's Law] is a crime of the third degree." …

[T]he United States Supreme Court has repeatedly held that "if a newspaper lawfully obtains truthful information about a matter of public significance[,] then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." …

All parties agree, and the record confirms, that the matter of public concern was that Caputo lived in Cape May while serving as the City's Director of Police and a Commissioner of the City's Parking Authority. In responding to plaintiff's complaint, defendants conceded, and the trial court subsequently held, that plaintiff always had the right to publish that Caputo lived in Cape May, which was a substantial distance from the City, without being subject to Daniel's Law sanctions….

Caputo's exact street address is not a matter of public concern …. [And] protecting public officials from violent attacks and harassment is a compelling State interest of the highest order….

Note that the opinion did not rely on the fact that the police chief recently retired (perhaps because he retired well after the incidents that gave rise to the litigation).

For decisions that are generally contrary (though not factually identical) to the intermediate appellate decision that will now be reviewed, see Publius v. Boyer-Vine (C.D. Cal. 2017),  Brayshaw v. City of Tallahassee (N.D. Fla. 2010), Sheehan v. Gregoire (W.D. Wash. 2003), and Ostergren v. Cuccinelli (4th Cir. 2010).

Note also that most states don't prohibit residential picketing. (Such prohibitions, if content-neutral, would be constitutional, see Frisby v. Schultz (1988), but in the absence of such a content-neutral manner restriction, residential picketing is constitutionally protected speech.) New Jersey, in particular, doesn't forbid such picketing, though some cities might. It follows then, that people must have the legal right to organize such picketing. If so, how can they go about doing that if they can be legally barred from publicizing the address at which the picketing is to occur? Or would that argument only justify a declaration that someone who is organizing such picketing can disclose the address, and not someone who is simply trying to concretely demonstrate that a police chief lives outside town?

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer to the N.J. Supreme Court order.

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[Stephen Halbrook] Second Amendment Roundup: New York's "Good Moral Character" Requirement for Gun Permits

New York City requires a showing of "good moral character" to be issued a rifle and shotgun permit.  In Srour v. New York City (2023), the Southern District of New York enjoined the enforcement of the "good moral character" requirement and a separate "good cause" requirement.  I posted on the decision here.

After filing its appeal, the City adopted definitions of those previously-undefined terms, Srour reapplied, and the City granted the permit.  On September 9, the Second Circuit held that he was granted the relief he sought, rendering the case moot and removing jurisdiction to hear the merits.

The City had based Srour's denial on his prior arrests (without convictions) and "derogatory" driving record.  On the same day that Srour moved for summary judgment, the City adopted a definition of "good moral character" as "having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others." It also repealed the "good cause" requirement.

Following the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen (2022), the district court found the character requirement facially unconstitutional, as the City had "not identified any historical analogue for investing officials with the broad discretion to restrict someone's Second Amendment right based on determining the person to lack good moral character." Srour then reapplied for a permit.  Meanwhile, the City appealed.

However, as the Second Circuit says, "nothing in life is certain."  After the opening and response appeal briefs were submitted, Srour's rifle and shotgun application was granted, and he was issued his permit.  That rendered his claims for prospective relief moot and deprived him of Article III standing, according to the Second Circuit. And the court declined to exercise pendent appellate jurisdiction over his claims for retrospective relief (damages), which were not yet final.

The voluntary cessation of a disputed action, the court explained, renders a case moot if (1) there is no "reasonable expectation" the action will recur, and (2) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." The action will not recur here because the permit automatically renews in three years, it is subject to investigation only if the status of the permitee has changed, and at oral argument the City reaffirmed that Srour's character "is not reassessed" at the time of renewal.

Nor was there any evidence, the court continued, that Srour's application was granted "to seek vacatur of the permanent injunction." His application was reviewed under the new regulations that defined "good moral character."

So Srour's claims for declaratory and injunctive relief were moot.  While the district court had not calculated his damages for the allegedly unconstitutional denial of his firearm permits, the Second Circuit declined to exercise pendent jurisdiction on that issue.

When a case becomes moot during an appeal, the court went on, the practice is to vacate the judgment below and remand with a direction to dismiss. "Vacatur is not warranted, though, when an appellant acts in bad faith to purposefully moot a case."

Here, the court found no indication that the City granted the permit intentionally to moot the case.  Srour himself initiated the outcome by reapplying for the permit, which the City granted without any indication that it was granted to moot the case.  "Thus, we find that the standard practice of vacating the district court's judgment is appropriate in this case."

 

Does that sound a bit naive, given that the City resisted until the bitter end?  The district court issued its opinion and order finding the old rule unconstitutional and ordering a discovery plan to be filed on the issue of liability and damages on October 24, 2023.  The City filed a notice of interlocutory appeal the next day.  Srour reapplied for a permit and filed a separate complaint against the City three days later.  It was not until after the appellate briefs were filed that the permit was granted on March 21, 2024.

It is particularly concerning that the City can voluntarily destroy jurisdiction in this way, given that plaintiffs lack adequate tools to fight back. In other circuits, for instance, the presence of a membership organization alongside Srour as a plaintiff could have prevented mooting the issue, but the Second Circuit—alone among courts of appeals—has held (for example, in American Psychiatric Association v. Anthem Health Plans, Inc.) that membership organizations cannot file suits on behalf of their members under Section 1983.

