Eugene Volokh's Blog, page 287

[Eugene Volokh] "Former Cornell Student Sentenced for Posting Online Threats Against Jewish Students On Campus"

The defendant's statements, from the criminal charges filed against him.

 

From a Justice Department press release Monday:

Patrick Dai, 22, formerly a junior at Cornell University and originally from Pittsford, New York, was sentenced today to 21 months in prison, followed by three years of supervised release and a special assessment in the amount of $100 for posting threats to kill or injure another person using interstate communications….

As part of his previously entered guilty plea, Dai admitted that, on Oct. 28 and 29, 2023, he posted threatening messages to the Cornell section of an online discussion forum, including posts that said "gonna shoot up 104 west" (a dining hall at Cornell University that caters predominantly to Kosher diets and is next to the Cornell Jewish Center that provides residential accommodations for students) and "gonna bomb jewish house." In another post, Dai threatened to "stab" and "slit the throat" of any Jewish man he saw on campus, to rape and throw off a cliff any Jewish women he saw and to behead any Jewish babies. In that same post, Dai threatened to "bring an assault rifle to campus and shoot all you pig jews."

Twenty-one months seems to me like a light sentence for public threats of multiple murder. But I'm not sure what the norm in such cases is; perhaps such sentences are common for such threats, at least for first offenders.

The post "Former Cornell Student Sentenced for Posting Online Threats Against Jewish Students On Campus" appeared first on Reason.com.

[Eugene Volokh] Limits on Carrying Objects in Marches Near Chicago Convention Aren't Unconstitutionally Vague

[“[C]ourts do not use vagueness doctrine to establish a rule that government cannot regulate anything until it classifies everything.”]

From Thayer v. City of Chicago, decided last week by Judges Frank Easterbrook, Ilana Rovner, and David Hamilton:

The Democratic National Convention will be held in Chicago from August 19 through August 22, 2024. Both the Chicago Police Department and the Secret Service have roles in protecting the persons attending the Convention or close to its venues. They have established security perimeters and issued lists of items that people will not be permitted to possess inside the perimeters.

The City's list, enacted as part of an ordinance, comprises:

Laptops, Tripods, Monopods, and Selfie Sticks *If an invited guest arrives with a tablet, they will be redirected to the X-ray line for screening and then permitted entry with the tablet. Large Bags and Suitcases exceeding size restrictions (18″ x 13″ x 7″) Sealed packages Drones and other Unmanned Aircraft Systems Animals other than service/guide dogs Bicycles, Scooters, Folding Chairs, Balloons, Coolers Glass, Thermal, or Metal Containers Umbrellas with metal tips Any pointed object(s), including knives of any kind Aerosols, Tobacco Products, e-Cigarettes, Lighters, Matches Firearms, Ammunition, Fireworks, Laser Pointers, Stun Guns, Tasers, Mace/Pepper Spray, Toy Weapons Tents and Structures Any Other Items Determined by Chicago Superintendent of Police, in consultation with the United States Secret Service and the Chicago Office of Emergency Management and Communications, to be Potential Safety Hazards.

The Secret Service has its own list, which appears on the City's web site:

Aerosols Ammunition Animals (other than service/guide animals) Backpacks and bags exceeding size restrictions Balloons Bicycles Coolers Drones and other unmanned aircraft systems Explosives Firearms Glass, thermal, or metal containers Laser pointers Mace/Pepper spray Packages Signs exceeding size restrictions (20′ x 3′ x ¼″) Structures Supports for signs and placards Toy guns Weapons of any kind Any other items determined to be a potential safety hazard

The three plaintiffs in this suit, who assert that they plan to participate in marches or protests at or near the Convention, contend that the City's list is unconstitutionally vague….

Plaintiffs are particularly exercised by the reference to "pointed object(s)" in Chicago's list. What about ballpoint pens, they ask? What about the buttons and badges that are ubiquitous at political conventions (and protest marches), and which often are secured with safety pins? Are they really going to be stripped of writing tools anywhere near the Convention—or, worse, arrested for the temerity of wearing buttons bearing political slogans?

The problem with this kind of argument is that no list, however long, can be complete. Suppose Chicago added an exception for pens. That might leave interpretive problems if someone brought a tactical pen that had been sharpened until it had the penetrating ability of an ice pick. What if the pen contained tear gas instead of ink? To make sure that no one is misled, the City would need to make exceptions to the "pen exception," and then exceptions to the exceptions.

As plaintiffs see it, this sort of exercise is constitutionally necessary so that no one is beset by uncertainty. Yet courts do not use vagueness doctrine to establish a rule that government cannot regulate anything until it classifies everything. The list of items in the set "everything" is almost infinitely long. Regulation is not so hobbled. If a statute or rule has a core of ascertainable meaning, it may be applied while people work out the marginal situations one at a time.

The City's list has a core of ascertainable meaning. It covers weapons (projectile weapons, cutting or stabbing weapons, stunning weapons, blinding weapons, and chemical weapons), explosives, packages that can conceal bombs or guns, and many other things that do not cause our plaintiffs any interpretive distress. Even the phrase "pointed object(s)" on its own has a core of ascertainable meaning (think steak knives, box cutters, razor blades, and ice picks), and the ordinance also supplies the basis (safety) for resolving edge cases.

Plaintiffs have not been stopped or compelled to surrender anything. They have elected to wage a facial challenge. To get anywhere with such a challenge, even when speech is at stake, the plaintiff must show that "a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Yet our three plaintiffs have not even argued that most of the list's categories are invalid, let alone that the problematic items are substantial in relation to the valid ones. That knocks out any entitlement to challenge this list on its face.

One can imagine problems if the police start to seize felt-tip pens or buttons held on by safety pins. One can imagine problems if Chicago's Superintendent of Police were to issue a supplemental list and keep it confidential; secret law creates issues distinct from vagueness. But plaintiffs do not assert that either the Superintendent or the Secret Service has issued a confidential supplement to the public lists. Difficulties that might crop up can be left for another day—if only because plaintiffs lack standing to contest rules that have yet to be adopted and may never be adopted.

Chicago says that the plaintiffs lack standing to challenge even the published lists. We disagree with that contention because plaintiffs tell us that they plan to attend the Convention with pens, buttons, and similar objects. The City's list, as written, may well discourage them from doing so (the "chilling effect" discussed in many opinions). Plenty of opinions entertain and resolve vagueness arguments of the sort our plaintiffs present. Their problem is not lack of standing but lack of merit. The City's list has a (large) core of ascertainable meaning; potentially problematic applications are not "substantial" in relation to the valid ones; plaintiffs therefore cannot prevail….

Ethan Merel of the City of Chicago Law Department represents the city.

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[Eugene Volokh] Calling Girlfriend "Whore," "Slut," and "Bitch" Doesn't Fit Within "Fighting Words" Exception to First Amendment

From Judge Neeti Pawar's opinion in People v. Hughes (Colo. Ct. App.), joined by Judges Anthony Navarro and Sueanna Johnson (decided last month, but just posted to Westlaw recently):

When Hughes returned from an overseas military deployment, his girlfriend, who lived in Virginia, A.B., met him in Colorado Springs. One night, they went to a bar where Hughes accused her of flirting with another patron, and they got into an argument. A.B. testified at trial that Hughes grabbed her and threw her to the ground outside the bar. When they returned to the hotel room they were staying in, Hughes destroyed the room, causing thousands of dollars in damage.

