Category: reason

This Term, the Court is considering two important First Amendment issues—K-12 student speech (in Mahanoy Area School District v. B.L.) and associational privacy (Americans for Prosperity Foundation v. Becerra).

The Journal of Free Speech Law, a new peer-reviewed, faculty-edited journal, will quickly publish two to four articles on each of these subjects, as a symposium issue. We seek not case notes as such, but rather articles on the broader subjects in light of the new decisions. And given our publication speed, these will likely be the first such articles to be published in a full-fledged law journal.

Our plan:

1. Since the cases will likely come down July 1, we’d need to see submissions by Aug. 1. But given the short timeline, we’ll be open for rougher submissions than usual. What we want to see, to make our decision, is a clear explanation of the key novel, interesting, and useful contributions that the article would make.
2. We require exclusive submissions (via Scholastica, https://ift.tt/3mhwEx3), but we will give an answer within two weeks (our average response time so far is under a week). Thus, if we say no, there will be plenty of time to submit to other journals in the August submission cycle.
3. We plan on publishing the articles online and on Westlaw as soon as the author provides a publishable version, which could be as quickly as early September (or longer, if the author so requires).
4. Our journal also publishes in print. We expect the print edition to come out towards the end of the year, depending on the timeline for the articles; but we expect that these days the important thing is getting the article out quickly online.
5. We will set up online symposia on the drafts, so that authors can get feedback from the other authors and from other First Amendment scholars.
6. All this would of course be contingent on the Court saying something interesting, rather than just dismissing the case on unrelated procedural grounds (such as what the Court did in U.S. v. Sineneng-Smith, for instance).
7. We will resend this announcement when the cases come down, but we wanted to alert prospective authors in advance.

Our journal was just founded this year, and will publish its inaugural symposium issue (on regulation of social media platforms) this Summer; the issue we discuss here will be our second. Our robe-and-gown editorial board consists of:

Prof. Amy Adler Prof. Jane Bambauer Prof. Ashutosh Bhagwat Judge Stephanos Bibas Prof. Vincent Blasi Judge José A. Cabranes Prof. Clay Calvert Dean Erwin Chemerinsky Prof. Alan Chen Justice Mariano-Florentino Cuéllar Judge Douglas H. Ginsburg

Prof. Jamal Greene Prof. Heidi Kitrosser Prof. Andrew Koppelman Prof. Ronald J. Krotoszynski, Jr. Prof. Toni Massaro Prof. Michael McConnell Prof. Helen Norton Prof. Robert Post Judge A. Raymond Randolph Judge Neomi Rao

Prof. Jennifer Rothman Judge Robert Sack Prof. Frederick Schauer Dean Rodney A. Smolla Prof. Geoffrey Stone Judge David R. Stras Judge Jeffrey S. Sutton Prof. Rebecca Tushnet Prof. Eugene Volokh Prof. James Weinstein Judge Diane Wood

If you have any questions, please e-mail JournalOfFreeSpeechLaw@gmail.com; and please pass this along to others who are interested.

Jane Bambauer
Ashutosh Bhagwat
Eugene Volokh
Executive Editors

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Derek Chauvin’s defense against the charge that he murdered George Floyd is based on two dubious claims. First, defense attorney Eric Nelson argued in his opening statement yesterday, the force that the former Minneapolis police officer used while restraining Floyd was appropriate in the circumstances. Second, Nelson said, Chauvin’s use of force did not cause Floyd’s death.

Nelson noted that Floyd resisted Officers Thomas Lane and J. Alexander Kueng as they attempted to place him in their squad car after arresting him for buying cigarettes with a counterfeit $20 bill on May 25. He noted that Floyd was more than six feet tall and weighed 223 pounds, which he said made it difficult to restrain him. Nelson maintained that Floyd’s resistance continued even after he was handcuffed and pinned face down on the pavement, held there by Lane, Kueng, and Chauvin. “You will see and hear them continue to struggle with Mr. Floyd, as he’s attempting to kick,” Nelson said.

That version of events seems inconsistent with the widely viewed bystander video of Floyd’s arrest. Although Floyd moves his head and his right shoulder, complains that he cannot breathe, and begs for relief, he does not appear violent. In circumstances like these, the officers may have interpreted as “resistance” what bystanders perceived as a man’s desperate attempt to avoid asphyxiation.

