Month: September 2022

From today’s opinion in Doe v. Univ. of Iowa, by Judge Stephen Locher (S.D. Iowa.), discussing the Complaint (written by lawyers, not by a pro-se litigant):

Plaintiff alleges Defendants discriminated against him during their investigation into his purported sexual assault of a female student. His pleading, however, contains confusing and overly verbose paragraphs that are unreasonably difficult for Defendants to admit or deny. The Court therefore GRANTS Defendants’ Motion to Dismiss without prejudice and directs Plaintiff to amend his Complaint to conform to the requirements of Fed. R. Civ. P. 8, which require a pleading to provide “a short and plain statement of the claim showing the pleader is entitled to relief.” …

The Court agrees the Complaint does not satisfy Fed. R. Civ. P. 8. It further agrees that Paragraph 14 is illustrative of the problem. Clocking in at 443 words and almost one-and-one-half pages in length, Paragraph 14 is a series of run-on sentences and sentence fragments that alternates between the investigation into Plaintiff’s actions and speculation about investigations into the conduct of other, unnamed “male students,” all while using vague terms like “investigators” that may or may not include Defendants. Paragraph 14 also includes unnecessary asides—e.g., “really, one simply can’t make this up”—and fails to provide the “simple, concise, and direct” allegations required by Fed. R. Civ. P. 8(d). And all to allege something that could have been captured in one sentence: Investigations into sexual misconduct are tainted by sex and/or gender bias in which female witnesses are found credible for the same reasons male witnesses are found non-credible.

Similar flaws are found in other paragraphs. Paragraph 13, for example, contains perhaps the longest single sentence (178 words) the Court has ever seen in a pleading:

And that secondly segues into how these investigators routinely approach these cases—whether the male is a complaining party or, as in this case, an accused party—the UI investigators do not work multiple times, let alone even cursory on the single time, that they “interview” the male party’s witnesses—those witnesses are summarily dismissed as it pertains to credibility and on either on or the other of two contradictory grounds: first, if there are substantive deviations in the statements of the witnesses in support of the male student (either accused or complaining), then those witnesses by the investigators, and particularly including the investigators named in this complaint, are dismissed as contradictory (and hence not believable); in contrast, if those witnesses’ statements are in the main consistent—that is, supportive of the male student’s version of the events in question—then these investigators routinely dismiss the validity of these statement on the basis, of all things, bias; and that purportedly is because any consistency among witnesses on behalf of a male student must be the result of such.

(Complaint, ¶ 13.) Paragraph 16 is a long-winded diatribe (more than 330 words in length) asserting, in essence, that hearings are tainted by bias against males. (Id., ¶ 16.) Paragraph 17 is an even longer-winded diatribe (more than 380 words in length) asserting the same thing. (Id., ¶ 17.)

The post "The Pleading Needs More Hemingway, Less Faulkner" appeared first on Reason.com.

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In his speech last night about “the continued battle for the soul of the nation,” President Joe Biden said some things that are indisputably true. He noted that democracy requires candidates to accept the results of “free and fair elections” and that refusing to do so threatens the rule of law as well as the peaceful transfer of power.

Donald Trump and his followers have conspicuously failed that basic test. But Biden’s emphasis on preserving democracy sets the bar for good government pretty low, eliding the tension between majority rule and individual freedom. And his related claim that Trump’s refusal to concede electoral defeat amounts to an “extreme ideology” gives the former president, who is anything but a systematic thinker, too much credit.

“Donald Trump and the MAGA Republicans represent an extremism that threatens the very foundations of our republic,” Biden warns. But his response confuses means with ends, elevating democracy above the values it promotes when properly constrained.

Biden says “the freedom to vote and have your vote counted” is “the most fundamental freedom in this country.” The Framers saw things differently. They understood that unconstrained democracy, like unconstrained autocracy, poses an intolerable threat to liberty. The constitution they produced is chock-full of provisions that check the will of the people, including limits on the federal government’s powers, requirements for passing legislation, and explicit recognition of rights that the people’s representatives must respect, no matter what the majority demands.