Over the next several months, they continued their relationship. A.B., her two-year-old daughter, and A.B.'s mother relocated to Colorado and moved in with Hughes. During this time, Hughes repeatedly accused A.B. of infidelity and repeatedly called her "whore," "slut," and "bitch."

The prosecution charged Hughes with several offenses, including as relevant here, criminal mischief for destroying the hotel room, third degree assault for his conduct outside the bar and in the hotel room, and multiple harassment counts.

The jury found Hughes not guilty of third degree assault and all but one of the harassment counts. The jury found him guilty of criminal mischief and the harassment count based on section 18-9-111(1)(h), C.R.S. 2023, for repeatedly insulting A.B. over the course of several months.

Hughes eventually sought to get the conviction vacated on the grounds that "both trial and appellate counsel were ineffective for failing to challenge the sufficiency of the evidence to support the harassment conviction because Hughes' speech was protected by the First Amendment," and the court agreed:

The harassment statute Hughes was convicted under provides that a person commits harassment if, with intent to harass, annoy, or alarm another, he "[r]epeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response."

Our supreme court has long since addressed the tension between this statute and the right to freedom of speech …. That court held that section 18-9-111(1)(h) does not violate the constitutional right to freedom of speech because it prohibits only fighting words, and there is no constitutional right to use fighting words. The court defined fighting words as "only those words which have a direct tendency to cause acts of violence by the persons to whom, individually, the words are addressed."

More recent opinions, including those from divisions of this court, have emphasized that the category of speech that can be considered fighting words is narrow and getting narrower. And these cases have reiterated that fighting words are not defined by their offensiveness or substantive reprehensibility — rather, they are defined by their tendency to provoke a violent response from the person to whom they are addressed….

In general, calling a reasonable person a "whore," "slut," and "bitch" would not elicit an immediate violent response. These epithets are abusive, profane, and insulting. But the words themselves fall far short of inciting a reasonable person to immediate physical violence.

The postconviction court concluded otherwise based on the circumstances under which Hughes uttered the words. The court held that a free speech challenge "was not meritorious" because Hughes engaged in this speech "while [he] was violently destroying the hotel room, in circumstances where others heard the offensive insults, while [Hughes] was angrily flailing his hands over the victim, and causing the victim to roll up in a ball like a fetal position."

Initially, we note that the first of these findings is unsupported by the record. A.B. was the only witness to the destruction of the hotel room, and she did not testify that Hughes insulted her in a manner that could have supported the harassment count during that incident…. [I]nstead she testified generally that he repeatedly called her names over the course of several months….

Next, we question whether the record supports the postconviction court's finding that Hughes engaged in the speech at issue while "angrily flailing his hands over [A.B.]." A.B.'s mother described an instance in which Hughes called A.B. a slut and a whore. A.B.'s mother testified that Hughes had discovered that A.B. had slept with a man in Hawaii. When asked to describe what happened after Hughes discovered this, A.B.'s mother testified,

I saw her sitting on the back steps and over the top of her hands flailing. I was in the house with the baby and walked out to observe it, because I didn't want [Hughes] to hurt [A.B.]. And he was yelling at her. He found out the truth and, you know, what a bitch she is, calling her names, and then walked into the house. I was with the baby. Walked into the house and let me know in front of my granddaughter she's a whore. Your daughter is a slut. She sleeps around. She's sick. She needs help. I was pretty devastated …. [A.B. was s]itting in the backyard rolled up in a ball.

This testimony supports that Hughes engaged in the speech at issue in front of people other than A.B. and that he caused A.B. to "roll up in a ball." The testimony is ambiguous, however, as to whose hands were flailing over the top of A.B. and whether those hands were flailing "angrily."

Even accepting the postconviction court's finding that Hughes' hands were flailing angrily over A.B., we nevertheless conclude that a … motion challenging the sufficiency of the evidence on First Amendment grounds was reasonably probable to succeed. The record reveals that the circumstances surrounding the speech at issue were that Hughes was a verbally abusive and distrustful partner, and his relationship with A.B. was unhealthy, perhaps even toxic. But there was no evidence that Hughes used the epithets at issue in conjunction with threats or acts of physical violence.

Considered in context, Hughes' speech was certainly abusive, derogatory, and hurtful. But fighting words are a narrow class of speech that are unprotected because they would provoke violence in an average person. Speech must go beyond being merely "abusive" or "harsh [and] insulting" to lie outside the protection of the First Amendment. We conclude that in the context of a verbally abusive, toxic, and distrustful relationship with allegations of infidelity, the use of the words "whore," "slut," and "bitch" would not induce an immediate and violent response from the average person. Accordingly, these words fall short of the threshold for fighting words, and Hughes' use of them was likely protected by the First Amendment. See, e.g., State v. Baccala (Conn. 2017) (customer calling store manager a "fat ugly bitch" and "cunt," and telling the manager, "fuck you, you're not a manager" was constitutionally protected speech). There was therefore a reasonable probability that a motion for JOA [Judgment of Acquittal] on the section 18-9-111(1)(h) count would have been successful.

Because there was no strategic reason for failing to file a JOA motion and there was a reasonable probability the motion would have succeeded, we conclude that Hughes proved both deficient performance and prejudice as to trial counsel. In light of this conclusion, we need not address the related ineffective assistance claim as to direct appeal counsel because both claims seek the same relief: reversal of the section 18-9-111(1)(h) conviction….

I'm not confident that all courts will agree with this, but it seemed noteworthy (especially since it's generally pretty rare that convictions get reversed on ineffective assistance grounds).

Adam Frank (Frank Law Office LLC) represents Hughes.

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[Eugene Volokh] Center for Investigative Reporting (Mother Jones/Reveal) Hiring First Amendment Fellow for One Year

The Center for Investigative Reporting (CIR), home to Mother Jones, Reveal, and CIR Studios, is hiring a full-time remote First Amendment Fellow to join our legal department. This one-year paid position will allow the fellow the chance to work closely as an associate with in-house counsel.

Responsibilities:

prepublication review of articles, podcasts, documentaries, intellectual property matters, news gathering questions, reviewing and editing amicus briefs, helping reporters file and write appeal letters for public records requests, filing and litigating freedom-of-information, court-access as well as defending libel suits and other litigation matters.

Qualifications:

be a junior attorney or 2025 law school graduate have an outstanding academic record with excellent research and writing skills, have an exceptional ability to work with a large and diverse staff, have demonstrated deep interest in media law and the First Amendment, a great sense of humor and exceptionally collegial, and an ability to multitask and work under deadline pressure.

Please note: Preference will be given to students with public interest funding. The fellowship is designed to be both a learning and work experience for a new lawyer excited about media law and the First Amendment. To be clear, the position is not budgeted to lead to employment after one year.

Applications for the Fellow can be found here.