Nelson also seemed to contradict the video by implying that Chauvin did not kneel on Floyd’s neck. In Nelson’s telling, “Mr. Chauvin used his [left] knee to pin Mr. Floyd’s left shoulder blade and back to the ground and his right knee to pin Mr. Floyd’s left arm to the ground.” Floyd’s shoulder, of course, was right next to his neck, and the video shows Chauvin kneeling on both—for more than nine minutes, according to prosecutors.

“Derek Chauvin did exactly what he had been trained to do over the course of his 19-year career,” Nelson said. “The use of force is not attractive, but it is a necessary component of policing.”

Nelson undermined that claim by suggesting that Chauvin and his colleagues were distracted by the angry bystanders who were objecting to their treatment of Floyd. “They’re called names,” he said. “They’re screaming at them, causing the officers to divert their attention from the care of Mr. Floyd to the threat that was growing in front of them.” If everything the officers did was by the book, one might wonder, why is this distraction relevant?

Nelson noted that Floyd had ingested black-market “Percocet” tablets that contained fentanyl and methamphetamine, which he suggested helped explain Floyd’s panic. But even if that is true, the propriety of the force Chauvin used has to be judged based on the threat Floyd posed after he was handcuffed and pinned, not on his previous struggle with Lane and Kueng.

An autopsy report from the Hennepin County Medical Examiner’s Office said Floyd’s death was caused by “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” An independent analysis commissioned by Floyd’s family concluded that he died from “mechanical asphyxiation.” Both reports agreed that the manner of death was homicide.

Nelson, by contrast, said “there was no evidence that Mr. Floyd’s airflow was restricted” and no “telltale signs of asphyxiation.” Rather, Floyd “died of a cardiac arrhythmia that occurred as a result of hypertension, his coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body, all of which acted to further compromise an already compromised heart.”

That explanation, of course, elides the crucial question of whether Floyd would have died but for the force that Chauvin and his colleagues used against him. By deeming his death a homicide, both the autopsy report and the independent analysis imply that Floyd would have survived this encounter if the police had treated him differently.

Nelson was keen to distract jurors from what the bystander video seems to show, saying “the evidence is far greater than nine minutes and 29 seconds.” He was referring to prosecutor Jerry Blackwell’s opening statement, in which he urged the jurors to focus on “those nine minutes and 29 seconds when Mr. Derek Chauvin was applying this excessive force to the body of Mr. George Floyd.” As Blackwell described it, Chauvin “put his knees upon [Floyd’s] neck and his back, grinding and crushing him…until the very life was squeezed out of him.”

While Chauvin did that, Blackwell said, he “was well aware that Mr. Floyd was unarmed, that Mr. Floyd had not threatened anyone, that Mr. Floyd was in handcuffs.” Chauvin knew that Floyd was “defenseless” and “completely in the control of the police.” Under Chauvin’s knee, Blackwell noted, Floyd complained 27 times that he was having trouble breathing, cried out for his mother, and repeatedly exclaimed that “they’re going to kill me.”

Although Blackwell did not mention it, Lane twice suggested that Floyd should be rolled off his stomach and onto his side. “I am worried about excited delirium or whatever,” Lane said at one point. Chauvin rejected his suggestions.

This was the horrifying spectacle to which outraged bystanders—some of whom testified today—were responding. Although Blackwell thinks their reaction reinforces the impression that Chauvin was using excessive force, Nelson argues that it somehow mitigates his actions, since it distracted him from “the care of Mr. Floyd.”

For nearly a minute toward the end of his life, Blackwell noted, Floyd was “completely silent and virtually motionless with just sporadic movements.” Blackwell described those “involuntary movements” as a “part of an anoxic seizure” caused by oxygen deprivation. But judging from Nelson’s description of the movements that supposedly justified  Floyd’s continued restraint, Chauvin may have thought Floyd was “attempting to kick.”

Even after Chauvin is twice informed that Floyd has no detectable pulse, Blackwell said, “he does not let up” and “he does not get up.” Chauvin maintains his position for “four minutes and 44 seconds” after Floyd is no longer responsive, even after an ambulance arrives. He does not remove his knee until paramedics “want to move the lifeless body of George Floyd onto the gurney.”

Police are “not allowed to use any more force that is necessary to bring a person under their control,” Blackwell noted, and “the use of force must be evaluated from one moment to the next moment,” since “what may be reasonable in the first minute may not be reasonable in the second minute, the fourth minute or the ninth minute.” He said he would be presenting testimony from experts who think Chauvin’s use of force was patently unreasonable by that standard.

