Eugene Volokh's Blog, page 5

[Josh Blackman] Today in Supreme Court History: November 23, 1804

11/23/1804: President Franklin Pierce's birthday. He would appoint Justice John Archibald Campbell to the Supreme Court.

President Pierce appointed Justice Campbell to the Supreme Court

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[Eugene Volokh] Open Thread

[What’s on your mind?]

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[Josh Blackman] Some Thoughts On The Texas Gerrymandering Case

There is so much to say about LULAC v. Abbott, the recent gerrymandering case decided by a three judge panel of the Western District of Texas. Indeed, it has taken me a few days to process everything.

First, this three-judge panel was constituted back in 2021. Due to long-running litigation over Texas's 2021 maps, this panel maintained jurisdiction over the new 2025 maps. The plaintiffs chose to file in the Western District of Texas, El Paso Division, where they were virtually assured of not drawing a conservative judge. And they drew Judge David Guaderrama, an Obama nominee. Then-Chief Judge Priscilla (Owen) Richman, not the current Chief Judge, Jennifer Walker Elrod, appointed the other two members of the panel: District Judge Jeffrey Brown and Circuit Judge Jerry Smith.

Second, virtually every press story about the case has highlighted the fact that Judge Brown was appointed by President Trump. Indeed, Trump nominated Brown to fill a single-judge division on Galveston Island, just outside of Houston. But unlike some of the other judges appointed to single-judge divisions, Brown did not become a go-to forum for strategic litigation during the Biden years. Quite to the contrary, he put up a "Do Not Enter" sign on his courtroom. In 2023, Judge Brown adopted a local rule that required the plaintiffs to demonstrate an "obvious factual nexus to the Galveston Division." In the wake of this order, conservative litigants got the memo loud and clear, and stopped filing there. And Brown's rulings have not always fared well before the Fifth Circuit. His VRA ruling in Petteway v. Galveston County was reversed by the en banc court.

Third, in recent months, several Reagan-appointed judges have come forward as purportedly principled jurists who see Trump as a threat to the rule of law. As I've explained, many of these judges are from Massachusetts, and received blue slips from Senators Kennedy and Kerry. I doubt they were ever very conservative. By contrast, Judge Jerry Smith of the Fifth Circuit is a Reagan appointee to the Fifth Circuit whose conservative bona fides are beyond reproach. He has been on the bench for nearly forty years, and is held in very high regard by Fifth Circuit practitioners. I have seen some suggestions that his dissent in LULAC was an effort to curry favor with Trump. Judge Smith is 79 years old. I do not think he is auditioning for a promotion.

Fourth, I have some thoughts about the preliminary statement to Judge Smith's dissent. I always try to avoid imputing bad faith to those I disagree with. I am a fan of Hanlon's Razor: "Never attribute to malice that which is adequately explained by stupidity." If Judge Brown did exactly as Judge Smith alleged, then the lone judge in Galveston, at best, made a colossal error in judgment. Judge Brown was so concerned about getting an opinion out quickly to avoid a Purcell problem that he cut a member of the panel out of the drafting process. What makes this error even more shocking is that Brown previously served on the Fourteenth Court of Appeals and later the Texas Supreme Court. (Justice Scalia swore in Justice Brown at his investiture in 2013, which I attended.) Judge Brown knows how multi-member appellate courts operate.

Fifth, if this case was urgent as Judge Brown insisted, then it does not seem he approached the drafting process with the requisite sense of urgency. The preliminary injunction hearing concluded on October 10. About forty days later, on November 18, he issued a 160-page opinion. Everyone knew this case was bound for the Supreme Court. If Judge Brown was so concerned about Purcell, he could have issued a far slimmer opinion before the candidate registration began on November 8. Indeed, if he was unwilling to wait for Judge Smith's dissent, the majority could have moved even faster.

However, according to Judge Smith's stated chronology, Judge Brown did not move quickly. Between October 10 and November 5, Judge Smith relates there "there was silence." I can relay that I saw Judge Brown at the U.S. Supreme Court on November 4. Judge Brown was there to attend oral argument in The Hain Celestial Group v. Palmquist, a case in which the Fifth Circuit reversed him. I chatted with Judge Brown briefly after the case finished. Also in attendance was Sixth Circuit Judge David McKeague who wrote the dissent in Coney Island, which was also argued that day. As longtime readers might observe, I have this uncanny tendency to be at the right place at the right time. However, I did not see Judge Brown at the Federalist Society Convention, which started two days later. I've checked Judge Brown's civil docket, and there were other entries added during this time. If LULAC was truly a DEFCON 1 case, then these other activities could have taken a break.