The post Center for Investigative Reporting (Mother Jones/Reveal) Hiring First Amendment Fellow for One Year appeared first on Reason.com.

[Eugene Volokh] Court Issues Preliminary Injunction Against UCLA, Stemming from Risk of Repetition of Exclusion of Jewish or Pro-Israel Students from Parts of Campus

[If participants in unauthorized encampments exclude Jewish or pro-Israel students from walking in parts of campus, UCLA would then have to close those parts to everyone.]

From today's order by Judge Mark Scarsi (C.D. Cal.) in Frankel v. Regents:

In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion….

On April 25, 2024, a group of pro-Palestinian protesters occupied a portion of the UCLA campus known as Royce Quad and established an encampment. Royce Quad is a major thoroughfare and gathering place and borders several campus buildings, including Powell Library and Royce Hall. The encampment was rimmed with plywood and metal barriers. Protesters established checkpoints and required passersby to wear a specific wristband to cross them. News reporting indicates that the encampment's entrances were guarded by protesters, and people who supported the existence of the state of Israel were kept out of the encampment. Protesters associated with the encampment "directly interfered with instruction by blocking students' pathways to classrooms."

Plaintiffs are three Jewish students who assert they have a religious obligation to support the Jewish state of Israel. Prior to the protests, Plaintiff Frankel often made use of Royce Quad. After protesters erected the encampment, Plaintiff Frankel stopped using the Royce Quad because he believed that he could not traverse the encampment without disavowing Israel. He also saw protesters attempt to erect an encampment at the UCLA School of Law's Shapiro courtyard on June 10, 2024.

Similarly, Plaintiff Ghayoum was unable to access Powell Library because he understood that traversing the encampment, which blocked entrance to the library, carried a risk of violence. He also canceled plans to meet a friend at Ackerman Union after four protesters stopped him while he walked toward Janss Steps and repeatedly asked him if he had a wristband. Plaintiff Ghayoum also could not study at Powell Library because protesters from the encampment blocked his access to the library.

And Plaintiff Shemuelian also decided not to traverse Royce Quad because of her knowledge that she would have to disavow her religious beliefs to do so. The encampment led UCLA to effectively make certain of its programs, activities, and campus areas available to other students when UCLA knew that some Jewish students, including Plaintiffs, were excluded based of their genuinely held religious beliefs.

The encampment persisted for a week, until the early morning of May 2, when UCLA directed the UCLA Police Department and outside law enforcement agencies to enter and clear the encampment. Since UCLA dismantled the encampment, protesters have continued to attempt to disrupt campus. For example, on May 6, protesters briefly occupied areas of the campus. And on May 23, protesters established a new encampment, "erecting barricades, establishing fortifications and blocking access to parts of the campus and buildings," and "disrupting campus operations."

Most recently, on June 10, protesters "set up an unauthorized and unlawful encampment with tents, canopies, wooden shields, and water-filled barriers" on campus. These protesters "restricted access to the general public" and "disrupted nearby final exams." Some students "miss[ed] finals because they were blocked from entering classrooms," and others were "evacuated in the middle" of finals.

Based on these facts and other allegations, Plaintiffs assert claims for violations of their federal constitutional rights, including violation of the Equal Protection Clause, the Free Speech Clause, and the Free Exercise Clause; claims for violations of their federal civil rights, including violations of Title VI of the Civil Rights Act of 1964, conspiracy to interfere with civil rights, and failure to prevent conspiracy; claims for violations of their state constitutional rights, including violation of the California Equal Protection Clause and the California Free Exercise Clause; and claims for violations of their state civil rights, including violations of section 220 of the California Education Code, the Ralph Civil Rights Act of 1976, and the Bane Civil Rights Act….

The court rejected UCLA's standing objections, in part reasoning:

UCLA argues that Plaintiffs lack standing because they fail to allege an imminent likelihood of future injury…. UCLA contends that its remedial actions following the Royce Quad encampment make any "future injury speculative at best." These actions include the creation of a new Office of Campus Safety and the transfer of day-to-day responsibility for campus safety to an Emergency Operations Center. The changes, while commendable, do not minimize the risk that Plaintiffs "will again be wronged" by their exclusion from UCLA's ordinarily available programs, activities, and campus areas based on their sincerely held religious beliefs below "a sufficient likelihood."

First, since UCLA's changes, protesters have violated UCLA's protest rules at least three times: on May 6, May 23, and June 10. While these events may not have been as disruptive as the Royce Quad encampment, according to a UCLA email, the June 10 events "disrupted final exams," temporarily blocked off multiple areas of campus, and persisted from 3:15 p.m. to the evening. Similarly, also according to UCLA emails, the May 6 and 23 events disrupted access to several campus areas. Further, any relative quiet on UCLA's campus the past few months is belied by the facts that fewer people are on a university campus during the summer and that the armed conflict in Gaza continues.

Finally, while UCLA's focus on safety is compelling, UCLA has failed to assuage the Plaintiffs' concerns that some Jewish students may be excluded from UCLA's ordinarily available programs, activities, and campus areas based on their sincerely held religious beliefs should exclusionary encampments return. In response to these concerns raised at the hearing, UCLA did "not state[] affirmatively that" they "will not" provide ordinarily available programs, activities, and campus areas to non-Jewish students if protesters return and exclude Jewish students.

It remains to be seen how effective UCLA's policy changes will be with a full campus. While the May and June protests do not appear to have resulted in the same religious-belief-based exclusion as the prior encampment that gives rise to the Plaintiffs' free exercise concerns, the Court perceives an imminent risk that such exclusion will return in the fall with students, staff, faculty, and non-UCLA community members. As such, given that when government action "implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing," the Court finds that Plaintiffs have sufficiently shown an imminent likelihood of future injury for standing purposes….

And the court concluded that plaintiffs were likely to succeed on their Free Exercise Clause claim (and thus declined to consider any of the other claims):

The Free Exercise Clause … "'protect[s] religious observers against unequal treatment' and subjects to the strictest scrutiny laws that target the religious for 'special disabilities' based on their 'religious status.'" "[A] State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits." …

Here, UCLA made available certain of its programs, activities, and campus areas when certain students, including Plaintiffs, were excluded because of their genuinely held religious beliefs. For example, Plaintiff Frankel could not walk through Royce Quad because entering the encampment required disavowing the state of Israel. Similarly, Plaintiff Ghayoum was prevented from entering a campus area at a protester checkpoint, and Plaintiff Shemuelian could not traverse Royce Quad, unlike other students…. Plaintiffs' exclusion from campus resources while other students retained access raises serious questions going to the merits of their free exercise claim….

Plaintiffs have put forward a colorable claim that UCLA's acts violated their Free Exercise Clause rights. Further, given the risk that protests will return in the fall that will again restrict certain Jewish students' access to ordinarily available programs, activities, and campus areas, the Court finds that Plaintiffs are likely to suffer an irreparable injury absent a preliminary injunction…….

