Attorney Fees Motion Can’t Be Decided with the Attorney Fees Sealed

From Wagner v. Simpson Performance Products, Inc., decided Wednesday by Judge Kenneth D. Bell (W.D.N.C.):

On February 5, 2021, the Court entered Summary Judgment in favor of Defendants (Doc. No. 100) on Plaintiff’s claims related to her assertion that she should have been named a co-inventor on the “074 Patent at issue in this action. Defendants then filed a motion for attorneys’ fees on February 19, 2021, seeking attorneys’ fees against the individual plaintiff, Julie Wagner, pursuant to 35 U.S.C. § 285. Together with this motion, Simpson filed an “unopposed” motion to seal from public view the supporting documents which specify the calculation and total amount of attorneys’ fees requested (which is not stated in Simpson’s motion)….

The right of access to judicial records pursuant to common law is well-established. This right extends to the inspection and the copying of court records and documents, but it is not absolute. In general, the public has a right of access to judicial proceedings that stems from two sources: the common law and the First Amendment. Under the more rigorous First Amendment standard, “denial of access must be necessitated by a compelling government interest and narrowly tailored to serve that interest.”

More specifically, the First Amendment right of access applies to documents submitted in support of summary judgment motions in civil cases. Accordingly, “a party moving to seal documents filed in support of a motion for summary judgment in a civil case bears a heavy burden.” This standard similarly applies to a motion seeking attorneys’ fees in connection with a motion for summary judgment, which is itself a dispositive motion seeking a monetary judgment against another party.

Again, to limit access to documents submitted in connection with a dispositive motion, the party seeking to seal the documents must make a showing “that the denial [of access] serves an important governmental interest and that there is no less restrictive way to serve that governmental interest.” However, courts have recognized that in certain circumstances, “private interests might also implicate higher values sufficient to override (or, in an alternative mode of analysis, to except the proceeding or materials at issue from) the First Amendment presumption of public access.” … “In the past, this court and others have concluded that the need to keep confidential proprietary business information or trade secrets may constitute a ‘higher value’ that can overcome both the common law and the First Amendment rights of access in appropriate circumstances.” …

[Yet] Simpson makes only a minimal effort to support its motion, arguing in a conclusory manner that “presumption of access” is “rebutted [by] countervailing interests heavily outweigh[ing] the public interests in access” and “public access to these documents would not ‘enhance the public’s understanding of [any] important historical event.'” …

Simpson asks the Court to seal the amount of attorneys’ fees being requested—the very substance of the relief that it is seeking from the Court—along with how it calculated the fees (counsel’s hourly rates and the time expended during their representation). Thus, the effect of a request to seal this information is tantamount to a request to issue a secret order, as the Court could not even grant much less fully discuss the merits of Simpson’s request without disclosing the amount of fees requested along with counsel’s hourly fees, etc. {And, if this is not Simpson’s intent, then sealing the filings is completely ineffective in preventing disclosure of the information.} As noted above, except in very limited circumstances, the Court’s business must be conducted openly, with public access guaranteed to instill confidence in the fairness of the proceedings and inform the public about the law. Accordingly, by choosing to seek attorneys’ fees in an open court, Simpson must necessarily disclose the amount of the award it seeks and the underlying basis for its fees.

Next, Simpson’s characterization of its “attorney hourly rates” as “confidential” is wholly unsupported by the record. Neither Simpson nor its counsel has made a showing that counsel offered their hourly rates to Simpson only under a non-disclosure agreement or some other legal promise of confidentiality. {Indeed, in the Court’s experience such an agreement would be exceedingly rare (and even if such an agreement did exist it would likely contain a provision allowing the attorneys’ hourly rate to be disclosed in the context of a court filing). Otherwise, as discussed above, the client would not be able to seek reimbursement of the fees in appropriate circumstances.}

Further, Simpson represents that the hourly rates set forth in Exhibit E [the rates it seeks to seal] are the “ordinary and customary rates” that its counsel Nelson Mullins charges in its patent litigation matters. And, to be accepted by the Court, the rates have to be reasonable in comparison to rates charged in the community, which means almost by definition that they are not likely to be “confidential” nor would confidentiality even be important (absent special circumstances not argued here). Thus, the Court cannot accept Simpson’s argument that its attorneys’ hourly rates are “confidential.” …

In sum, once a matter is brought before a court for resolution, it is no longer solely the parties’ case, but also the public’s case. Thus, even when, as in this case, the motion to seal is presented without any challenge from the litigants, the judge remains “the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it). He may not rubber stamp a stipulation to seal the record.'”

Having performed that duty, the Court finds that Simpson’s motion to seal the documents supporting its motion for attorneys’ fees must be denied. However, to avoid any surprise to Simpson or its counsel, the Court will allow Simpson to either withdraw the motion for attorneys’ fees or refile the motion and supporting documents in unredacted form….

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Local Health Departments Have To Start Learning From Local Farmers and Markets

farmersmarket

A promising new law will give agricultural communities in Massachusetts more say in local public-health rules that apply to them and impact their property and livelihoods.

The law, An Act Providing for Agricultural Commission Input on Municipal Board of Health Regulations, which went on the books last month, might be the first of its kind in this country. It is designed to “giv[e] farmers, farm stands, farmers markets and others involved in agriculture a say in the development of local health regulations.”

The law requires that a local health department—prior to adopting any new regulations that would apply to farmers markets, farms, or backyard livestock or gardening—provide a local agricultural commission with a copy of the proposed rules. The new law also creates a 45-day review window, during which the local agricultural commission can hold public hearings and critique the proposed health regulations.