Moreover, according to Judge Smith, Brown did not keep to his own self-imposed deadlines. On November 5, Smith received a thirteen-page outline. Then silence for a week. On November 12, Brown announced he would issue the injunction three days later on November 15. At that point, Smith had not even seen a draft. The first draft would be circulated on November 13. On November 16, a new draft with "substantial revisions" was circulated. The plan was to issue it two days later on November 18. Had Judge Brown waited twenty-four hours further, Judge Smith's dissent would have been ready. All of this mess could have been avoided.

Sixth, what do we make of Judge Smith's decision to include confidential information about the panel's deliberations? You know how I feel about leaks. Then again, Judge Smith released this information in the procedurally proper format--a duly published opinion, and not through some anonymous reporting. And there is some precedent here. Footnote 2 cites Judge Danny J. Boggs's dissent in Grutter v. Bollinger, a case I know very well. In that case, Chief Judge Boyce Martin effectively rigged the process so that the en banc poll would be taken after two judges took senior status. Judge Boggs's dissent included a "procedural appendix." He did not engage in hyperbole, but instead laid out all of the facts in a plain fashion. He did so "as an explanation of the manner in which this case came before the particular decision-making body that has now decided it." By contrast, Judge Smith chose to engage in hyperbole--perhaps too much--but the facts in Galveston were perhaps worse than Boyce Martin's chicanery. Among the Carter nominees, Judge Reinhardt drew more fire, but Martin was arguably more scheming. In Grutter, Judge Karen Nelson Moore offered something of a defense of Martin--a defense that I do not find persuasive, but there was a defense to be had. What would Judge Brown's reply be? I think it would be exactly as he stated in his emails: he wanted to get ahead of Purcell. Would he allege that he thought Judge Smith would drag his feet? Doubtful. Though I doubt that Judge Brown expected that Judge Smith would air the dirty laundry. Judge Smith called Judge Brown's bluff, and now all the world can consider what transpired.

Seventh, I suspect all of this lower-court tussling will likely be for naught. Whether Judge Brown wrote 16 pages, 60 pages, or 160 pages, the Supreme Court's decision will likely come out the same way. (Perhaps 6 or 7 pages would have been just right!) Indeed, if Judge Brown wanted to Purcell-proof his opinion, he should have issued something quickly, before the candidate registration began on November 8. As I told Houston Public Media, it is impossible to drive down a road without seeing many signs with candidates jostling for the nomination. The clock has ticked too much. Judge Brown complained to Judge Smith that "the fuse is simply too short in light of Purcell." But Brown shortened that fuse by taking time to write a 160-page opinion, and tending to other matters during that time.

Eighth, what will happen before the Supreme Court? I reviewed the emergency application submitted by Will Peterson, the new Texas Solicitor General. The brief acknowledges in a candid fashion that Texas engaged in an overt political gerrymander to advantage Republicans and disadvantage Democrats. Texas is doing exactly what California, Virginia, and other blue state are doing. The brief, citing Alexander v. S.C. State Conf. of the NAACP, argues that Judge Brown failed to "draw the inference that cuts in the legislature's favor when confronted with evidence that could plausibly support multiple conclusions." Indeed, rather than starting "with a presumption that the legislature acted in good faith," Judge Brown "resolves (at best) ambiguous evidence against the Legislature and infers legislative bad faith." Texas further alleges that Judge Brown disregarded actual factual evidence, and made conclusions not supported by the record. Given how quickly this 160-page opinion was actually cobbled together, and the fact that the majority was not even interested in responding to a dissent that pointed out factual errors, I think the Court should be cautious about relying on Judge Brown's factual findings. And with these factual findings in doubt, the legal argument in favor of a stay become even stronger.

Ninth, I'll close by returning to a favorite hobby horse: Callais should eliminate the Voting Right Act's asymmetry. It cannot be the case that blue states can gerrymander Republican voters out of representation, but red states cannot do the same to Democratic voters. And if Callais come out the way I think it will, this ruling from Galveston will just be a blip.

