Eugene Volokh's Blog, page 40

[Paul Cassell] The Justice Department's Dubious Attempt to Erase a Police Officer's Federal Excessive Force Conviction

[I've teamed up with well-regarded civil rights lawyer, Caree Harper, to fight the Department's effort to vacate L.A. Sheriff's Department Officer Trevor Kirk's conviction.]

Over the last several days, the Justice Department has attempted to vacate the conviction of a police officer the Department's career prosecutors had convicted of using excessive force. Because I believe it is important to hold police officers accountable when they violate the law and harm victims, I've teamed up with well-known civil rights lawyer, Caree Harper, to fight the Department's dismissal effort. As Ms. Harper and I explain in our brief filed late last night, the Department has made no real showing of any reason why that properly obtained conviction should now be erased.

The case involves L.A. County Sheriff's Department deputy Trevor Kirk, whom a jury convicted in February of a felony civil rights violation for assaulting and pepper spraying an elderly woman. The relevant events were captured on video.

On June 24, 2023, while responding to a call for service at a grocery store in Lancaster and handcuffing another individual, Kirk encountered J.H. She was seated in her car, and then left her car to film Kirk with her phone. Then, Kirk approached Victim J.H. Without giving her any commands, Kirk attempted to grab her phone. J.H. turned away from Kirk, meaning Kirk was unable to seize the phone. So Kirk grabbed J.H. by her arm, hooked his left hand behind her neck, and violently threw her to the ground. J.H. told Kirk, "It's already on YouTube Live," implying that her video had already been made public. Kirk responded, "Stop, I don't give a sh** . . . ." Kirk then stuck his knee on J.H.'s shoulder. When J.H. yelled at Kirk to "stop," Kirk cocked his right arm back with a clenched fist and said, "Stop or you're gonna get punched in the face."

J.H. told Kirk  that she would sue him if he punched her. Kirk then pressed his knee into J.H.'s neck. J.H. said, "Get your neck off my . . . off my . . . I can't breathe." While on top of Victim J.H., Kirk used his LASD radio to misleadingly report that he was "in a fight." Shortly thereafter, without giving any additional commands to J.H., Kirk sprayed J.H. twice in the face with "pepper spray." As a result, J.H. received medical treatment at a hospital approximately 40 minutes after the assault. In addition to physical pain, J.H. suffered various physical injuries.

The indictment recounted the foregoing facts and charged Kirk with the felony of depriving Victim J.H. of her rights under color of law, in violation of 18 U.S.C. § 242.

In May, the Justice Department convinced the judge handling the matter (Judge Stephen Wilson, a Reagan appointee) to reduce the conviction from a felony to a misdemeanor, through the maneuver of moving to dismiss the part of the indictment alleging serious bodily injury—leaving only a misdemeanor excessive force conviction in place. The Department also proposed a binding plea agreement with a straight probationary sentence. Judge Wilson rejected the proposed plea deal as too lenient, in light of the officer's clear betrayal of the public trust. In early June, Judge Wilson sentenced the officer to four months in federal prison.

The latest developments arose late last week, when the Justice Department abruptly moved to dismiss the criminal indictment against the officer. The Department gave as its only reason the fact that it had decided not to defend the conviction of the officer on appeal.

Late yesterday, Ms. Harper and I filed our response to the Department's motion to dismiss. Here's our introduction, touching on federal jurisdictional issues and other reasons the Court should deny the motion:

This [District] Court must deny the Government's motion to dismiss, because it no longer possesses jurisdiction. More than eight weeks ago, the Defendant filed a notice of appeal and took his efforts to overturn his conviction to the Ninth Circuit. Whether the Government can now dismiss this case must be addressed by the Ninth Circuit.

Perhaps recognizing (but not admitting) the lack of jurisdiction, the Government also asks this Court for an advisory opinion—specifically, an "indicative" ruling that it would grant a motion to dismiss if the Ninth Circuit were to later remand this case. The Court should deny the request for an indicative ruling, because the Government has failed to make a "timely motion" for relief, as required by Fed. R. Crim. P. 37(a).

In any event, the Court lacks jurisdiction to rely on Rule 37(a), not only because of the Defendant's pending appeal but also because the Government is asking for an advisory opinion of how the Court might proceed if certain events were to occur in the future. The Court is not permitted to give speculative advice on how things might unfold.

Finally, if the Court is inclined to indicate how it would rule on a motion to dismiss in the future, on this exceptional record, the Court should indicate that it would deny the motion. The Government's purported reasons for the dismissal are after-the-fact, pretextual, and unpersuasive. At bottom, the Government relies only on the fact that it is not inclined to defend the conviction on appeal. But it would be clearly contrary to the manifest public interest for the Court to dismiss this case on such flimsy grounds. Indeed, it appears that the Government's true basis for the dismissal motion is that it objects to the Court's prison sentence. The Court should not allow the Government to subvert a duly imposed sentence for a serious crime.

This case echoes my current litigation attempting to block a similar abrupt effort by the Department to dismiss a pending criminal charge against Boeing. Ms. Harper and I explain the parallels in our brief:

[I]n this case, the Government appears to be pursuing a strategy it has recently pursued elsewhere—specifically, a strategy of not allowing district courts to make a reasoned evaluation of the underlying reasons for a motion to dismiss. See, e.g., Victims' Consolidated Sur-Reply, ECF No. 340 at 2-9, United States v. Boeing, No. 4:21-cr-0005 (N.D. Tex. July 18, 2025) (explaining how the Government entered into a binding non-prosecution agreement even before the district court had ruled on a dismissal motion). Here, by presenting an undeveloped record, the Government is staking out new ground—e.g., that it can simply inform a trial court of its decision to dismiss, and that decision standing alone is enough to justify dismissal. In light of this ploy, the Government's (unelaborated) reasons for abruptly dismissing this case are "clearly contrary to the manifest public interest." ECF No. 103 at 5 (quoting United States v. Weber, 721 F.2d 266, 268 (9th Cir. 1983)). Specifically, the Government's reasons are contrary to Rule 48(a), which adopted a judicial review requirement for motions to dismiss to prevent dismissals "savor[ing] altogether too much of some variety of prestige and influence (family, friends, or money) that too often enables their possessors to violate the laws with impunity." United States v. Woody, 2 F.2d 262, 262 (D. Mont. 1924), overturned in Rule 48(a), as recognized in Adv. Comm. Note (1944 Adoption). By blocking meaningful judicial review, the Government is acting contrary to the Rule 48(a) judicial review provision—and thus acting contrary to the public interest.