Srour reminds one of New York State Rifle & Pistol Association v. City of New York (2020), in which the Supreme Court heard a challenge to the City's ban on taking a handgun outside of one's home.  While the case was pending, the City changed the rules to allow narrow exceptions.  Finding the case moot, the Court vacated the judgment below and remanded the case for the district court to decide the scope of the new rule and to decide whether plaintiffs may still add a claim for damages regarding the old rule.

Justice Alito, joined by Justice Gorsuch and Justice Thomas, dissented.  "By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced." The City energetically defended its law until certiorari was granted, which "apparently led to an epiphany of sorts, and the City quickly changed its ordinance."  And yet that did not render the case moot, both because the issue of damages remained and because the new ordinance continued to violate the Second Amendment.

What happened to the case in the district court on remand?  The last entry for docket No. 13-cv-2115-RWS shows the case reassigned to Judge Edgardo Ramos on June 9, 2020.  There were no further entries, not even an order of dismissal.  Perhaps it was settled.

It remains to be seen whether a case remains in the district court in Srour.  The judgment has been vacated, but the district court may still have jurisdiction over the liability and damages claims.  The City will likely argue that the case is entirely moot.

And then there's the issue of attorney's fees under 42 U.S.C. § 1988(b).  In Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Resources (2001), the Supreme Court held that one is not a "prevailing party" if one "failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result."  A government defendant may see what's coming and change a rule to preclude an adverse judgment and thus not be liable for attorney's fees.

In McDonald v. Chicago (2010), after the Supreme Court invalidated the handgun bans of Chicago and Oak Park, those jurisdictions repealed their handgun bans before the case was remanded to the district court.  The district court then denied attorney's fees purportedly under Buckhannon because no relief was left to be ordered.  In NRA v. Chicago (2011), the Seventh Circuit reversed, commenting: "The district court was right to observe that plaintiffs did not receive a favorable judgment from it. But they did better: They won in the Supreme Court, which entered a judgment in their favor. When the Supreme Court rendered its decision, the controversy was live."  (Disclosure: I was counsel for NRA in the case, which was joined with McDonald.)

While Srour is in a completely different situation, the above illustrates how some courts may misapply Buckhannon.  If Srour is to be found to have "prevailing party" status, it will only be if the district court grants him damages or other relief.

As to "good moral character," the Second Circuit rejected a separate facial challenge to that criterion for a permit to carry a firearm, albeit allowing that "'good moral character' is a spongy concept susceptible to abuse, but such abuses, should they become manifest, can still be vindicated in court as they arise."  But that was in Antonyuk v. Chiumento (2023), which the Supreme Court vacated and remanded for reconsideration in light of Bruen.  The cert petition in Antonyuk did not raise that issue, so it's likely the Second Circuit will reaffirm use of the term.

The bottom line then is that the only Second Amendment challenge to the "good moral character" requirement in the Second Circuit that would likely be viable is an as-applied challenge.  Given the history of New York abusive gun licensing practices, that scenario would come as no surprise.  If it ever gets to the Supreme Court, given its discretionary nature, "good moral character" might be found to be facially invalid.

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[Paul Robinson and Jeffrey Seaman] It's Time to Confront Failures of Justice (Part IV)

This is the fourth in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the previous posts we examined the frequency of failures of justice and their costs. Good public policy (including legal rules) needs to balance competing societal interests, and this is particularly true in the realm of criminal justice where lives are on the line. But as we argue in our book, many aspects of the legal system reflect an archaic or miscalculated balance of interests that needlessly frustrates justice.

For example, do statutes of limitation for rape make sense in a world with DNA evidence and untested rape kits? Should a serial killer really escape justice because a court suppressed all the evidence after concluding a traffic stop went on too long? Should courts even be the ones making such a rule?

One reason why many criminal justice rules are poorly balanced from the perspective of doing justice is that there was no attempt to make a nuanced calculation of societal costs and benefits—merely an effort by judges to create or apply a rigid rule. Indeed, a theme that emerges from studying the causes of failures of justice in the legal system is that judge-made criminal justice policy is rarely well-made criminal justice policy. Here are some excerpts from the book considering the question of balancing societal interests and who should do that balancing.

There are almost always some legitimate interests that can be identified in support of justice-frustrating rules or practices. Thus, rational policymaking cannot simply demand exclusive focus on doing justice but rather must balance competing societal interests. That said, the analyses in previous chapters suggest that the balance of societal interests in current rules and practices is commonly skewed and much in need of rational and thoughtful rebalancing. Even the interpretation of constitutional rules represents a balancing of interests—by judges—that is sometimes explicit and sometimes implicit. A proper balancing of interests is likely to produce more compromise policies than the partisans of a particular issue might like. On the issue of privacy, for example, a proper balancing of interests reflecting society's preferences would likely satisfy neither extreme privacy advocates nor extreme justice proponents.

The importance of interest-balancing is often ignored by those who might be called "rights absolutists" who believe that any attempt at accommodating a competing interest fatally undermines the other interests at stake. For example, a privacy rights absolutist would see no room for creating less justice-frustrating search rules as it would start policymakers and judges down a slippery slope to a totalitarian world with no privacy rights. Such absolutist thinking creates false dichotomies in policymaking where policymakers and the public are confronted with an either-or fallacy and asked to choose between two extreme versions of the world. Such absolutism can occur on all sides, of course. In constructing our proposed reforms, we have tried to adhere to a nuanced balancing of interests which can be grounded in overall societal good.

