Month: July 2020

From yesterday’s memorandum from the Administrative Office of the United States Courts, quoting the report of the Judicial Conference Committee on Codes of Conduct:

[T]he Committee … [circulated] a new draft Advisory Opinion No. 117 … [which] advised that formal affiliation with the ACS or the Federalist Society, whether as a member or in a leadership role, is inconsistent with the Code of Conduct for United States Judges, and that while membership in the ABA’s Judicial Division is not necessarily inconsistent with the Code, judicial members should carefully monitor the activities of the ABA to determine whether membership remains consistent with the Code and query whether a position taken by the ABA might call the affiliated judge’s impartiality into question and necessitate recusal in a given matter…. The Committee received comments [on the draft] from about 300 judges, expressing a wide variety of views on the issues raised.

At its July 2020 meeting the Committee reviewed the comments, and after extensive deliberations voted to table issuing draft Advisory Opinion No. 117 and not to publish it. The Committee elected to table the matter because the comments on the issue of membership in law- related organizations demonstrated a lack of consonance among judges. Rather than attempting to offer advice on membership in specific organizations, the Committee has decided to rely on the advice it has previously given to judges as to how judges should analyze membership in these types of organizations. See, e.g., Advisory Opinion No. 82: “Joining Organizations.”

The Code of Conduct encourages judges to remain active in the community and the legal profession so long as those activities do not conflict with judicial obligations. The Committee stands by its previous guidance provided in the Published Advisory Opinions and in the Compendium of Selected Opinions. That advice demonstrates that the Committee has consistently opined that judges may appropriately belong to law-related organizations that embrace a broad range of views.

Even so, prudence dictates that as judges confront a world filled with challenges arising out of emerging technologies, deep ideological disputes, a growing sense of mistrust of individuals and institutions, and an ever-changing landscape of competing political, legal, and societal interests, they need to remain vigilant about problems associated with membership in organizations. In making membership decisions, a judge should regularly review, consider, and examine whether membership in any particular organization is consistent with the core values of judging, recognizing that the mission and objectives of organizations may change over time. The Committee’s past guidance has counseled judges to consider such things as recusal obligations and any burdens on judicial integrity, including how membership in an organization may implicate the judge’s impartiality and how membership in an organization may reflect on the judge or the judiciary as a whole.

The nation depends on a judiciary that is impartial and independent. Consistent with the judge’s oath, each individual judge should take care to make all membership decisions in a way that is consistent with the highest ideals of the profession as expressed in the Code of Conduct. The rubric that is laid out in the Committee’s prior opinions and guidance is the appropriate way to analyze membership decisions, but balancing these considerations is ultimately best left to the judgment of individual judges.

Special bonus: The memorandum is fascest! Check out the fasces on the seal on top of the memo (and, yes, the Fascists were indeed named after the fasces):

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Slaughterhouses are the weak link in the nation’s meat supply chain: Just over 50 facilities account for 98% of all cattle slaughtering in the United States. So when the coronavirus began to ravage meatpacking plants, beef and pork went scarce. To prevent future shortages, Congress is considering the PRIME Act, which would ease restrictions on local, small-scale slaughterhouses. Over at Forbes.com, IJ’s Nick Sibilla has more.

New on the Short Circuit podcast: Special guest Christina Martin of the Pacific Legal Foundation—a recent victor at the Michigan Supreme Court—joins the panel to talk tax forfeitures and excessive fines.