Ms. Harper will be in court this morning, arguing for the victim that the court should not vacate Kirk's conviction. To maintain public trust in law enforcement, it is is important to hold officers fully accountable when they violate the law. Officer Kirk is obviously entitled to appeal his conviction. But at this point, no reason exists to doubt the validity of the jury's conviction that he used excessive force—and thus no good reason to set his conviction aside.

I'll try to pass along further developments.

The post The Justice Department's Dubious Attempt to Erase a Police Officer's Federal Excessive Force Conviction appeared first on Reason.com.

[Eugene Volokh] Anti-Doxing Injunction (as to Address and Phone Number) in N.Y. Trial Court

From the July 25 decision in Fuhr v. Smith by N.Y. trial court judge Gerald Lebovits:

This action arises from a dispute about who should house a dog and her litter of puppies. Plaintiffs, Kristopher Fuhr and Sara Obstarczyk, are foster parents for rescue pets in New York State. A Good Dog Rescue, a pet-adoption organization, and Lisa Smith, the president of A Good Dog Rescue, are the defendants….

On January 10, 2025, plaintiffs signed a foster agreement with defendants temporarily to foster Lily, an adult dog, and Lily's litter of eight puppies.  Plaintiffs allege that Smith was unable to foster Lily and the litter, because Smith's home had recently been contaminated with Parvovirus, a highly contagious canine virus that can be deadly to puppies/unvaccinated dogs.  Plaintiffs began fostering Lily and her puppies in their home on January 11, 2025.

On March 8, 2025, Smith texted plaintiffs that she would retrieve Lily and her puppies from plaintiffs' home on March 14, 2025. On March 13, 2025, plaintiffs responded that they would continue to foster Lily and her litter because they believe that Smith's home is still contaminated.

According to plaintiffs, over the next several weeks defendants posted on social media (mainly Facebook) that plaintiffs were housing Lily and Lily's puppies in breach of the foster contract. Defendants' posts contained personal information, including plaintiffs' address and phone numbers. Plaintiffs allege that defendants' social-media posts prompted third parties to send plaintiffs threatening voicemails and emails, which forced plaintiffs to flee their home. Plaintiffs are currently keeping Lily and her puppies at an undisclosed location.

Plaintiffs bring claims against defendants for defamation per se, intentional infliction of emotional distress, recission of the foster contract between defendants and plaintiffs, and declaratory judgment. Defendants counterclaim for replevin of Lily and her puppies….

Plaintiffs move for a preliminary injunction to (1) enjoin defendants from posting personal details about plaintiffs on defendants' social media accounts; (2) enjoin defendants from creating posts advocating harassment and violence against plaintiffs; and (3) require defendants permanently to remove all social-media posts containing personal details (e.g., plaintiffs' home address) about plaintiffs and permanently to remove social-media posts that advocate harassing and violence against plaintiffs….

The court concludes that plaintiffs are unlikely to succeed on their defamation per se claim. Defendants' social-media posts, which consist of defendants' asking their followers for help finding the dogs, are neither false nor harmful to plaintiffs and therefore not defamatory. Defendants' posts also state that plaintiffs breached their foster agreement—an assertion supported by the agreement itself, which provides that "Lily and her babies" belong to A Good Dog Rescue and that plaintiffs "agree to give Lily and her babies back anytime it is requested by A Good Dog Rescue."  Defendants made a truthful statement that does not support a defamation per se claim….

The branch of the plaintiffs' motion to enjoin the defendants from making social-media posts about plaintiffs is denied. The branch of the motion to require defendants to remove all social-media posts containing plaintiffs' home address(es) and telephone number(s) is granted, however, for the reasons the court stated on the TRO.

The TRO (entered April 28) "required defendants to remove posts from their social-media accounts (whether made by defendants or third parties) that include residential addresses at which plaintiffs are living or currently staying and plaintiffs' work or personal telephone numbers"; here is the rationale from that order:

Posting this information serves only to harass movants (and encourage their harassment). The Appellate Division has made clear that narrow, focused restraints on a defendant, aimed toward preventing harassment of plaintiff carried out through speech directed to third parties, are constitutionally permissible. (See Dennis v Napoli, 148 AD3d 446, 447 [1st Dept 2017].)

The court also ordered that the dogs be turned over to the defendant.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.

[Ilya Somin] Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation

[Victims of uncompensated takings can sue directly under the Constitution. The case involved uncompensated seizure of horses.]

Tkgraphicdesign | Dreamstime.com

A horse is a horse, of course, of course…. unless the horse is the focus of a major takings case, in which a federal court will generate over 100 pages of opinions regarding whether the owner can sue under the Takings Clause to be compensated for its seizure.

The case of Fulton v. Fulton County, recently decided by the US Court of Appeals for the 11th Circuit, arose because Fulton County, Georgia authorities sought to charge Brandon Fulton (no relation to the person the county is named after) with animal cruelty. In the process, they seized his horses. Ultimately, the charges were dropped, but county authorities refused to return Fulton's horses, or compensate him for them.