As noted, the rules and practices of the justice system ought to reflect a balance between competing societal interests. This raises the question of who should determine the appropriate balance of interests when making criminal justice rules. This book has showcased the variety of actors who currently decide the balance of interests.

Legislatures are the primary determiner over matters such as funding, statutes of limitation, pretrial procedures, rules of evidence, sentencing guidelines, and early release laws. Courts hold primary determining power over constitutional rules such as double jeopardy, search and seizure restrictions, interrogation rules, and the exclusionary rule, as well exercising sentencing discretion. Prosecutors hold determining power in matters of plea bargains and prosecution policies, while executives hold power in matters of clemency. Some practices, such as which distributive principle of punishment to apply (e.g., desert, deterrence, or incapacitation), are decided by multiple actors such as courts and legislatures who sometimes work against one another.

However, since the rules of the justice system should reflect the balance of interests most in society support, it is commonly the case that legislatures are best placed to make fundamental balancing decisions. In a democratic society, it is elected legislatures that are designed to speak most directly to society's values. As noted in chapter 6, judges are too removed from the public to be properly responsive to changes in public preferences, and the doctrine of stare decisis means old judicial decisions may continue to dictate a balance of interests no longer supported by society. Claims that courts are better placed to make rules because of their lack of political partisanship also ring increasingly hollow as accusations of judicial partisanship and threats of court packing are made with ever greater regularity. There is also no reason to believe that judges—who are generalists by the necessity of their wide-ranging caseloads—possess more relevant expertise in specific criminal law policymaking than legislative committees and subcommittees. Judges were never meant to be makers of law in America's constitutional system, and it is unfortunate that the latter half of the 20th century saw courts strip legislatures of their ability to weigh the balance of interests in matters such as search and seizure, interrogation, and the question of excluding improperly obtained evidence.

Those who argue against an interest-balancing approach to criminal law, such as the "rights absolutists," often prefer judges as decisionmakers because judicial decisions are harder to change than democratically passed laws and because they see judges as commonly enforcing "rights" without regard to societal consequences, an approach they feel comfortable with. However, such an absolutist perspective mischaracterizes the situation by seeing judges as somehow immune to personal or political preferences. Judges engage in lawmaking when they turn a dozen constitutional words into a book-length set of constitutionally mandated—and usually very complex—rules, and this lawmaking is often done through application of judges' idiosyncrasies in balancing the competing interests.

There is no greater sanctity in the resulting judicially created book of rules than there is in a legislatively created book of rules, except that the judicially enacted rules are less democratic in their balance of interests and harder to change. Many "rights absolutist" legal scholars felt comfortable with less democratic judicial decision-making in the past when they tended to agree with the results of judicial lawmaking, but as the recent shift in the ideology of Supreme Court decision-making shows, such a view was based on convenience—not something inherent in the judiciary. In fact, a critical step toward depoliticizing the judiciary is returning more interest-balancing power to democratically elected legislatures who are more constitutionally suited for settling political questions.

Perhaps a wiser and more democratic system of decision-making responsibility can be seen in the U.K.'s parliament which possesses ultimate power to set criminal law rules and practices. For example, when public sentiment in the U.K. turned in favor of allowing a new and compelling evidence exception to the double jeopardy rule, all that was required was an act of parliament instead of a battle over judicial interpretation or clearing the almost impossible bar of passing a constitutional amendment. A better approach for the U.S. might be for courts to more frequently decline opportunities to become lawmakers and to more regularly signal the legislative branch that a balancing debate needs legislative resolution or even that a particular reform is needed. Even if the legislative branch refuses to act on such judicial advice, any judicial remedy should be limited and open to revision by later legislative enactment. Judges should not simply make new laws if we are to take seriously the constitutional separation of powers.

The next post provides a preview of some reforms we propose in our book to reduce failures of justice without greatly damaging other valuable societal interests.

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[Josh Blackman] Today in Supreme Court History: September 26, 1986

9/26/1986: Chief Justice Warren Burger resigns.

Chief Justice Warren Burger

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[Ilya Somin] Public Ignorance and Misinformation About Immigration

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Widespread political ignorance is a serious problem that both major-party presidential candidates are trying to exploit. A recent survey by the Kaiser Family Foundation finds extensive ignorance on the key issue of immigration. The study finds large numbers of people believe misinformation about immigration, while rejecting true statements about it.

For example, 51% believe it is "definitely true" or "probably true" that "Immigrants are causing an increase in violent crime in the U.S" (48% say this is definitely or probably false). In reality, immigrants, including undocumented immigrants, have much lower violent crime rates than native-born citizens. Similarly, 44% believe it is "definitely true" or "probably true" that "Immigrants are taking jobs and causing an increase in unemployment for people born in the U.S" (56% think this is definitely or probably false).  Most economists conclude that immigration does not increase unemployment among natives, and deportation of undocumented immigrants actually destroys more jobs for native-born workers than it creates than it creates (see also here).