Once Chauvin was unconscious, Blackwell said, the officers had a duty to render aid. Yet “when Mr. Floyd was in distress, Mr. Chauvin wouldn’t help him,” and “he stopped anybody else from being able to help him.” Here, presumably, is where the angry bystanders come into play for the defense, since they allegedly “divert[ed]” Chauvin’s attention “from the care of Mr. Floyd.”

Nelson is certainly right that the jury needs to understand the context of Chauvin’s actions, which can be illuminated by evidence that goes beyond what the bystander video shows. But that video raises an obvious question that Nelson will have trouble answering: What threat did Floyd pose that justified continuing to restrain him in the position where he spent the last moments of his life?

 

 

 

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White House Press Secretary Jen Psaki told reporters at a press conference today that President Joe Biden’s opposition to legalizing marijuana hasn’t changed since taking office.

“He spoke about this on the campaign,” Psaki said in response to a question about marijuana legalization. “He believes in decriminalizing the use of marijuana, but his position has not changed.”

The Biden White House has—unsurprisingly, given both Biden and Vice President Kamala Harris’ past criminal justice records—been decidedly unchill about jazz cigarettes. Psaki’s comments come after reports earlier this month that the White House had sanctioned staffers for past marijuana use.

Democrats may force Biden’s hand, though. In February, Senate majority leader Chuck Schumer (D–N.Y.), joined by Sens. Corey Booker (D–N.J.) and Ron Wyden (D–Ore.) said they will pursue comprehensive marijuana reform now that Democrats control both the Senate and the House of Representatives.

“The War on Drugs has been a war on people—particularly people of color,” the senators said in a press release. “Ending the federal marijuana prohibition is necessary to right the wrongs of this failed war and end decades of harm inflicted on communities of color across the country.”

At the state level, New York is on the verge of legalizing marijuana, and about a third of the U.S. population now lives in states where the drug is legal for recreational use.

Internationally, the grass may soon be greener across both the northern and southern U.S. border. Mexico is expected to pass legislation in April legalizing marijuana.

If the White House wants to continue to insist that decriminalization, drug courts, and mandatory rehab are an acceptable substitute for individual autonomy, or anything other than a low-grade continuation of the drug war, it may do so, but it will find that position is becoming awfully lonely.

As Reason‘s Jacob Sullum wrote recently, “there is no moral justification for foisting ‘rehabilitation’ on people who do not want it and may not even be addicted. That policy strips people of their liberty, dignity, and moral agency simply because they consume psychoactive substances that politicians do not like.”

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In August 2014, Levi Frasier filmed Denver cops beating a suspect during an arrest for an alleged drug deal. The officers punched the accused six times in the face, and when a woman approached the scene screaming, a different cop clutched her ankle, tossing her to the ground—all captured on film.

The officers didn’t take kindly to the latter point. After the arrest, they surrounded Frasier, searched his tablet without a warrant, and attempted to delete the resulting video. In doing so, a federal court this week acknowledged that the officers violated the First Amendment, with the judges noting that the city’s police training had taught the officers as much: There’s a constitutional right to record government agents making a public arrest.

The same court ruled that the cops are protected by qualified immunity, the legal doctrine that shields state actors from accountability in civil court unless a previous court precedent outlines a case with almost exactly the same factual circumstances.

Known as the “clearly established law” test, that standard is supposed to protect public officials from shallow litigation. In reality, it often allows the government to skirt responsibility for alleged misconduct, no matter how blatant. Consider the cops who allegedly stole $225,000 while executing a search warrant, or the cops who assaulted and arrested a man for standing outside of his own house, or the cop who shot a 10-year-old child. All were given qualified immunity—not because their conduct wasn’t unconscionable, but because pre-existing case law didn’t expressly say so.

That standard is alive and well here. “[T]he district court was wrong to deny the officers qualified immunity based on their knowledge of Mr. Frasier’s purported First Amendment rights that they gained from their training,” wrote Judge Jerome A. Holmes of the U.S. Court of Appeals for the 10th Circuit. “Judicial decisions are the only valid interpretive source of the content of clearly established law; whatever training the officers received concerning the First Amendment was irrelevant to the clearly-established-law inquiry.”

In other words: Although the officers knew their behavior was unlawful, the public cannot hold them accountable because, in the eyes of qualified immunity, they weren’t equipped with that knowledge in the right way. A court precedent is the only avenue in which a public servant can appropriately and unquestionably know what conduct violates someone’s rights, wrote Holmes, as if cops are casually perusing case law texts for instruction.