Speaking at Independence Hall in Philadelphia, Biden offers his take on the Declaration of Independence. “In America,” he says, “we’re all created equal”—a strange way to summarize Thomas Jefferson’s much less parochial assertion that “all men are created equal,” a “truth” he took to be “self-evident.” Biden notably skips over the part about the God-given “unalienable rights” that all people (not just Americans) have by virtue of their humanity.

Moving on to the Constitution, Biden locates its essence in the first three words of the preamble: “We the People…” Never mind all the operative provisions that follow, which impose numerous restrictions on majority rule.

“These two documents and the ideas they embody—equality and democracy—are the rock upon which this nation is built,” Biden declares. While he is surely right that equality under the law is a basic principle of a free society, he and his fellow Democrats tend to take a more expansive view of equality, one that requires redistributive schemes like the orgies of federal spending that he brags about later in his speech.

Although the authority for such programs is hard to locate in the Constitution, Biden is unconcerned about such niceties. He implies that “We the People” means popularly elected legislators can do nearly anything they think the majority wants. By identifying an ambiguous “equality” and a sacred “democracy” as the twin lodestars of American government, Biden issues a convenient license for his party’s policy agenda.

Biden does get around to mentioning “liberty,” but it seems like an afterthought, a value that takes third place at best. His idea of liberty includes the “right to choose” (abortion, presumably), “the right to privacy” (abortion, again), the “right to contraception,” and the “right to marry who you love.” All of those, he warns, are threatened by “MAGA forces.”

Biden’s understanding of liberty evidently does not include the right to armed self-defense, which is arbitrarily denied by the “gun safety law” that he proudly cites as evidence that America has “an unlimited future” and “is about to take off.” Nor does it include freedom of speech, judging from Biden’s assiduous efforts to control what people say on social media platforms and his assertion that our system of government “gives hate no safe harbor.” Biden’s support for kangaroo-court justice at public universities suggests he also is not so keen on due process.

The right to keep and bear arms, the right to freedom of speech, and the right to due process, unlike the right to abortion, are all explicitly mentioned in the Bill of Rights. Maybe Biden never got that far, since he is so mesmerized by the vast powers he perceives in the opening words of the preamble.

Based on Biden’s words and deeds, we have a pretty good idea of what he believes about the proper size and scope of government. He thinks politicians selected by “the People” can do whatever they want, provided they do not impinge on the specific freedoms that he values. When it comes to abortion, contraception, and same-sex marriage, the majority does not rule. But when it comes to nearly everything else, the people’s will—or, more realistically, Biden’s perception of it—prevails.

Trump, by contrast, seems to have few firm beliefs. The “extreme MAGA ideology” that Biden perceives is not based on a coherent set of political principles. It is based on one man’s erratic impulses. And more than anything these days, it is based on Trump’s conviction that he actually won reelection in 2020.

Aside from a few longstanding instincts, such as Trump’s aversion to free trade and immigration, his only persistent motivation is self-interest. On abortion, Trump abandoned his pro-choice opinions and cynically embraced the pro-life movement, promising to appoint Supreme Court justices who would vote to overturn Roe v. Wade. On gun control, he turned against measures he once supported, transforming himself into “a big Second Amendment person.” It defies credulity to suggest that Trump has given serious thought to the constitutional issues raised by restrictions on abortion or guns, or to the merits of the originalism he espoused when he ran for president in 2016.

If the Republican Party’s always inconsistent defense of limited government was not enough to discredit its supposed devotion to constitutional principles, the fact that it has now organized itself around Trump’s self-flattering delusions decisively proves that it stands for nothing worth defending. The Democratic Party, meanwhile, has always been willing to ditch the Constitution when it proved inconvenient.

Assuming that Trump runs for president in 2024 and Biden seeks reelection, voters will again be confronted by a choice between an old man who is manifestly unqualified for the job and an old man whose long political career has taught him nothing about the limits of government power and the fallible judgments of the people who wield it. While a willingness to accept the outcome of a free and fair election is a minimum qualification for the presidency, voters should demand more than that.

The post Trump Disregards Democracy, While Biden Ignores Its Dangers appeared first on Reason.com.