(Local agricultural commissions are quite common in Massachusetts. A 2017 post by the Massachusetts Association of Agricultural Commissions indicates there were nearly 175 local agricultural commissions in Massachusetts at the time.)

This new Massachusetts law echoes a drum I’ve been beating for years. As I’ve long noted, there’s a great deal of tension between expanding local food options and crafting new and stricter food-safety regulations. 

Many people today want more local food options. Others want tougher food regulations. Some people want both. But that latter wish is nothing more than a pipe dream. In my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, I highlight this problem while using an example from—of all places—Massachusetts. In that example, a small, certified organic farm in Massachusetts was forced to stop selling bagged lettuce in a nearby town. That’s because the latter’s health department considered the lettuce to be a processed food, which would subject it to additional regulations. The local health department apparently determined the lettuce was a “processed” food because the farm cut the stalk off the lettuce before bagging it. 

“If we’d just sold the lettuce with the stalk on, we wouldn’t have a problem,” the farm’s owner told me. “But because we cut off the stalk, it was considered ‘processed.'”

As I explain in the book, lettuce stalks are bitter and are usually cut from the lettuce sold at farmers markets, grocers, or anywhere else before sale. “Most consumers never even see [a lettuce stalk], because most farmers cut it off, knowing that consumers won’t eat it,” I explain.

The “processed” lettuce rule is exactly the sort of inane and backwards regulation the new Massachusetts law is designed to eliminate—thanks to the input of farmers—before it ever gets on the books.

Local boards of health make consequential decisions that impact the health of our communities and local industries,” says State Sen. Adam Hinds (D–Pittsfield), who co-sponsored the new law, in an email to me last week. “They should have a say in the matter of these decisions. This legislation means boards of health will now be obliged to hear from their local agricultural commissions when issues might impact farming and agriculture.

Others have similar hopes for the new law.

“We hope that the new law will prompt conversations between local health regulators and farmers,” says Winton Pitcoff, director of the Massachusetts Food System Collaborative, which promotes local foods in the state and supported the new law, in an email to me this week. “Too often those relationships are antagonistic, but the reality is that they can be mutually supportive when regulators understand better what it takes for farms to remain sustainable while still keeping consumers safe, and when farmers have an opportunity to educate regulators, most of whom are under-resourced and so often don’t have the capacity to thoughtfully develop appropriate regulations.”

Few BOH [health departments] have any expertise in agriculture, but with the rising interest in backyard livestock, farmers markets and small farms—many BOH were putting out regulations—often they made no sense,” says Brad Mitchell, deputy executive director of the Massachusetts Farm Bureau Federation, which also supported the new law, in an email to me this week. “Our goal in bringing this to the legislature was to try to ensure that any ag related regulations that BOH put out were done… with the benefit of some knowledge of agriculture. Ag Commissions were created to provide such expertise, but too often BOHs were not consulting with them. This fixes that.”

While Hinds tells me he’s unaware of any opposition to the bill, saying its passage was a “pretty seamless” process, others I spoke with did raise a concern. Two colleagues I spoke with about the law, each of whom knows farming and the law and hails from outside Massachusetts, raised concerns that a law like this one will work better in Massachusetts than it might in a traditional “Big Ag” state such as Iowa, North Dakota, or Texas. The people I spoke with worried “Big Ag” might dominate or co-opt local agricultural commission membership in states where large farms are more common.

Mitchell suggests those concerns are misplaced.

“Conceptually it will work anywhere,” Mitchell says of the new Massachusetts law. “The concept is very simple—some of those[] involved in the rulemaking process should have some expertise in the activity on which the rules regulate.. It would be fine if ag comms were comprised of ‘big ag’ folks. They are advisory only and there is knowledge in this group. The issue we actually have with ag comm[ission]s in [Massachusetts] is that some have been co-opted by folks who have read a couple Michael Pollan books and think they know it all.”

As I noted earlier, this Massachusetts law may be the first of its kind in this country. Given the challenges that local health departments around the country pose to local food producers, I hope it’s a smashing success. And I hope other states around the country move to adopt similar protections for farmers, farmers markets, and backyard gardeners and livestock owners. Doing so would help locally produced food to flourish.

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Attorney Fees Motion Can’t Be Decided with the Attorney Fees Sealed

From Wagner v. Simpson Performance Products, Inc., decided Wednesday by Judge Kenneth D. Bell (W.D.N.C.):

On February 5, 2021, the Court entered Summary Judgment in favor of Defendants (Doc. No. 100) on Plaintiff’s claims related to her assertion that she should have been named a co-inventor on the “074 Patent at issue in this action. Defendants then filed a motion for attorneys’ fees on February 19, 2021, seeking attorneys’ fees against the individual plaintiff, Julie Wagner, pursuant to 35 U.S.C. § 285. Together with this motion, Simpson filed an “unopposed” motion to seal from public view the supporting documents which specify the calculation and total amount of attorneys’ fees requested (which is not stated in Simpson’s motion)….

The right of access to judicial records pursuant to common law is well-established. This right extends to the inspection and the copying of court records and documents, but it is not absolute. In general, the public has a right of access to judicial proceedings that stems from two sources: the common law and the First Amendment. Under the more rigorous First Amendment standard, “denial of access must be necessitated by a compelling government interest and narrowly tailored to serve that interest.”

More specifically, the First Amendment right of access applies to documents submitted in support of summary judgment motions in civil cases. Accordingly, “a party moving to seal documents filed in support of a motion for summary judgment in a civil case bears a heavy burden.” This standard similarly applies to a motion seeking attorneys’ fees in connection with a motion for summary judgment, which is itself a dispositive motion seeking a monetary judgment against another party.