Under the Court's injunction, UCLA retains flexibility to administer the university. Specifically, the injunction does not mandate any specific policies and procedures UCLA must put in place, nor does it dictate any specific acts UCLA must take in response to campus protests. Rather, the injunction requires only that, if any part of UCLA's ordinarily available programs, activities, and campus areas become unavailable to certain Jewish students, UCLA must stop providing those ordinarily available programs, activities, and campus areas to any students. How best to make any unavailable programs, activities, and campus areas available again is left to UCLA's discretion….

The court therefore issued the following order:

[1.] Defendants Drake, Block, Hunt, Beck, Gordon, and Braziel ("Defendants") are prohibited from offering any ordinarily available programs, activities, or campus areas to students if Defendants know the ordinarily available programs, activities, or campus areas are not fully and equally accessible to Jewish students.

[2.] Defendants are prohibited from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA's programs, activities, and campus areas, whether as a result of a de-escalation strategy or otherwise.

[3.] On or before August 15, 2024, Defendants shall instruct Student Affairs Mitigator/Monitor ("SAM") and any and all campus security teams (including without limitation UCPD and UCLA Security) that they are not to aid or participate in any obstruction of access for Jewish students to ordinarily available programs, activities, and campus areas.

[4.] For purposes of this order, all references to the exclusion of Jewish students shall include exclusion of Jewish students based on religious beliefs concerning the Jewish state of Israel.

[5.] Nothing in this order prevents Defendants from excluding Jewish students from ordinarily available programs, activities, and campus areas pursuant to UCLA code of conduct standards applicable to all UCLA students.

[6.] Absent a stay of this injunction by the United States Court of Appeals for the Ninth Circuit, this preliminary injunction shall take effect on August 15, 2024, and remain in effect pending trial in this action or further order of this Court or the United States Court of Appeals for the Ninth Circuit.

The court also noted:

[T]his case [is not] about the content or viewpoints contained in any protest or counterprotest slogans or other expressive conduct, which are generally protected by the First Amendment. See Virginia v. Black, 538 U.S. 343, 358 (2003) ("The hallmark of the protection of free speech is to allow 'free trade in ideas'—even ideas that the overwhelming majority of people might find distasteful or discomforting." (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)); see also Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.").

Amanda G. Dixon, Richard C. Osborne, Eric C. Rassbach, Mark L. Rienzi, Laura W. Slavis, and Jordan T. Varberg of the Becket Fund and Erin E. Murphy, Matthew David Rowen, and former U.S. Solicitor General Paul Clement (Clement & Murphy, LLC) represent plaintiffs.

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[Eugene Volokh] Intel N.Y.-Based Israeli Employee Alleges Firing Over Complaints of Executive's Pro-Hamas Posts, Seeks Pseudonymity

From a motion filed today in Doe v. Intel Corp. (S.D.N.Y.); for more on the underlying lawsuit, see Intel Axes Israeli NYC Engineer Who Complained About Boss 'Liking' X Posts Cheering Hamas: Suit (N.Y. Post, Beri Kochman):

John Doe is a Jewish Israeli executive at Intel, a global multi-technology company, who proudly served in the Israeli Defense Forces ("IDF") before joining the company. At Intel, John Doe was forced to report to a supervisor—Intel Vice President Alaa Badr ("Badr")—who was openly and proudly supporting the terrorist organization Hamas and celebrating the deaths of Israelis after Hamas's brutal October 7, 2023 attacks on Israel which took the lives of over 1,000 innocent Israelis while hundreds more were taken captive by the terrorist group. Indeed, Badr openly liked social media posts—for anyone to see—celebrating the death of IDF soldiers, like John Doe, and celebrating "successful" Hamas missile strikes, including one that struck Mr. Doe's family home. In no uncertain terms, the heinous acts doled by Hamas on October 7, 2023 changed the landscape of the modern world for Israeli Jewish citizens worldwide.

The Israel-Hamas War that erupted after Hamas's October 7th attack has led to a frenetic and violent rise in hate crimes against Jews around the world, but specifically in New York where Plaintiff resides. According to the Anti-Defamation League (the "ADL"), antisemitic incidents in New York soared 110 percent in 2023—the highest number the ADL has ever recorded in New York and the second-highest number reported in any state across America. Indeed, nearly 14 percent of all antisemitic incidents reported nationwide in 2023 took place in New York State, and in the fourth quarter of 2023 alone, the ADL recorded 815 antisemitic incidents in New York. These statistics, of course, only reflect the number of reported incidents. The actual numbers are likely significantly higher.

New York City Mayor Eric Adams recognized the inherent danger that Jewish people in New York face when he said that after October 7th, he was seeing a "normalization of antisemitism in New York…" while district attorneys representing all 62 counties in New York recognized the increase in violence, condemned violence against Jewish people and pledged to prosecute hate crimes aggressively. Despite this, however, violence against Jewish people in New York has continued to escalate in 2024 with antisemitic hate crimes climbing sharply by 45 percent in the first quarter of the year. According to New York Police Department ("NYPD") data, in July 2024 alone, the NYPD investigated 30 anti-Jewish offenses, and there have been 229 antisemitic hate crimes reported in just the first seven months of 2024.

These statistics speak to the reality that all Jewish people are facing, but former IDF personnel—like John Doe—are at an even greater risk of being targeted both domestically and by foreign actors if they are revealed to be former IDF military members. There have been countless reports of individuals being attacked simply for wearing IDF clothing. As a result, John Doe publicly stating he served in the IDF and bringing these claims places him in significant danger of being subjected to harassment, threats, and physical violence. Given the heightened violence in both the United States and Israel since the October 7th massacre, Plaintiff has a reasonable fear of retaliatory physical harm to both himself and his family if he is publicly named.

Plaintiff is understandably and exceptionally fearful that in filing this Complaint, he (and his family who remain in Israel) are at risk of great harm. This is not a trivial fear. There have been endless reports of Jewish people being attacked simply for existing, including being spit on, beat up, and hit with a baseball bat simply for "looking Jewish." While these seemingly random acts of violence have become commonplace and create a generalized fear, there have also been numerous targeted attacked against Jewish people in New York, including the five Jewish board members of the Brooklyn Museum whose homes were vandalized across Manhattan and Brooklyn after the museum held an exhibition commemorating those killed in the October 7th massacre; the Columbia University executive whose apartment building was vandalized with red paint in the shape of inverted triangles—a symbol used by Hamas to mark Israeli targets, live crickets and mealworms, and threatening posters; the Jewish student hit in the face with rocks while displaying an Israeli flag, and the Jewish man stabbed in the stomach by a suspect yelling "Free Palestine" and shouting "Do you want to die?"

It also cannot be overstated the level of risk Plaintiff's family in Israel will be in if he is publicly named given that Hamas is within striking distance of their location and operates with astonishing brutality. Filing this complaint using Plaintiff's real name unequivocally puts his family's life at risk at the hands of Hamas….

Under normal circumstances, being a Jewish-Israeli former IDF soldier may not be considered highly sensitive. But these are not normal times. Since October 7th, the streets of New York have been swarmed with anti-Israel protests and Jewish and Israeli people have been the targets of numerous attacks in New York, where Plaintiff resides. As described herein, people who are merely believed to be Jewish have been physically attacked. Given the current political climate, this case will likely receive a significant amount of media attention, which will not only place a direct target on Plaintiff's head but will also have a chilling effect on future plaintiffs in similar circumstances should Plaintiff be forced to disclose his identity….