Frasier also brought a civil conspiracy claim against the officers, who again sought protection under qualified immunity. The district court denied them that request. The 10th Circuit reversed.

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Cursory impression: Minneapolitans do not like police, or rather, they don’t like Minneapolis police.

I am not talking about the people one might expect to show antipathy toward cops on the day former Minneapolis Police Officer Derek Chauvin goes on trial for the murder of George Floyd: The activists (or whoever) spray-painted ACAB (“All Cops Are Bastards”) on an overpass near the Target store that was looted two days after Floyd’s death. I am not talking about the girl who offered us cake at the “Land Back Now!” cookout near the Basilica of Saint Mary, or the security guy who, after he tells us about his eight kids, including triplets, the boys identical and the girl fraternal (“The OBGYN said, ‘Boy, you got some crazy sperm if you can do that in 24 hours'”), says George Floyd Square, which he sometimes patrols, “is about peace.”

I am talking about middle-of-the-road locals, the white journalist who says to her 30-year-old son, “The Minneapolis police have been terrible since before you were born.” The son who calls the former head of the police union, Bob Kroll, “the Antichrist.” The full-blooded Native American who tells me, “The last time a cop here pulled a gun on me, it was for walking down the street with my hands in my pockets.”

Since the death of George Floyd, I’ve had in my mind two images of Minneapolis: as a city under siege and as a place moving, if somewhat jerkily, toward necessary healing. It’s hard to argue that Chauvin kneeling on Floyd’s neck for nine minutes and 29 seconds (upped yesterday, from 8:46, in opening statements by the prosecution) is not a tactic the Minneapolis Police Department (or any police department) should rethink or do away with. That those minutes have exploded into the consciousness on a worldwide level is undeniable. This morning, I have two people—one in Portland, Oregon, the other in London—arguing on my Instagram about Floyd’s death and proportionality and how “one might wonder if there is a bit more going on here.”

As someone who covered the protests in Portland during the summer and fall of 2020, I know about proportionality, know there is more going on here, know that no amount of fire setting and window breaking, of tear gassing or neck kneeling, will satisfy those who seek healing through destruction. We’ve taken sides; don’t, as my late father used to say, “confuse me with the facts.”

I came to Minneapolis yesterday naïve about the situation on the ground, but for one aspect: The city, just after Floyd’s death, had touched off days of massive street violence, hundreds of buildings torched, and a five-mile stretch of Lake Street sustaining heavy property damage. I knew that law enforcement had been overwhelmed. And I wondered, with the Chauvin trial underway, if there was a sense of dread that, should the outcome be unsatisfying, the city would burn again. Were Minneapolitans afraid? Resigned? Hopeful? What had they done in the wake of Floyd’s death and what were they doing and feeling today? I’m asking people of different stripes, people who might usually not be interested in varying perspectives, might have recently or long ago decided that Person X is the enemy. I offer the perspectives anyway. Call me Pollyanna.

First up: two active duty Minneapolis-area officers, who spoke to me separately and on the condition of anonymity (and identified here as J and N), the night before the trial began, about their deployment immediately after Floyd’s death and what happens now. Comments have been edited for length and clarity.

J: “Almost as soon as we arrived at our staging area, we were ordered to put on our riot gear—which we had never worn—and deployed to defend the Fifth Precinct. This was [May 28], one day after the Third Precinct burned to the ground. We marched in from about five blocks through crowds screaming, throwing bottles, launching fireworks at us from both sides of the street…Later in the evening, a woman almost ran us over in her vehicle while we stood on a riot line.

“The radio traffic sounded like a fucking zombie movie, with the Minneapolis Police Department officers screaming they were facing massive crowds and could not hold their positions without relief. The cops looked absolutely wrecked. Every squad car had a broken window and many were held together with duct tape. I had to tell family to hunker down and not bother calling 911, because nobody was coming; one of the guys I know at MPD sent me a text telling me there was nobody left to answer calls.”

N: “Everybody had to go in and it was an absolute shit show because nobody knew what to do or where to go. We had never dealt with anything like that. I don’t think the city has seen anything like this ever…Almost immediately there were rental cars everywhere, with the plates taken off of them, people driving a hundred miles an hour up and down streets, it was the Wild West, I mean, it was lawless and then some.”

J: “There was a huge commercial building threatening an adjacent public housing complex that was occupied. Normally, if you have a large fire like that, law enforcement is going to evacuate the adjacent buildings. That area of Lake Street is largely controlled at this point by rioters. So we need to move these people out of there to get the fire department in there. Law enforcement, they’re using a lot of that stuff; just an ungodly amount of ordnance that gets dropped there: less-lethal rounds, tear gas, impact munitions.