Again, to limit access to documents submitted in connection with a dispositive motion, the party seeking to seal the documents must make a showing “that the denial [of access] serves an important governmental interest and that there is no less restrictive way to serve that governmental interest.” However, courts have recognized that in certain circumstances, “private interests might also implicate higher values sufficient to override (or, in an alternative mode of analysis, to except the proceeding or materials at issue from) the First Amendment presumption of public access.” … “In the past, this court and others have concluded that the need to keep confidential proprietary business information or trade secrets may constitute a ‘higher value’ that can overcome both the common law and the First Amendment rights of access in appropriate circumstances.” …

[Yet] Simpson makes only a minimal effort to support its motion, arguing in a conclusory manner that “presumption of access” is “rebutted [by] countervailing interests heavily outweigh[ing] the public interests in access” and “public access to these documents would not ‘enhance the public’s understanding of [any] important historical event.'” …

Simpson asks the Court to seal the amount of attorneys’ fees being requested—the very substance of the relief that it is seeking from the Court—along with how it calculated the fees (counsel’s hourly rates and the time expended during their representation). Thus, the effect of a request to seal this information is tantamount to a request to issue a secret order, as the Court could not even grant much less fully discuss the merits of Simpson’s request without disclosing the amount of fees requested along with counsel’s hourly fees, etc. {And, if this is not Simpson’s intent, then sealing the filings is completely ineffective in preventing disclosure of the information.} As noted above, except in very limited circumstances, the Court’s business must be conducted openly, with public access guaranteed to instill confidence in the fairness of the proceedings and inform the public about the law. Accordingly, by choosing to seek attorneys’ fees in an open court, Simpson must necessarily disclose the amount of the award it seeks and the underlying basis for its fees.

Next, Simpson’s characterization of its “attorney hourly rates” as “confidential” is wholly unsupported by the record. Neither Simpson nor its counsel has made a showing that counsel offered their hourly rates to Simpson only under a non-disclosure agreement or some other legal promise of confidentiality. {Indeed, in the Court’s experience such an agreement would be exceedingly rare (and even if such an agreement did exist it would likely contain a provision allowing the attorneys’ hourly rate to be disclosed in the context of a court filing). Otherwise, as discussed above, the client would not be able to seek reimbursement of the fees in appropriate circumstances.}

Further, Simpson represents that the hourly rates set forth in Exhibit E [the rates it seeks to seal] are the “ordinary and customary rates” that its counsel Nelson Mullins charges in its patent litigation matters. And, to be accepted by the Court, the rates have to be reasonable in comparison to rates charged in the community, which means almost by definition that they are not likely to be “confidential” nor would confidentiality even be important (absent special circumstances not argued here). Thus, the Court cannot accept Simpson’s argument that its attorneys’ hourly rates are “confidential.” …

In sum, once a matter is brought before a court for resolution, it is no longer solely the parties’ case, but also the public’s case. Thus, even when, as in this case, the motion to seal is presented without any challenge from the litigants, the judge remains “the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it). He may not rubber stamp a stipulation to seal the record.'”

Having performed that duty, the Court finds that Simpson’s motion to seal the documents supporting its motion for attorneys’ fees must be denied. However, to avoid any surprise to Simpson or its counsel, the Court will allow Simpson to either withdraw the motion for attorneys’ fees or refile the motion and supporting documents in unredacted form….

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The All-American Arms Dealer

culture1-march-2021

There are more than a few antique shops in historic Old Town Alexandria, Virginia, a short walk from my suburban neighborhood. Antiquing is normally of interest only if my mother-in-law is visiting, but some years back a friend messaged me to let me know one of the shops had something I should see. On the back wall, shunted behind a variety of well-preserved 19th century furniture, were two large Soviet propaganda paintings.

The first was a portrait of three strapping Russian sailors, wearing bandoleers across their chests, in front of the Aurora—the infamous ship that fired the first shot on the Winter Palace in St. Petersburg, launching the Russian Revolution. The second painting, of soldiers smoking in a field in Afghanistan, was less dramatic but a better and more impressionistic piece of art. Both paintings were done by well-known graduates of the Kharkov Art Institute and were fine examples of Soviet socialist realism—insofar as one can take any art movement that began under Stalin seriously. I inquired about the paintings, and all the clerk was able to tell me was that they originally came from the estate of a man named Samuel Cummings.

If you know anything about Samuel Cummings, you may suspect the two Soviet paintings were some of his more prosaic possessions. When the billionaire died in 1998, he owned, among many other things, the sword Napoleon carried at Waterloo. For years, he tried to open a museum in Alexandria to exhibit his collection of exotic and historic weaponry, though that never came to fruition.

As interesting as that sounds, Cummings’ collection is in some respects less interesting than the manner in which he acquired it. For nearly 50 years, he was the largest arms dealer in the world.

In recent years, the waterfront in Old Town Alexandria along the Potomac River has been redeveloped. Some of the land was seized by eminent domain, the area turned into parks and boardwalks and otherwise made an inviting spot for tourists looking to schlep around the same streets once haunted by George Washington. But when I moved to the area a decade ago, there was also a small wooden building on the water where you could still make out a sign that said Interarms—the name of Cummings’ company. The building is now gone, and it’s hard to imagine that, through the 1980s, the same waterfront now littered with restaurants and boutiques was an industrial port where Cummings owned a series of converted tobacco warehouses stacked to the rafters with guns.

“At one point, we had 700,000 rifles, machine guns, pistols and submachine guns stored in our warehouses in Alexandria,” Cummings told The Washington Post in 1986. “We could have instantly overwhelmed the American armed forces. We could have armed 700,000 mercenaries that could have goose-stepped right over the [Arlington] Memorial Bridge….We also had 150 pieces of artillery, ranging from 25 mm to 150 mm….So, if I didn’t like a particular piece of legislation in the Congress, I could have phoned up the speaker and I could have said, ‘My armies will be rolling over to the Capitol, if you don’t do something about that.'”

