Eugene Volokh's Blog, page 290

[Orin S. Kerr] The Precedential Value of Robinson, a Reply to Josh

[It's a weird case, but Robinson's death before the case was heard is old news. ]

Like a lot of people, I think that the Supreme Court's ruling in Robinson v. California (1962) is a mess.  It's a due process decision presented as an Eighth Amendment ruling.  With that said, I disagree with my colleague Josh Blackman's view that the case is entitled to no precedential weight because it turned out that Robinson had died in 1961, before the Court took the case.  Josh writes:

Jurisdiction can be raised at any time, even after death. The Court lacked jurisdiction to decide Robinson v. California because there was no actual case or controversy. The state was prosecuting a dead body. Robinson gives new meaning to habeas corpus. That decision is entitled to no precedential weight. I think the California Attorney General could, in theory at least, petition to vacate Robinson on those grounds. That probably won't happen. But next time Robinson comes up, the government should flag the issue.

It seems worth noting that this issue was raised before the Supreme Court in 1962.  After the Supreme Court's ruling, the California Attorney General filed a motion to vacate the judgment or rehear the case that alerted the Court to Robinson's death.

According to California's petition, dated July 20, 1962, none of the counsel for the parties had known that Robinson was dead. (This is not entirely uncommon in criminal cases involving low-level charges; appellate counsel can have a hard time staying in touch with clients who are not being detained and who don't have a fixed address.)  California's motion states that the fact of Robinson's death was only revealed by reporters who were looking into the case after the Supreme Court ruled:

It should be noted, however, that the fact of the appellant's death was unknown to either counsel for appellee or counsel for Amicus Curiae until the public press brought the matter to the attention of counsel for Amicus Curiae on June 25, 1962, subsequent to the issuance of this court's opinion on that date.

The Supreme Court nonetheless denied California's motion on November 13, 1962. Justice Clark, joined by Justices Harlan and Stewart, objected to that denial:

In my view this action by the Court is but a meaningless gesture utterly useless in the disposition of the case—the appellant being dead—and, as I read our cases, is contrary to the general policy this Court has always followed in the issuance of its mandates. Under our decisions this appeal abated as moot upon the death of the appellant, Menken v. City of Atlanta, 131 U.S. 405, 9 S.Ct. 794, 33 L.Ed. 221 (1889), and the judgment should have been vacated and the case remanded to the state court for such proceedings as might be appropriate under state law.

This is true even though the opinion and judgment of June 25 had been handed down prior to the notice of appellant's * death. See Stewart v. Southern R. Co., 315 U.S. 784, 62 S.Ct. 801, 86 L.Ed. 1190 (1942), vacating the prior judgment in the same case, 315 U.S. 283, 62 S.Ct. 616, 86 L.Ed. 849. Moreover, there is no question of costs involved here as there was in Wetzel v. Ohio, 83 S.Ct. 111. I would therefore grant the petition for rehearing and vacate the judgment as moot.

Whether one agrees or disagrees with the Court's denial of California's motion, it seems to me that this issue was settled for Supreme Court purposes 62 years ago.  The Supreme Court is certainly free to recast Robinson as a due process case someday—which I personally think they should, as that's what Robinson really is.  But the motion to account for Robinson's untimely death was litigated a long time ago, back when Elvis Presley had a Top 10 hit with "Return to Sender."

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[Ilya Somin] Trade, Public Opinion, and Political Ignorance

[A new Cato Institute/YouGov survey finds contradictory attitudes on trade policy, and widespread ignorance. The survey also suggests a potentially promising political strategy for free trade advocates.]

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A new Cato Institute/YouGov survey sheds some interesting light on public attitudes towards international trade. It finds that most Americans seem to like international trade, but also that there are significant internal contradictions in their views, and that those views are often influenced by ignorance. Such results should not be surprising, given widespread public ignorance about a variety of other public policy issues. But they are nonetheless notable.

In some respects, the Cato surveys that the public is very supportive of free trade, despite recent trends towards protectionism in both major political parties. Some 53% have a favorable view of "free trade," compared to only 11% that have an unfavorable view. An impressive 63% say they favor "the United States increasing trade with other nations," while only 10% are opposed.

On the other hand, 62% favor "adding a tariff to blue jeans sold in the US that are manufactured in other countries to boost production and jobs in the American blue jean industry." Similarly, 62% favor reducing US tariffs "only if… other countries lower their trade restrictions on U.S. products because otherwise they will harm American businesses and jobs," and 15% oppose tariff reductions under all circumstances. Only 23% favor unilateral tariff reduction (the  position held by most economists).

It looks as if large majorities favor "free trade" in principle, but shift positions when jobs are mentioned. But that latter view in turn dissipates once respondents learn that tariffs increase prices. Thus, the survey finds that 66% oppose imposing a tariff on blue jeans if it makes a pair of blue jeans $10 more expensive than it would be otherwise (58% would accept a more modest $5 increase in prices).

Given that almost all effective tariffs are likely to lead to significant price increases (otherwise, there would be no point in imposing them, since this is the only way they could meaningfully help domestic producers by diminishing purchases of foreign products), one would think this price-sensitivity would lead most people to oppose tariffs and support unilateral free trade. Tellingly, however, another question on the survey finds that only 38% know that free trade agreements reduce "the price of products Americans purchase at the store"; 39% believe (wrongly!) that trade agreements actually increase prices. A plurality also believe  that trade agreements destroy more US jobs than they create. In reality, the opposite is true, and tariffs often destroy jobs by making production in the US more expensive. For example, Donald Trump's steel tariffs predictably led to job losses in industries that use steel as a production input.