The KFF study also finds that 59% believe it is false or probably false that "Undocumented immigrants pay billions of dollars in U.S. taxes every year" (40% think it is true or probably true). The truth is undocumented immigrants pay almost $100 billion in taxes per year, most of that going to the federal government.

The KFF survey does find respondents overwhelmingly get one point right: 84% believe it is "true" or "probably true" that "[i]mmigrants help fill labor shortages in certain industries like agriculture, construction, and health care." These are indeed all industries where immigrants are major contributors. A recent study finds that deportation of undocumented migrants reduces housing construction and thereby increases housing costs.  Immigrants are also disproportionately represented in health care, filling many critical needs. The same is true in agriculture.

There is a possible flaw in the KFF crime question. I think the intent of the question and the way most readers probably interpret it is to ask whether immigration increases the crime rate. But, read literally, it could potentially be interpreted as asking whether immigrants commit any violent crimes at all. If a million immigrants come in and even one commits a violent crime, that could be considered an "increase" in violent crime in the sense that it  increases the total number of violent crimes committed on US soil, even if the crime rate goes down substantially. I suspect most respondents are not interpreting the question that way. If they were, we would not see a massive partisan split in responses, with the vast majority of Republicans saying immigrants do increase violent crime, while most Democrats take the opposite position. Almost everyone presumably recognizes that some immigrants (like some members of virtually any large group) do commit violent crimes, even if the rate is low. But it's possible that the result here is skewed by a minority of respondents interpreting the question very literally, and thereby giving different answers than they would if they realized it was about crime rates.

Previous studies also find widespread ignorance on immigration policy issues, including the number of immigrants (voters tend to greatly overestimate it), their crime rate (ditto), and more.

Overall, public ignorance about immigration likely increases restrictionist sentiment. If many people realized that immigrants have low crime rates, pay more into the public fisc than they take out, and do not increase unemployment, public opinion would likely shift in a more pro-immigration direction. These false perceptions aren't the only possible justifications for immigration restrictions. But they are important considerations for many voters.

Obviously, there are other issues where ignorance skews public opinion in a more left-wing direction. Left-wing voters are far from immune to ignorance and bias. But that in no way mitigates the harm caused by ignorance on the right (and vice versa). Ultimately, political ignorance is a widespread problem on both sides of the political spectrum. It leads to both parties offering worse policies than they likely would otherwise.

There is no easy solution to the problem of political ignorance. But I assess a range of possible options in a recent article on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance, and in my book Democracy and Political Ignorance: Why Smaller Government is Smarter.

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[Eugene Volokh] Challenge to Nassau County Anti-Mask Ordinance Fizzles, Because …

Today's decision by Judge Joan Azrack (E.D.N.Y.) in G.B. v. Nassau County dealt with a challenge to Nassau County's Mask Transparency Act, which generally makes it a misdemeanor to wear "any mask or facial covering whereby the face or voice is disguised with the intent to conceal the identity of the wearer" in "any sidewalk, walkway, alley, street, road, highway or other public right-of-way or public property or private property without the consent of the owner or tenant." The Act also expressly excludes, among other things, "facial coverings worn to protect the health or safety of the wearer."

Plaintiffs challenged the Act, arguing that they were disabled and needed to wear a mask for medical reasons:

Plaintiffs … have disabilities. S.S. has common variable immunodeficiency, kidney disease, respiratory impairments, and post-viral syndrome. G.B. has cerebral palsy, asthma, and uses a wheelchair for mobility. Plaintiffs' disabilities increase their risk of serious side effects and death from airborne illnesses. "Since the COVID-19 pandemic," Plaintiffs have worn masks when they leave their homes "to protect [themselves] from illness."

And that, the court concluded, meant they lacked standing to challenge the law:

Plaintiffs fail to sufficiently demonstrate that their "intended future conduct is 'arguably proscribed by the statute' they wish to challenge." … Plaintiffs wear masks to protect themselves from illness. That is expressly excluded from the MTA's reach by its health and safety exception. Plaintiffs also do not wear masks in the manner proscribed by the MTA, namely, "with the intent to conceal the identity of the wearer." Plaintiffs "lack standing to challenge the [MTA] because, simply put, it does not apply to them."

Nor could they prevail on the theory that the law would be "misapplied or ignored by law enforcement:

Plaintiffs' contentions fail on the facts and law. Factually, they ignore that law enforcement guidance (1) emphasizes the MTA does "not apply to facial coverings worn to protect the health or safety of the wearer," (2) instructs that "State and Federal case law with regard to standards of proof and the [Fourth A]mendment should be observed," and (3) requires that "[t]he totality of circumstances and [required] elements of suspicion should ALWAYS be articulated" before even stopping an individual or directing them to remove a mask.

In any event, legally, "a party alleging that its conduct could be proscribed by the challenged statute cannot rely on an argument that the statute might be misconstrued by law enforcement." That is, asserting law enforcement will misapply a law to a given plaintiff "proves too remote or attenuated" to confer standing….

Plaintiffs insist that Nassau County has already enforced the MTA in a manner that "exclude[es] Plaintiffs from the public sphere." In support of that argument, Plaintiffs rely on Nassau County Legislator Carrié Solages's recent social media posts that (1) "asked respectfully" that each attendee at his September 18, 2024, political rally comply with the MTA by "not wear[ing] a mask to conceal your face" and (2) included a flyer for the rally that said in the bottom right corner "No Facemask."