DefendantBadrhasactivelycelebratedthedeathofIsraelis,goingsofarasto like social media posts cheering on burning them alive.The terrorist organization Hamas is within meremiles of Plaintiff'sfamily in Israel.If Plaintiff's identity ismade public,he and his familywouldbeatasignificantriskofphysicalharmbybothanti-IsraelprotestorsintheUnited States and the terrorist organization Hamas.

It is evident that both anti-Israel protestors in the United States and Hamas have shown through their past conduct that they will use every tool at their disposal to harm those who challenge their anti-Israeli belief systems. There can be little doubt that if Plaintiff's name is disclosed publicly, Plaintiff and his family will be subjected a campaign of intimidation and harassment at the very least, and real physical harm and possibly death at the worst….

Defendant already knows the true identity of Plaintiff. As such, "Defendant[] would not be prejudiced by an anonymous proceeding because Defendant[] knows specifically who filed this lawsuit." Plainly, nothing about Plaintiff's anonymity prejudices Defendants nor does it in any way impact Defendant's ability to fully litigate this matter. As detailed herein, however, the disclosure of Plaintiff's name has potentially severe, and dangerous, implications for Plaintiff and his family….

Further, Plaintiff has taken meaningful steps to keep his identity confidential. For example, he has not spoken publicly about the events that underly the causes of action or otherwise publicly disclosed the fact that he is John Doe. In fact, almost none of Plaintiff's closest family members or friends know that he is John Doe or that he has filed a lawsuit. Moreover, Plaintiff's social media profiles are all on "private" settings such that the general public cannot view the content nor identify him through characteristics or traits noted in the Complaint….

"[P]arty anonymity does not obstruct the public's view of the issues joined or the court's performance in resolving them." "The assurance of fairness preserved by public presence at a trial is not lost when one party's cause is pursued under a fictitious name." Thus, whether Plaintiff proceeds anonymously is of no matter to the underlying facts and causes of action, however, as detailed above, Plaintiff remaining anonymous is of great importance to his well-being and the well-being of his family who remains in Israel.

Moreover, Badr publicly celebrated the death of Israelis and IDF soldiers. In essence, Badr publicly celebrated the death of Mr. Doe's community and family—and Mr. Doe, for that matter, who is an Israeli IDF veteran himself. There is simply no telling, given the growing unrest that floods the streets of New York on a daily basis, the untold harm that would befall Mr. Doe or his family should his identity be revealed.

Finally, this action is almost certain to get international media coverage, particularly in Israel given Intel's close ties to Israel—including the fact that Intel is Israel's largest private employer. As such, terrorist organizations such as Hamas, Hezbollah and the Houthis are virtually certain to learn about this action. If John Doe is identified, these organizations will be able to identify his family members, many of whom still live in Israel, which will make them targets for international violence.

Cases seeking pseudonymity are badly split in all sorts of areas (e.g., whether alleged sexual assault victims may sue pseudonymously), but where a court is persuaded that revealing the plaintiff's identity would indeed create a serious risk of physical attack (and not just, say, social or professional ostracism), courts tend to be open to pseudonymity. At the same time, courts are often skeptical about claims of risk of physical harm if they see them as too speculative; for more, see my The Law of Pseudonymous Litigation (especially pp. 1397-99). I expect to blog about defendant's opposition, when and if that is filed (some defendants don't oppose plaintiffs' requests for pseudonymity), and about the judge's eventual decision.

The post Intel N.Y.-Based Israeli Employee Alleges Firing Over Complaints of Executive's Pro-Hamas Posts, Seeks Pseudonymity appeared first on Reason.com.

[Eugene Volokh] No Pseudonymity for Hindu Plaintiffs Challenging Enforcement of California Caste Discrimination Ban

From Hindu American Found. v. Kish, decided today by Judge Dale Drozd (E.D. Cal.):

[P]laintiff HAF [and nine individual plaintiffs, including three Doe plaintiffs, seek] declaratory and injunctive relief against defendant Kevin Kish, in his official capacity as the director of the California Civil Rights Department …, for allegedly violating the constitutional rights of all Hindu Americans by initiating a Fair Employment and Housing Act … enforcement action in state court against Cisco Systems, Inc. … for discrimination, harassment, and retaliation against an employee based on his caste status. Plaintiff HAF alleges that the Department's discrimination suit brought against Cisco … violated the … Free Exercise Clause … and the Due Process and Equal Protection Clauses … by linking the practice of caste discrimination to Hinduism….

The Ninth Circuit has identified three situations in which parties have been allowed to proceed under pseudonyms: "(1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to preserve privacy in a matter of sensitive and highly personal nature; and (3) when the anonymous party is compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution …." A party requesting to proceed pseudonymously has the burden of showing that their "need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity."

If a party seeks to sue pseudonymously based on retaliatory harm, courts apply a five- factor balancing test that weighs: "'(1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, … (3) the anonymous party's vulnerability to such retaliation,' (4) the prejudice to the opposing party, and (5) the public interest." The first two factors are the most important….

To proceed under pseudonyms, "a plaintiff must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." Here, the Doe plaintiffs argue that, as Hindus who reside or work in California, "they are vulnerable … to being individually sued by the [Department] in retaliation for participating in this action;" and they may experience "physical, mental, and economical harm from those around them, including but not limited to prospective employers, co-workers, and persons they interact with on a daily basis." However, the evidence presented by the Doe plaintiffs in the declarations they have filed in support of their motion falls short of persuading the court that consideration of these factors weigh in their favor.

In a declaration submitted by plaintiff, Doe One states that the Department's "actions have caused [them] embarrassment and has made [them] feel that others are judging [them] and undermining [their] religion because of how [they] look and what [their] religious beliefs are." Similarly, in Doe Two's declaration, it is stated that "people around [them] … believe that Hindus are inherently discriminatory" and "[they] feel, that if [they] practice Hindu, [they] will be seen as a discriminatory person." Doe Two also explains that people they "interact with on a daily basis and/or side by side" have "expressed hateful bias towards [them] and persons of South Asian descent practicing Hinduism," and that they "have been ostracized by many people who simply do not understand caste and Hinduism." In Doe Three's declaration, it is stated that they, too, has been "ostracized" at work and received "express hate on internal company social media channels," which they "expect [] to continue." Doe Three also states that they have been asked questions about Hinduism and caste and that they "feel embarrassment and anger each time" they are approached….