Fortunately, Cummings was clearly joking. Well aware that such quotes were catnip to reporters, he was famously candid with the press, a remarkable trait for an arms dealer.

By the 1980s, the intrigue surrounding the Cold War’s many proxy conflicts had made arms dealers figures of notable interest even in popular culture: The 1983 Chevy Chase comedy Deal of the Century was a satirical take on the arms trade, and the band Queen even wrote a song, “Khashoggi’s Ship,” about partying on the yacht of notorious Saudi Arabian arms dealer Adnan Khashoggi. (Washington Post columnist Jamal Khashoggi, notoriously dismembered in a Saudi consulate in Turkey in 2018, was Adnan’s nephew.)

But among arms dealers, no one was more intriguing than the straight-talking former CIA employee Cummings, who was born in Philadelphia and raised in D.C. but died a British citizen living in Monte Carlo.

An Education in Arms

Cummings was born in Philadelphia in 1927 to parents so wealthy they had never worked. Soon thereafter they lost everything in the Great Depression. His father died when Cummings was 8 from the stress of having to do actual labor for the first time in his life.

When Cummings was 5, he found a World War I German machine gun abandoned outside an American Legion post. An adult helped him carry the 40-pound weapon back to his house, where the boy learned to take it apart and reassemble it, sparking a lifelong fascination with guns.

After Cummings’ father died, his enterprising mother found a way to make one of her primary skills as a rich woman—good taste—profitable. She convinced a local bank to let her move into a repossessed house and renovate it in exchange for a share of the sale profits. Cummings’ mother proved quite adept at flipping houses this way. It eventually brought the family to D.C., where the housing market during the Depression was stronger. This unusual occupation necessitated moving the family every six months or so into a new home, but Cummings’ mother was thrifty enough to put her children through some of D.C.’s better private schools.

Cummings enlisted immediately after high school, just as World War II was ending. As a teenager, he headed off to Fort Lee for basic training with his burgeoning collection of 50 guns packed into the trunk of his car. Cummings excelled in his cadet program in high school, and when he got to the Army he was so familiar with weapons and drills he was immediately made an acting corporal. He spent his hitch instructing other recruits on close-order drills and weapons handling. His 18-month service was uneventful—he never left Virginia—and in 1947 he enrolled in George Washington University on the GI Bill, earning a degree in political science and economics in just two years. While in school, Cummings pursued his hobby and supplemented his income by buying and selling guns. He even made a tidy profit after uncovering a cache of German World War II helmets in a Virginia scrapyard.

It was his time out of school during this period that proved to be the most fateful, however. Cummings headed off to Oxford for a term abroad during summer 1948. While in England, he and two friends pooled their money to buy the cheapest car they could find and toured the continent. For a young man obsessed with the military, the trip was a revelation.

Even though it had been over for years, the scale of World War II was so enormous that everywhere they went, the young men were surrounded by abandoned military equipment and fortifications. Cummings and his friends slept in bunkers, poked into arms caches, and drove around with a machine gun strapped to the roof of their car for fun. Anyone with a can of gasoline and a new battery could have driven away in one of the many vehicles abandoned on the side of the road. In the Falaise Pocket in France, six divisions of German soldiers had abandoned all of their supplies and equipment near the end of the war, never to return. European governments had resorted to gathering up mass quantities of leftover materiel and dumping it in the sea to get rid of it.

In Deadly Business: Sam Cummings, Interarms, and the Arms Trade, a 1983 biography by journalists Patrick Brogan and Albert Zarca that’s long been out of print, Cummings recounts that the trip made an indelible impression. “The roads of rural England were lined with open-ended containers filled with ammunition,” he said. “I couldn’t get over it because they were standard-caliber small arms as well as artillery, and typical of law-abiding England, no one ever bothered with the stuff. To me it was astonishing.”

After getting his undergraduate degree, Cummings’ interest in guns was so consuming that he applied for jobs at the FBI, CIA, and National Rifle Association (NRA), thinking one of them might have use for a small arms expert. They all turned him down, at least initially. Cummings was working his way through law school when the CIA came calling. By then the Korean War was underway, and the agency was looking for people who could help identify the provenance of more exotic weapons that were turning up in the conflict. Cummings’ old résumé was pulled out of the pile.

Unsurprisingly, Cummings proved particularly good at the work. He spent much of his time utilizing the CIA archives to enhance his already prodigious knowledge of weaponry.

Then one day a CIA report came across his desk, prepared in collaboration with U.S. military attachés in Europe, inquiring as to whether large quantities of German weapons still remained on the continent. The report concluded there was nothing noteworthy left. Cummings possessed considerable firsthand knowledge that the report was flat wrong, and he dashed off a memo saying so.

What Cummings didn’t know was that the CIA had a specific reason for inquiring about surplus German arms. The agency was contemplating arming Chiang Kai-shek in Taiwan to launch a new invasion of mainland China, in the hopes that such an invasion would distract the Chinese military and alleviate some of the pressure in the Korean conflict. In order for the plan to work, however, the CIA needed a supply of arms that couldn’t be readily traced back to the U.S.