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[Ilya Somin] Gordon Wood on America as a "Creedal Nation" Open to all Races and Ethnicities

[Wood is the leading living historian of the American Founding. He pushes back here against those who claim America should be an ethno-nationalist polity.]

Gordon Wood is probably the leading living historian of the American Founding, author of such seminal works as The Creation of the American Republic and The Radicalism of the American Revolution. In a recent speech at the conservative American Enterprise Institute (reprinted in the Wall Street Journal), he pushes back against some on the right who argue that American should be an ethno-nationalist society favoring those with a particular ethnic and cultural background. This idea, he explains, goes against our Founding principles:

I want to say something about the Declaration of Independence and why it is so important to us Americans.

There has been some talk recently that we are not and should not be a credo nation, that beliefs in a creed are too permissive, too weak a basis for citizenship and that we need to realize that citizens who have ancestors that go back several generations have a stronger stake in the country than more recent immigrants.

This is a position that I reject as passionately as I can. We have had these blood-and soil-efforts before, in the 1890s when we also had a crisis over immigration. Some Americans tried to claim that because they had ancestors who fought in the Revolution or who came here on the Mayflower, they were more American than the recent immigrants….

The United States is not a nation like other nations, and it never has been. There is at present no American ethnicity to back up the state called the United States, and there was no such distinctive ethnicity even in 1776 when the United States was created….

Because of extensive immigration, America already had a diverse society. In addition to seven hundred thousand people of African descent and tens of thousands of native Indians, nearly all the peoples of Western Europe were present in the country. In the census of 1790 only sixty percent of the white population of well over three million remained English in ancestry…

When Lincoln declared in 1858 "all honor to Jefferson," he paid homage to the Founder who he knew could explain why the United States was one nation, and why it should remain so. Half the American people, said Lincoln, had no direct blood connection to the revolutionaries of 1776. These German, Irish, French, and Scandinavian citizens either had come from Europe themselves or their ancestors had, and they had settled in America, "finding themselves our equals in all things." Although these immigrants may have had no actual connection in blood with the revolutionary generation that could make them feel part of the rest of the nation, they had, said Lincoln, "that old Declaration of Independence" with its expression of the moral principle of equality to draw upon. This moral principle, which was "applicable to all men and all times," made all these different peoples one with the Founders, "as though they were blood of the blood and flesh of the flesh of the men who wrote that Declaration…."  This emphasis on liberty and equality, Lincoln said, shifting images, was "the electric cord. . . that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world."

In Jefferson's Declaration Lincoln found a solution to the great problem of American identity: how the great variety of individuals in America with all their diverse ethnicities, races, and religions could be brought together into a single nation. As Lincoln grasped better than anyone ever has, the Revolution and its Declaration of Independence offered us a set of beliefs that through the generations has supplied a bond that holds together the most diverse nation that history has ever known.

Since now the whole world is in the United States, nothing but the ideals coming out of the Revolution and their subsequent rich and contentious history can turn such an assortment of different individuals into the "one people" that the Declaration says we are. To be an American is not to be someone, but to believe in something.  That is why we are at heart a [creedal] nation, and that is why the 250th anniversary of the Declaration next year is so important.

Wood's emphasis on America's role as a creedal nation bound by universal liberal principles is backed by the Declaration of Independence (with its condemnation of British immigration restrictions), and by many statements by leading Founders. In his famous General Orders to the Continental Army, issued at end of the Revolutionary War in 1783, George Washington emphasized that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions." He expressed similar views on other occasions, including writing to a group of newly arrived Irish immigrants that "[t]he bosom of America is open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions."

These are the principles that made America great in the first place, and returning to them is the best way to make it greater still.

I don't agree with every point Wood makes in his speech. For example, he claims that "Because assimilation is not easy, no nation should allow the percentage of foreign born to exceed about 15 percent of its population." There is no basis for this arbitrary limitation. Nations such as Australia, Canada, and Switzerland, have done well with much higher percentages of foreign-born people. In Chapter 6 of my book my book Free to Move: Foot Voting, Migration, and Political Freedom, I describe how issues of assimilation and potential "swamping" of institutions are best addressed by "keyhole" solutions, rather than by excluding large numbers of people. Such exclusion based on morally arbitrary circumstances of ancestry and place of birth is at odds with the universalist principles of the American Founding that Gordon Wood has done so much to document and illuminate.