[Yet] Doe One describes personal discomfort with the Department's Cisco Action, but not a plausible likelihood of threats or harm. Does Two and Three allege mistreatment at work but do not state whether their co-workers have made any actual threats of harm against them or that the mistreatment would likely increase due to their participation as plaintiffs in this litigation…. [M]erely expressing fear of disagreement or disapproval by community members is insufficient to support a pseudonymous lawsuit…. "Community disagreement and any resulting 'embarrassment or economic harm is not enough' to support a pseudonymous lawsuit." …

Furthermore, the Doe plaintiffs' alleged fears about retaliation from community members are vague and conclusory. Each Doe plaintiff asserts that: "if people know [their] personal information, [they] fear that they will try to harm or retaliate against [them] or [their] family, either physically or in some other way." Does One and Three express concern that if they speak up for persons of South Asian descent, they will receive "retribution in return." Doe Two states that they have "witnessed" an unnamed Hindu non-profit "being targeted" because it was a Hindu faith- based charity, but Doe Two provides no specifics in this regard whatsoever. Consequently, these conclusory assertions provide no plausible basis for finding a real risk of future harassment or harm, and they lack specifics on who would pose the threat or what form it would take.

Each Doe plaintiff asserts that "they fear that [the Department] will come after [them] and/or interfere with [their] employer, resulting in permanent negative reputational and economic harm to [them] or those in [their] family." Plaintiffs argue that these fears "are very reasonable" because the Department "has already sued two individual defendants in the [Cisco Action] based on the [the Department]'s representations that, as Hindus, caste discrimination was inherently part of their religious beliefs and who they are." However, as defendant argues, these speculative concerns about the Department are similarly unavailing. As defendant explains, "[t]he Department brought charges under FEHA against now-plaintiffs Iyer and Kompella due to their specific, alleged actions in their roles as supervisors at Cisco." None of the Doe plaintiffs have established how the Department would have the ability to retaliate in the manner they purportedly fear. For example, as defendant points out, none of the Doe plaintiffs claim to be employers who could plausibly face future enforcement actions.

While "plaintiffs are not required to prove that the defendants intend to carry out the threatened retaliation," they must demonstrate "that a reasonable person would believe that the threat might actually be carried out." Here, for the reasons discussed above, plaintiffs have failed to do so….

The Doe plaintiffs in this case have [also] not alleged or established that they face greater threats than the other named plaintiffs who do not seek anonymity. In addition, the court agrees with defendant's argument that consideration of the fact that six named plaintiffs, including five practicing Hindus in California, are proceeding under their real names weighs against allowing the Doe plaintiffs to use pseudonyms in bringing this action….

[G]iven the Doe plaintiffs' insufficient evidence as described above, they have not demonstrated that their need for anonymity outweighs the presumption of openness in judicial proceedings….

[The Doe plaintiffs] also argue that anonymity is warranted for privacy reasons, stating that "[t]his case involves matters of the utmost intimacy, a person's religious belief or lack of belief." In support of this argument, plaintiffs cite the Fifth Circuit's decision in Doe v. Stegall (5th Cir. 1981), in which the court noted that "religion is perhaps the quintessentially private matter." Beyond citation to the Fifth Circuit's decision in Stegall, however, plaintiffs provide no elaboration as to why the Doe plaintiffs' religious beliefs constitute "a matter of sensitive and highly personal nature." … "The fact that religion is an intensely private concern does not inevitably require that [a] … plaintiff be given Doe status, however. While religion is certainly an individual matter of conscience that is constitutionally shielded from government intervention, it is generally practiced openly and communally, and no court from this or any other circuit has considered a plaintiffs [sic] religious beliefs to be a matter of such sensitivity as to automatically entitle the plaintiff to Doe status." … Therefore, the court finds that plaintiffs have not demonstrated that preserving the Doe plaintiffs' privacy warrants allowing them to proceed pseudonymously in this action.

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[Eugene Volokh] Protesting Outside School, Calling Principal a Racist, Is Protected by the First Amendment

From Johnson v. Knox County Bd. of Ed., decided Mar. 31 by Judge J. Ronnier Greer (E.D. Tenn.), but just recently posted on Westlaw; seems correct to me:

Plaintiffs allege the following facts: On the afternoon of March 31, 2022, Rebekiah Johnson, and her young adult son Shaque Johnson went to New Hopewell Elementary, where Brandon Pratt was the principal, "to bring attention to the racism within the schools and administration that the Johnsons had experienced through Principal Brandon Pratt." Shaque Johnson stood across the street from one of the parking lot exit/entrances holding a sign that stated, "Mr. Pratt was wrong. Read eagleswithcolor.com" on one side and "the TRUTH about Principal Pratt, eagleswithcolor.com" on the other side. Rebekiah Johnson walked along the street on the side of the school with her sign that read "Mr. Pratt is racist. eagleswithcolor.com" on one side, while the other side read, "The Community needs to know! eagleswithcolor.com." Rebekiah Johnson and her son were on the street, which is public property. As parents arrived to pick up their children, Rebekiah Johnson walked between the two exits/entrances holding her sign.

The SRO [School Resource Officer] approached Rebekiah Johnson and told her she needed to move across the street. Rebekiah Johnson told him that "she was on public property and had a right to stand where she was standing." The officer replied, "Yes … as long as you don't go behind the fence." At that time, Rebekiah Johnson was standing nearly thirty feet away from the fence. The SRO then walked away. Rebekiah Johnson continued walking along the street with her sign and only spoke with people who asked her a question. She did not impede traffic or create a disruption.

Meanwhile, Shaque Johnson stood silently across the street from the other exit of the school so parents could see his sign as they left the school parking lot. While he stood there, the SRO and another older white gentleman who was later identified as Fred Wade, a teaching assistant at New Hopewell Elementary School, walked along the school driveway and stood near the exit. Wade began addressing Shaque Johnson across the street. He seemed angry and the SRO was carrying a gun, so Shaque Johnson began recording the interaction on his phone. Wade yelled at him from across the street, stating that Shaque Johnson "could not be recording." Shaque Johnson told Wade he could record and Wade threatened to take Shaque Johnson's phone from him. When most of the cars had left the parking lot, Wade and the SRO walked away. "Once the school driveway was pretty much cleared out Rebekiah and Shaque Johnson decided to pack up their signs to leave."

On April 7, 2022, Rebekiah Johnson received a letter from Investigator Martin Timms. The letter stated, "It has come to the attention of the Knox County Schools Security Division that your recent protest at New Hopewell Elementary School has been inappropriate and disruptive. As a result of this behavior, you are being issued a civility code letter." The letter cited Knox County Board of Education Policy B-230 and stated, "Further violations in Knox County Schools Board Policy B-230 may result in you being banned from coming on to any property owned or controlled by Knox County Schools." Finally, the letter stated that Rebekiah Johnson needed to make herself aware of Tenn. Code Ann. §§ 39-14-405, 39-14-406, and 39-17-305." Rebekiah Johnson needed to be able to access KCBOE property to pick up her younger children, who attended Knox County schools other than New Hopewell Elementary. After receiving the letter, she and Shaque Johnson did not protest against Principal Pratt again….

The court allowed much of the plaintiffs' First Amendment case to go forward:

Defendants argue that Plaintiffs' protest—and in particular Rebekiah Johnson's sign calling Mr. Pratt a "racist"—was not protected by the First Amendment because it was defamatory and disruptive to the educational environment. In support of this argument, Defendants cite caselaw showing that schools can regulate vulgar or insubordinate speech on school grounds. The Court agrees that Rebekiah Johnson's sign was capable of causing a disruption on campus. However, Defendants have cited no authority showing that a school can restrict the speech of private citizens like the Johnsons, who were protesting on public property within sight of the school. At this stage of the proceedings, Plaintiffs have adequately alleged that their protest was protected by the First Amendment.