The survey also finds that most Americans believe the trade deficit is harmful (a view overwhelmingly rejected by economists), and greatly overestimate the percentage of US imports that come from China (a view that sours opinions on trade generally, because most Americans view China with great suspicion). Interestingly, opinion about the trade deficit shifts when respondents learn the money paid for foreign goods is reinvested in the United States (as is overwhelmingly true, because Americans pay for the goods in dollars; thus, a trade deficit leads to a current-account surplus).

In sum, opinion on trade policy varies a lot depending on how questions are framed (depending on whether jobs or prices are mentioned). This is similar to public opinion on many other issues that most Americans don't know much about and don't necessarily have strong opinions on. The are similar contradictions and question-wording effects in public opinion on zoning and restrictions on housing construction.

Interestingly, the survey finds that only 1% of Americans consider trade to be one of the three most important policy issues for them (though for some, trade might be part of the broader issues of "jobs and the economy" and "inflation/prices," both of which rate among the most highly-rated issues in the survey). This low prioritization makes it even more likely that voters pay little attention to trade policy, and know little about it.

For free trade advocates, there is a major tactical takeaway: voters hate price increases, and will oppose tariffs if they think they cause such increases. The blue jean question is particularly telling—showing that most people won't tolerate modest price increases even if told doing so will increase jobs. The idea that tariffs increase prices is at least somewhat intuitive, and it may be possible to get it across even to relatively ignorant voters.

The idea of emphasizing the price-decreasing effects of free trade is far from a new one. It's how Richard Cobden, John Bright, and the British Anti-Corn Law League forged perhaps the most successful free trade movement in history, in nineteenth century Britain. After the repeal of the Corn Laws, the pro-free trade British Liberal Party successfully emphasized the issue of prices for decades to come.

British Liberal Party campaign poster (circa 1905-10). (LSE)

 

The Cato/YouGov survey suggests modern free-trade advocates would do well to try the same strategy. Maybe we can learn a lesson from Cobden, Bright, and other old-time British Liberals.

Cato public opinion analyst Emily Ekins outlines the significance of some of the survey's other findings here.

NOTE: In addition to my primary position at George Mason University, I am also the Simon Chair in Constitutional Studies at the Cato Institute. However, I had no role in developing this survey.

UPDATE: Cato international trade scholar Scott Lincicome, who helped create the survey offers some insights on the results here.

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

[Arresting the wrong Jose Vasquez. Arresting the wrong Bethany Farber. Arresting the wrong Juan Martinez.]

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

This week on the Short Circuit podcast: A dog named Thor not behaving as man's best friend and speculation as to why "bigamy" is in the Mississippi Constitution.

And, over at the Fed Soc teleforum, IJ's own Robert McNamara moderates a debate on the merits of qualified immunity between Michael Perloff, interim head of the ACLU, and Prof. Chris Walker of the University of Michigan. Click here to check that out.