But these posts do not amount to actual or threatened enforcement against Plaintiffs (or even against any other citizens). Plaintiffs offer no evidence that Legislator Solages is part of the executive branch of Nassau County or that he otherwise plays a role in enforcing the MTA. And, even assuming arguendo that social media posts from a single Legislator could somehow have potential relevance to Nassau County's enforcement of the MTA, Legislator Solages's posts contain a "respectful[]" "ask[]"—not a demand—for compliance with the MTA. Similarly, the "No Facemask" statement on the flyer also does not remedy Plaintiffs' failure to satisfy the controlling [legal] standard.

The MTA criminalizes masks that are worn only "with the intent to conceal the identity of the wearer" and explicitly excludes masks "worn to protect the health or safety of the wearer." The "No Facemask" statement on a political flyer from a single Legislator does not alter the clear language of the MTA. The MTA does not "arguably proscribe" all facemasks….

Finally, Plaintiffs contend that they have standing due to anticipated harassment from non-party civilian citizens who are hostile toward mask wearing. The argument fails for each standing element even when independently assessed outside the governing [legal] framework. First, Plaintiffs do not sufficiently demonstrate that they will imminently suffer this hypothetical harassment, which precludes it from being a cognizable injury in fact. Second, the harassment would not be "fairly traceable" to Nassau County enacting the MTA; instead, it would be "the result of the independent action of some third party not before the court.'" That Plaintiffs acknowledge anti-mask hostilities took place before the MTA was adopted confirms that conclusion. Third, and relatedly, it is thus unclear how the relief Plaintiffs seek, declaring the MTA void and enjoining Defendants' enforcement of it, is "likely" to "redress[]" the civilian anti-mask harassment that Plaintiffs acknowledge predated the MTA.

There might well be plausible constitutional challenges to the Nassau ordinance, as well as serious practical problems with enforcement. I expect that they will fail, given Second Circuit and New York state precedent. See Church of the American Knights of the KKK v. Kerik (2d Cir. 2004) and People v. Bull (N.Y. App. Term 2004) (involving "self-proclaimed anarchist[]" May Day demonstrators). But they would need to be brought by plaintiffs other than these ones.

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[Ilya Somin] New London Gives $6.5 Million in Tax Breaks to Developer Planning to Build Housing on Land Condemned in the Kelo Case

The site of Susette Kelo's house, May 2014. Photo by Ilya Somin. (Ilya Somin)

 

Last year, I wrote about how there might finally be some  development on the site of the property condemned as a result of the Supreme Court's 2005 ruling in Kelo v. City of New London, the controversial 5-4 decision in which the justices ruled that the condemnation of homes for private "economic development" is permissible under the Takings Clause of the Fifth Amendment, which only allows takings for a "public use." In January 2023, Renaissance City Development Association (the private nonprofit development firm , which took ownership of the property after it was seized by eminent domain) sold the condemned land to a developer, which was planning to build new housing on it. Up to that point, the only regular users of the condemned land since the last homeowners were forced out were a colony of feral cats. The supposedly carefully planned development project that justified the condemnations fell through, as also did a number of later proposed uses for the land.

Feral cat on the site of one of the properties condemned in the Kelo case, 2011 (photo by Jackson Kuhl).

 

The New London Day, recently reported that the development project is going ahead, but the city has given the developer a hefty $6.5 million tax break to facilitate it:

The City Council late Monday [Sept. 16] approved nearly $6.5 million in tax breaks over 20 years to a developer planning to construct 500 new apartments on two sections of the Fort Trumbull peninsula that have sat vacant for more than two decades.

The fixed tax agreement with RJ Development + Advisors, LLC, approved by a 5-2 vote, would offset about half the $13 million in estimated pre-construction costs needed to meet flood plain requirements and address remaining remediation and other sub-surface issues at the two sites.

In exchange, the city would receive approximately $18 million in tax revenue over the 20-year period of the agreement on parcels that Mayor Michael Passero noted have sat fallow and not producing taxes for a generation.

The vote was preceded by testy exchanges between council members and emotional rhetoric that referenced the peninsula's dark past as a national symbol for eminent domain.

A large swath of the Fort Trumbull area was left undeveloped after a controversial demolition and development push by the former New London Development Corp. That led to the landmark 2005 U.S. Supreme Court eminent domain decision, Kelo v. New London.

Passero, who called that decision a debacle that left the land an "open sore," said the housing project would serve as a salve to "help heal the wound."

Councilors Jefferey Hart and John Satti, who both voted against the tax agreements, echoed concerns raised by several citizens earlier in the meeting, including the prospect of giving a sweetheart deal to a developer who stood to make millions from a project being subsidized on the backs of taxpayers.

"It's important to show resistance to people offering you a bad deal," Hart said. "There's a lot of assumptions that no other developer is willing to take on this project (without a tax break)."

But Felix Reyes, the city's director of planning and economic development said no other viable investor has stepped forward since the property became marketable. Reyes acknowledged the trauma suffered by former residents of the peninsula and the "cruel things done" there as part of the city's effort to attract private development.