“One of the things that’s very frustrating to me about this whole thing is: Now Portland can’t use tear gas. Now Seattle can’t use tear gas. It’s like, if you want to take that away from us, you’re leaving us with sticks and bats. The only reason those officers didn’t have to basically engage in medieval hand-to-hand combat with these people is because of the overwhelming superiority of less lethal munitions we have there.

“So the crowd gets pushed back. Then we actually get approached by two of the [black bloc] ‘medics.’ And they’re like, ‘You guys need to go help the people in that [burning] building, people that need help.’ It’s like, okay well, maybe stop setting buildings on fire then?

“If you watch Portlandia, the jokes also make sense in Minneapolis. It’s a very similar city, culturally; Minneapolis has a huge contingent of the anarcho-socialist, crust-punk, antifa-type milieu, in the same way Portland does. My impression of the people that were engaging law enforcement in the area where we were was, they’re all wearing black; some of them have their little anarchist banners or whatever. And they were equipped in a way that made me think, we were dealing with kind of the white anarchist crowd, because those folks know what to bring. They have their bike helmets and their kneepads and elbow pads and they’re covering their face in a more intelligent way to deal with tear gas than the average protestor, because they’d read all those CrimethInc. manuals and stuff.”

N: “The narrative that was pushed out to the media was, ‘The only people who caused destruction were from out of town, it was all out of state.’ Well, that’s fucking bullshit. I saw plenty of local assholes mixed into this. These riots were happening in every city and it wasn’t like, everyone’s just switching teams for the night.”

J: “The next day [May 29], 300 troops were deployed to the state Capitol to, to defend it from no one. There were National Guard and armored vehicles on a completely empty lawn, protecting the governor’s office from an empty square. The media showed up, took pictures, and left; the governor issued a tough-sounding press release. Meanwhile, they could see the smoke columns rising over Minneapolis in the distance. It was a complete failure of leadership and massive misuse of resources.”

N: [With the Chauvin trial underway], “there’s intelligence coming out that folks from Portland, Seattle, New York, Austin, and other activist cities are traveling to Minneapolis to be there for this. You’re not only dealing with the hometown contingent. You’ve got a lot of out-of-town people. I mean, those folks are not going to miss the trial.”

J: “There’s probably a solid core of at least 300 [local activists] that you can reliably count on. That’s me just guessing based on what I’ve seen in the past…The issue is, we have rules we have to follow—as we should—and they don’t. They’re drawing on years and years of theory of how to effectively engage government forces in a psychological warfare campaign. All these people, they’ve read Mao, they’ve read [activist] Saul Alinsky. Their purpose is to provoke the appearance of a disproportionate response from law enforcement, to bring more people to their cause and gain a greater critical mass on the street. That’s going to be a real question with this upcoming stuff: How much do we hold back versus, just snuff it out right away and make the arrests we need to make and remove the accelerants from the equation?”

N: “You have to arrest the main instigators. You just have to arrest people, period. And we didn’t do that [last time]. There was no infrastructure in place for it. It’s still a logistical nightmare for mass arrest.

“The National Guard has already been activated, so they’re going to help in a preemptive way, versus responding two days later away. We’ll already have them; we’re much more prepared. We’re not caught with our pants down, like last time.

“Our higher-ups are saying, ‘We’re preparing for the worst.’ [The day the trial starts], we go into not ’emergency level,’ but a more heightened state, through the length of the trial. I think [what happens to the city] totally depends on the verdict. I think if Chauvin’s acquitted, we’re fucked. There’s no other way to put it.”

J: “There’s folks out there that are going to take any excuse to engage in civil unrest with us. [The jury] going for the manslaughter and not the murder, I think, will be good enough for them [to riot].”

N: “The jury is from Hennepin County. I can’t imagine, in the back of their minds, they’re not thinking, ‘Boy, I can’t say not guilty, regardless of the circumstances, because I don’t want my city to burn.’ I feel like that’s going to play into it. I’m just speculating, but I feel sorry for those folks. I really do. I would not want to be in that position.

“I’d like to think that we’re more prepared, but I just don’t know if this [trial] is going to be a magnet for crazies from all over the U.S. to come here and wreak havoc. My guess is there will be fewer just regular folks who are just out protesting because they’re upset, and there’ll be less of those people to hide amongst. I don’t know. Maybe I’m just being hopeful.”

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