During the COVID-19 pandemic, the CDC imposed a temporary eviction moratorium that the Supreme Court held was beyond the agency's statutory authority. CDC: Which means the eviction moratorium couldn't possibly have worked a taking, right? Because takings are lawful, and we acted unlawfully, right? So, y'know, neener neener neener, right? Federal Circuit (over a dissent): That is very clever and entirely wrong. Case undismissed! During 2020 police-brutality protests, D.C. police arrested quite a few people and then released them in relatively short order. They did not, however, release their cell phones for months and years—despite not pressing charges or seeking search warrants. District court: Which is fine. The Fourth Amendment only applies to the initial act of seizing the phones, not retaining them. D.C. Circuit: Vacated. Text, history, and tradition say otherwise. Concurrence: And the five circuits that have gone the other way on this employed unpersuasive reasoning. (IJ—with some friends—urged this course of action in an amicus brief.) Maryland man who shares name and DOB with a fugitive wanted for a 40-year-old Illinois murder is repeatedly arrested by D.C. police. Egregiously, Illinois police had put the Maryland man's SSN on their warrant. But eventually, they correct that and instruct officers not to detain the Maryland man. Despite this, D.C. police detain him two more times. Jury: And D.C. owes him $100k for false imprisonment. District court: Vacated! Just because a D.C. officer knew the Maryland man had a different SSN than the one on the (corrected) warrant doesn't mean the officer knew he was a different person. D.C. Circuit: Doesn't it? The jury's verdict is reinstated. Defendant robs a Maine bank, has a rap-sheet "longer than" the sentencing judge's "arm," and early in his subsequent prison term engaged in a fair amount of poor behavior. However, it's also true that falling on his head when he was four "'annihilated' his brain's impulse control center," that he has recently taken remedial classes in prison and has been much better at following prison rules. Worthy for compassionate release under the First Step Act? First Circuit: These are not "extraordinary and compelling reasons" for early release. The Satanic Temple challenges the City of Boston's failure to invite them to give an invocation before its city council as a violation of the Establishment Clause. City: It's not that city councilors are favoring certain religions, it's that they're inviting people they like for non-religious reasons, like their good works in the community. First Circuit: Oh, well that's fine. Concurrence: The city also says that city councilors "might find it politically expedient to curry favor with a religious group and its constituent members," which seems at least a little problematic. Virgin Island prisoner files a habeas petition with the territorial court in 2014, and all that court has done is since is hold a single status conference—seven years ago. So petitioner files his petition in federal court, where he has to show "inordinate delay" to excuse a failure to exhaust state-court remedies. District court: Sure, you kept filing motions and discovery requests while the territorial court dawdled, but you also could have sought the extraordinary relief of mandamus from the territorial high court, so the delay is your fault. Third Circuit: Are you kidding me? If the gov't doesn't have a very good reason for the delay, this habeas petition needs to be considered on the merits pronto. In darker times, before Fortune's hand uplifted your summarist to life as a scrivener, he made a living extracting "withdrawal liability" from unwary unionized employers. (For an explanation of what that term means see this super-old and underread law review article.) Yet, one thing even he didn't do was represent a painters' union pension fund that sent its bill for $427,195 to an employer who had ceased making contributions to the fund 12 years prior. Was that "as soon as practicable" after the withdrawal? Third Circuit: A little bit long. And it's OK for us to second-guess the arbitrator. Late one night a Pittsburgh man—a felon on probation—and his girlfriend see shadowy figures breaking into her car behind their house. Girlfriend gets out her handgun she keeps in a safe, hands it to the man, and takes her three kids out of the house and to safety. Man then confronts the figures, who flee, but while fleeing he fires shots and hits one in the thigh. Man dutifully calls his probation officer and admits to this—for which he's charged with being a felon "in possession" and sentenced to 84 months imprisonment. Second Amendment violation? Third Circuit: History, tradition, and Shays' Rebellion. Conviction affirmed. In 2013, Maryland banned the sale and possession of so-called "assault weapons," a term that, as defined, includes the most popular rifle in the country. A coalition of firearms activists sue, arguing the ban violates the Second Amendment. Their case ping-pongs around the lower courts for years, gets a GVR at SCOTUS after Bruen, and then finally lands back at the Fourth Circuit (en banc) which says: These "arms" aren't even covered by the Second Amendment. Concurrence 1: We're drowning in history. Concurrence 2: I think the law's OK, but we're not supposed to be balancing stuff. Dissent: "Arms" are "arms." Also see footnote 2 for some opinion-drafting funny business. Did Mick Jagger and Keith Richards say hi and, like a spider to a fly, steal a Spanish musician's musical compositions for their 2020 song "Living in a Ghost Town"? Fifth Circuit (unpublished): Can't say. Why'd you file this in Louisiana? Man and woman conspire to kill woman's former husband, which they accomplish. Both are sentenced to death. Yikes! Turns out the judge (ex parte) tasked the prosecutor with drafting the sentencing opinion with the aid of the judge's notes. (The judge and prosecutor are publicly reprimanded.) The condemned man gets resentenced—to death by the same judge who refused to consider new mitigating evidence and in an opinion that is almost identical to the original. Sixth Circuit: Habeas granted. The judge was unconstitutionally biased. He also should've considered all relevant mitigating evidence. (For those keeping count, that's the second Sixth Circuit habeas grant of an Ohio conviction in as many weeks.) Chinese spy would invite aviation experts from foreign companies to give presentations in China, cover their travel and provide additional payments, with the goal of stealing proprietary information. A GE Aviation engineer who specialized in composite fan-blade technology fell into the spy's trap—and eventually into an FBI investigation. Working with the feds, the GE engineer gets the spy to Belgium where the FBI arrests the spy. He's convicted, sentenced to 20 years in prison, based in part on the spy's intent to deprive GE of $50 mil. Sixth Circuit: Affirmed. Missouri parent complains that a book in the school library system, Cats vs. Robots #1: This is War, features three pages discussing a character's nonbinary gender identity. Following district policy, the school district automatically pulls the book from the shelves and a committee votes to permanently remove it from elementary-level libraries. Parents who object to challenged books being removed automatically—with no notice or possibility to appeal the final removal decision—sue. Eighth Circuit: But they lack standing. Though hundreds of books are challenged around the country annually, who knows if it will ever happen here (again, that is)? Kansas man neglects to tell his sexual partner he has HPV. When she, too, is later diagnosed with HPV, she threatens to sue her former lover and sends a demand letter to GEICO, which insured the car in which at least one of their sexual encounters took place. GEICO seeks a declaration that its policy does not cover these particular injuries. Eighth Circuit: And GEICO's right. Though an errant semicolon may suggest that the policy covers all "bodily injury" for which the insured becomes liable, context and common sense suggest the injury must be associated with the use of the car as something other than a mattress. Old and busted (Supreme Court, 2020): "[A]s a general rule, our system 'is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.'" New hotness (Eighth Circuit, 2024): Courts can compel defendants to assert qualified immunity (and then grant it), even if those defendants' counsel "didn't see grounds" to do so. California woman is arrested in Los Angeles on a no-bail warrant from Texas (a state she says she has never been to) that identifies her by name, DOB, driver's license number, and more. After 12 days in jail, Gainesville, Tex. police confirm that—whoops!—they indicted the wrong woman. The real suspect (wanted for vandalism) has the same first and last name, but a different middle name. Can the wrongfully jailed woman sue the City of Los Angeles? Ninth Circuit (unpublished): No. California man is detained in Stockton for public intoxication and then jailed for five days after the officer discovers a no-bail warrant from Los Angeles for a man with the same name and DOB. Yikes! The warrant actually identifies a different man who is significantly taller and heavier and has an entirely different set of fingerprints. Can the wrongfully detained man sue the Los Angeles Police Dept.? Ninth Circuit (unpublished): No. Shortly before the 2022 election, the Libertarian Party of Georgia—which has run candidates for governor and lieutenant governor in every election since 1990—challenges a Georgia campaign finance law that favors Republican and Democratic nominees over those of minor parties. The district court denies its motion for preliminary injunction and the party appeals. Eleventh Circuit: Too bad the complaint didn't include any allegations in their complaint about what the party wants to do after the 2022 election. The case is moot. Man is mistakenly released on bond from Orange County, Fla. jail. When officers seek to apprehend him, he shoots at them, wounding an officer in the shoulder. He flees, leaves his gun behind, and is then shot himself. While officers are holding him down, and before he can be cuffed, he jerks his arm. An officer shoots him in the back of the head, killing him. Excessive force? Eleventh Circuit: Qualified immunity. He may have been unarmed, but no reasonable jury could find that the officer knew he was unarmed. And in amicus brief news, IJ is urging the Supreme Court to take up a pair of cases about outrageously short deadlines for filing Section 1983 cases, deadlines that are set by … state legislatures? As Judge Ho recently noted, that does seem passing strange: "you would think the last thing Congress would want is fifty different limitations rules." And, as we note in the brief, too short limitations periods (of, say, one year)—combined with judge-created procedural barriers like qualified & municipal immunity that require intense, time-consuming research prior to filing suit—undermine Congress' intent to allow individuals to vindicate their rights under the federal Constitution.