• Barge drops anchor in the Long Island Sound while being towed by a tugboat. The anchor damages an undersea cable, causing oil spillage that costs New York’s Power Authority $10 mil to clean up. Can the Authority recover from the owner of the barge and tugboat? The case should not have been dismissed, says the Second Circuit; the cable does indeed count as a “facility,” as defined by the relevant federal statute.
• To incentivize companies to relocate to New Jersey, the Garden State’s “Business Employment Incentive Program” would sometimes grant them millions of dollars in unencumbered cash. IRS to program beneficiary: That $56 mil New Jersey gave you between 2010 and 2013? That’s taxable income. Tax court: No, the grants were merely capital contributions. Third Circuit: It’s taxable income.
• In 2015, at the request of the mayor, a local business group that organizes Natchitoches, La.’s annual Christmas parade (a 100-year-old tradition) bars the display of the Confederate battle flag, which an organization of male descendants of Confederate soldiers had paraded with many times over the years. Fifth Circuit: Can’t sue the city over that. Concurrence: If you can’t censor the Nazis in Skokie, you can’t censor this. But plaintiffs didn’t sue the right people in time or develop the right arguments.
• After two trials and a 2016 trip to the Fifth Circuit, ExxonMobil is slapped with a $20 mil penalty for thousands of Clean Air Act violations at its massive Baytown, Tex. complex. But wait! Did the citizens who filed suit have standing? Fifth Circuit: The case must go back to the district court to determine whether each individual violation is fairly traceable to plaintiffs’ injuries. Partial dissent: We should take this thing en banc to sort out the mess that is our precedent, which is just one ipse dixit after the next.
• After doctor finds 33 fractures in 3-month-old’s ribs, legs, and shoulder blade, the baby is taken from his parents for several years. His brother is born the following year, and he is taken as well. Yikes! The older brother has a bone disease, and a Tennessee court orders both boys returned. Can the parents sue the doctor for failing to test for or tell anyone about the possibility of such a disease? The Sixth Circuit says no; we’ve never held that doctors can be liable for making false or reckless statements in support of a child removal (and don’t so hold here), so qualified immunity. (The social workers and the hospital are off the hook, too.)
• Persons who reenter the U.S. after previously having been deported can seek “withholding of removal.” But are they entitled to a bond hearing while that withholding-of-removal proceeding winds its way through the courts? Sixth Circuit: We join with the Third and Ninth Circuits—and break with the Second and Fourth—in saying no. Partial dissent: Statutorily, that’s correct, but the length of this detainee’s detention (28 months and counting) violates due process.
• Allegation: A series of medical staffers at Michigan correctional facilities decline to order diagnostics or provide treatment for inmate with multiple sclerosis despite his repeated requests, relapses. His cognitive function declines to the point where he consumes his own feces and sucks his thumbs. (He dies in a nursing home.) Sixth Circuit: Most of his estate’s claims were filed too late, but (over a dissent) a pair of physician’s assistants might have been deliberately indifferent to his medical needs.
• Nonprofit devoted to defending campus speech sues administrators at the University of Illinois at Urbana-Champaign, alleging that various campus policies violate the First Amendment. Seventh Circuit: No standing to challenge two of the policies, and the challenge to the third—a requirement that speakers receive prior approval before distributing campaign literature—is moot because the University repealed that policy. Dissent: I agree on the first two policies, but the third wasn’t repealed until after this litigation began and could be reinstated at any time; that claim should move forward.
• Oklahoma and the Creek Nation are not the only ones at odds over 19th-century treaties establishing reservations and the creeping boundaries of the United States. A dispute between Hobart, Wisc. officials and the Oneida Nation came to a head after village officials fined the Nation for holding its annual Big Apple Fest without a village permit. The Seventh Circuit concludes that it is indeed Oneida Nation land.
• Allegation: After actress Ashley Judd rebuffed advances by disgraced Hollywood producer Harvey Weinstein, Weinstein told director Peter Jackson that she was “a nightmare to work with,” leading to her losing a major role in the Lord of the Rings trilogy. Judd only learns of this years later after Weinstein’s harassment, when Jackson gives an interview recounting Weinstein’s statements. Ninth Circuit: And under California law, that is actionable sexual harassment. Case un-dismissed.
• Allegation: Prescription pet food­, which is substantially more expensive than regular pet food and unavailable for purchase without a veterinarian’s say-so, is a big con. There’s nothing medicinal in the food, and, since the 1980s, pet food companies have supplied vets with prescription pads as a marketing effort. Ninth Circuit (over a dissent): Which might violate California consumer protection law. The case should not have been dismissed.
• Are Arizona State University’s disciplinary procedures for sexual misconduct cases biased against men, in violation of Title IX? Ninth Circuit: This Ph.D. student, accused of sexual misconduct by an on-again, off-again romantic partner will get to find out.
• Ninth Circuit: Criminal stalking is categorically a crime involving moral turpitude (CIMT), for which a green-card holder can be deported. Concurrence: This is the right outcome under our CIMT case law. Also, our case law is “dumb, dumb, dumb.”
• Life protip: Don’t shine laser beams at police aircraft; they have equipment that can determine the source of the laser beam. Ninth Circuit law protip: Don’t violate the Fourth Amendment when you investigate the source of the laser beam, or we will have to throw out your case.
• Okemah, Okla. stabbing victim tells police his assailant fled in a big, black Chevy truck with a trailer. Officers pull over a dark-colored Chevy truck sans trailer. When the driver doesn’t show his hands, one cop points a gun, and the driver drives away. The cop fires half a dozen times on the fleeing truck, and the truck runs into a ditch. Police do not render aid. The man, who had nothing to do with the stabbing, dies. District court: The cop was in no danger when he fired the shots; his actions were objectively unreasonable. Tenth Circuit (over a dissent): Just so. No qualified immunity.
• As Denver, Colo. SWAT team arrives at controlled buy (or, more technically, a “reverse buy-bust”), the suspect draws a pistol. One second later, an officer shoots the suspect, killing him. Allegation: The suspect was trying to place his firearm on the ground and raise his hands in surrender. Tenth Circuit: Even if that were true, the officer couldn’t reasonably have known it in the one second between seeing the firearm and firing.
• And in en banc news, the D.C. Circuit will reconsider its decision that the prosecution of former National Security Adviser Michael Flynn, who pled guilty to making false statements, must be dismissed because the feds now wish to dismiss it. (We talked about the now-vacated panel opinion on the podcast with the Cato Institute’s Clark Neily.) The Sixth Circuit, however, will not reconsider its decision permitting Tennessee to suspend indigent driver’s licenses over failure to pay traffic debt. Chief Judge Cole dissents. (We also dissent.)