Cummings soon found himself summoned to a personal meeting with the then–deputy director of the CIA, Allen Dulles. The legendary spymaster quickly sized up the young Cummings as being more capable than many of his more experienced superiors, and soon Cummings was off on a clandestine mission for the ages: Dulles sent him to Europe with an unlimited budget to buy as many surplus World War II arms as he could obtain. Along for the ride was another man, Leo Lippe, a director of photography from Hollywood. Their cover story was that they were buying props for the steady stream of war films that American studios were pumping out. The two men spent months traveling to Europe’s most exotic locales, doing deals with heads of state and top military leaders.

Though the plan to arm Chiang Kai-shek was never put in motion, the trip was a smashing success, with Lippe and Cummings uncovering and obtaining massive stashes of arms from Scandinavia to Italy, some of which were completely unused.

Cummings returned to the U.S. in 1952, and the agency soon dispatched him on another mission. Costa Rica was disposing of 10,000 guns and in excess of a million rounds of ammunition. Given the volatile politics of Central America, the agency didn’t want the weapons to fall into the wrong hands. Cummings arranged for the munitions to be sold to Western Arms, a California-based company.

The CIA offered Cummings a permanent position. He declined. His two missions weren’t just successful for the CIA—they proved to be excellent on-the-job training in dealing arms.

The Founding of Interarms

In February 1953, when he was just 26 years old, Cummings founded the International Armament Corporation. Interarms, as it later came to be known, started with no tangible assets. Cummings worked out of his modest house in Georgetown, and the company address was a P.O. box. He did, however, have a valuable list of contacts. Cummings composed a letter announcing he was interested in purchasing arms and fired it off to dozens of heads of state and military officials.

The first few months were disconcertingly quiet, until a letter from a colonel in the national guard of Panama arrived. The country had a relatively small weapons surplus it was looking to get rid of. Cummings flew down to inspect the lot—a mix of small arms, machine guns, and mortars—and offered $25,000 on the spot, provided Panama wouldn’t expect payment until the arms arrived in the United States. Cummings quickly brokered a deal with Western Arms, whom he’d worked with in Costa Rica, to purchase the Panamanian shipment from him. He made $20,000 on the deal even after the considerable shipping costs.

That provided enough seed capital to cover travel expenses, and Cummings was off to the races. Like a lot of wildly successful ventures, the growth of Interarms was about 50 percent luck and 50 percent grit. Cummings traveled so much for the rest of the decade that he calculated he’d spent six months’ worth of hours on planes. His constant absence cost him his first marriage. But his hard work, confident salesmanship, and unusual combination of discretion and blunt honesty ensured that deals started falling into his lap. Soon he had full warehouses of arms in Brooklyn and Alexandria. Many of his most notable successes involved profiting off the chaos created by energetic U.S. efforts to destabilize unfriendly governments in Latin America. Cummings soon became a Cold War Zelig—but where other historical figures got caught in the crossfire, Cummings was the crossfire.

The Panamanians referred Cummings back to Costa Rica, where he did more arms deals. The Costa Ricans, in turn, referred him to neighboring Nicaragua. In 1955, Nicaragua’s U.S.-backed, right-wing Somoza government invaded Costa Rica. Cummings had armed both sides of the conflict.

Cummings’ success was also a result of his brazen willingness to put profits over taking sides. When Cuban President Fulgencio Batista fled the country in late 1958, a shipment of AR-10 rifles the leader had ordered from Cummings was already en route to the island. Rather than chalk up a loss, Cummings dashed down to Cuba to demonstrate the rifles in person for Fidel Castro, the newly installed head of state, and his right-hand man Che Guevara. Castro gladly paid for the guns meant for Batista. This deal went sideways six months later, in 1959, when Cummings was again in the Caribbean visiting with one of his biggest customers, Dominican dictator Rafael Trujillo. Castro chose that moment to launch his first of many foreign escapades by sending a ragtag group of soldiers to invade the beaches of Hispaniola in an effort, presumably, to foment socialist revolution.

The assault was abruptly stymied, but Trujillo’s men picked up AR-10 rifles from the Cuban expeditionary force that were identical to weapons Cummings had sold Trujillo. The dictator was furious. Cummings calmed him down by pointing out that the Cuban invasion was stopped by strafing the beaches with a handful of Swedish Vampire jets Cummings had sold Trujillo. (It was the only time Cummings, who mostly dealt in small arms, was involved in the sale of airplanes.)

Despite the hazards of dealing with such unstable leaders, Cummings famously told George Thayer, author of the seminal 1969 book on the modern arms trade, The War Business, that he liked working with dictators because “they have a sense of order and pay their bills promptly.”

At the same time, Cummings rigorously observed any arms embargo imposed by the U.S. or British governments. He quickly stopped dealing with Cuba after that first sale to Castro and shut down an office in Pretoria in the early ’60s when arms embargoes were imposed in South Africa.

Then there were the questions of his ongoing ties to the CIA. Arms used in the 1961 Bay of Pigs invasion came from Cummings. That same year, a massive quantity of Soviet ammunition—22 boxcars’ worth—was unloaded off trains in Brownsville, Texas, triggering a Senate investigation into the shell companies behind the shipment. It led back to Cummings. The ammo may have been meant to support CIA operations in Indochina, where the conflicts were just heating up.

Regarding the CIA’s ill-advised actions abroad during the Cold War, Cummings would dryly tell Brogan and Zarca that an agency starting wars without Congress’ involvement wasn’t exactly what he’d learned was in the Constitution during law school.

The American Market

Cummings didn’t make a massive fortune just by shuffling arms from one conflict zone to another. His real innovation was discovering there was a massive market among Americans for military surplus guns.

In the 1960s, American manufacturers such as Winchester and Remington made fine rifles—but at $100–$150 new, they were comparatively expensive. Interarms started a mail-order catalog, Hunters Lodge, that sold some military surplus rifles for as little as $9.95 (about $80 today, adjusting for inflation). They were literally marketed as “throwaway guns” a hunter could abandon in the woods after bagging his deer. It was the domestic demand for guns that caused his warehouses in Alexandria to reach peak capacity.