"There's no line out the door of developers willing to tackle this project," Reyes said, adding any such firm would face the same pre-construction costs as RJ Development, including a requirement to build the complexes on raised platforms.

Like most property scholars and land-use economists, I am skeptical of the value of targeted tax breaks and subsidies like this one. The better approach to promoting development is to have a good business climate across the board—and respect property rights. Also, projections of the benefits of such taxes and subsidies are often exaggerated. I am skeptical that the City will really get the promised $18 million in tax revenue.

Of course, the projected benefits of "economic development" takings like the one upheld in Kelo are also routinely exaggerated. There are few better examples than the Kelo condemnations themselves. Even if this new development project is a completely success, that would not be a vindication of the original Kelo takings. As I explained in my previous post on this topic:

Since 2005, several efforts to redevelop the condemned land have fallen through. Hopefully, this one will succeed. But even if it does, I don't think it will  somehow vindicate the Kelo condemnations. The new development initiative is obviously different from the badly misconceived plan that led to the use of eminent domain over twenty years ago. Moreover, by the time any construction is completed, the land will have lain unused (except by feral cats!) for nearly twenty years. From the standpoint of promoting development, that's an enormous waste.

The region would almost certainly have been better off economically if the original owners had been allowed to keep living there, paying property taxes, and contributing to the local economy. And that doesn't even consider the enormous pain and suffering the original development project inflicted on those who lost their homes (including some who sold them "voluntarily" as a result of harassment and the threat of eminent domain).

I would add that if the City had simply left the property owners alone, they would not have had to give anyone targeted tax breaks to develop the land.

Unless you're one of the feral cats living on the property, it's hard to justify the Kelo takings!

I covered the history of the condemnation process and the harm it inflicted in depth  in  The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, my book about the Kelo case and its aftermath. In that book, I also explained why the Supreme Court's ruling was wrong from the standpoint of both originalism and living constitutionalism.

The post New London Gives $6.5 Million in Tax Breaks to Developer Planning to Build Housing on Land Condemned in the Kelo Case appeared first on Reason.com.

[Eugene Volokh] Sean Penn, Free Speech, and Labor Law

An interesting incident, which led to a National Labor Relations Board decision (CORE & Rojas) Sept. 20. First, an excerpt of the facts involving Community Organized Relief Effort, a charity co-founded by noted actor Sean Penn (known in part for his past anger management problems):

On January 29, 2021, the New York Times (NYT) published an article about [a COVID] Vaccination Day event [organized at Dodger Stadium by the L.A. Mayor, and staffed by, among others, some CORE employees]. The article detailed what occurred during the event and included interviews with various individuals, participating organizations, and others that attended and/or worked the event.

After that, two anonymous commenters, who either were CORE employees or at least were so perceived by Penn, posted:

[1.] I work at the Dodger Stadium site and this article is inaccurate. The line about no honking cars is true. However, I had patient after patient yelling and complaining about the four hour wait and lack of restrooms. Sure, no one honked their horn, but a driver threatened to run over one of our staff members unless he let them on site. What the article does not mention is that we have staff working 18-hour days, 6 days a week, without the backup coverage to be able to take time off. This is an OSHA violation and it exists because the mayor ordered that we transition from a test site to a vaccination site in less than a week. If we had more time to transition, we wouldn't have staff working these hours without the opportunity to take breaks—they are schedulers and are essential to the function of the site. Without them, we wouldn't be vaccinating. The mayor more or less ordered an OSHA violation. There is a shipping container on site that is a designated space for overworked staff to go cry in. If you're not let into this shipping container, it's because staff are crying inside. Garcetti created these conditions and looks like a hero for it. Additionally, Garcetti got to skip the line for vaccine doses. Our staff wait in a queue to receive drawn vaccines. Garcetti went to the front of the line every time and the patients in his line received expedited service. Additionally, the line about his phone number is a violation of our policies—no one gets special treatment.

[2.] I am working on the ground at Dodger. We do NOT get krispy kreme for breakfast. In fact, we usually DON'T get breakfast, just coffee. And the lunch is NOT subway. It's the same old lettuce wraps every clay. It's free lunch for staff/volunteers so I'm not complaining but still…not subway. Also, it's NOT wifi issues with the [iPads]. It's server issues/bugs with the Carbon. Health server that we are using to log people in. Other websites will load and the iPads work perfectly fine, but the Carbon Health app/site is still in beta and is EXTREMELY buggy and slow. Someone told me once they checked in 3 patients in 55 minutes because of how slow the Carbon website was. Lastly, the day the line was over 4 hours long was because the mayor decided to let over 1,000 police officers cut the line and get vaccinated without an appointment, throwing the entire system off. On a typical day the line will not be that long.

The administrative law judge concluded that this may have constituted "complaining about their terms and conditions of employment," which is protected by labor law against employer retaliation.