{Shaque Johnson's act of video recording may also implicate First Amendment concerns. See Knight v. Montgomery Cnty. (M.D. Tenn. 2020) (observing that although the issue is far from settled, "nationwide there is a growing trend of courts adopting the view that video recording is indeed speech for First Amendment purposes" and citing several examples).} …

[A]t this stage of the proceedings, Shaque Johnson has sufficiently alleged that Wade's conduct violated his First Amendment rights. According to the Second Amended Complaint, Wade yelled at Shaque Johnson, told him not to record, and threatened to take his phone. Moreover, even if Wade overstepped the bounds of his duties as a teaching assistant, the facts suggest that he was acting in his capacity as a school employee when he interrupted Shaque Johnson's protest….

[T]he civility code letter that Timms sent to Rebekiah Johnson essentially prohibited her from protesting about Principal Pratt near the school. Hence, Rebekiah Johnson has sufficiently alleged that Timms deprived her of her free speech rights….

Plaintiffs also claim that Defendants retaliated against them for their protest. To state a First Amendment retaliation claim, a plaintiff must show that: "(1) he engaged in protected conduct; (2) the defendants took an adverse action against him; and (3) a causal connection exists between the two." "An adverse action is one that is 'capable of deterring a person of ordinary firmness' from exercising the constitutional right in question." The first element has been met because, as discussed above, the Court finds that Plaintiffs have plausibly engaged in protected conduct….

Wade … argues that his interaction with Shaque Johnson did not constitute an adverse action because the Johnsons "stood their ground and continued their protest." Certainly, the fact that Shaque Johnson was not deterred from protesting suggests that his speech was not chilled by Wade. But the adverse action test is objective. As such, "the issue is whether a person of ordinary firmness would be deterred, not whether the plaintiff himself actually was deterred." Viewing the Second Amended Complaint in the light most favorable to Shaque Johnson, Wade's threats could have chilled the speech of an ordinary person….

Timms also contends that the civility code letter that he sent to Rebekiah Johnson was not an adverse action because it did not actually threaten criminal prosecution. However, the letter threatened Rebekiah Johnson that if she engaged in another "inappropriate and disruptive" protest, the school would ban her from all Knox County schools. This letter could deter a person of ordinary firmness from engaging in another protest, especially if that person, like Rebekiah Johnson, had children attending schools in Knox County. Indeed, Rebekiah Johnson maintains that because of the letter she did not protest against Principal Pratt again. Accordingly, Rebekiah Johnson states a claim for First Amendment retaliation against Timms….

The court also declined to dismiss the case on qualified immunity grounds:

It is well established that a citizen's right to speak publicly on matters of public concern—such as alleged racial discrimination by a school principal—is afforded broad protection under the First Amendment. And the First Amendment robustly protects a citizen's right to criticize public officials, even when that criticism is not of public concern…. "Freedom to criticize public officials and expose their wrongdoing is at the core of First Amendment values, even if the conduct is motivated by personal pique or resentment." … At a later stage of proceedings, Defendants could prevail on a qualified immunity defense. However, at this stage, Plaintiffs have met the low bar of plausibly alleging that they had a clearly established right to protest free from Defendants' interference. Accordingly, dismissal on qualified immunity grounds is premature….

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[Eugene Volokh] Case Over Handcuffing and 30-Minute Detention of Concealed Carry Permit Holder Can Go Forward

["[A] person in possession of a firearm and a facially valid permit for that firearm had a clearly established right to be free from the kind of forcible and prolonged detention to which Soukaneh was subjected, absent any objective reason to suspect that the permit was forged or otherwise invalid."]

From yesterday's Second Circuit decision in Soukaneh v. Andrzejewski, decided by Judge Eunice Lee, joined by Judges Gerard Lynch and Beth Robinson:

The evidence, taken in the light most favorable to Plaintiff-Appellee Basel Soukaneh, would permit a reasonable jury to find that in the course of a routine traffic stop, [Nicholas Andrzejewski, a Waterbury, Connecticut police officer] unlawfully and violently handcuffed and detained Soukaneh in the back of a police vehicle for over half an hour and conducted a warrantless search of Soukaneh's vehicle after Soukaneh presented a facially valid firearms permit and disclosed that he possessed a firearm pursuant to the permit. On appeal, Andrzejewski argues that we should reverse the district court's denial of qualified immunity because the presence of the lawfully owned firearm in the vehicle gave him the requisite probable cause to detain Soukaneh, search the interior of his car, and search his trunk….

Andrzejewski argues that … his actions … were justified because he had both "a reasonable suspicion of possible criminal activity" and "probable cause to detain [Soukaneh] and search his person and his vehicle" once he was made aware of the presence of a gun in the vehicle—even absent any articulable basis to question the permit's validity….

The desire to confirm the legitimacy of the facially valid firearms permit that Soukaneh presented did not—with nothing more—provide Andrzejewski with probable cause for the half-hour or longer handcuffed detention that occurred. It is uncontested that Soukaneh presented Andrzejewski with a gun license, the legitimacy of which Andrzejewski himself admits he had no reason to question. Moreover, Andrzejewski concedes that he was informed of the facially valid license before Soukaneh told him that he had a gun and specified its location.

Andrzejewski does not allege that the permit appeared abnormal in any fashion or that Soukaneh engaged in any suspicious or threatening behavior. On the facts before us, Andrzejewski does not provide an articulable reason why he, or any other reasonable officer, could conclude that there was probable cause to believe that Soukaneh possessed his firearm unlawfully in violation of Section 29-38(a). To find otherwise would consign those validly carrying firearms pursuant to a license to automatic detention because it would effectively presume that gun permits are invalid until proven valid, or that lawfully owned guns are per se contraband until proven otherwise. Such a finding would effectively render armed individuals' Fourth Amendment rights meaningless when they are lawfully carrying firearms.

{The potential effect of Andrzejewski's argument on the rights guaranteed by the Second Amendment is worth noting, notwithstanding that those rights are not in dispute for purposes of this appeal. While not every lawful possession of a firearm will trigger Second Amendment protection, some will. Regardless of whether the Second Amendment applies, however, individuals lawfully possessing a weapon should not be penalized by having a diminishment of their Fourth Amendment rights.} …

We [also] conclude that the ubiquity of Fourth Amendment protections established in the plethora of traffic stop cases put Andrzejewski on notice of the protected rights at issue during his de facto arrest of Soukaneh in the absence of probable cause. We have made clear that "a constitutional right to be free from arrest without probable cause, as well as a constitutional right to be free from unreasonably prolonged or intrusive investigative detention" are themselves the clearly established rights that justify the denial of qualified immunity….

This is not a close case, about which reasonable officers could differ. The law as it stood at the time of the events in question left no doubt that a person in possession of a firearm and a facially valid permit for that firearm had a clearly established right to be free from the kind of forcible and prolonged detention to which Soukaneh was subjected, absent any objective reason to suspect that the permit was forged or otherwise invalid…. We therefore affirm the judgment of the district court to deny Andrzejewski's motion for summary judgment and decline to find that Andrzejewski has qualified immunity as to his detention of Soukaneh….