Victory! Friends, back in April we sued Nazareth, Penn. over an ordinance that made it a criminal act to put a "for sale" sign on a legally parked car. (Curiously, the ordinance only banned "for sale" signs, while allowing all sorts of other commercial speech on legally parked cars.) This week, borough officials repealed the ban. "I'm glad the borough has done the right thing and repealed the law, so nobody else will have to worry about facing criminal charges for simply putting a 'for sale' sign in their car window," said IJ client Will Cramer. "This case was always about making sure what happened to me doesn't happen to anyone else in Nazareth." Click here to learn more.

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[Josh Blackman] The Warren Court's "Accidental Ruling" In California v. Robinson That Should Have No Precedential Weight

[Nat Lewin relays the story from his 1962 clerkship with Justice Harlan.]

In Grant's Pass v. Johnson, the Supreme Court upheld a local law prohibiting camping on public property. In doing so, the Court declined to extend California v. Robinson (1962). Here is how I described Robinson:

Robinson v. California (1962) may be peak Warren Court activism. California made it a crime to be addicted to narcotics–not simply to use drugs, but to be addicted to using them. Robinson argued that this law violates some sort of substantive due process right. This was three years before Griswold, so the Court still was stuck under the New Deal settlement that rejected substantive due process. So what does the Warren Court do? It manufactures a new standard based on the Eighth Amendment out of whole cloth. Sort of like a penumbra. (Griswold favorably cites Robinson.) The Robinson Court held that it would violate the Eighth Amendment to punish someone because of the "status" of being a drug addict. The Court ruled that when punishing "'status,'" "[e]ven one day in prison would be . . . cruel and unusual." Id., at 666–667.

Justice Gorsuch's majority opinion all-but-rule that Robinson was wrongly decided. For sure, the Court declined to extend that precedent to the facts of Grants Pass.

Now, Nat Lewin writes in the Wall Street Journal how that "accidental ruling" came to be. Lewin clerked for Justice Harlan that term. Lewin and his co-clerk identified Robinson's petition from a stack of "flimsies" (cert petitions that were nor pri Justice Harlan flagged the petition with his brethren, and said the case should be put on the "discuss" list. The Court then granted the petition.

At conference, it was expected that the Court would rule based on the Due Process Clause:

After the justices discussed the case at their Friday conference, Harlan told his clerks, with great satisfaction, that a majority had voted to vacate Robinson's conviction. Opinions were customarily assigned the following week. Much to our surprise, Chief Justice Earl Warren assigned Justice Stewart to write the majority opinion in Robinson. No explanation was usually given for these assignments, but Harlan and I had hoped he would get it and were disappointed not to be able to craft a decision explaining the "serious constitutional questions" that justified plucking it from the trash. Still, we were confident that Stewart's opinion would declare due process didn't allow criminalizing "the status of being a drug addict" rather than a defendant's conduct.

But, to Harlan's surprise, the circulated majority opinion instead relied on the Eighth Amendment--and issue that wasn't brief and was barely mentioned at oral argument.

It seems that Justice Douglas influenced Justice Stewart:

Then as now, the end of each Supreme Court term was chaotic. Confronted with an imminent deadline, the justices are writing, dispatching, receiving and joining majority opinions, concurrences and dissents. I recall receiving Stewart's Robinson majority opinion days before the end of the term and being startled by its reliance on the Eighth Amendment. Justice William O. Douglas, a frequent outlier, distributed a lengthy concurrence explaining why he believed it violated the Cruel and Unusual Punishments Clause "to treat as a criminal a person who is a drug addict." I speculated that Douglas or his law clerk had influenced Stewart to choose that unusual rationale.

As I noted in my prior post, 1962 was before Griswold, and the Justices were still laboring under the New Deal settlement. Justice Stewart would go on to dissent in Griswold. He was not comfortable with substantive due process. So perhaps this decision should not have been so surprising in hindsight.

Harlan personally wrote a two-paragraph concurrence that rejected the Eighth Amendment analysis:

Pressed for time, Harlan personally composed a two-paragraph concurrence expressing his disagreement with Stewart. He disclaimed reliance on the Eighth Amendment but observed that Robinson had been found guilty "on no more proof than that he was present in California while he was addicted to narcotics."

The Court would decide fifteen opinions on June 25, 1962. (Can you imagine the Justices nowadays handing down 15 opinions in a single session, with all of the dissents from the bench? It would take all day!) One of those cases was Engel v. Vitale! Robinson v. California was less noticed.

Finally, Lewin provides some fascinating, and disturbing insights into the facts of the case. Turns out Robinson was dead, from a drug overdose, as it were.

Neither Justice Harlan nor I knew that Lawrence Robinson was black (as were the other three occupants of the car). If his case had reached the Supreme Court today, he might have been celebrated in the media. Reporters would have discovered that Robinson had died of a drug overdose on Aug. 5, 1961, months before the court agreed to hear his case.

In the event, even the state's lawyers evidently didn't know. Only in mid-July (after I had finished my clerkship) did California's attorney general file a petition to rehear or dismiss the case because the petitioner had died while the case was pending. When the court reconvened in October 1962, it denied the motion. Justices Tom Clark, Harlan and Stewart noted their dissent.

Worse still, Robinson's lawyer likely knew of the death, but did not disclose those facts to the Court!