For various procedural reasons, he could not sue for compensation under either state law or federal statutes. Therefore, he sought to sue directly under the Takings Clause of the Fifth Amendment, which requires "just compensation" whenever the government takes "private property." The issue of whether the Takings Clause is "self-executing" - whether people can sue under it in the absence of legislation authorizing a remedy - is one the Supreme Court avoided addressing last year in DeVillier v. Texas (where they held they did not have to reach it because the plaintiff had a remedy under Texas state law, which cold be pursued even in federal court).

The Eleventh Circuit has now addressed the issue in this case, in a divided 2-1 decision, which generated over 100 pages of opinions. To my mind, however, the issue is readily resolved by clear and simple points made early in Judge Robin Rosenbaum's compelling majority opinion:

In Greek mythology, the Greek gods condemned Tantalus to eternal hunger and thirst, all while forcing him to forever stand in a shallow pool of water under a tree with low hanging fruit. Though the remedy for Tantalus's hunger and thirst was right at
hand, he could not take advantage of it. The water receded when Tantalus bent down to drink, and the fruit rose to just above his grasp when Tantalus tried to reach it.

Our Founders did not do to us what the Greek gods did to Tantalus. Our Constitution explicitly promises exactly two remedies: "just compensation" if the government takes our property, and the writ of habeas corpus if it tries to take our lives or liberty. And the Constitution delivers directly on each. It doesn't taunt us by naming these remedies but then holding them out of reach, depending on the whims of the legislature.

So even if Congress doesn't legislate a procedure by which a person can obtain one of these remedies, the Constitution's promise is not illusory. A person can bring a case directly invoking either constitutional remedy….

The Dissent responds by saying we are "creat[ing] a new right of action" and leaving "constitutional wreckage in the wake…." But its answer that the Takings Clause includes no direct cause of action ignores the original public meaning of the Clause and transforms the Constitution's promise of "just compensation" into nothing more than a Tantalus-type taunt. Most respectfully, we don't think that's "judicial humility…"; we think it's judicial abdication. We have a duty to apply the Constitution as written. So we respectfully decline to read out of the Constitution the relief it expressly promises for taken property.

The Framers of the Fifth and Fourteenth Amendments provided a real remedy in "just compensation" for government takings. They guaranteed the ability to recover "just compensation" directly under the Constitution.

I completely agree!  The Takings Clause says the government must pay just compensation whenever it takes private property. No ifs, ands, or buts. And no exception for cases where Congress and state governments don't legislate a remedy. The whole point of a constitutional right is to constrain the powers of government. Thus, it makes no sense to give that very same government the power to nullify the right in question by failing to provide a legislative remedy.

Moreover, as detailed in the amicus brief I filed in DeVillier (along with the Cato Institute), in Knick v. Township of Scott (2019), the Supreme Court made clear that victims of takings have a right to bring Takings Clause cases directly in federal court, and cannot be relegated to state court (see also my article about Knick and its significance). Still less can they be kept out of court entirely, as would have happened to Mr. Fulton if the Takings Clause were not self-executing.

In dissent, Judge William Pryor argues that Fulton failed to take advantage of various alternative ways to bring a claim. To the extent these alternative paths were in state court, they cannot vitiate his right to bring a claim in federal court. Knick rightly held that federal constitutional takings plaintiffs have a right to go to federal court, as is also true of victims of other constitutional rights violations (see my article on Knick for additional reasons why this is a vital principle). As Judge Rosenbaum notes, "the Takings Clause promises a federal remedy independent of the whims of states."

As Judge Pryor recognizes, Fulton tried to sue under Section 1983 of the federal Civil Rights Act of 1871, but the suit was dismissed for procedural reasons. Thus, he had no available federal remedy, other than one directly under the Constitution. Even if a statutory path was also available, that should not preclude the constitutional path.

I am also not much impressed by Judge Pryor's argument that there is a paucity of cases where takings cases were brought directly under the Constitution in the early republic. At that time, the Bill of Rights only applied against the federal government, and that government was not generally understood to have the power of eminent domain. Almost all takings were conducted by state and local governments. Even after the enactment of the Fourteenth Amendment made the Bill of Rights applicable to state governments in 1868, it took courts many decades to recognize that the Takings Clause applies to states and localities. This history is discussed in much greater detail in Chapter 2 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. 

Judge Pryor relies extensively on the amicus brief filed by legal scholars James Ely and Julia Mahoney, and Prof. Mahoney's other writings. He rightly calls them "renowned legal scholars." But the Ely-Mahoney brief actually cuts against his position. It argues that a direct constitutional remedy is required by the Fifth and Fourteenth Amendments whenever "there are no existing procedures to provide just compensation or the existing procedures are inadequate." This is just such a case.

In most controversial takings cases, conservative judges tend to side with the pro-property rights side, while more liberal ones tend to support the government. Here, the usual alignments are flipped. Judge Rosenbaum is a liberal Obama appointee, and Judge Nancy Abudu (the other judge in the majority) is a liberal appointed by Biden. Judge Pryor is a prominent conservative judge appointed by George W. Bush. Perhaps differences on property rights are outweighed here by differences over the scope of permissible remedies (conservative judges tend to be more wary of broad remedies for rights claimants than liberal ones).

Regardless, the liberal judges are right here, and Judge Pryor - whose work I otherwise greatly respect - is badly wrong. The Takings Clause means what it says, and neither Congress nor a state government can nullify it by failing to legislate a remedy.

The post Federal Appeals Court Rules Takings Clause Creates Cause of Action Even Without Additional Federal or State Legislation appeared first on Reason.com.

[Ilya Somin] Update on Potential Condemnation of New Jersey Church to Build a Park and Pickleball Courts

[After a public outcry, the scheduled vote on the plan to use eminent domain has been postponed indefinitely. If the Town of Toms River does try to condemn the church, there is likely to be a major legal battle.]

Christ Episcopal Church, Toms River, NJ.