After the comments, Penn either wrote or had CORE's CEO write this email:

A Message To All CORE Staff From Sean Penn,

As a fellow citizen, I first want to express my extreme gratitude for your dedicated and inspiring work on behalf of your communities. [Further praise of employees and statement of Penn's commitment to CORE omitted; see the full decision for more. -EV]

It is in this spirit, and for this reason, that I am directly reaching out to each and every one of you to address a grave concern. In my now nearly fifteen years of working in disaster response beginning in Hurricane Katrina (and I'll spare you my "I walked twenty miles through snowy mountains to get to school" stories), the greatest lesson I have learned is that valuable, organized response is most vulnerable to destruction from within. Time and time again, I have seen people and countries betrayed by the pettiness of in-fighting from within the very organizations they most relied on. We do not ask, ever, that loyalty is blind or anything else that would trade accountability for the efficiency and empathy that we commit to those we serve or to each other. We have strong complaint procedures and endless other internal avenues for productive criticism. But, as a disaster response organization, each of our first accountabilities to ourselves must accept that our work can never ever be compared like the apples to oranges of other workplaces.

At the outset, CORE, of course, takes seriously and complies with OSHA and all applicable regulations. OSHA has an essential role in all workplaces, and while CORE does everything in its power to comply not only with the protocols of OSHA, but also the basic laws of common sense, we must accept that we have taken on jobs that must push that envelope virtually as far as is reasonably allowable, while fairly expecting that OSHA too, in its commitment to public service, will exercise the common sense understanding that by necessity, the structure of the work and workplace we provide demands an adaptability that is not cemented by pre-pandemic precedent.

And any among us who don't find themselves built in this way for the mission at hand, any of us who don't recognize our inherent duty to prop each other up, any of us who might find themselves predisposed to a culture of complaint, have a much simpler avenue than broad-based cyber whining. It's called quitting. Quit for CORE. Quit for your colleagues who won't quit. Quit for your fellow human beings who deeply recognize that this is a moment in time. A moment of service that we must all embody sometimes to the point of collapse. That's my job. And that's your job.

I am embarrassed to have to preach these words to the very people who are so dominantly beyond the proverbial choir. Those who, in effect, are every bit the leaders of CORE that I am. This message is not for you. And this message is not a random condemnation of those who may find themselves, for whatever reason, unwilling or unequipped to continue with CORE.

I'm sure many of you are correctly assuming that what has initiated this particular communiqué began with a pair of highly visible comments on a major news outlet's platform by two people who anonymously represented themselves as CORE staff. Those comments, which claimed to be revealing of inaccuracies about our vaccine effort at Dodger Stadium in a news report, were in themselves not only a propagation of deeper inaccuracies, but also indulged the personal opinions of those alleged CORE staffers in a way that violates everything that keeps us whole. We are an organization built on partnerships. Extraordinary partnerships. Partnerships in California. Partnerships in the Navajo Nation. Partnerships in Port-au-Prince, Washington, D.C., Fulton County, and numerous others. An undeniable example of a valued trust, mentorship, and partnership is that which CORE has with the City of Los Angeles and its LAFD. This high impact partnership did not happen by accident, and it didn't happen overnight. It happened because all the CORE strategic and operational inputs made by so many of you, and those you stand shoulder-to-shoulder with every day, earned it. It also happened because of the unique faith offered CORE by Los Angeles city leadership.

So, when two from within our ranks make unilateral decisions to indulge their own whim of dissent in the low-hanging fruit of cyberspace, and to, in this situation, register such obscene critiques of valued partners, or CORE itself, the only thing they will have contributed to is a lessening of CORE's impact in the fight against COVID-19. A fissure that could collapse a lifesaving enterprise. And to whoever authored these, understand that in every cell of my body is a vitriol for the way your actions reflect so harmfully upon your brothers and sisters in arms. I have taken counsel and here will refrain from using the words with which I would otherwise choose to describe the character of your actions.

[Discussion of the Mayor's role in CORE's participation omitted. -EV]

[Further praise of employees and of the vaccination effort omitted. -EV]

My deepest gratitude and respect,

Sean Penn

Chairman and Co-Founder of CORE

Labor law recognize employers' rights to speak to their employees, so long as the speech doesn't threaten retaliation or promise certain benefits; but it is more open to finding implied threats in the employment relationship, see NLRB v. Gissel Packing Co. (1969), than would be found elsewhere:

Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8 (a) (1) and the proviso to § 8 (c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.

The administrative law judge concluded that Penn's speech, in context, wasn't sufficiently threatening to be forbidden by labor law, but the Board reversed in relevant part and sent the case back for further findings:

The judge found that Penn's email was merely communicating his response to disparaging comments about the vaccination event, rather than conveying unlawful threats to prevent employees from complaining about their terms and conditions of employment. The judge also expressed the view that "this email … was just Mr. Penn's rallying cry to employees." The judge further stated: "I cannot read Penn's email and objectively conclude that his statements intended to coerce, restrain, or threaten anyone with unspecified reprisals by allegedly disparaging employees who took their work-related complaints outside of [CORE]." In addition, the judge found that the record was devoid of evidence that any employee perceived Penn's email as a veiled threat to terminate employees for taking work-related complaints outside [CORE]. Further, the judge found that the record demonstrates that no one was terminated, disciplined, or suffered any adverse consequences for complaining on the New York Times website about the vaccination event. Thus, the judge concluded that [CORE] did not violate Section 8(a)(1) as alleged and that [CORE] was entitled to judgment as a matter of law….