Robinson's lawyer was Samuel Carter McMorris, who later won some notoriety for representing the Black Panthers. During McMorris's oral argument, he told the justices that he had represented Robinson at trial, that he had "handled a great number of narcotics cases" in the Los Angeles courts, and that Robinson's was the "third such case" in which he personally participated.

Did McMorris know that his client was dead? Reported discipline decisions of the California Supreme Court point toward an answer. The state high court suspended McMorris's law license four times between 1977 and 1981 for failing to communicate with his clients. He was disbarred in 1983.

Not only did the Court make up a standard out of whole cloth, but it did so in a case where the defendant was dead! It has happened that Ninth Circuit judges signed opinions from the great beyond, but last time I checked, a criminal prosecution terminates at death.

Lewin ends with this question:

Did today's justices know any of this history when they considered and decided whether to retain Robinson v. California as a binding precedent?

Jurisdiction can be raised at any time, even after death. The Court lacked jurisdiction to decide Robinson v. California because there was no actual case or controversy. The state was prosecuting a dead body. Robinson gives new meaning to habeas corpus. That decision is entitled to no precedential weight. I think the California Attorney General could, in theory at least, petition to vacate Robinson on those grounds. That probably won't happen. But next time Robinson comes up, the government should flag the issue.

Update: I appreciate Orin's post which points out that California filed a motion for reconsideration after learning of Robinson's death. That petition was denied, over a dissent from Justices Clark, Harlan, and Stewart. This is especially curious since Justice Stewart wrote the majority opinion! He voted to vacate his own decision. I am happy to stand corrected.

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[Ilya Somin] Pacific Legal Foundation Report on "Locking Squatters Out: How States Can Protect Property Owners From Squatters"

[The report has useful data on the scope of the problem, and recommendations on what can be done about it.]

(Andrii Yalanskyi/Dreamstime.com)

The Pacific Legal Foundation recently published  "Locking Squatters Out: How States Can Protect Property Owners From Squatters," a report authored  Kyle Sweetland and Mark Miller. It's a great summary of what we know of the scope of the squatter problem, what states have done (or not done) in response, and what reforms can help protect property owners more effectively. Here's an excerpt:

Squatting is the act of occupying someone else's property without any legal claim or title to it and without consent from the property owner. Beyond trespassing, squatters often cause other trouble by selling the owner's belongings, trashing the property, or using it for a prostitution ring or drug den.1

Removing squatters is difficult in most states. Although trespassing is a criminal offense, most state governments treat squatter removal as a landlord–tenant eviction—i.e., civil—dispute.

Law enforcement often tells property owners to file an eviction case and refuse to remove squatters so that officers avoid violence, legal mess, or additional work. Law enforcement cannot easily determine whether squatters who claim to have a lease are indeed tenants or are presenting a fraudulent lease—and may lack the resources to do so.2 Given this and "the increase in tenants' defenses to eviction and a growing sense that landlord–tenant confrontations often lead to violence," police departments may see it as unwise to get involved in removing a squatter.3 Law enforcement also encourages homeowners to use the eviction process "to ensure that any adverse claims filed [by squatters] are invalid."4

However, waiting for civil procedures to run their course can leave property owners unable to live in their own homes for months or years as they try to evict squatters and can cost thousands of dollars in repairs, increased utility bills, and legal fees. In Tennessee, it can take up to two years to evict a squatter, and in Maryland and Pennsylvania, it can cost $3,000 to $10,000 to get a squatter eviction case through the court system.5 During this time, squatters can wreak havoc on property owners' homes. In one egregious example, a Dallas woman sustained more than $150,000 in property damage from squatters. And a New York City homeowner saw his utility bill increase by more than $1,000 per month when squatters took over his home….6

In response to the rise in squatting, some states are using legislation to turn squatting into a criminal offense and make it easier for property owners to remove squatters. As of May 2024, Alabama, California, Florida, Georgia, Nevada, Tennessee, Washington, and West Virginia have passed laws that criminalize squatting, while eleven other states have introduced bills to do so (figure 2). Most states, however, have not yet addressed the issue legislatively, leaving property owners' doors wide open to squatters and requiring the civil court system to resolve the issue through the much-slower eviction process….

Conferring criminal status to squatting does not guarantee a sped-up process for removing squatters. California charges squatters with a trespassing misdemeanor if a property owner has filed a no-trespass letter with police in advance of a squatting incident, but eviction is still required if the property owner failed to file a letter.16 Conversely, the process of removing squatters can be sped up without criminalizing the activity. In Colorado, legislators created a special eviction process for squatters that takes significantly less time than normal evictions, but the activity is not considered criminal….

One of the most effective ways states can help protect property rights against squatters is by reforming laws to make it easier and faster for property owners to remove squatters from their property. Pacific Legal Foundation's model bill, the Stop Squatters Act, is a template for legislators to craft laws that would better protect property rights, give owners remedies against squatting, and penalize squatters as criminals.

In addition, states could bring greater awareness to the issue by collecting and publishing comprehensive data on squatting.

In a post written in March of this year, I explained why squatters' rights laws that make it difficult or impossible to quickly evict squatters violate the Takings Clause of the Fifth Amendment. But reasons outlined there, a takings lawsuit is often not the best way to deal with such cases. Swift eviction combined with criminal or civil penalties will often be preferable.

In the same post, I also explained why laws protecting squatters ultimately harms legitimate tenants, as well as property owners:

[S]quatters' rights laws end up harming the very people they are supposed to help: low-income tenants. If property owners have reason to fear that squatters can occupy their land without their consent, they will be less willing to rent property to begin with, charge higher rents, screen potential tenants more carefully (thereby potentially excluding those with low income, few or nor references, and the like), or some combination of all of these measures. They may also be incentivized to impose more costly and elaborate security restrictions on access to land (which in turn is likely to raise rents). All of this predictably reduces the availability of housing and increases its costs.