In addition to being necessary for Soukaneh's de facto arrest, probable cause was also needed for the warrantless searches of his car. As discussed above, no such probable cause existed. However, another inquiry for determining the lawfulness of a vehicle search during a traffic stop is whether an officer had a reasonable apprehension of danger—which may permit a Terry frisk of the automobile…. [Still,] the presence of a lawful weapon alone does not automatically make someone suspicious, nor a situation dangerous, such as would justify the Terry frisk of a car….

Andrzejewski attempts to justify the search of the trunk by arguing that the recovery of Soukaneh's lawful gun provided probable cause to search the trunk for other guns under the automobile exception…. Andrzejewski argues that once he retrieved the gun identified by Soukaneh in the driver's side door compartment, he had the requisite probable cause to search the trunk for contraband. But the presence or retrieval of the lawful firearm could not, and did not, provide probable cause to search for contraband in the trunk, absent indicators of criminal activity. Andrzejewski attempts to justify his actions by relying on cases in which the discovery of contraband (e.g., the discovery of drugs) provided a foundation for probable cause for a warrantless search under the automobile exception. But a lawfully owned gun is not per se contraband. Andrzejewski provides no other basis for suspicion that the trunk contained illegal weapons, or any evidence to suggest a crime was afoot to justify his separate intrusion into the trunk…. Andrzejewski's warrantless searches of Soukaneh's car and trunk violated clearly established Fourth Amendment rights to be free from unreasonable searches….

John R. Williams represents Soukaneh.

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[Eugene Volokh] State May Not Deny Grants to Charity Based on Its Religious Discrimination in Employment, When

[the state had allowed other organizations to get grants despite their discriminating based on race and sex—so suggests the Ninth Circuit in a recent decision granting an injunction pending appeal.]

From Thursday's decision in Youth 71Five Ministries v. Williams, decided by Judge Kenneth Lee, joined by Judges Bridget Bade and Danielle Forrest:

Youth 71Five Ministries (71Five) is a Christian organization that serves and mentors at-risk youths of all backgrounds, including those who are not Christian. But 71Five hires only those who share its faith and can thus advance the group's mission and message. Once the state of Oregon learned of this hiring practice, it canceled $410,000 in grants to 71Five, asserting that the group violated the state's non-discrimination policy. The district court denied 71Five's motion for a preliminary injunction, and 71Five has now filed an emergency motion seeking an injunction pending appeal of the district court's order.

We grant the injunction and set an expedited briefing schedule for the appeal. We hold that 71Five is likely to succeed on the merits. Under the Free Exercise Clause of the First Amendment, the government must treat secular and religious groups equally. But Oregon has not applied its non-discrimination policy neutrally, as it continues to fund secular organizations that favor certain groups based on race and gender identification in violation of the same non-discrimination policy that Oregon relied on in denying funding to 71Five….

71Five is a nonprofit, Christian ministry in Medford, Oregon that provides services and mentoring to at-risk youth. Its name derives from Psalm 71:5, which says, "Lord God, you are my hope. I have trusted you since I was young." 71Five provides youth centers in two southern Oregon counties "where students can have a safe and supportive place to hang out and develop meaningful relationships" and enjoy free meals and team activities. It also sponsors a community-based ministry to "transform the lives of inner-city youth" by having them "know God and … serve their communities." In addition, 71Five provides "voluntary Bible studies," "one-to-one visits and mentoring," and "group discussions" for youths in detention centers, group homes, and emergency shelters.

While it serves youths of all backgrounds without regard to religion, 71Five requires that its employees and volunteers "subscribe and adhere without mental reservation" to a statement of Christian faith. As 71Five puts it, it strives to meet the youth's "physical, mental, emotional and social needs," but its main goal is for the youth to "have an opportunity of having a personal relationship" with Jesus Christ….

The Free Exercise Clause of the First Amendment provides that the government "shall make no law … prohibiting the free exercise" of religion. Besides forbidding "outright prohibitions," this clause also proscribes "indirect coercion or penalties on the free exercise of religion." "To avoid strict scrutiny, laws that burden religious exercise must be both neutral and generally applicable." …

State policies "are not neutral and generally applicable … whenever they treat any comparable secular activity more favorably than religious exercise." As evidenced by their websites, many other participants in the Program discriminate in violation of the Certification Rule [adopted by Oregon]. Take a few examples: Ophelia's Place and Girls Inc. only serve girls or those identifying as girls, even though the Certification Rule states that a group cannot discriminate based on gender in providing services. The Black Parent Initiative only serves African and African American families, despite the Certification Rule's prohibition on race-based distinctions. And Adelante Mujeres only serves Latina women and families in violation of the Certification Rule's prohibitions on both gender and race-based discrimination. Yet the state continues to fund these groups while it has revoked 71Five's grants.

The Free Exercise Clause bars the government from treating religious groups worse than secular ones—but Oregon has apparently done just that in selectively enforcing its Certification Rule against 71Five. This case falls well within the heartland of our en banc decision in Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Ed. (9th Cir. 2023) in which we held that a public school district could not enforce its non-discrimination policy against the Fellowship of Christian Athletes but not against other secular clubs at the school…. "Simply put, there is no meaningful constitutionally acceptable distinction between the types of [discrimination] at play here." …

The district court erred in holding that Oregon's actions were neutral. First, it incorrectly believed that the secular groups' exclusionary policies did not violate the Certification Rule because these groups were acting "in culturally responsive ways." The district court apparently believed that these secular groups were, at worst, guilty of only benign discrimination. But we rejected that argument in FCA: good intentions cannot justify the unequal treatment of religious organizations. Second, the district court also mistakenly found that there was "no evidence" that the secular programs "refused services for discriminator[y] reasons." This finding ignores the programs' own websites that explicitly admit that they discriminate in the provision of their services….

To be sure, these groups' preferences for serving only certain segments of society may "serve important purposes." But that is also true of 71Five's hiring practices, which serve its primary purpose of sharing its faith. "Whether they are based on gender, race, or faith, each group's exclusionary" practices violate the Certification Rule. But Oregon has chosen to enforce the rule only against 71Five. Strict scrutiny thus applies.

To survive strict scrutiny, Oregon's "action must advance interests of the highest order and must be narrowly tailored in pursuit of those interests." Oregon does not contend that its actions survive strict scrutiny. And in any event, we conclude that the Certification Rule, which reaches even beyond the strictures of Oregon's anti-discrimination policy, likely is not narrowly tailored to serve its asserted interests. We thus find that 71Five is likely to succeed on the merits….

"Anti-discrimination laws and policies serve undeniably admirable goals, but when those goals collide with the protections of the Constitution, they must yield—no matter how well-intentioned." …

James A. Campbell, Jeremiah Galus, Mark Lippelmann, David Andrew Cortman, John J. Bursch, and Ryan J. Tucker, all of Alliance Defending Freedom, represent Youth 71Five Ministries.

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