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

New cert petition: The IRS wants to impose a $2.17 mil civil penalty on an octogenarian from Massachusetts, and she wants to argue that it’s a violation of the Excessive Fines Clause. But earlier this year, the First Circuit said there’s no need to consider whether the penalty (for failing to timely file a bank-account form) might be a tad excessive because—said the court—the penalty “is not a ‘fine'” under the Eighth Amendment. Boom. Case closed. This week, IJ asked the Supreme Court to tell the First Circuit and the IRS (and a bevy of trial courts) to start taking the Excessive Fines Clause seriously. Click here to learn more about the case.

Big Sky friends, Short Circuit Live! is heading to the University of Montana on September 15th for a live recording at the law school. Co-hosted by the Federalist Society and the American Constitution Society, the event will focus on the Montana Supreme Court and will feature Natasha Prinzing Jones of Boone Karlberg P.C. (who argued on behalf of amici in a case you may remember from last week’s roundup), Colin Stephens of Stephens Brooke P.C., and Rylee Sommers-Flanagan of Upper Seven Law. Hope to see you there!

• In 2016, the Department of Housing and Urban Development issued a new rule prohibiting the use of lit tobacco products in public housing. The group NYC Citizens Lobbying Against Smoker Harassment sues, alleging that the rule is unauthorized, arbitrary, and multifariously unconstitutional. D.C. Circuit: But it isn’t any of those things, so case dismissed.
• After President Biden took office, he ordered OSHA to consider whether any emergency temporary standards (ETS) were necessary to combat COVID-19. OSHA issued an ETS related to healthcare workers, but this soon took a backseat to a second ETS that required vaccination or weekly testing at all large employers. After the Supreme Court struck down the vaccination requirement, OSHA realized it couldn’t comply with the required notice-and-comment period on the healthcare ETS and withdrew it. Nurses’ unions sought a writ of mandamus, demanding the ETS be reinstated until a permanent rule could be enacted. D.C. Circuit: We don’t have that power; after all, OSHA could ultimately decide that no rule is necessary.
• Two brothers convicted of making illicit marijuana available to the good people of Rochester, N.Y. object to marijuana’s status as a Schedule I drug with no legitimate medical uses. Feds: You have to petition the DEA to reschedule the drug; no fair trying to do that in a criminal case. Second Circuit: On the contrary, they can bring their constitutional defenses. Unfortunately for them though, they get rational-basis review, so it doesn’t matter if there are indeed legitimate medical uses for marijuana. Their four- and two-year sentences are affirmed.
• In 2014, a Pennsylvania man shoots two state troopers, killing one. During the 48-day manhunt, police seize the man’s parents’ guns. Police don’t claim that the parents or their guns were involved in the crime and never use the guns as evidence against the son. Nevertheless, police refuse to return the guns, now eight years after the crime and after the son lost his last direct appeal. Third Circuit: Which is an unconstitutional taking as well as an infringement on the parents’ Second Amendment right to keep arms.
• Allegation: “That’s a nice medical testing business you have there. Would be a shame if someone told the FTC about these patient records you leaked. But hey, if you pay for our cybersecurity services, this can be our little secret.” “We didn’t leak these files—you stole them!” “So that’s the way you want to play it?” Third Circuit: The now-defunct testing company’s defamation claim against the cybersecurity firm can go forward.
• A putative class action alleges that the Virgin Islands gov’t has been systematically withholding tax refunds (except from the politically connected) as a way to save money. But! Through merest coincidence, the only named class representative gets her tax refund in the midst of the litigation. Is this crazy, inexplicable and definitely totally random turn of events a class-killer? Third Circuit: Maybe not!
• Allegation: Biloxi, Miss. hospital adds a surcharge to every emergency room patient’s bill without any disclosure beforehand. Patient: If I’d known I was going to get hit with the $2.2k surcharge (reduced to $770 after discounts), I would have sought care elsewhere. Fifth Circuit: Our best guess is that under Mississippi law, the hospital did have a duty to disclose. Case undismissed.
• “Imagine if Texas—a state that prides itself on promoting free enterprise—passed a law saying that only those with existing oil wells in the state could drill new wells. It would be hard to believe. It would also raise significant questions under the dormant Commerce Clause.” Fifth Circuit: Texas’s 2019 law limiting the building of interstate electrical transmission lines to the owners of existing facilities raises similar questions under the dormant Commerce Clause. (Though, naturally, it raises no questions under the Contracts Clause, because that one doesn’t mean anything anymore.)
• After trial and two previous trips to the Fifth Circuit, ExxonMobil is slapped with a $14 mil penalty for thousands of Clean Air Act violations at its massive Baytown, Tex. complex. Fifth Circuit: And this time there’s nothing to reconsider. Dissent: It might be tedious to require plaintiffs to show how the harms they suffered were caused by particular violations on particular days, but that’s what the law requires. And, except for approx. 40 days of the thousands they alleged, plaintiffs did not make that showing.