NOTE: My wife, Alison Somin, is an employee of the Pacific Legal Foundation, which published the report discussed in the post. She does not work on property rights issues, and  was not involved in the preparation of the report.

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[Eugene Volokh] Comedian Hannibal Buress's False Arrest Lawsuit Can Go Forward

["Roast[ing]" police officers may not generally be wise, but it is still generally constitutionally protected.]

From Tuesday's decision in Buress v. City of Miami (Judges Adalberto Jordan, Barbara Lagoa, and Susan Black):

Miami Police Department Officer Luis Verne appeals the district court's denial of qualified immunity and state-law immunity in his arrest of Hannibal Buress. The district court concluded there were genuine issues of material fact remaining regarding whether Officer Verne had arguable probable cause to arrest Buress for the crimes of (1) bribery and unlawful compensation or reward for official behavior; (2) disorderly intoxication; (3) disorderly conduct; (4) trespass; and (5) resisting an officer without violence. The district court similarly determined Buress raised a genuine issue of material fact regarding whether Officer Verne violated Buress's First Amendment rights and that Officer Verne was not entitled to state-law immunity on Buress's state law claims…. [W]e affirm ….

On December 9, 2017, Buress, a well-known stand-up comedian and actor, was visiting Miami for the Art Basel festival. Buress spent "substantial time" having drinks at Gramps Bar in the Wynwood area. At some point that night, Buress's phone died, and Buress walked toward the corner of NW 2nd Avenue and NW 20th Terrace to find a ride back to his hotel. Officer Verne was posted at that corner, and Buress walked up to him and said "call me an Uber and I'll give you $20." Verne said "no" to Buress's request.

At this point, the two parties' accounts of the facts diverge. Officer Verne states Buress got closer to him and began going back and forth with him and yelling a bunch of profanities. Buress states that after Officer Verne refused his request, he walked away and did not say anything. Buress then looked back and observed Officer Verne kissing a woman who came out of a bar. At that point, Buress "yelled back" at Officer Verne about how he was kissing this woman but could not call him an Uber. Buress and Officer Verne agree they had words back and forth. Buress admits using profanity, but states it was joking and lighthearted.

Buress walked away and into a bar. Officer Verne followed Buress into the bar and told him to leave. Buress complied, but the parties dispute how quickly he did so. Officer Verne asserts Buress was "belligerent," "visibly drunk," and "could barely walk." Buress denies being belligerent or unable to walk. Buress does not deny that he was visibly drunk and agrees that Officer Verne thought he was drunk.

As Buress left the bar with Officer Verne following him, Officer Verne turned on his body-worn camera. For the first 30 seconds of video, there is no audio, but video shows Buress standing several feet away from Officer Verne, talking animatedly with him while smiling. The audio then begins and Buress states "put the camera on." Officer Verne responds, "it's been on, G." Buress then takes one small step toward Officer Verne and while still a few feet away says, "Hey, it's me, what's up, this cop, he's stupid. Hey, what's happening?" Buress then takes another step toward Officer Verne and says directly to the camera, "Hey, what's up? It's me Hannibal Buress, this cop is stupid as fuck. Hey, put this camera on." Officer Verne begins walking toward Buress and says, "Get out of here before you," before trailing off. Buress backs away and says "Hey, what's up YouTube?" while at the same time, Verne says "Get out of here," again. Less than a second later, Officer Verne says "Alright, put your hands behind your back."

As Buress continues backing away, he asks Verne, "for what?" and "what's the charge?" multiple times as Verne says, "I'll let you know as soon as you put your hands behind your back." Officer Verne then states, "Are you going to resist me?" and Buress immediately complies by allowing Officer Verne to grab his arm and begin handcuffing him. While Buress is being handcuffed, three people walk by calling Buress "Hans" and begin to record the arrest on their phones. Buress raises his free hand for a few seconds to say hello to the passerby, but then immediately puts it down for Officer Verne to handcuff him. Throughout, Buress continues to ask why he is being arrested, but allows Officer Verne to handcuff him and stands still without requiring any restraint. Buress is moved to a squad car while repeatedly asking about the reason for the arrest. Officer Verne states Buress is being detained for trespassing and disorderly intoxication. Buress then says Officer Verne is just "salty" that he "roasted his ass." Officer Verne responds "Yeah … I am." …

An officer need not have actual probable cause [to arrest], but only arguable probable cause, to receive qualified immunity. "Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the [officer] could have believed that probable cause existed to arrest." …

To determine whether there was probable cause or arguable probable cause for Buress to be arrested for bribery or unlawful compensation or reward for official conduct, we ask whether a reasonable officer could have believed there was a substantial chance he had committed these crimes. The elements of bribery under Florida law are: "(1) knowledge on the part of the accused of the official capacity of the person to whom the bribe is offered, (2) the offering of a thing of value, and (3) the intent to influence the Official action of the person to whom the bribe is offered." …

The district court did not err in concluding that Officer Verne did not have arguable or actual probable cause to arrest Buress for bribery or unlawful compensation or reward for official behavior because Buress's offer did not implicate any official act. The parties agree that Buress approached Officer Verne and stated, "call me an Uber and I'll give you $20." Calling an Uber is not an official act, so the bribery and unlawful compensation statutes are not implicated.

Buress asserts the law was clearly established in Florida that bribery and unlawful compensation applied only to official acts. Officer Verne asserts that a member of the public offering a police officer money for any act, whether an official act or not, is arguable probable cause for a bribery or unlawful compensation charge. We disagree. Florida law is clear that the bribe or unlawful compensation must be offered for an official act. While we acknowledge that every element of a crime does not have to be present for arguable probable cause, a reasonable officer in Officer Verne's position would not believe that $20 offered to call an Uber was a bribe or unlawful compensation based on an official act….