Wood is right to suggest that America's greater success in assimilating migrants compared to many European countries is in part due to our creedal identity and ideology. But, as noted in my book, an additional factor is open labor markets, which make it easier for immigrants to assimilate and learn the language by entering the workforce. Switzerland's relative success compared to most other European states is in part due to its similarly low level of labor restrictions.

Despite such quibbles, Wood's speech is a great summary of the principles of the Founding, and their continuing relevance today.

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[Josh Blackman] Today in Supreme Court History: November 22, 1963

11/22/1963: President Lyndon B. Johnson takes the oath of office. He would appoint two Justices to the Supreme Court: Abe Fortas and Thurgood Marshall.

President Johnson appointed Justices Fortas and Marshall

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[Eugene Volokh] Open Thread

[What’s on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: In Wolford, Hawaii relies on the Black Codes

[Improper analogue to support ban on arms on private property open to the public.]

I have filed an in Wolford v. Lopez, which is in the Supreme Court, on behalf of the National African American Gun Association.  As explained in my previous post, the issue is whether the Ninth Circuit erred in holding that Hawaii may prohibit the carrying of handguns by permit holders on private property open to the public unless the property owner affirmatively gives express permission.

Hawaii enacted this ban in defiance of the Supreme Court's ruling in Bruen that the Second Amendment protects the right to bear arms in public.  The Ninth Circuit upheld the ban under Bruen based on the existence of two purported historical analogues, one of which was an 1865 Louisiana law.  I've written extensively on the black codes in Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the "Constitutional Right to Bear Arms," which both Heller and McDonald cite as authority. Thus, I focused on the Louisiana law in the amicus brief.  The following summarizes the argument.

Hawaii's ban on a licensee carrying a firearm on another's property that is open to the public without express authorization is covered within the plain text of the Second Amendment and is presumptively protected.  To demonstrate that the restriction is "consistent with this Nation's historical tradition of firearm regulation," New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 17 (2022), the Ninth Circuit relies on two supposed analogues, a 1771 New Jersey law made it an offense to carry a gun on another's lands without a license or written permission, and an 1865 Louisiana law prohibiting the carrying of firearms on the premises or plantation of another without consent.

The existence of merely two such outlier laws almost a century apart, neither of which was subjected to judicial scrutiny, fails to establish a historical tradition.  This brief focuses solely on the 1865 Louisiana law, which was enacted during a tumultuous period in the aftermath of the abolition of slavery.  It goes without saying that this period is too far removed from the Founding to give information on the original meaning of the Second Amendment.

In the immediate post-war period, Louisiana jurisdictions adopted "regulations applying exclusively to the Negro."  Senate Ex. Doc. No. 2, 39th Cong., 1st Sess., 23 (Dec. 19, 1865).  The town of Opelousas exemplified the trend with its ordinance providing that "No freedman … shall be allowed to carry firearms" within the town limits "without the special permission of his employer, in writing, and approved by the mayor or president of the board of police."  Id. at 23 & 89.

The Freedmen's Bureau overruled such restrictions when they came to its attention.  It became clear that prohibitions on freedom of movement and the right to bear arms could no longer explicitly limit their applicability to the "freedmen."  Laws of general applicability would be enacted that were intended and functioned to apply to the freed slaves.

The 1865 law making it unlawful to carry a firearm on another's premises or plantations without consent was part of several enactments signed by Governor Madison Wells that deleted explicit references to the "freedmen" while continuing the policies of the black codes.  The gun carry ban could be enforced to prevent freedmen from carrying firearms on premises and on plantations without no-trespassing signage.  Another law made it a crime to enter upon a plantation without permission, without any requirement that the land be posted, which limited the freedom of movement of freedmen.

Another law provided for the conscription of "vagrants" who could be detained and hired out to an employer or made to do hard labor on public works for as much as a year.  Still another prohibited enticing a person to leave his employer, which kept the freedmen in a condition of servitude.

These laws received national attention in publications like the New York Tribune, March 7, 1866, which recited the law making it unlawful to "carry firearms on the premises or plantations of any citizen" without consent and concluded: "For the blacks we find a code of laws establishing a system of serfdom, forbidding the free passage of blacks from one plantation to another, and under the form of apprenticeship and Vagrant laws reenacting slavery in fact."