Agencies within the Dep’t of Homeland Security seized over $2 bil in currency from travelers at airports nationwide between 2000 and 2016, $500 mil of which was taken because of missing paperwork. So finds an Institute for Justice report on DHS’ use of civil forfeiture at airports. The study is the first to use data from the Treasury Dep’t’s forfeiture database, the Seized Assets and Case Tracking System or SEACATS, which IJ fought for over four years to obtain. The report concludes that DHS airport currency seizures put innocent people’s property at risk without appearing to advance serious crime-fighting objectives. To ensure innocent Americans cease losing property unjustly, Congress must reform civil forfeiture. Read more about it in The Washington Post.

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The city of Detroit has reportedly paid $75,000 to settle a civil rights lawsuit after police shot a woman’s dogs during a drug raid—a shooting the Detroit Police Department (DPD) determined was unjustified and violated department policy.

Detroit resident Kira Horne filed the lawsuit last December, alleging that a Detroit police officer, Nathan Miller, violated her civil rights by shooting her dogs without cause during a November 13, 2018, narcotics raid. This, she says, was an unreasonable seizure under the Fourth Amendment.

The settlement marks at least the fourth lawsuit payout in recent years stemming from Detroit drug raids where police have been accused of wantonly shooting dogs. A 2016 Reason investigation found that Detroit police officers respond to hundreds of calls a year regarding loose and aggressive dogs, which are a serious problem in the city. But the investigation also revealed a disturbing pattern of officers, especially on the narcotics squad, shooting pets during raids.

In most of those cases, there has been no video of the incidents, leading to dueling he said/she said claims between pet owners and police. But this time, body camera footage showed exactly what happened.

“As is typical in these cases, the officer falsely reported that the dogs attacked the police in order to justify the shooting,” says Horne’s attorney, Chris Olson. “Thus, this case is part of a pattern of Detroit police officers wrongfully shooting dogs and then lying about it. Fortunately, in this case, body camera footage showed the truth.”

Warning: The video is graphic.

The body camera footage shows several members of the Detroit Police Department’s Gang Intelligence unit executing a narcotics search warrant. As Miller enters a hallway while clearing the house, a black pit bull comes out of a room and advances toward Miller before he fires his shotgun at it, mortally wounding the animal. But the dog was neither growling nor barking.

A second pit bull enters the hallway. Miller yells at it, and the dog runs back into another room before emerging again and standing next to the corpse of the first dog. It is not barking, growling, or moving toward Miller when he fires at it.

“It’s a fuckin’ homicide scene,” one of the other Detroit police officers remarks as he surveys the bloody aftermath.

The raid resulted in the arrest of one man for possession of cocaine with intent to distribute.

In a “destruction of animal” report that Miller filed after the raid, obtained by Reason through a public records request, the officer claimed that he “observed a black pit bull and a tan pit bull showing his teeth, charging, and attempting to bite crew.” In a separate incident report, Miller embellished a little more, writing that “a large black pitfall came charging at me down the hallway from the northwest bedroom. I fired two shots…neutralizing the threat. While still in the hallway, a second brown pit bull came charging down the hallway towards me.”