Also of interest is how his guns arrived in Alexandria in the first place. When Cummings started buying up warehouses in the only non-union port on the East Coast, there was just one other major company using the port: The Washington Post. Cummings struck a deal with the same Finnish shipping line that brought the paper its newsprint to also pick up his arms shipments. For years, the Post subsidized an unholy percentage of the world’s small arms traffic.

Interarms’ commercial peak ended in 1968, when Congress, prodded by domestic gun manufacturers upset over their lost market share, passed a law prohibiting the import of military surplus guns. (It didn’t help that Lee Harvey Oswald had assassinated JFK with a cheap mail-order Italian rifle.)

Fortunately for Cummings, by then he also had a firm grip on the international arms trade. He was eagerly sought out for his ability to seemingly conjure weapons out of thin air. When the Sudanese ceremonial camel corps needed new lances, he just happened to have some World War I–era German lances made of blue steel in an Alexandria warehouse.

Governments the world over owed Cummings favors, big and small. Oddly, he was trusted by nearly everyone. When the Falklands War broke out, Argentina, as one of Cummings’ biggest customers, approached him for weapons. Cummings—by then a British citizen—flatly refused to do business with the country, even as he cheerfully advised its leaders on where they might obtain what they needed. After the brief conflict ended, the British Ministry of Defense held a symposium on the war and wanted to get the Argentine military to participate as well. The diplomatic niceties could not be resolved in time for the event, so Cummings represented the Argentine position, to the satisfaction of everyone involved.

Aside from his regular dealings with the press—he received major coverage in The New York Times and was the subject of an Esquire profile in the magazine’s ’70s heyday—Cummings made his political influence felt in surprising ways. He had surrendered his U.S. citizenship not for any business or legal reason but for his family. By the early 1970s, he was remarried with two daughters and living full-time in Monte Carlo and Geneva. In 1971, the Supreme Court ruled that children born to Americans abroad could not become U.S. citizens unless they lived in the United States for three consecutive years before they turned 18. Both Monaco and Switzerland had restrictive citizenship laws, so his children were destined to be stateless. Cummings applied for and received British citizenship, surrendering his status as an American so his children could get a passport.

Still, surrendering his birthright chafed him quite a bit. Instead of making good on sending soldiers from Alexandria over the Memorial Bridge to threaten Congress, Cummings hired a lobbyist to change the law like everyone else. In 1980, thanks in part to his efforts, Congress passed legislation invalidating the Supreme Court ruling and allowing his daughters to claim U.S. citizenship.

The final noteworthy episode of Cummings’ life was a tragedy—but an ironic one, considering how much he both doted on his children and courted press attention. In 1997, his daughter Susan shot and killed her unfaithful Argentine polo player husband on the lavish estate in Virginia’s horse country that her father had given her. She claimed the husband was abusive and had threatened her with a knife. She was convicted of voluntary manslaughter and spent 57 days in jail.

The episode was irresistible to the gossip rags. Cummings died of a series of strokes in April 1998, the same month a lurid Vanity Fair story about his daughter’s crime was on newsstands. He was 71.

At the time of Cummings’ death, the industrial Alexandria waterfront was already largely redeveloped. He would be unsurprised to see tourists eating ice cream where his lethal empire once stood. But while Interarms’ warehouses may be gone, the news that Americans bought 5 million new guns this year would certainly bring a smile to Cummings’ face.

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The All-American Arms Dealer

culture1-march-2021

There are more than a few antique shops in historic Old Town Alexandria, Virginia, a short walk from my suburban neighborhood. Antiquing is normally of interest only if my mother-in-law is visiting, but some years back a friend messaged me to let me know one of the shops had something I should see. On the back wall, shunted behind a variety of well-preserved 19th century furniture, were two large Soviet propaganda paintings.

The first was a portrait of three strapping Russian sailors, wearing bandoleers across their chests, in front of the Aurora—the infamous ship that fired the first shot on the Winter Palace in St. Petersburg, launching the Russian Revolution. The second painting, of soldiers smoking in a field in Afghanistan, was less dramatic but a better and more impressionistic piece of art. Both paintings were done by well-known graduates of the Kharkov Art Institute and were fine examples of Soviet socialist realism—insofar as one can take any art movement that began under Stalin seriously. I inquired about the paintings, and all the clerk was able to tell me was that they originally came from the estate of a man named Samuel Cummings.

If you know anything about Samuel Cummings, you may suspect the two Soviet paintings were some of his more prosaic possessions. When the billionaire died in 1998, he owned, among many other things, the sword Napoleon carried at Waterloo. For years, he tried to open a museum in Alexandria to exhibit his collection of exotic and historic weaponry, though that never came to fruition.

As interesting as that sounds, Cummings’ collection is in some respects less interesting than the manner in which he acquired it. For nearly 50 years, he was the largest arms dealer in the world.

In recent years, the waterfront in Old Town Alexandria along the Potomac River has been redeveloped. Some of the land was seized by eminent domain, the area turned into parks and boardwalks and otherwise made an inviting spot for tourists looking to schlep around the same streets once haunted by George Washington. But when I moved to the area a decade ago, there was also a small wooden building on the water where you could still make out a sign that said Interarms—the name of Cummings’ company. The building is now gone, and it’s hard to imagine that, through the 1980s, the same waterfront now littered with restaurants and boutiques was an industrial port where Cummings owned a series of converted tobacco warehouses stacked to the rafters with guns.

