Eugene Volokh's Blog, page 2623

More on the OccupyDC Tasing Video, and Two Narratives of Police-Citizen Interaction

(Orin Kerr)

I posted a reader poll yesterday on the video of the U.S. Park Police officer tasing an OccupyDC protester, and the responses are fascinating. With about 2,000 votes, opinion is almost exactly evenly divided. 43% say the officer acted appropriately; 41% say the officer did not act appropriately; and 16% say that they need more information before deciding. The comment thread is equally divided, with over 300 comments so far.

Why is opinion so divided? My pet hypothesis is that most people recognize two competing narratives when it comes to police-citizen interaction. The first narrative is what you might call the equality narrative. The equality narrative posits that the police are just citizens who happen to wear uniforms, and they have no more right to get their way than anyone else. If an officer asks a person questions, for example, he doesn't have to respond. Unless the officer orders him to stay put, he can walk away.

The second narrative is what I'll call the inequality narrative. The inequality narrative posits that the police have special authority by virtue of being police officers, and that people interacting with the police have to recognize that special authority and should expect trouble if they don't. If an officer decides to make an arrest, for example, the subject of the arrest can't just decide he would rather not be arrested and try to resist the officer's efforts.

The key to these two narratives is that they're both true — at times. The equality narrative is often true. In some circumstances, the police have no more power than anyone else. The inequality narrative is also often true. In other circumstances, the police do have the power to use force to overcome the resistance of individuals who may not want to do what the police want.

The OccupyDC taser video is particularly interesting because it starts midway through the scene. The offense that triggered the officers' approaching the suspect (tearing down the notices) is minor. The video therefore presents a circumstance in which viewers can reasonably differ as to whether we should be in the equality-narrative zone or the inequality-narrative zone. As a result, different viewers fill in the uncertainty by just picking a narrative. In general, those who are more distrustful of the police pick the equality narrative. They interpret the officers' conduct as bullying. In their view, grabbing the protester was an act of thuggery. Those who are less distrustful of the police generally pick the inequality narrative. They see the protester as practically asking for an elevated use of force by resisting the officers' efforts to arrest him, and they see the officers as acting appropriately in response.

Two Tourists Not Allowed in Country, Locked Up Overnight, Based on "Destroy America" Joke

(Eugene Volokh)

The Daily Mail (UK) reports:

Two British tourists were barred from entering America after joking on Twitter that they were going to 'destroy America' and 'dig up Marilyn Monroe'.

Leigh Van Bryan, 26, was handcuffed and kept under armed guard in a cell with Mexican drug dealers for 12 hours after landing in Los Angeles with pal Emily Bunting.

The Department of Homeland Security flagged him as a potential threat when he posted an excited tweet to his pals about his forthcoming trip to Hollywood which read: 'Free this week, for quick gossip/prep before I go and destroy America?' …

Leigh was also quizzed about another tweet which quoted hit US comedy Family Guy which read: '3 weeks today, we're totally in LA p****** people off on Hollywood Blvd and diggin' Marilyn Monroe up![']

A New York Times blog post suggests the story is indeed correct, and quotes a Customs and Border Protection response that seems to acknowledge at least some details.

If the facts described in these stories are correct, this strikes me as a pretty unsound decision on the government's part. To be sure, the government has broad authority to exclude people from the country, even based on their speech — see Kleindienst v. Mandel (1972) — and the authority would be properly exercised for people who really do seem to be threats. But I don't see the reported Twitter messages as being an adequate basis (again, if they were the extent of the basis) to justify the government's decisions here. Likewise, while I realize that when someone is excluded from the country they have to be held somewhere until they can leave, locking them up with people who likely genuinely are serious criminals strikes me as improper treatment.

UPDATE: I erroneously faulted TSA for the actions here — the agency involved was Customs and Border Protection, which is also part of the Department of Homeland Security. My apologies for the error, and thanks to commenter Decius for the correction.

TV Station Director in Tunisia Faces Blasphemy Trial for Broadcasting "Persepolis"

(Eugene Volokh)

The New York Times reports:

[M]any in Tunisia, both pious and less so, were taken aback by the brief scene in which God was personified — speaking in Tunisian slang no less. A week later, a crowd of Salafis — the term used for the most conservative Islamists — attacked the house of Nabil Karoui, the station's director, and he was soon charged with libeling religion and broadcasting information that could "harm public order or good morals."