 

In May, I wrote about how the town of Toms River, New Jersey, planned to use eminent domain to condemn the Christ Episcopal Church and build and park and pickleball courts on the spot. The plan may have been motivated by a desire to prevent the church from building a homeless shelter on part of its property. In my earlier post, I outlined multiple potential objections to the planned condemnation under the state and federal constitutions, including 1) if the condemned property is transferred to a private party, that may mean it is not being devoted to a "public use," as the Fifth Amendment and the New Jersey Constitution both require (NJ state courts applying their state constitution enforce this requirement far more rigorously than federal courts do under the Fifth Amendment Takings Clause),  and 2) there is likely to be a strong argument that this is a "pretextual taking," where the official rationale is just a pretext for a scheme to benefit a private party (here, local NIMBYs who want to block the homeless shelter).

After an initial outcry, the vote on the plan was postponed until July 30. More recently, Mayor Dan Rodrick postponed the vote indefinitely, likely because of growing public opposition. He now says the town will go through with the vote only if a poll of town residents he plans to conduct on the subject reveals majority support for it. At this time, I do not know when the poll will occur or what the wording will be.  The wording of survey questions on land-use policy often has a big effect on results.

Dan Paulsen of the Episcopal News Service has a helpful article summarizing the situation and the potential legal issues involved (he quotes a number of takings and land-use experts, including myself):

A New Jersey church was thrust into the national spotlight in recent months when town officials targeted the property for seizure, by eminent domain if necessary, to create new public parkland. Episcopal leaders insisted Christ Episcopal Church in the town of Toms River was not for sale.

Legal experts and property rights lawyers interviewed for this story told Episcopal News Service that Christ Church likely would be on solid ground in fighting to maintain ownership of its 11-acre property, though existing case law leaves unanswered how courts might rule if the church asserts its rights both as a property owner and as a house of worship….

Rodrick first proposed voluntarily buying or forcibly seizing Christ Church's property in April, and the Toms River council voted later that month to move forward initially with his plan. Rodrick said he envisioned creating a multiuse park on the church's property because that part of town lacks recreational facilities….

The mayor's proposed eminent domain ordinance requires a second approval to take effect. A final vote had been scheduled for July 30, but Rodrick postponed it indefinitely after facing a vocal outcry from church leaders and the church's supporters, as well as a petition drive seeking to block the pending ordinance. The mayor's opponents launched a separate campaign attempting to recall him.

"The church and the diocese are prepared for a long court fight to protect our congregation and property from this egregious land grab," the Rev. Lisa Hoffman, Christ Church's rector, wrote in a May message to her congregation. New Jersey Bishop Sally French has said the diocese will do "all that we can" to help defend the church in any property dispute…

Legal experts say an eminent domain proceeding involving a church would not be unprecedented – houses of worship are not immune from governments legally taking some or all of their property, with fair compensation and for public use – though those experts also say they are following the Toms River dispute with keen interest, given the questions it may raise about the proper application of state and federal laws.

"I think what's interesting about it is it kind of stands at the confluences of two different kinds of religious land disputes," Eric Rassbach, vice president and senior counsel at the public interest nonprofit Becket Fund for Religious Liberty, said in an ENS interview.

The first is the general threat of eminent domain, a legal process by which a government can take privately owned property even if the property owner doesn't want to give it up. The U.S. Constitution's Fifth Amendment limits the use of eminent domain by requiring that governments provide "just compensation" when taking property for "public use." Congress and some states have passed laws giving property owners additional protections.

Secondly, Rassbach said, the timing of Toms River's eminent domain threat raises additional red flags, given that the mayor has opposed broader efforts to assist people experiencing homelessness and that some of his constituents had complained specifically about Christ Church's homeless shelter proposal.

The congregation, which has said its outreach ministries are rooted in the Christian call to help those in need, could argue that the town's actions are unfairly limiting how it lives out that call, Rassbach said. Unlike other property owners, houses of worship benefit from additional protections under the First Amendment and a federal law known as the Religious Land Use and Institutionalized Persons Act [RLUIPA]. In Toms River, the town would have the burden of proving it is using eminent domain consistently, fairly and in a way that doesn't place undue burden on the church's exercise of its faith.

As Eric Rassbach of the Becket Fund for Religious Liberty notes in the passage above, if the condemnation goes forward, the church may have a strong religious liberty claim under RLUIPA, in addition to takings claims.

Since I wrote my earlier post on this issue, I have been in contact with representatives of the Episcopal Church, offering them my assistance with this issue. The Institute for Justice and the Pacific Legal Foundation* - two of the nation's leading public interest law firms specializing in property rights issues - have also reached out, and the same is true of the Becket Fund (which is well-known for its work on religious liberties).  Should the town go through with this abusive condemnation, it will likely face a lengthy and difficult legal battle - one that it might well lose. If you are a local government trying to carry out a dubious condemnation, IJ and PLF are probably the people you least want to see arrayed against you in court!

Hopefully, the local government will back off. Even aside from legal considerations, it is deeply unjust to use the power of the state to seize a church merely because it seeks to build a shelter to help the homeless. I don't think you have be an expert on property rights or religious liberties to see that.

But if the town does decide to go through with this travesty, property rights and religious liberty advocates will not stand idly by. Many of us will act to help the church resist in both courts of law, and the court of public opinion.

I will post additional updates on this issue when and if I have anything to report.

*NOTE: The Pacific Legal Foundation is also my wife's employer. But she does not work on property rights issues.

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[Josh Blackman] Today in Supreme Court History: August 2, 1923

8/2/1923: President Calvin Coolidge's Inauguration. He would appoint Justice Harlan Fiske Stone to the Supreme Court.

President Calvin Coolidge

 

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[Jonathan H. Adler] Will the Sixth Circuit Get a Summary Reversal in Another Habeas Case?