Under Florida's disorderly intoxication statute, "[n]o person in the state shall be intoxicated and endanger the safety of another person or property, and no person in the state shall be intoxicated or drink any alcoholic beverage in a public place or in or upon any public conveyance and cause a public disturbance." … Florida law also provides "[w]hoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct," is guilty of disorderly conduct.

The district court did not err in finding, when viewing the evidence in the light most favorable to Buress, that there is a genuine factual dispute over whether Officer Verne had actual or arguable probable cause to arrest Buress for disorderly intoxication or disorderly conduct. Both parties agree that Buress was intoxicated and insulted Officer Verne, including using profanity. Buress, however, maintains he used a joking, light-hearted tone. And the First Amendment protects "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest." … Thus, while Buress admittedly insulted Officer Verne, that alone is not enough for a disorderly intoxication or disorderly conduct charge.

As to causing a public disturbance, the video evidence supports Buress's version of events that his actions were not drawing a crowd, and that three bystanders stopped to record him only after Officer Verne began arresting him. Before that point, the video shows that people were walking by Buress and Officer Verne. Nor is there any evidence Buress was endangering public safety. Buress's version of events presents a jury question on whether Officer Verne had arguable probable cause to arrest him for disorderly intoxication or disorderly conduct. We affirm the district court on this claim….

"Whoever shall resist, obstruct, or oppose any officer … in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of" resisting an officer without violence…. Officer Verne could not be carrying out "the lawful execution of any legal duty" without arguable probable cause to arrest Buress. Thus, Officer Verne could not have arguable probable cause to arrest Buress for resisting arrest without arguable probable cause to arrest Buress for another offense….

The district court also did not err in finding Officer Verne is not entitled to qualified immunity from Buress's first amendment retaliation claims. "This Court and the Supreme Court have long held that state officials may not retaliate against private citizens because of the exercise of their First Amendment rights." Buress alleged sufficient facts that Officer Verne retaliated against him by falsely arresting him for exercising his First Amendment rights….

Similarly, Officer Verne is not entitled to immunity from Buress's state law claims alleging malicious prosecution and false arrest. "Florida's immunity scheme shields an officer from individual liability for on-the-job torts as long as the officer did not commit the tort in bad faith, maliciously, or wantonly." Buress has alleged sufficient facts to allow a reasonable jury to conclude Officer Verne acted in bad faith, maliciously, or wantonly by arresting Buress without probable cause. In particular, Officer Verne's agreement with Buress's statement that Officer Verne arrested him because he was "salty" that he "roasted" him could support Buress's claim….

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[Josh Blackman] Today in Supreme Court History: August 9, 1974

8/9/1974: President Richard Nixon resigns from office, President Gerald Ford takes oath of office.

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[Ilya Somin] YIMBYism is the Ultimate Localism

[If you want "local control" of land use, the best way to do it is let property owners decide how to use their property for themselves.]

( Andrii Yalanskyi/Dreamstime.com)

Opponents of "YIMBY" ("Yes in my Backyard") zoning reform often emphasize the need for "local control" of land-use decisions. The state and federal governments, they say, should not override local decisions on zoning policy. After all, people within the community know more about their needs than remote authorities do. And different communities have diverse needs. This oft-heard mantra runs afoul of the reality that YIMBYism means more local control, not less. You can't get more local than letting each property owner control their own land.

The "local control" argument for zoning restrictions is deployed by both left and right. The housing chapter of the conservative Heritage Foundation's controversial Project 2025 avows that "It is essential that legislation provides states and localities maximal flexibility to pursue locally designed policies and minimize the likelihood of federal preemption of local land use and zoning decisions." For this reason, among others, it emphasizes that "a conservative Administration should oppose any efforts to weaken single-family zoning." Single-family zoning, of course, is the most restrictive type of exclusionary zoning blocking new housing construction in many parts of the country.

Yes, I know that Donald Trump has disowned Project 2025, and claims he "knows nothing about it." But the author of the housing chapter is Ben Carson, secretary of Housing and Urban Development in Trump's first administration. During the 2020 election, Carson and Trump coauthored a Wall Street Journal op ed attacking efforts to curb exclusionary single-family zoning, and emphasizing the need to preserve local control. Thus it's fair to say the Project 2025 housing chapter reflects a common view on the Trump-era right, even if Trump himself may not know much about what's in it.

Left-wing NIMBYs also often emphasize "local control," as well. It's a common refrain among blue-state defenders of single-family zoning and other land-use restrictions in places like California. Blue-state NIMBYs may not agree with Project 2025 on much else; but they're on the same page here.

Both left and right-wing defenders of zoning overlook the reality that abolishing zoning restrictions actually increases localism. Abolishing restrictions does not impose a single set of land uses on the entire community. Rather, it allows individual property owners to decide for themselves. You can build multi-family housing on your land. But you don't have to. You can instead stick with a single-family home, or use the land for something else. I don't control what you do with your land, and you don't control what I do with mine.  It's hard to be more localist than that.

YIMBY zoning reform allows land-uses decisions be more diverse and localized than they would be if a centralized zoning board mandated them. If you think it's important to take advantage of local knowledge, and account for diverse needs of different localities, letting property owners decide land uses for themselves is the way to go. The best use of my property may be very different from what's best for the one next door or down the street. And each owner might have local knowledge that city authorities cannot readily access.

This is especially true if we remember that most zoning rules are not simply a matter of neighbors making decisions for each other. In large cities and suburbs, there is often a single set of zoning rules imposed by the local government on tens or hundreds of thousands of properties. Localism this is not: it's a regional form of economic central planning.