Miller’s supervising officers, all the way up the chain of command, signed off on the shooting and found that he followed department policy. But after Horne and the arrested man filed a complaint, the Detroit Police Department’s Citizen Complaint Subcommittee investigated the incident. After reviewing Miller’s body cam footage, it found that the video “did not show the dogs acting in an aggressive manner.”

“At no time did any of the dogs charge at the officers, growl or try to bite them,” the subcommittee wrote in its report. In a rare occurrence, the police department declared that the shooting was unjustified and violated the department’s policies regarding dogs.

Olson has represented several other Detroit residents who have sued the police after their dogs were shot. Detroit resident Teresa Thomas filed a federal civil rights lawsuit last year alleging that two Detroit police officers illegally pulled open her door during a warrantless search and then shot her two dogs after they ran outside, killing one of them.

Last year, Detroit agreed to pay $60,000 in another dog shooting lawsuit. That suit was brought by Nikita Smith, whose three dogs were shot by a Detroit narcotics unit during a marijuana raid in 2016.

In 2018, Detroit paid $225,000 to settle a lawsuit brought by Kenneth Savage and Ashley Franklin, who claimed Detroit police officers shot their three dogs while the animals were enclosed behind an 8-foot-tall fence—all so the officers could confiscate several potted marijuana plants in their backyard.

In 2015, the city approved a $100,000 settlement to a man after police shot his dog while it was securely chained to a fence.

Destruction-of-animal reports obtained by Reason show that one officer on a Detroit Police Department unit that conducted drug raids throughout the city had shot 80 dogs over the course of his career.

“We will continue to seek justice for dog owners in Detroit,” Olson says, “who suffer more shootings than anywhere else in the country, and to expose police officers lying about their unconstitutional conduct.”

As regular readers of Reason know, police puppycide is far from limited to Detroit. Nor is Detroit the only city to find that the aftermath of an unjustified dog shooting can be costly. Last year St. Louis paid $775,000 to a woman whose dog was shot during a no-knock SWAT raid over an unpaid gas bill.

The Detroit Police Department and the Detroit Corporation Counsel, which represents the city in civil lawsuits, did not immediately respond to requests for comment.

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A surging number of states and localities are thinking about adopting ranked-choice voting, an alternative approach to running an election that offers more room for independent and third-party candidates. This, in turn, has sparked a backlash from the defenders of the traditional system.

Come November, voters in Alaska, Massachusetts, and North Dakota, among other places, will decide whether to adopt ranked-choice voting, which allows voters to rank candidates on the ballot in order of preference instead of choosing just one. 

If a candidate gets an outright majority of first-preference votes, he or she wins. If no one gets a majority, the candidate who received the least number of first-preference votes is eliminated. The votes they received are transferred over to voters’ second preference. The process repeats until one candidate receives a majority of transferred votes. The process is also known as “instant runoff” voting, because it simulates a run-off election.

Proponents say that ranked-choice voting would increase representation and expand options for voters beyond the two main parties. The system is currently used in limited circumstances in 23 states, including for local elections, and primary races. Only Maine uses rank-choice voting for statewide elections.

Melodie Wilterdink of the Alaska Policy Forum, a conservative think tank, argues that ranked-choice voting “doesn’t allow everyone’s ballot to be counted.” If voters are asked to rank four candidates in an eight-candidate race, there is a chance all four candidates will be knocked out, resulting in “ballot exhaustion” and a discarded vote.

Last week the Alaska Policy Forum, alongside the Freedom Foundation of Minnesota, the Maine Policy Institute, and the Oklahoma Council for Public Affairs, formed the Protect My Ballot coalition to oppose ranked-choice voting.

Confusion about how the system works could suppress voter turnout even more, argues Wilterdink. In Maine, she notes, election officials had to print a 19-page instruction manual on how to vote. 

David Kimball, a political scientist at the University of Missouri–St. Louis, disagrees. When ranked-choice voting replaces a two-tiered primary and general election system, he finds, turnout increases by up to 10 percent because voters only have to show up to the polls once.

Kimball also says that ballot exhaustion doesn’t affect a large number of voters. “These are the people who prefer the least preferred candidates, so you’re generally talking relatively smaller percentages of voters,” he tells Reason.

Where ranked-choice voting is used today, the public largely approves of the method, though support has varied widely across jurisdictions.