[In Chandler v. Brown, the Sixth Circuit may have been too quick (again) to grant a habeas petition. ]

There was a time when the Supreme Court would reverse decisions of the U.S. Court of Appeals for the Sixth Circuit in habeas cases quite regularly, often summarily. This does not happen as much as it used to, but some justices remain concerned that some of the Sixth Circuit's judges are too quick to grant habeas relief.

Chandler v. Brown looks like a potential candidate for summary reversal at One First Street. The original Sixth Circuit panel, consisting of Judges White, Stranch, and Davis, reversed the district court's denial of Louis Chandler's habeas petition. The full court granted en banc review, but only to have the panel amend its initial opinion. Now, the court has denied a subsequent petition for rehearing en banc, over the dissent of four judges.

On Thursday, Judges Thapar and Murphy authored a dissent from the denial of rehearing en banc in Chandler v. Brown, joined by Judges Griffin and Readler. Here is how Thapar and Murphy summarize the case and their objections.

Louis Chandler sexually abused his eight-year-old foster daughter. At trial, she told the jury in graphic detail about how Chandler molested her. She wasn't the first one Chandler had sexually abused. Three other victims testified about the abuse they suffered at his hands. Even Chandler's wife corroborated his foster daughter's claims of sexual abuse by Chandler.

So how did Chandler convince a panel of this court to grant him habeas relief? He tells us that the state trial court wrongly prohibited a different foster couple from testifying that the victim had previously made false allegations against them soon after they proposed to adopt her. According to Chandler, their testimony could have shown that the victim had a motive to falsely accuse Chandler too, so that she could return to her birth parents. Never mind that, by the time of the victim's testimony at trial, she had been adopted by another family and living with them for almost five years without accusing them of misconduct. Never mind that the victim did not make allegations of sexual abuse against the prior foster parents; she alleged that they did things like hit her with a wooden spoon, pull her by the ponytail, and give her ill-fitting clothes. And never mind that at least one of the victim's accusations against the prior foster parents (that they put soap in her mouth) turned out to be true. (The parents are now on a child abuse registry.) Chandler still claims that his foster daughter's alleged prior accusations against this other couple about these other events were central to his defense to the charged sexual abuse.

A Michigan appellate court held that the trial court committed various state-law errors in the process of excluding this evidence. Ultimately, though, that court held that these state-law errors did not rise to a federal constitutional violation. And it found the errors harmless after assuming (without deciding) that some of Chandler's key evidence might have been admissible.

This federal habeas case thus asks: If a state appellate court concludes that a trial court's exclusion of evidence misapplied an otherwise valid rule of evidence or procedure, when does that state-law violation infringe the federal Constitution? Always? Never? Sometimes? If so, when? The Supreme Court has yet to confront this question, let alone clearly establish the ground rules that should govern it. Cf. Nevada v. Jackson, 569 U.S. 505, 510 (2013) (per curiam). And even if the Court eventually extends its "balancing of interests" approach to this new context, the Michigan appellate court did not unreasonably apply that approach. Id. Indeed, it's doubtful that the other foster couple's testimony would have been admissible even under a proper interpretation of Michigan law. And the state court could reasonably find that Chandler did not have a "significant interest" in presenting this evidence anyway. United States v. Scheffer, 523 U.S. 303, 316–17 (1998). Unlike the excluded evidence in the Supreme Court cases that found a constitutional violation, the excluded evidence here did not concern "'facts' about the alleged crime at hand." Id. at 317 & n.13. So we are hard-pressed to see how the rejection of Chandler's claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). This should foreclose Chandler's claim under the Antiterrorism and Effective Death Penalty Act (AEDPA).

The panel's contrary reasoning violates AEDPA in several ways. It improperly invokes evidence that the state court found forfeited or that was not in the state court record. And it fails to provide the great deference owed to state courts when a petitioner relies on general constitutional principles. The panel's decision also undercuts AEDPA's federalism and comity goals. For example, Chandler's trial required four victims to testify about his abuse. Now these victims must relive their trauma by testifying again. Our full court should have prevented this result because the panel committed the types of errors that the Supreme Court has seen fit to summarily reverse. See Cassano v. Shoop, 10 F.4th 695, 696–97 (6th Cir. 2021) (Griffin, J., dissenting from denial of rehearing en banc) (collecting 22 cases, including 12 summary reversals, in which the Court reversed the Sixth Circuit "for not applying the deference to state court decisions mandated by AEDPA").

The substance of the decision, and the objecting judges, would seem to make Chandler a strong candidate for Supreme Court review, and perhaps even a summary reversal. The question will be whether Michigan files a petition for certiorari.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Miami vice, tactical dog bites, and the tantalizing takings clause.]

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

Two weeks ago, we told you about Greers Ferry, Ark. officials putting a Flock surveillance camera directly in front of the home of retired couple Charlie and Angie Wolf. The Wolfs asked the city to take it down and were rudely rebuffed, but after IJ sent the city a letter explaining that the camera was a bit of a problem Constitution-wise, the city did the right thing and removed it. "We're thrilled that the Wolfs will no longer be subjected to constant warrantless surveillance of their property," said IJ Senior Attorney Josh Windham. "That said, there are still massive Fourth Amendment concerns with the use of these license plate reader cameras, and we urge the city not to renew its contract with Flock Safety when the initial term is up."  Click here to learn more.

On the latest Unpublished Opinions podcast, the team run through a lot of legal news, including the fact that AI keeps apologizing to IJ's Josh Windham.