The trial, which Human Rights Watch called "a disturbing turn for the nascent Tunisian democracy," was originally scheduled for Nov. 16, then postponed until January [and has since been postponed again, until April].

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Reader Poll on Tasing of OccupyDC Protester

(Orin Kerr)

Yesterday afternoon, at the OccupyDC protest in Washington, DC, a police officer tased a protester. As I understand it, the police were putting notices around the protest site that all camping supplies had to be removed because the site was no longer going to be made available for the protest. A protester in a red shirt proceeded to tear down the notices after the police left them, and he is heard screaming at the police: "Let them clean up the trash in the fucking parkway! It was your fucking trash, you fucking pigs!" The police then walked after the protester, who ran away from the police. A bunch of officers then surrounded the man, who started repeating that he had done nothing wrong. Two officers then went to grab him, but he resisted; after he continued to resist, a third officer tased him. Here's the video:

And here's the question, which you should answer only after having watched the video:

Did the officer who tased the protester act appropriately under the circumstances?




Yes




No




I need more information





  




Free polls from Pollhost.com

Why United States v. Jones is Subject to So Many Different Interpretations

(Orin Kerr)

If anything is clear from the Supreme Court's decision last week in United States v. Jones, it's that not very much is clear from the Supreme Court's decision in United States v. Jones. Reading over the commentary on Jones both in the print media and on blogs, I think I've seen just about every reaction (at least from enthusiasts of greater privacy, from which the commentariat is almost exclusively drawn). My favorite analysis so far is this new post from Tom Goldstein. I think it's a real gem. But it's only one view among many as to what the case means.

Why is Jones such a puzzling decision? I think there are two major reasons. First, Justice Scalia creates a new test for Fourth Amendment searches without being fully candid that he's doing something quite new. Trespass has long been relevant to the Fourth Amendment search inquiry, to be sure. But the Court never embraced a straight trespass test, and even in the old days deviated from it (see Boyd, McGuire, etc). So this test is new. And yet Scalia writes his opinion as if a well-established trespass test existed that he is returning to, and that returning to it is some sort of obvious step. The disjunct between Scalia's doctrinal innovation and his apparent incredulity that anyone could find his opinion confusing makes for some very strange reading.

For example, if you want to understand the new trespass test, you mostly have to read the footnotes — especially footnotes 3 and 5, which are responses to Alito's concurrence. Here, though, Scalia is so dismissive of Alito's critique that it's hard to know why Scalia sees Alito's questions as so obviously answered. Scalia is the one who is introducing a new test; presumably he's the one who knows what the new test will look like. But these footnotes are filled with phrases indicating tremendous certainty: "no doubt,""quite irrelevant," "undoubtedly occurred", "undoutedly true, but undoubtedly irrelevant," "similarly irrelevant," etc. Such certainty makes it hard to know what principle Scalia is applying that makes him so certain he's right.

The second reason Jones is so confusing is that Justice Alito spends only a single paragraph of his 14-page opinion explaining how he would resolve the Jones case. Most of his opinion is spent criticizing Scalia's test in great detail. Alito makes some very good points in that section, I think. But we only get to how Alito would resolve the case in the middle of page 13, near the end. And in that one paragraph, Alito is surprisingly unclear as to what he is doing. Without giving the issue any analysis, Alito seems to assume that the reasonable expectation of privacy test is simply about what privacy a hypothetical reasonable person would think — a common error, as I have noted — and then he just says that this case has gone too far, in his view.

But the reader is left uncertain as to why. Is Alito embracing the DC Circuit's novel "mosaic theory"? If so, isn't such a revolutionary change in Fourth Amendment doctrine worth a bit of explanation? (Or does Alito not recognize the revolutionary nature of that approach?) And if the line is to be drawn, where and why? Like Justice Scalia, Alito uses a statement of judicial certainty as a substitute for analysis: "the line was surely crossed before the 4-week mark," he says, emphasis added, with no explanation of why that is sure.