“At one point, we had 700,000 rifles, machine guns, pistols and submachine guns stored in our warehouses in Alexandria,” Cummings told The Washington Post in 1986. “We could have instantly overwhelmed the American armed forces. We could have armed 700,000 mercenaries that could have goose-stepped right over the [Arlington] Memorial Bridge….We also had 150 pieces of artillery, ranging from 25 mm to 150 mm….So, if I didn’t like a particular piece of legislation in the Congress, I could have phoned up the speaker and I could have said, ‘My armies will be rolling over to the Capitol, if you don’t do something about that.'”

Fortunately, Cummings was clearly joking. Well aware that such quotes were catnip to reporters, he was famously candid with the press, a remarkable trait for an arms dealer.

By the 1980s, the intrigue surrounding the Cold War’s many proxy conflicts had made arms dealers figures of notable interest even in popular culture: The 1983 Chevy Chase comedy Deal of the Century was a satirical take on the arms trade, and the band Queen even wrote a song, “Khashoggi’s Ship,” about partying on the yacht of notorious Saudi Arabian arms dealer Adnan Khashoggi. (Washington Post columnist Jamal Khashoggi, notoriously dismembered in a Saudi consulate in Turkey in 2018, was Adnan’s nephew.)

But among arms dealers, no one was more intriguing than the straight-talking former CIA employee Cummings, who was born in Philadelphia and raised in D.C. but died a British citizen living in Monte Carlo.

An Education in Arms

Cummings was born in Philadelphia in 1927 to parents so wealthy they had never worked. Soon thereafter they lost everything in the Great Depression. His father died when Cummings was 8 from the stress of having to do actual labor for the first time in his life.

When Cummings was 5, he found a World War I German machine gun abandoned outside an American Legion post. An adult helped him carry the 40-pound weapon back to his house, where the boy learned to take it apart and reassemble it, sparking a lifelong fascination with guns.

After Cummings’ father died, his enterprising mother found a way to make one of her primary skills as a rich woman—good taste—profitable. She convinced a local bank to let her move into a repossessed house and renovate it in exchange for a share of the sale profits. Cummings’ mother proved quite adept at flipping houses this way. It eventually brought the family to D.C., where the housing market during the Depression was stronger. This unusual occupation necessitated moving the family every six months or so into a new home, but Cummings’ mother was thrifty enough to put her children through some of D.C.’s better private schools.

Cummings enlisted immediately after high school, just as World War II was ending. As a teenager, he headed off to Fort Lee for basic training with his burgeoning collection of 50 guns packed into the trunk of his car. Cummings excelled in his cadet program in high school, and when he got to the Army he was so familiar with weapons and drills he was immediately made an acting corporal. He spent his hitch instructing other recruits on close-order drills and weapons handling. His 18-month service was uneventful—he never left Virginia—and in 1947 he enrolled in George Washington University on the GI Bill, earning a degree in political science and economics in just two years. While in school, Cummings pursued his hobby and supplemented his income by buying and selling guns. He even made a tidy profit after uncovering a cache of German World War II helmets in a Virginia scrapyard.

It was his time out of school during this period that proved to be the most fateful, however. Cummings headed off to Oxford for a term abroad during summer 1948. While in England, he and two friends pooled their money to buy the cheapest car they could find and toured the continent. For a young man obsessed with the military, the trip was a revelation.

Even though it had been over for years, the scale of World War II was so enormous that everywhere they went, the young men were surrounded by abandoned military equipment and fortifications. Cummings and his friends slept in bunkers, poked into arms caches, and drove around with a machine gun strapped to the roof of their car for fun. Anyone with a can of gasoline and a new battery could have driven away in one of the many vehicles abandoned on the side of the road. In the Falaise Pocket in France, six divisions of German soldiers had abandoned all of their supplies and equipment near the end of the war, never to return. European governments had resorted to gathering up mass quantities of leftover materiel and dumping it in the sea to get rid of it.

In Deadly Business: Sam Cummings, Interarms, and the Arms Trade, a 1983 biography by journalists Patrick Brogan and Albert Zarca that’s long been out of print, Cummings recounts that the trip made an indelible impression. “The roads of rural England were lined with open-ended containers filled with ammunition,” he said. “I couldn’t get over it because they were standard-caliber small arms as well as artillery, and typical of law-abiding England, no one ever bothered with the stuff. To me it was astonishing.”

After getting his undergraduate degree, Cummings’ interest in guns was so consuming that he applied for jobs at the FBI, CIA, and National Rifle Association (NRA), thinking one of them might have use for a small arms expert. They all turned him down, at least initially. Cummings was working his way through law school when the CIA came calling. By then the Korean War was underway, and the agency was looking for people who could help identify the provenance of more exotic weapons that were turning up in the conflict. Cummings’ old résumé was pulled out of the pile.

Unsurprisingly, Cummings proved particularly good at the work. He spent much of his time utilizing the CIA archives to enhance his already prodigious knowledge of weaponry.

Then one day a CIA report came across his desk, prepared in collaboration with U.S. military attachés in Europe, inquiring as to whether large quantities of German weapons still remained on the continent. The report concluded there was nothing noteworthy left. Cummings possessed considerable firsthand knowledge that the report was flat wrong, and he dashed off a memo saying so.

What Cummings didn’t know was that the CIA had a specific reason for inquiring about surplus German arms. The agency was contemplating arming Chiang Kai-shek in Taiwan to launch a new invasion of mainland China, in the hopes that such an invasion would distract the Chinese military and alleviate some of the pressure in the Korean conflict. In order for the plan to work, however, the CIA needed a supply of arms that couldn’t be readily traced back to the U.S.