Testimony before the Joint Committee on Reconstruction established that such laws would have been selectively enforced against the freedmen.  Governor Wells, a former slave owner, appointed sheriffs, judges, district attorneys, mayors, and other officers who were recently in the Confederate army.  One witness testified that in the courts, "as far as justice to a freedman is concerned, it is a pretence and a mockery."  Report of the Joint Committee on Reconstruction, pt. iv, 81 (1866).  Another quoted Governor Wells as saying that "the government must pay for the slaves that had been emancipated…."  Id. at 116.

Louisiana's ban on carrying a firearm on premises or plantations without consent was the type of law that Congress sought to render void in the Freedmen's Bureau Act, S. 60, and the Civil Rights Act, S. 61, which were enacted in 1866.  It was also the kind of law sought to be prohibited by the Fourteenth Amendment.

In Congress, former Louisiana governor Michael Hahn was quoted as stating: "It is necessary … to see that slavery throughout the land is effectually abolished, and that the freedmen are protected in their freedom…. 'The right of the people to keep and bear arms' must be so understood as not to exclude the colored man from the term 'people.'"  Cong. Globe, 39th Cong., 1st Sess. 217 (1866).  Representative Thomas D. Eliot quoted the above Opelousas ban on freedmen carrying firearms as an example of the restoration of slavery in fact.  Id. at 517.

Supporters of S. 61 praised the order by General Sickles in South Carolina recognizing the constitutional right to bear arms, which did not "authorize any person to enter with arms on the premises of another against his consent."  Id. at 908 (emphasis added).  That was the normal rule, in contrast the Louisiana's law requirement that one could not go on another's premises "without the consent" of the owner.

The Civil Rights Act provided that all citizens "shall have the same right … to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens…."  14 Stat. 27.  The Freedmen's Bureau Act expanded that language to protect the right "to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms…."  14 Stat. 173.

The reference to "the constitutional right to bear arms" was originally proposed by Representative Nathaniel P. Banks, who as a major general had formed the Union government in Louisiana in 1864.  Cong. Globe at 585.  It was agreed that the expanded language did not change the meaning, implying that the Civil Rights Act also protected the right to bear arms.

In 1867, Congress declared that "no legal State governments" existed in Louisiana and nine other States, which were subjected to military authority.  14 Stat. 428.

Given that Louisiana was not even considered a legitimate state from its secession in 1861 and when it passed the 1865 Act making it unlawful "to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor," it cannot be said that this law was "consistent with the Nation's historical tradition of firearm regulation," Bruen, 597 U.S. at 24 (emphasis added).

* * *

The Court did not grant cert on petitioners' issue number two, of whether the Ninth Circuit erred in also relying on supposed analogues from the post-Reconstruction Era and later.  My amicus brief does not cover that issue, although it is sure to be debated in other briefs.  While there is much more to be said, petitioners' merits brief clinches the issue with a single sentence from Rahimi: "A court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit, 'apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'"

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[Ilya Somin] Covid Beach Closures, the Takings Clause, and the Police Power Exception

[A recent 11th Circuit decision rightly ruled that mandatory Covid beach closures violated the Takings Clause. But the court overlooked the key issue of how to assess the "police power" exception to Takings Clause liability.]

Falcon1708/Dreamstime.com

 

Co-blogger Jonathan Adler recently posted about Alford v. Walton County, an important new 11th Circuit ruling holding that a local ordinance barring property owners from accessing their beachfront property during the Covid pandemic violated the Takings Clause of the Fifth Amendment.

I think the court was right to conclude there was a taking here, and that the County is therefore required to pay compensation, as required by the Takings Clause. But the court elided the difficult issue of the "police power" exception to takings liability.

The relevant ordinance completely barred property owners from accessing or using their beach front property for several weeks during the early part of the Covid pandemic, in March-April 2020. As the court explained, this is an obvious severe restriction on property rights, and therefore part of the right to "private property" protected by the Takings Clause.

Unlike Jonathan Adler, I think the court was also right to conclude this is a "physical taking" that qualifies as a "per se" (automatic) violation of the Takings Clause, as opposed to a mere restriction on "use" subject to the Penn Central balancing test (a vague standard that usually ends up favoring the government). As the court put it, "Ordinance 2020-09 prohibited the Landowners from physically accessing their beachfront property under any circumstances. That is different from a restriction on how the Landowners could use property they otherwise physically possessed."