• Under Texas law, scrap dealers must promptly submit reports of scrap-metal transactions to the Texas Department of Public Safety. Houston scrap dealer fails to submit two dozen reports, is arrested, and ultimately acquitted. He sues the police officer who prepared the supporting affidavit. Claim: The officer omitted from his affidavit the fact that my scrap-metal-reporting software (“Scrap Dragon”) was glitchy. Fifth Circuit: No dice. Even if that information had been included, there still would have been probable cause that you violated the reporting law, since you knew of the glitch but didn’t bother to submit your reports through a different medium.
• Allegation: Cheatham County, Tenn. officer conducting welfare check at night (at home where someone called 911 twice and hung up) does not identify himself as law enforcement but does shine his headlights at the house and unholsters his gun. When a resident says that he is armed (he’s not) and opens the door, the officer fires eight times (hitting no one). Sixth Circuit: A jury might think that was excessive force. No QI. Dissent: Shooting at someone and missing isn’t a “seizure” under the Fourth Amendment unless the person submits, which this guy didn’t, yelling profanities at the officers and wandering around after.
• After the Supreme Court ruled that sentences of life without parole are unconstitutional for juvenile offenders, Missouri began to allow such offenders to apply for parole after serving 25 years. Eighth Circuit (sitting en banc): And those parole proceedings are not a sham. Dissent: The proceedings are constitutionally deficient. Hearing officers don’t give adequate reasons for denying parole, inmates’ parole files are secret, and inmates are sharply limited about what they can speak about (for instance, no talking about their rehabilitation)—and part of the majority’s reasoning is based on an argument the state didn’t make.
• To get an initiative on the ballot in Nebraska, you must get a minimum number of signatures statewide, but you also must satisfy a signature-distribution requirement: Your signatories must “be so distributed as to include five percent of the registered voters of each of two-fifths of the counties of the state.” Marijuana-legalization group: That requirement violates the Equal Protection Clause by devaluing the signatures of people in more populous counties relative to those in less populous ones. Eighth Circuit: No preliminary injunction for you. The signature-distribution requirement has a rational basis. Dissent: Seems to me strict scrutiny might be a better fit.
• Libertarians/goldbugs of the nation, rejoice! The Eighth Circuit has just struck down Minnesota’s registration and surety requirement for bullion traders for violating the dormant Commerce Clause. Can the return of Liberty Dollars be far behind? (Yes, it can.)
• San Jose, Calif. public high school student group requires leadership to abide by a statement of faith, which includes belief that sex is only okay between a husband and wife. School: That’s discrimination, we’re pulling your official status. Group: Hey, but you don’t enforce your anti-discrimination policy against these other groups who screen for gender and ethnicity. Ninth Circuit: Yeah, that’s pretty messed up school, you targeted these guys because of their religious beliefs. Here’s a preliminary injunction. Concurrence: I just wanna add that some of the faculty were super mean. Like, unconstitutionally mean. Dissent: Standing?
• Superior, Ariz. officers show up at house with search warrant for a motel room. (They got oral permission from a judge to search the house (after a search of the motel room didn’t turn up the drug cache they were looking for) but neglected to physically update the warrant.) Ninth Circuit: So searching the house was unconstitutional, but (over a dissent) that wasn’t clearly established until now. Qualified immunity.
• In Voltaire’s famous satire Candide, the optimistic Dr. Pangloss espouses the Leibnizian philosophy that “all is for the best in this best of all possible worlds.” Philosophically questionable, but true enough for the Candide Group, which successfully invokes California’s anti-SLAPP law against CoreCivic, one of the largest operators of private prisons and immigrant detention centers in the United States. A Ninth Circuit panel holds that previous circuit cases applying the California law in federal court are not so irreconcilable with Supreme Court precedent that they must be overturned.
• Atlanta-area federal task force officers shoot suspect and then ignite a flashbang grenade near his body, which he does not react to. Officers: And after that we stopped shooting. He pointed a gun at us, so good shoot. But wait! Audio (from a bystander filming outside the home) reveals an officer fired off an additional burst after the flashbang ignited. Eleventh Circuit: It’s a clearly established constitutional violation to shoot an unconscious suspect. No qualified immunity for the post-grenade burst that a jury might find you lied about. (Ed.: No mention of whether one even can sue federal agents for violating the Constitution, something which the Supreme Court has recently thrown into doubt.)
• Allegation: From 2010 to 2018, Burger King franchisees agreed not to hire employees from other Burger King restaurants for at least six months after they left their previous job. Eleventh Circuit: Which might be an antitrust violation. Case undismissed.