Exit polling from local elections in North Carolina shows large majorities—68 percent in Cary and 67 percent in Hendersonville—prefer it to traditional voting. Data from Maine’s statewide races shows much narrower support, with approval largely following party lines: 81 percent of Democrats want to expand it while 72 percent of Republicans would eliminate it. (Other states, like Wilterdink’s native Alaska, don’t see a partisan divide: Both former Gov. Sean Parnell, a Republican, and former Sen. Mark Begich, a Democrat, oppose ranked-choice voting.)

That’s not to say that ranked-choice voting has been a success everywhere. As Protect My Ballot’s website notes, North Carolina; Aspen, Colorado; and Burlington, Vermont have repealed ranked-choice voting, often after just one election. Voters in Burlington, which ditched ranked-choice voting in 2010, will soon decide whether to reinstate the system.

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In his useful post on the Federalist Society, Josh Blackman notes

My general policy is to not sign any statement I do not write–that applies to letters and briefs. When you put your name on something that someone else wrote, you have limited input. You can’t request changes. There may be things you agree with, things you disagree with, and other things about which you are not certain. But putting your signature on a document requires you to accept everything, in toto.

My views on this have evolved a bit over time, but I find myself closer to Josh’s position than I once was.

As a citizen, I represent myself and my one little vote and voice in the American democracy. In collective actions, whether marching in the street, attending a rally, or signing a petition, my contribution as a citizen is to add numbers to a political effort in which numbers matter. If I sign a petition saying the Firefly should not have been cancelled, all I have to contribute is a number.

As an academic, my contribution is different. If I am asked to sign something that emphasizes my institutional affiliation or professional title, presumably the reason is because my expertise is supposed to matter in that context. But if what I’m offering is expertise, then the only thing I have to offer is my own considered opinion based on my own research and expertise. I’m not just backing a sentiment or contributing to numbers. I’m offering a reasoned argument and a conclusion based on reasoned argument.

I have not gone so far as to say that I will only sign the things I write. It is possible for someone else to write something I agree with, and as with any coauthoring relationship the result might be better if I do not write it all myself. But I have become much more reluctant to sign collective statements.

If I am going to sign on to something, the list of contributors has to be small. When the emphasis is just on gathering names, then the effect can be to water down my own contribution. If I have expertise to contribute to a public issue, it would seem to hurt rather than help the cause for me to join a letter signed by hundreds of others who have no credible claim to expertise on that issue. It is perfectly reasonable for me to be one of thousands of citizens signing a petition, but it makes little sense for me to be one of thousands of professors endorsing a statement.

If I am going to sign on to something, the subject matter has to be in my scholarly wheelhouse. I cannot in good faith add expert support for something about which I am not expert. If I am lending my scholarly credibility to something, I need to have scholarly credibility to lend. Readers are often in no position to judge whether the signers of a given letter all have relevant expertise, and so the burden is on me to not send false signals. There are lots of things I think are right, but I should be able to distinguish in my own mind whether I think something is right because I have a considered scholarly view on it or simply because I have an amateur opinion about it. I should not hold myself out as a scholar while giving my amateur opinion, and generally speaking in both cases I should be willing to explain my reasons and not just state my conclusion.

If I am going to sign on to something, I have to agree with everything in it. A letter or brief might not be exactly how I would have written it myself. There are compromises that must be made in every collective enterprise, but if I am asked to sign on to a thirteen point plan I have to be willing to own all thirteen points. The organizers of such efforts certainly expect the reader to think that everyone signing on to a letter endorses all its major claims. That’s the point of being able to wave around a faculty letter with hundreds of signatures. I would be misleading others if I signed something but had a private list of reservations. If I allow others to represent that I support something that I do not in fact support, then I am fostering a lie and polluting the public square.

If I am asked to sign on to something, I have to think carefully about whether the point is better made through a collective statement or through an elaborated individual argument. There are times when collective statements matter. If a claim is well outside the scholarly mainstream, it is useful for scholars to stand up as a group and say so. If a point is primarily a political one relevant to some collective of which I am a member, then I should stand with the group. But if the point is a contestable claim about which scholars of good faith and competence disagree, then I have a responsibility to not pretend like there is more consensus than there is and to explain why exactly I have reached this particular conclusion on this particular point. I should be trying to persuade and not just impress others with the weight of authority. My default assumption is to think that what I have to add to a public conversation is my considered opinion as a scholar with relevant expertise, and that is usually best conveyed in my own voice.

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