Even if local-government zoning gets overridden by a higher-level government, such as the state, the net result is still an increase in local control, because the ultimate decisions about how to use a given piece of land is now in the hands of the property owner, not a state authority. And property owners are more decentralized and local than government zoning boards are.

It's also worth noting that YIMBYism backed by strong property rights doesn't preclude all local coordination. Property owners can still cooperate on a voluntary basis, and even form private planned communities if they want to coordinate on a larger scale. I have previously outlined why such private efforts are different from government-mandated zoning and do not share the major flaws of the latter. Voluntary private cooperation is more sensitive to local needs than zoning because property owners will only enter into such arrangements if they believe that's what's best for them and their land, utilizing local knowledge in making those decisions.

In sum, if you really believe in local control of land-use decisions, you should oppose zoning restrictions, and support YIMBYism. It's as localist as you can get!

The better argument for zoning restrictions is not localism, but it's opposite: the concern that excessive localism in land-use decisions can harm outsiders. If I build an apartment complex on my land, that might annoy neigbhors, overburden regional infrastructure, or have other negative effects I might not take account of precisely because my focus is too local, concerned principally with my own self-interest. Even if my neigbhors get a say in the decision too, we might not take account of potential impact of new development on people in other parts of the region.

I will not address such anti-localist defenses of zoning here, beyond pointing out that zoning restrictions themselves impose great harm on outsiders, by raising housing costs, preventing people from "moving to opportunity," and lowering economic growth. Historically, they have also been used to maintain racial and ethnic segregation.

There are non-localist and even anti-localist rationales for various zoning restrictions. But if you care about "local control," you should be a YIMBY!

I criticized localist and federalism-based rationales for restricting constitutional property rights in greater detail in my 2011 article on "Federalism and Property Rights."

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[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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[Ilya Somin] My Jotwell Review of David Pozen's "The Constitution of the War on Drugs"

[The book is the most extensive analysis to date of constitutional issues arising from the War on Drugs, and why the constitutional law largely failed to constrain its abuses.]

(Oxford University Press.)

Today, the Jotwell website (which reviews new legal scholarship) has published my review of Columbia law Professor David Pozen's important new book, The Constitution of the War on Drugs. The review is entitled "The War on Drugs as a Constitutional Failure." Here are some excerpts:

If one of the purposes of constitutional law is to protect liberty against abuses of government power, the War on Drugs must be regarded as one of America's greatest constitutional failures. Over the last century, and especially since its expansion beginning with the Controlled Substances Act of 1968, the War on Drugs has led to thousands of needless deaths, the imprisonment of hundreds of thousands of people, and severe violations of civil liberties—all without doing much to curb the social problems of drug abuse and addiction. With rare exceptions, constitutional law has done little to curb these great evils.

In The Constitution of the War on Drugs, David Pozen gives us the most through and insightful overview of this failure to date. As he demonstrates, there were a number of plausible constitutional arguments for curbing the War on Drugs that—if accepted by the courts—might have significantly limited at least the most severe abuses. But, for the most part, they were rejected. He also offers useful suggestions for future strategy by drug law reformers.

Pozen's book is an impressive achievement, and there are many valuable lessons in it for both constitutional law scholars and those interested in the War on Drugs and criminal justice. But I do have some reservations about both his historical and doctrinal analysis, and his normative prescriptions.

As Pozen ably documents, the constitutional stage for the modern War on Drugs was set by two major developments of the Progressive and New Deal eras. The first was an expansion in the understanding of state "police power." Previously, many paternalistic regulations were likely to be struck down under the Due Process Clause of the Fourteenth Amendment or its state equivalents. The rise of anti-gambling and alcohol prohibition movements helped change that, leading courts to give state governments more leeway. This undermined potential individual-rights challenges to drug prohibition.

The second big shift was the vast expansion of federal regulatory power under the Commerce Clause, with decisions like Wickard v. Filburn (1942), giving the government the power to regulate almost any seemingly commercial activity, no matter how local….

While these early twentieth century developments opened the door to drug prohibition, Pozen explains that some jurisprudential trends since the 1960s made constitutional challenges to the War on Drugs potentially feasible.

Beginning with Griswold v. Connecticut (1965), which struck down a state law banning distribution of contraceptives to married couples, the Supreme Court issued a series of decisions protecting various personal liberties under the Due Process Clause of the Fourteenth Amendment, particularly those relating to reproduction and bodily autonomy. This opened up the possibility that the right to take illegal drugs might be similarly protected.

Later, a more conservative Supreme Court once again began to enforce limits on federal Commerce Clause authority, starting with United States v. Lopez (1995). This created hope that at least some types of federal drug prohibition might be invalidated as beyond the scope of congressional power.

Sadly, neither approach had much success…..

Pozen's otherwise thorough account does unduly neglect one important aspect of the story: the fact that the most severe drug war penalties are usually reserved not for people guilty of mere use or possession of drugs, but for those who produce, sell, and distribute them. Since the New Deal era, left-liberal jurists—and even many conservatives—have been wary of strong judicial review of "economic" regulations. This was at the root of both the New Deal Commerce Clause revolution (breaking down federalism restrictions to congressional power) and the Supreme Court's rejection of judicial protection for most economic liberties and property rights.

Seriously curbing the War on Drugs would have required courts to overcome this allergy to scrutinizing "economic" regulation. Progressives who (rightly) seek stronger judicial scrutiny of the War on Drugs will need to overcome at least some of their scruples regarding judicial review of economic transactions….

In the review also note some potential pathways for future progress, and urge opponents of the War on Drugs to combine litigation with political action.

The War on Drugs is one of the greatest injustices in American public policy, and also one of the biggest constitutional issues in modern time. Pozen's book is a major contribution to our understanding of the relevant history and legal doctrine.

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