But the court avoided what, to my mind, is the most difficult issue posed by this case: the question of the applicability of the "police power" exception to takings liability. For decades, the Supreme Court and various lower courts have held that government actions that would otherwise qualify as takings are exempt from liability if enacted under the police power, which gives government the authority to protect health and safety.

Covid-era restrictions arguably fall within the exception, because they were meant to constrain the spread of a deadly contagious disease, one that ended up killing some 1 million Americans. During the pandemic, a number of state courts upheld Covid shutdown orders against takings challenges based on the police power rationale. I wrote about one such case here.

However, it is far from clear how great a threat to health or safety there must be before the police power exception kicks in. If forestalling even a small risk qualifies, then virtually any restriction on private property rights is exempted from takings liability. After all, just about any use of property poses at least some small risk of spreading disease or causing injury.

In my recent article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver), we argue the police power exception only applies in cases where the government policy in question is preventing a particularly severe danger. For reasons outlined in the article (pp. 25-31), that approach is consistent with original meaning, and with relevant Supreme Court precedent.

By that standard, the Walton County beach restriction and similar measures in other jurisdictions do not qualify for the police power exception. It quickly became clear that outdoor transmission of Covid does not pose much risk. Moreover, it was particularly absurd to ban even the owners from using their own property. If one of them was infected, they could much more likely spread the infection to each other while at home indoors, where the law did not prevent them from interacting with each other.

Thus, I think the court ultimately got this case right. But they should have addressed the police power exception and how it might or might not apply here. The court rightly noted that "there is no COVID exception to the Takings Clause" and that "the government must respect constitutional rights during public emergencies, lest the tools of our security become the means of our undoing." I agree completely! There must be strong judicial review of government invocations of emergency powers. But, though there is no "Covid exception" or "emergency exception" to the Takings Clause, there is a police power exception. And courts should deal with it, when it is potentially relevant.

The Supreme Court, in recent years, has shown little interest in clarifying the scope of the police power exception. But it has - rightly - decided a number of cases strengthening protection for property rights under the Takings Clause generally. This makes it more likely that Takings Clause protections will run into the police power exception, as there are fewer situations where restrictions on property rights avoid takings liability for other reasons.

Thus, the Supreme Court may well have to clarify the police power exception sooner or later. Unless and until they do so, lower courts will continue to struggle with this doctrine.

 

 

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

[Lobstermen surveillance, semiquincentennial squabbling, and socking it to the Scotch Tape People.]

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

Webinar: In thousands of communities across the country, automatic license plate readers are surveilling people's movements on a massive scale. A sensible law-enforcement tool? Or an insane violation of personal privacy? We've put together a crack team of policymakers and advocates to weigh in, including the Montana senator who authored that state's landmark legislation on the topic. Please tune in on Tues., Dec. 9 at 2 p.m. EST.

Or head over to the Associated Press, which has a longform look at the Border Patrol's (until now) secret practice of using ALPRs to identify "suspicious" driving patterns and tipping off local law enforcement, a practice that is resulting in a lot of innocent people, like IJ client Alek Schott (featured in the story), getting pulled over on a pretext and harassed.

This week on the Short Circuit podcast: Anya Bidwell interviews Matteo Godi of USC Law about his new article "Section 1983: A Strict Liability Statutory Tort."