I don't mean to be too critical of the Justices here. They're generalists, not Fourth Amendment nerds. But I think these characteristics of the Jones opinions make the decision a Rorschach test. You can read the opinions in many different ways depending on what you want to read into them. And I think that explains why the commentary about Jones is all over the map.

The U.S. may not use "an unusual mechanism to obtain an extraordinary remedy to avoid an ordinary appeal."

(Jonathan H. Adler)

This is the conclusion of the U.S. Court of Appeals for the Sixth Circuit in an interesting case, United States v. Carroll, in which the United States sought to invoke its sovereign immunity in a suit in which it is the plaintiff.  To make matters more interesting, the U.S. was suing the bankruptcy trustees of the Eastern District of Michigan in their official capacities.  And were that not enough, the Sixth Circuit dismisses the case because the federal government lacks Article III standing to bring its claims against these parties.  I think I spy a Federal Courts exam question in here somewhere.

Access Palin's E-mail, Get Convicted under Sarbanes-Oxley

(Jonathan H. Adler)

Actually, it's not quite that simple, but close. David Kernell hacked then-Governor Sarah Palin's Yahoo e-mail account, and was subsequently convicted under 18 U.S.C. § 1519, a provision of the Sarbanes-Oxley Act of 2002, for deleting information on his computer in order to impede the investigation into his accessing of Gov. Palin's account. Today, the U.S. Court of Appeals for the Sixth Circuit affirmed Kernell's conviction, rejecting his claim that Section 1519 is unconstitutionally vague.

NYT Abandons Nomination Filibuster, Will Senate Follow?

(Jonathan H. Adler)

The editorial board of the New York Times has finally decided to abandon its support of filibustering nominees it opposes.

It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama's call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.

This is a major change of position for us, and we came to it reluctantly. The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution.

Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one's political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.

Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used.  If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the "Gang of 14″ deal.  Their willingness to consider the filibuster's end will be necessary to secure a truce.

Now that it has been shown the filibuster can be used against nominees of both parties, perhaps some Senate Democrats will now agree to support a bi-partisan deal to ensure all judicial nominees receive a prompt up-or-down vote within a set time after their nomination. Senator Leahy supported legislation along these lines back when Bill Clinton was President, only to abandon the idea once George W. Bush was in office. Republicans toyed with the idea as well, but are loathe to offer such a gift to a sitting Democratic President.   Perhaps both could agree to forego filibusters for whomever occupies 1600 Pennsylvania Avenue next.

It is said little gets done in an election year, particularly when it comes to nominations. But the fact that it is an election year provides a rare window of opportunity. It is still early enough that neither party knows who will win the Presidency this fall, or even who will hold a Senate majority. This allows each side to put aside consideration of partisan advantage and embrace a neutral set of rules to govern future nominations to take effect in January 2013. Such a deal could ensure prompt committee and floor votes of nominees within a set number of days after they are referred to the Senate and their paperwork in complete. Unacceptable nominees could still be opposed, but they would have to be opposed on the merits, and so long as the White House makes nominations with dispatch, there would be no concern about excess judicial vacancies.

The window for a deal along the lines above will not stay open long, as neither side will sign on to something they believe will advantage the other side. The question is whether enough members of the Senate care enough about the judiciary to make it happen.  If not, any deal like this will have to wait another three or four years.

Facebook Timeline Blues

(Ilya Somin)

I recently accidentally got switched over to Facebook Timeline. For a variety of reasons, I strongly dislike the new format and want to switch back. Unfortunately, various tech sites that I have checked out say that Facebook forbids this. However, I'm hoping that one or more of our tech-savvy readers might have a way to get around this problem. So I welcome your suggestions.

And if by any chance any Facebook employees read this blog, I would greatly appreciate your assistance too. It's not wise for you to alienate your customer base by refusing to reverse accidental switches to a format that the vast majority of customers seem to be opposed to as much as I am.

NPR's "On the Media" on United States v. Jones

(Orin Kerr)

I was interviewed recently by Bob Garfield of NPR's "On the Media" about the Supreme Court's opinions in the Jones GPS case.  The 6-minute interview has been posted here.