Last year, New Yorker Serafim Katergaris discovered that the city had fined him $1k for missing paperwork about a 2013 boiler inspection. One problem: He bought the home in 2014 after the boiler had been removed, so the paperwork would’ve been required of a previous owner. Serafim explained this, but the city declined to waive the fine. The city also refused to give him a hearing or a chance to appeal. Instead, the city simply demanded that he pay. Unfortunately, this is a common practice for NYC, which frequently demands penalties for supposed violations of its property codes without providing an opportunity to be heard. So this week, Serafim teamed up with IJ to challenge the city’s brazen violation of his due process rights. After all, no process cannot be due process. Learn more here.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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After a wave of U.S. airstrikes against jihadist groups in the Horn of Africa this summer, U.S. officials have made their way to Mogadishu to show their support for Somalia’s embattled central government. Lt. Gen. Michael Langley, the newly appointed commander of U.S. Africa Command, the division of the U.S. military focused on operations in Africa, made a visit to Mogadishu earlier this week to meet with Somali defense and security officials.

The visit comes as al-Shabab, a terrorist group affiliated with Al Qaeda, has resurged in strength and reach in the country by waging new and brazen attacks against civilians in Somalia, and as the Biden administration reverses a Trump-era withdrawal from the East African country.

Back in May, the Biden administration announced that 500 U.S. soldiers would return to Somalia as a “small, persistent military presence.” U.S. officials have maintained that military operations in Somalia have been limited to support roles for the country’s central government. “We provide #security assistance that strengthens Somali [and African Union] partners as Somalia assumes full responsibility for protecting the Somali people from extremist violence and extortion,” the U.S. Embassy in Mogadishu tweeted during Langley’s visit.

That said, U.S. forces have taken on a greater role in maintaining security and stability within Somalia in recent months. Over the summer, the U.S. military carried out several drone strikes against al-Shabab targets, killing dozens of suspected al-Shabab members. The strikes come just two years after human rights group Amnesty International criticized U.S. Africa Command for the lack of accountability for civilian deaths resulting from a separate wave of U.S. airstrikes on purported al-Shabab targets.

The resurgence of al-Shabab in recent months can be attributed to instability in the region caused by neighboring Ethiopia’s ongoing civil war. Last month, al-Shabab invaded Ethiopia’s northern provinces, inflicting heavy damage on Ethiopian forces. On August 22, al-Shabab fighters also laid siege to a hotel in the heart of Mogadishu, killing more than 20 people and injuring over a hundred.

The redeployment of troops and these recent airstrikes represent the latest episode in a 15-year U.S. intervention in Somalia done entirely without congressional approval. Though U.S. troops mostly withdrew from the country following the 1993 Battle of Mogadishu, during which Islamic insurgents shot down Black Hawk helicopters and embarrassed the Clinton administration, the Bush administration returned to Somalia in 2007 as part of its global war on terror. The Biden administration’s renewed commitment to Somalia also comes as it draws down other fronts in the war on terror and Africa becomes a growing priority in broader U.S. military and diplomatic strategy amid the rise of China and Russia on the continent.