Social worker at public school in Maine gives 13-year-old "a device used to flatten a female's chest so as to appear male." The teen also starts going by another name and using different pronouns at school—neither of which are disclosed.  When mom finds out, she sues the school district for violating her right to direct the upbringing of her child. First Circuit: And we're not going to address that because none of this was a school policy, just employees doing stuff.In 1995, a 12-year-old reports that his mother's husband, a Boston cop, had been sexually abusing him for years. The cop is arrested, and both the police dept. and state child welfare officials investigate—each determining the evidence supports the allegations. And then … the charges are dropped, he's reinstated, and he continues to serve until his retirement in 2018 (including a stint as head of the police union). In 2022, he pleads guilty to sexually abusing six children. Did the City, its police officers and their union, and the state employees exacerbate the danger to the victims in violation of the Fourteenth Amendment right to bodily integrity? First Circuit: Indeed, they might have.UMass resident assistant has a handful of maladroit-but-not-particularly-sexual conversations with fellow RAs and sometimes extends his arms to invite a hug from one RA in particular. Following complaints, the University investigates, finds that he committed sexual misconduct, bars him from living on campus, and places him on "elevated probation" through his graduation. He sues, alleging a violation of his First Amendment rights. First Circuit: Even if his awkward conversations and invitations to hug were unwelcome, there's no evidence they actually disrupted the work or educational environment.Remember NFTs? They were like Pogs, but you could only look at them. Well, there's an online marketplace for them called OpenSea, and it would highlight specific NFTs, which typically caused their price to increase. One employee is responsible for choosing which NFTs to highlight, and he has the clever idea to highlight NFTs that he has already purchased anonymously. He sells them and ends up making $57k. He's found out, fired, and convicted of wire fraud. Second Circuit: Reversed! Because OpenSea doesn't buy or sell NFTs—it earns a commission on their sale—his insider trading didn't deprive OpenSea of any property.Following an egregiously violent attack on a prison official, New York inmate is sentenced to 14 years of solitary. After his term is up, he is kept in solitary on the grounds that he's a danger to the general prison population. He is held there for years, despite apparently good behavior. He challenges his continued detention in solitary as a violation of due process. Second Circuit: And the case should move forward; the cut-and-paste reviews of his continued detention were not meaningful process in light of his good behavior. Dissent: His behavior was probably good because you can't get in very much trouble when you're in solitary.New York town clerk alleges she was great at her job but was fired in retaliation for declining to talk to a judge about an ethics complaint against the judge. (Said judge later permanently resigned to avoid discipline over allegations she was fixing traffic tickets for relatives.) District court: No First Amendment protection for clerk's (non)speech because it was part of her job. Second Circuit: At least as alleged, talking about ethics complaints handled by a different agency is not part of her job. Case undismissed.New York federal indictment alleges Russian woman conspired with oligarch to evade sanctions, including making arrangements in California for his partner to give birth to their child there. She returns to Russia, refuses to return to U.S. after indicted, and moves to dismiss the indictment. Second Circuit: Have you heard of the "fugitive disentitlement doctrine"? Come back if you'd care for us to hear your motion.After mass shooting in Buffalo, N.Y. grocery store, which the shooter livestreamed, the state adopts law requiring social media networks, including even blogs where commenting is allowed, to adopt clear policies about and mechanisms to report hateful conduct. District court: What is required and what is prohibited is clear as mud. PI granted. Second Circuit (over a dissent): Not so fast. We have some questions for the state high court. Dissent: "No blogger can be free of jeopardy for the … reason that the regulation (enforced by ruinous fines) is intolerably opaque. … The uncertainty today is the point. It is the power to suppress that every government craves."In 2016, the Dept. of Labor imposed over $550k in penalties on a family farm in New Jersey for selling workers beer and soda, providing a meal plan where workers could buy pre-cooked meals, having bald tires on a bus, and other alleged violations of federal labor law. Farmers: Hey now. Half a million dollars? DOL ALJ, 2019: Pay up. DOL Agency Review Board, 2021: Pay up. Third Circuit (this week): Reversed. It's unconstitutional for the feds to impose these kinds of penalties in in-house tribunals where agency employees are prosecutor, judge, and jury. If you think the farm did something wrong, prove it in a real court. (This is an IJ case.)Pottstown, Penn. police stop, cuff Black man who had been looking in garage windows in back alley of residential block, per an anonymous tipster. Yikes! The man had just purchased a home there and spent "a few seconds" looking at his new neighbors' garages—on account of  wanting to build one for himself. Third Circuit (unpublished): The tip didn't justify the stop, and it's possible the officer displayed actual malice by getting the man prosecuted for disorderly conduct (purportedly for enduring the stop with insufficient equanimity). In 2018, U.S. Marshals serving on a joint fed-state task force set loose a "tactical canine" into a Riverdale, Md. home at 2 a.m. to subdue man wanted for beating up his girlfriend. The dog instead bites the girlfriend, taking a chunk out of her leg. Might that have been unreasonable? Possibly even unconstitutional? Fourth Circuit (over a dissent): We really can't say. Since these guys are feds, they can't be sued.At the Institute for Justice, we're fans of both institutes and free speech. So naturally we're good buddies with the folks at the Institute for Free Speech (IFS). And this week, we're tickled pink to see that the Fifth Circuit has revived IFS's challenge to a Texas campaign finance provision that would treat their pro bono legal services to candidates and political committees as illegal corporate political contributions. [Ed.: We tried to warn Texas, but to no avail.]Allegation: Following multiple days of 100-plus degree heat inside Colorado City, Tex. prison, nurse sees inmate naked and nonverbal on the floor of his cell with four trays of untouched food beside him. She encourages him "to get up and get on with his day." He dies. Fifth Circuit (unpublished): It is clearly established that baking inmates to death violates the Constitution. And given that hundreds of such deaths have occurred in Texas in recent years, claims against some supervisors, in addition to the nurse, might have been dismissed too hastily. In which the Eighth Circuit continues to express its dislike of private causes of action, this time regarding Section 208 of the Voting Rights Act.Minneapolis SWAT team raids apartment looking for murder suspect. Instead, they find the suspect's cousin asleep on a couch and shoot him dead. Plaintiffs: The cousin never raised his gun—for which he had a proper permit—toward an officer. Cop: The bodycam shows the man pointing the gun. Eighth Circuit: It's not definitive, so our review would be premature. No qualified immunity for now.Noted pillow salesman and election denier Mike Lindell issues a challenge: He'll show you data he claims is from the 2020 election, and if you prove with 100% certainty that it's not, he'll give you $5 mil. Experienced software developer enters the challenge, reviews the data, and issues a 15-page report concluding that the data "unequivocally does not contain packet data of any kind and does not contain any information related to the November 2020 election." Contest judges are, unsurprisingly, not 100% convinced, and the software developer exercises his right to arbitrate. Arbitrators: Give this man his money. Eighth Circuit: We're extremely deferential to arbitration, but we think these arbitrators misinterpreted the contract. Appellate practitioners: That is not the standard!In 2020, Little Rock, Ark. police-brutality protester throws Molotov cocktails at three police cars, causing $86k damage. Eighth Circuit (over a dissent): Which is a federal crime because the different police dept's that owned the cars got 2%, 1%, and 0.7% of their budgets from the feds, respectively, even though federal money was not used to buy the cars.  California passes a law that says providers of continuing medical education must include curriculum about implicit bias in the practice of medicine, unless they're based outside of California in which case they don't have to. California CME Provider: This violates my First Amendment rights. Ninth Circuit: Of course, we all recognize that when we take continuing education classes we're listening to the gov't's speech, not the speech of the private educator, so the First Amendment doesn't apply.Friends, your humble summarist has not read this shoot-em-up between Google and the makers of the videogame Fortnite, and indeed—fun fact—the Ninth Circuit publishes its own summaries of its published opinions. But we want to add some value, and so we relate that 117 lawyers—give or take—were involved in the briefing.After two Miami businessman support his opponent in 2017 election, city commissioner (a former mayor) unleashes a campaign of harassment—sending mobs of police, code enforcement, fire inspectors, and other city employees to shut down the plaintiffs' businesses, harass plaintiffs' commercial tenants, and even shut down an annual holiday party. Plus much more. Jury: Which was unconstitutional retaliation. Pay $63.5 mil. Eleventh Circuit (unpublished): Yup, pay up.The joke around water trough here is that one day soon, law schools are going to have start offering a class called "The Law of Fane Lozman." This week, the two-time Supreme Court winner returns to the Eleventh Circuit (unpublished, per curiam), and we learn that the Swamp Lands Act of 1850 does not mean the feds improperly ordered him to remove a container home and floating docks that he built without a permit on sometimes-submerged land he owns on Lake Worth Lagoon in Palm Beach County, Fla.Friends, the Fifth Amendment says that when the gov't takes property, it must pay just compensation. Eleventh Circuit (over a tantalizing dissent): Right so, when the gov't takes private property, it must pay just compensation. [Ed.: We are honored that the panel reached out to us, among others, to file an amicus brief and chuffed that the majority accepted essentially all our arguments in such a well-written, deeply persuasive opinion. We are also chuffed that we had the foresight to prepare an in-depth podcast episode that we know you'll like on this very issue.