Does it violate the Fourth Amendment for Maine to require that all lobstermen who hold federal lobster fishing permits install an electronic tracking device on their vessels? First Circuit: Well, first things first, let's be clear that "lobstermen" is a gender-neutral term. And as for the Fourth Amendment issue, the lobstermen plaintiffs conceded in the district court that lobstering is a closely regulated industry—meaning the Fourth Amendment has fewer claws—and we're not going to let them renege on that concession now. Dismissal affirmed.As someone living in a neighborhood where our water must be tested for toxic chemicals because of the 3M Corporation, your summarist is sympathetic to efforts to sock it to the Scotch Tape People. But jurisdiction is jurisdiction. The State of Maine claims 3M was a bit toxic in their neck of the woods and filed two cases, one that it knew would end up in federal court and one that, through artful pleading, it tried to keep in state court. First Circuit: Both should be in federal court. 3M is a "federal officer" because this particular toxicity stuff had to do with some military bases, notwithstanding the wordsmithing.Does the Second Amendment prohibit convicting someone for having a gun with an obliterated serial number? Second Circuit: No. The serial number requirement doesn't limit the type of firearm you can own, it just has to have a serial number.The facts of this case involve Mean Girls-level squabbling among several (male) members of the augustly named United States Semiquincentennial Commission, charged with organizing our Nation's 250th birthday party. The law applied by the Third Circuit involves several multifactor tests to conclude that sovereign immunity bars defamation suits against members of the Commission, no matter how fugly the statements in their proverbial burn books.Jackson, Miss. has a lot of lead in its water! Can the city and its officials be sued for violating residents' right to bodily integrity? Fifth Circuit: The city but not the officials. Concurrence/Dissent: The city and the officials. Concurrence/Dissent: Not the city or the officials.State statutes can be unclear. So sometimes federal courts will ask a state's highest court to help them interpret those legislative enunciations. Fifth Circuit: That's why we're asking the Mississippi Supreme Court to do us a solid about an arbitration-related matter. Dissent: Some believe it all went wrong with Raphael. I myself blame Erie Railroad v. Tompkins.Loyal readers of the U.S. Code know that the Labor Management Reporting and Disclosure Act of 1959 prohibits a union or employer from spending money to promote a candidate for union office. But can private individuals or unions sue to enforce that prohibition? Seventh Circuit: Decidedly not.Allegation: Without warning or command, officer shoots pepper ball at man observing 2020 police brutality protest in Omaha, permanently blinding him in one eye. Eighth Circuit: The officer didn't have any retaliatory animus because he shot at other people too. Moreover, just observing—as opposed to participating in or reporting on—a protest does not implicate the First Amendment.Take voting seriously. Yet, not so seriously, as the Eighth Circuit details, that you advise people in your Vietnamese community in Iowa that they can absentee vote and sign on behalf of adult children away at college or, skipping even those details, that they can simply turn the blank ballots over to you that you will proceed to fill in and sign yourself.Class of plaintiffs allege that Blue Cross Blue Shield of Illinois violated Section 1557 of the Affordable Care Act, which bars sex-based discrimination, by refusing to cover treatment for gender dysphoria. Do they state a claim? Ninth Circuit: Maybe-ish? Skrmetti seems pretty on point, but there may be some wiggle room for the district court to consider on remand.Tenth Circuit: The feds failed to prove that this defendant is a non-Indian, so his conviction for sexually assaulting a minor in Indian country is vacated. Concurrence: It ought to be the defendant's burden to show he's an Indian.In 2022, Donald Trump sued CNN, alleging that the network's use of the phrase "Big Lie" to describe his claims about the 2020 presidential election was defamatory because it was intended to associate him with Hitler and Nazi propaganda. Eleventh Circuit (unpublished): "Trump's argument is unpersuasive."Suspecting black man who'd been running through Glynn County, Ga. neighborhood of recent burglaries, white men hop in trucks, chase him down, block his path, and shoot him dead. They're convicted of murder in state court. Afterward, they're convicted in federal court of attempted kidnapping and interference with their rights. Eleventh Circuit: Convictions affirmed. Automobiles are per se instrumentalities of interstate commerce, so their use of the truck to chase the man and prevent his escape qualifies as federal attempted kidnapping. Dissent: They didn't leave the neighborhood, let alone the state, they didn't use the interstate highway system, they didn't use their phones or text messages, and they didn't use the internet. Courts should take a case-by-case approach, rather than adopt a per se rule, to determine if a crime used interstate commerce and is thus appropriately federal.Eleventh Circuit: Look, when gov't officials say "you can't use your private beach, but we can use your private beach," that means they took your private beach.And in en banc news, the Fourth Circuit will not reconsider its opinion telling a district court to decide as a matter of fact whether the Trump administration has so thoroughly undermined the federal civil-service system that federal employees can bypass it in favor of suing directly in federal court.

Amicus victory! Friends, it is sadly commonplace for land-use officials to grant but then—for specious or even spurious reasons—revoke a conditional-use permit, often after a business owner has expended significant resources building or remodeling or what have you. Case in point: Nearly a year after granting a permit for a recycling facility (on property zoned for mineral extraction), and after the owner spent tens of thousands of dollars prepping the site, Monroe County, Ind. officials changed their minds—no doubt influenced by the much bigger recycling firm that belatedly objected to the new competition. So we're happy to relate that last week the Indiana Supreme Court, which gave IJ a little amicus time at oral argument last summer, did the right thing and good thing and unanimously told zoning officials in the state to knock it off.