Almost exclusively, U.S. military actions on the continent have occurred without much congressional consultation. When four Green Berets were killed in an ambush in Niger in 2017, many prominent lawmakers reacted with surprise at learning that significant numbers of U.S. troops were even deployed in Western Africa. “I didn’t know there was 1,000 troops in Niger,” Sen. Lindsey Graham (R–S.C.), who served on the Senate Armed Services Committee at the time, said on NBC’s Meet the Press. While the Obama administration informed Congress that the U.S. would be sending troops to Niger, little congressional oversight followed as U.S. engagement there increased, creating a disconnect between Congress and the White House. As with this summer’s airstrikes in Somalia, no explicit congressional authorization existed for those deployments either.

Though lawmakers promised accountability in the immediate aftermath of the ambush, a report from the Center for a New American Security found that few improvements had been made to the oversight process by 2020. With the Biden administration not backing down from its redeployment plans anytime soon, a lack of reform could have unfortunate consequences.

The post The War on Terror Continues Apace in Africa appeared first on Reason.com.

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New monkeypox cases in the United States and Europe are starting to decline as we head into September.

NBC News looked over the data from the Centers for Disease Control and Prevention (CDC) and calculated a 40 percent decline in new cases since early August. Cases are also falling in countries like Germany and the Netherlands.

The eventual (and slow-walked) arrival of monkeypox vaccines did probably make a dent in the spread. More than 350,000 doses of the vaccine have been administered. As a reminder, though, the U.S. had more than 1 million doses of a vaccine available in storage in Denmark, but both bureaucratic red tape and indecisiveness on the part of the Department of Health and Humans Services kept them from being deployed quickly enough to stop monkeypox from spreading across the country.

Instead, NBC News notes, gay and bisexual men, once it became clear that sex was the primary source of the disease’s spread, pulled back on risky behavior. Research from the CDC found a 50 percent drop in anonymous or random sex among these men, and 20 percent of the men they polled had gotten at least one dose of the monkeypox vaccine.

All of this is evidence that blunt clarity with Americans about how monkeypox is spread was vitally important. It’s true that monkeypox is itself not a sexually transmitted disease. It can be spread through saliva and physical contact with the rashes of somebody infected, regardless of where the rashes are on their body. But the strain of monkeypox that spread out of Africa and across Europe and eventually the world turned out to behave like a sexually transmitted disease not unlike herpes. And so, the messaging by health officials that “anybody” could get monkeypox was very misguided and should have been abandoned once it became clear that the vast majority of Americans were not actually at risk.

The current data from the Department of Public Health for Los Angeles County, for example, show that all the early demographic factors are holding steady as cases there start to decline. As of last week, 98 percent of monkeypox infections were among men. Only nine women in the entire county reported infections. Of the infected men, only three percent claim to be heterosexual. Everybody else was either gay or bisexual or declined to say.

The handwringing over how and whether to target gay and bisexual men with specific warnings against careless random sexual encounters was entirely misguided. The data shows that when these men understood the risks, they changed their behavior. NBC News published a story that borders on the comical about how gay men canceled all their sexy party plans for the summer, suggesting that this has been somehow stressful or traumatic. It’s temporary, guys. We survived COVID. And this is actually less dangerous.

That NBC story also continues to perpetuate unjustified concerns that monkeypox will lead to fear-based discrimination against gay men similar to the worst days of the AIDS crisis. That fear has been misplaced. There has not been one monkeypox-related backlash that’s even worthy of note, and it’s silly to keep giving voice to these fears even as the spread starts to recede.

The lesson here is that people should take responsibility for reducing their risk of viral infection whenever possible, not just because it’s the moral and mature thing to do, but because we simply cannot expect competent responses from federal agencies when a crisis rears its head.

The post Monkeypox Starts To Recede as Men at Risk Change Sexual Behavior appeared first on Reason.com.

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