And in other amicus brief news, IJ is urging the Eighth Circuit to do the right thing twice. In 2023, it denied judicial immunity to a judge who took off his robe, stepped down from the bench, and personally jailed two innocent children and threatened to put them in foster care if they didn't go home with their mom. (They wanted to go with their dad.) After a jury verdict in favor of the kids, he's now seeking qualified immunity, notwithstanding the Supreme Court's repeated admonitions that obvious constitutional violations are not shielded.

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[Jonathan H. Adler] Are We Witnessing "Appeasement"? A Reply to Steve Vladeck

[A defense to Steve Vladeck's critique and a brief comment on Adrian Vermeule's related op-ed in the New York Times.]

Professor Steve Vladeck has responded to my Civitas Outlook column and blog post suggesting he has wrongly characterized the Supreme Court's principled formalist jurisprudence for appeasement of the Trump Administration. He claims my criticism of him is "misdirected," my defense of the Court relies on "cherry-picking," and that my defense of the Court is incongruous because one cannot defend the Court for being principled if it does not articulate its principles. He further critiques a New York Times op-ed by Adrian Vermeule which makes some arguments parallel to mine, but which also endorses a more radical response than I have endorsed.

For reasons I will briefly explain below, I stand by my prior assessment in every respect, including the qualifications I have already noted. I also believe much of Vermeule's critique of district courts is well taken. I part company with Vermeule, however, when he suggests that district court overreach and a departmentalist view of the Constitution justify outright defiance of court orders.

Vladeck's first complaint is that my criticism of his accusation that the Court is engaged in "appeasement" worth of comparison to Neville Chamberlain is "misdirected" because he was merely responding to and characterizing claims by others. However Vladeck may have framed his claim elsewhere, I do not think that is a plausible characterization of his remarks at the National Constitution Center which prompted my column. In those remarks, he made clear that the is "no other way to describe what the Court is doing in these cases" in terms that can be summarized as "appeasement" and that "at least some members of the Court may not see themselves as, but are very much acting like, Neville Chamberlain." But don't just take my word for it; roll the tape.

So while Vladeck may now clam he is neither the source nor an adherent of the "appeasement" thesis, he quite expressly embraced it before a live audience at the NCC.

I also do not think it is quite right that the characterization of the Court he attributes to others (in particular Will Baude) is fair or complete. In his reply he says "it was Baude who laid out the idea that some of what the Court is doing in these cases is playing for time" (in an NYT discussion on the Court). I will let Baude speak for himself, but I don't think Vladeck fairly or completely characterizes the argument.