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[Eugene Volokh] Takeaways for California Lawyers from the Second District's New Pseudonymity Case

 

The case is Roe v. Smith, just decided today by the Second District; it's only the third binding California precedent, as I see it, expressly dealing with pseudonymity (the others are DFEH v. Superior Court, from the Sixth District in 2022, and the considerably less detailed Santa Ana Police Officers Ass'n v. City of Santa Ana, from the Fourth District this Spring). For more on the facts and the substantive analysis in the case, see this post, but here are some holdings that might be especially important for California lawyers litigating about pseudonymity:

The court broadly reaffirmed the strong pseudonymity-skeptical language in DFEH, including that "Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.'" And this happens in a case where the bottom-line result is indeed against pseudonymity (unlike in DFEH itself). "[T]he use of pseudonyms, absent a specific statutory authorization, should be a limited and rare exception to the general rule of public access to courts." The court made clear that pre-DFEH cases that just allowed pseudonymity without discussion aren't authority in favor of pseudonymity: "While plaintiffs correctly point out that parties have proceeded pseudonymously in many California cases, few appellate cases have addressed the issue. '[C]ases are not authority for issues not raised or decided.'" The court also concluded that Title IX precedents allowing pseudonymity are generally not relevant outside that area. "[T]his is a case against two private individuals, not against a school or a government entity, such as in the particularly confidential Title IX context."

On the other hand, the court held that other federal cases that did expressly consider pseudonymity are important precedents. "[I]n evaluating whether a party has adequately shown an overriding interest that overcomes the right of public access guaranteed by the First Amendment, courts may consider both state and federal authorities, depending on the facts presented…. [T]hough not binding, the opinions of lower federal courts on federal issues are persuasive and entitled to great weight …." "In performing the analysis under California Rules of Court, rule 2.550(d), courts may rely upon factors set forth in relevant federal cases for their persuasive value." The court concluded that pseudonymity is generally unavailable to defamation plaintiffs. "While defamation plaintiffs are not categorically foreclosed from proceeding pseudonymously, they are generally ill suited to do so; courts should require a robust evidentiary showing in such a case." And the court concluded that fear of professional, economic, or reputational harm generally doesn't suffice to justify pseudonymity. "To the extent the trial court concluded that a reasonable fear of one's employer learning about allegations of a private nature overcame the public's right of access, we disagree." "The allegations in defamation cases will very frequently involve statements that, if taken to be true, could embarrass plaintiffs or cause them reputation harm. This does not come close to justifying anonymity, however …." The court concluded that the "injury litigated against would be incurred as a result of the disclosure of the party's identity" rationale applies only to cases "seeking to enjoin a disclosure of private facts" and not when "plaintiffs are suing for damages based on comments which have already been made." The court made clear that "Before allowing a party to litigate under a pseudonym, the trial court must expressly find facts establishing an overriding interest that overcomes the right of public access to court records, and find a substantial probability that interest will be prejudiced if a pseudonym is not used," and must find that "use of the pseudonym is narrowly tailored to serve the overriding interest, and there is no less restrictive means of achieving the overriding interest." "In most cases, a party seeking to proceed pseudonymously should provide evidence supporting his or her motion to allow the trial court to make '[e]xpress factual findings' on the matter." The court held that "to enable the court to conduct a recusal check, the party seeking to use a pseudonym should provide the parties' real names under seal." The court held that decisions allowing pseudonymity are immediately appealable under the collateral order doctrine (by analogy to the sealing cases). "Orders concerning the sealing of documents are appealable as collateral orders…. While there is no specific case applying this rule in the context of an order allowing a party to proceed under a pseudonym, we conclude the reasoning is the same." The court reaffirmed that questions of pure application of law (as opposed to findings of historical fact) in a decision to grant pseudonymity are reviewed independently, and not for abuse of discretion. "Our record contains no declarations or other evidence from which the trial court could engage in factfinding. Instead, this appeal concerns a pure application of law, and constitutional law at that. We exercise independent review."

Disclosure: I briefed and argued the case on behalf of the First Amendment Coalition, which appealed the decision granting pseudonymity.

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