As we recently explained, summarizing our case law:

The Board has long held that the standard to be used in analyzing statements alleged to violate Section 8(a)(1) is whether they have a reasonable tendency to coerce employees in the exercise of their Section 7 rights. Intent is immaterial. The Board considers the totality of circumstances in assessing the reasonable tendency of an ambiguous statement or a veiled threat to coerce. Whether or not the employee changed their behavior in response is not dispositive, nor is the employee's subjective interpretation of the statement. The Board therefore considers the total context of the alleged unlawful conduct from the viewpoint of its impact on employees' free exercise of their rights under the Act.

In finding that the General Counsel failed to meet her burden of proving the threat allegation, the judge did not apply the correct standard, as reflected in her reliance on immaterial considerations, such as [CORE]'s perceived intent, the lack of evidence that any employees understood Penn's remarks as a threat, and the fact that no employees suffered adverse consequences related to the remarks.

Therefore, we have decided to reverse the judge's ruling granting [CORE]'s motion for summary judgment and to remand the case to the judge for further consideration in light of this decision. On remand, the judge shall reopen the hearing to allow [CORE] an opportunity to present evidence in support of its defenses to the Section 8(a)(1) complaint allegations and for the General Counsel to present rebuttal evidence….

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[Jonathan H. Adler] ABA Standard 208, Law Schools, and the First Amendment

Last February, the American Bar Association adopted a new accreditation standard on academic freedom and freedom of expression: Standard 208. Under this standard, all law schools are required to protect academic freedom and freedom of expression as a condition for their accreditation. This was a "step forward" for free speech and open inquiry at American law schools.

Standard 208 obligates law schools to "protect the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations, or protests," among other things. The clear implication of the standard's language (and accompanying interpretations) was that law schools should be expected to provide speech protections consistent with the First Amendment. In other words, private law schools and public law schools would be expected to meet the same standard (with appropriate accommodation for those schools with religious or other credal commitments). Alas, some private universities resisted this interpretation.

A new guidance memo from the ABA further explicates the reasons for adopting the new standard and makes explicit that Standard 208 incorporates First Amendment principles.

On the Standard's purpose:

Standard 208 was created to strengthen academic freedom and freedom of expression protections, as Standard 405(b) required a law school only to have "an established and announced policy with respect to academic freedom" and did not specifically require that a law school adhere to its policy on academic freedom. The Council believes that the development of the law and effective legal education require free and robust inquiry, exposition, and exchange of ideas and states this conviction in Interpretation 208-6 where it also explains that "becoming an effective advocate or counselor requires learning how to conduct candid and civil discourse in respectful disagreement with others while advancing reasoned and evidence based arguments."

Part 208(c) of the standard notes that the law schools may adopt some restrictions on expression. As the guidance memo makes clear, the ABA understands this language to track the contours of existing First Amendment doctrine.

The Council recognizes that the Standards it has prescribed for academic freedom and freedom of expression may involve discretion and interpretation of unresolved areas of the law. Subsection (c) seeks to address certain of these areas and to confirm the law school's substantial discretion to regulate or restrict academic freedom or expression within them. As provided in Interpretation 208-5, Subsection (c) will be interpreted consistent with the First Amendment of the U.S. Constitution. In areas where First Amendment law is unclear or debatable, the Council will likely find any policy arguably consistent with First Amendment doctrine to be compliant, unless and until the law school's policy (or one substantially similar to it) has been found inconsistent with the First Amendment in a judicial proceeding following the exhaustion of any available appeals. To the extent that this occurs, the law school will be expected to change its policy to be consistent with the First Amendment. This approach gives schools the maximum flexibility to adopt and adhere to policies that they find appropriate, whether articulated in a general or more detailed manner, so long as they comply with applicable constitutional law.

As I have noted before, there are prudential reasons why private law schools should embrace First Amendment standards on speech and expression. The new guidance makes clear that they have an obligation to do so as well.

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[Orin S. Kerr] Michigan Supreme Court Grants Review in People v. Carson

Back in March, I had a long post here, Yes, Warrants Allow A Search Through the Whole Phone, criticizing a Michigan Court of Appeals ruling in People v. Carson.  My post began:

As regular readers know, one of the big issues in computer search and seizure law that I often write about is how to limit computer warrant searches.  If everything needs to be searched to find the evidence, and information outside the scope of the evidence sought can be used in plain view, doesn't a search of a computer with a warrant result in a general search — the kind that the Fourth Amendment was enacted to prevent.  My own answer to this puzzle is that the Fourth Amendment requires use restrictions for digital searches.  The whole computer can be searched, but evidence outside the scope of the warrant cannot be used.

In the last year or two, however, a few state courts have tried to limit computer searches through novel interpretations of the particularity requirement. I think this is wrong, and I thought I would explain why.

I'm pleased to report that the state sought review of the ruling from the Michigan Supreme Court, and that today the Michigan Supreme Court agreed to hear the case:

On order of the Court, the application for leave to appeal the February 15, 2024 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall address whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant's cell phone violated the Fourth Amendment's particularity requirement, see People v Hughes, 506 Mich 512, 538 (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 (2004), discussing United States v Leon, 468 US 897, 923 (1984); and (4) finding that trial counsel deprived the defendant of his right to the effective assistance of counsel by failing to move to suppress the evidence obtained from his cell phone on these grounds, see Strickland v Washington, 466 US 668, 687-688 (1984).

As always, stay tuned.

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