In that discussion, Baude first notes his view that the Court has handled the Trump Administration petitions "about as well as we could realistically expect." He then went on to note two possible ways of characterizing the Court's behavior, only one of which Vladeck repeats. Here's the full quote, with the omitted portion in bold:

If we want to be formalists about it, the government has been pretty savvy about the vehicles it brings to the court and the way it litigates them (as we discussed, re: CASA). And if we want to be more realistic about it, even if you wanted the court to maximally stop the Trump administration, surely it would need to pick and choose its spots carefully. There's just too much lawlessness to do otherwise.

As I read it, Baude is noting there is a formalist defense of the Court's actions (of the sort I set out in my column), but that if one wants to take a legal realist view of the Court, it is hard to expect the Court to be more aggressive than it has been because the Court has to "pick and choose" which cases to hear, which petitions to grant, and so on. Later he notes that one should not expect the Court to intervene forcefully where its jurisdiction is questionable. That's prudence, and shows a proper respect for the limits of the Court's own authority. Nowhere, however, does Baude suggest the Court is "playing for time" or otherwise engaging in what would be fairly called appeasement.

Insofar as there is "cherry picking" going on here, I think it is being done by the Trump Administration. Of the dozens and dozens of adverse court decisions, the Administration has sought relief from the Supreme Court in only a handful, and in some of those cases its requests have been quite narrow (much as it only sought review of the universal injunction question in Trump v. CASA). The Trump Administration has a strong record here because it has not brought its weakest cases before the Court--and that is how it should be. I focused on the two cases I did (AFGE and McMahon) because one was issued the day of the NCC event (8-1, natch), and the other presented nice parallels with issues that arose under prior administrations (when lower courts, particularly the courts of appeals that Vladeck scores me for ignoring, discharged their responsibilities in a more faithful and neutral fashion). I also believe they are largely representative of much of what we have seen over the past several months.

In my view, the lion's share of the orders granting Trump Administration requests for extraordinary relief can be understood as corralling particularly wayward district courts--courts that seem to believe that Trump Administration excesses justify adopting a more elastic conception of the judicial power.  Justice Jackson may adhere to such a view (as suggested by her Trump v. CASA dissent), but I do not and, more importantly, nor do six of the Court's other justices.

I am also not sure Vladeck disagrees. In his reply he writes: "It's not overreach for a district court to be wrong; it's overreach for them to exercise power they don't have." Precisely! It seems, then, that we disagree on how often it is fair to suggest that district courts have acted ultra vires or in excess of their authority, and whether one can view the Court's actions in this light if it has not issued an opinion saying so. I also do not fault the Court for not engaging in a weighing of the equities in cases in which the lower court did not have the jurisdiction to engage in any such weighing in the first place.

I readily confess that there are some cases that do not quite fit this mold, such as Wilcox and Boyle, but I do not think such cases substantiate Vladeck's case. As I've noted before, I think Wilcox was "predictable and reasonable," and the lower courts should have gotten the message in Boyle. I also suspect that some of the justices might question whether it could ever be appropriate to enjoin the removal of an officer. Humphrey's Executor can hardly be said to stand for such a proposition, and loss of a job is rarely treated as an irreparable harm.

I agree with Vladeck that, all else equal, it would be nice for the Court to offer more explanation for is actions. As an academic, I would love the opportunity to examine and interrogate the Court's reasons and rationales. But, as Justice Kavanaugh noted at the Eighth Circuit Judicial Conference, there are trade offs. Writing opinions takes time, and rushing out opinions risks error. Accordingly, not every order will be explained. This is nothing new--and it hardly constitutes "appeasement."

I also disagree with Vladeck that we cannot understand the basis for many of these orders given the content of the briefing and a broader understanding of how courts can and should treat aggressive claims against executive branch action (which was why I spent time discussing episodes from prior administrations).

I am no more scandalized by the Court's failure to offer opinions explaining these orders than I was when the Supreme Court stayed the lower court order that threatened to take mifepristone off the market. When a lower court order is particularly out of line and threatens to be disruptive, the better course is often to act swiftly, even if that means foregoing the issuance of an opinion, particularly where (as occurred in the mifepristone litigation) there may be time later to address the relevant issues more fully. And if, unlike as occurred in the social cost of carbon E.O. litigation, circuit courts do not corral district courts, sometimes the justices will step in.

I could say more, but there are only so many hours in a day, so I will move on. (There's that darn trade-off again.)

As for Professor Vermeule's op-ed, I agree generally with his charge that some district courts have failed to heed the Supreme Court's guidance and respect the limits on their own power, but I would not go so far as to suggest that the Trump Administration has clean hands. I also reject his suggestion that a departmentalist view of the Constitution (with which I largely agree) justifies the executive branch simply disregarding district court orders.

Inferior courts are inferior to the Supreme Court, not the executive branch, and they still exercise the judicial power. It is inevitable that such courts will err in some number of cases, and there are a range of remedies available. Appeals and (if justified) emergency applications should handle the mine run of cases, and more aggressive steps (such as judicial sanction and reassignment or impeachment) can be brought out if individual judges fail to get the message.

Absent truly extreme circumstances (such as armed conflict within our borders) simply disregarding a court order is not a proper response to judicial overreach. So, as Lincoln suggested, executive branch nonaquiescence is an acceptable way to push back against he judiciary, as is refusal to accept the judiciary's legal interpretations. But this doesn't mean defying a discreet court order (e.g. refusing to release an accused individual when acquitted by a court), but may mean refusing to follow the substance of the order in other cases that were not before the court (e.g. bringing new prosecutions).

District courts have repeatedly overreached in cases brought against the Trump Administration over the past six months. These aren't the first cases of consequence in which district courts have erred, and they will not be the last. And they are not a judicial coup or insurrection of the sort than cannot be addressed through traditional institutional means. Indeed, that is part of what the Supreme Court has been doing on the "shadow docket."  Executive overreach is a real concern--perhaps now more than ever--it does not justify the judiciary responding in kind.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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