Cummings soon found himself summoned to a personal meeting with the then–deputy director of the CIA, Allen Dulles. The legendary spymaster quickly sized up the young Cummings as being more capable than many of his more experienced superiors, and soon Cummings was off on a clandestine mission for the ages: Dulles sent him to Europe with an unlimited budget to buy as many surplus World War II arms as he could obtain. Along for the ride was another man, Leo Lippe, a director of photography from Hollywood. Their cover story was that they were buying props for the steady stream of war films that American studios were pumping out. The two men spent months traveling to Europe’s most exotic locales, doing deals with heads of state and top military leaders.

Though the plan to arm Chiang Kai-shek was never put in motion, the trip was a smashing success, with Lippe and Cummings uncovering and obtaining massive stashes of arms from Scandinavia to Italy, some of which were completely unused.

Cummings returned to the U.S. in 1952, and the agency soon dispatched him on another mission. Costa Rica was disposing of 10,000 guns and in excess of a million rounds of ammunition. Given the volatile politics of Central America, the agency didn’t want the weapons to fall into the wrong hands. Cummings arranged for the munitions to be sold to Western Arms, a California-based company.

The CIA offered Cummings a permanent position. He declined. His two missions weren’t just successful for the CIA—they proved to be excellent on-the-job training in dealing arms.

The Founding of Interarms

In February 1953, when he was just 26 years old, Cummings founded the International Armament Corporation. Interarms, as it later came to be known, started with no tangible assets. Cummings worked out of his modest house in Georgetown, and the company address was a P.O. box. He did, however, have a valuable list of contacts. Cummings composed a letter announcing he was interested in purchasing arms and fired it off to dozens of heads of state and military officials.

The first few months were disconcertingly quiet, until a letter from a colonel in the national guard of Panama arrived. The country had a relatively small weapons surplus it was looking to get rid of. Cummings flew down to inspect the lot—a mix of small arms, machine guns, and mortars—and offered $25,000 on the spot, provided Panama wouldn’t expect payment until the arms arrived in the United States. Cummings quickly brokered a deal with Western Arms, whom he’d worked with in Costa Rica, to purchase the Panamanian shipment from him. He made $20,000 on the deal even after the considerable shipping costs.

That provided enough seed capital to cover travel expenses, and Cummings was off to the races. Like a lot of wildly successful ventures, the growth of Interarms was about 50 percent luck and 50 percent grit. Cummings traveled so much for the rest of the decade that he calculated he’d spent six months’ worth of hours on planes. His constant absence cost him his first marriage. But his hard work, confident salesmanship, and unusual combination of discretion and blunt honesty ensured that deals started falling into his lap. Soon he had full warehouses of arms in Brooklyn and Alexandria. Many of his most notable successes involved profiting off the chaos created by energetic U.S. efforts to destabilize unfriendly governments in Latin America. Cummings soon became a Cold War Zelig—but where other historical figures got caught in the crossfire, Cummings was the crossfire.

The Panamanians referred Cummings back to Costa Rica, where he did more arms deals. The Costa Ricans, in turn, referred him to neighboring Nicaragua. In 1955, Nicaragua’s U.S.-backed, right-wing Somoza government invaded Costa Rica. Cummings had armed both sides of the conflict.

Cummings’ success was also a result of his brazen willingness to put profits over taking sides. When Cuban President Fulgencio Batista fled the country in late 1958, a shipment of AR-10 rifles the leader had ordered from Cummings was already en route to the island. Rather than chalk up a loss, Cummings dashed down to Cuba to demonstrate the rifles in person for Fidel Castro, the newly installed head of state, and his right-hand man Che Guevara. Castro gladly paid for the guns meant for Batista. This deal went sideways six months later, in 1959, when Cummings was again in the Caribbean visiting with one of his biggest customers, Dominican dictator Rafael Trujillo. Castro chose that moment to launch his first of many foreign escapades by sending a ragtag group of soldiers to invade the beaches of Hispaniola in an effort, presumably, to foment socialist revolution.

The assault was abruptly stymied, but Trujillo’s men picked up AR-10 rifles from the Cuban expeditionary force that were identical to weapons Cummings had sold Trujillo. The dictator was furious. Cummings calmed him down by pointing out that the Cuban invasion was stopped by strafing the beaches with a handful of Swedish Vampire jets Cummings had sold Trujillo. (It was the only time Cummings, who mostly dealt in small arms, was involved in the sale of airplanes.)

Despite the hazards of dealing with such unstable leaders, Cummings famously told George Thayer, author of the seminal 1969 book on the modern arms trade, The War Business, that he liked working with dictators because “they have a sense of order and pay their bills promptly.”

At the same time, Cummings rigorously observed any arms embargo imposed by the U.S. or British governments. He quickly stopped dealing with Cuba after that first sale to Castro and shut down an office in Pretoria in the early ’60s when arms embargoes were imposed in South Africa.

Then there were the questions of his ongoing ties to the CIA. Arms used in the 1961 Bay of Pigs invasion came from Cummings. That same year, a massive quantity of Soviet ammunition—22 boxcars’ worth—was unloaded off trains in Brownsville, Texas, triggering a Senate investigation into the shell companies behind the shipment. It led back to Cummings. The ammo may have been meant to support CIA operations in Indochina, where the conflicts were just heating up.

Regarding the CIA’s ill-advised actions abroad during the Cold War, Cummings would dryly tell Brogan and Zarca that an agency starting wars without Congress’ involvement wasn’t exactly what he’d learned was in the Constitution during law school.

The American Market

Cummings didn’t make a massive fortune just by shuffling arms from one conflict zone to another. His real innovation was discovering there was a massive market among Americans for military surplus guns.

In the 1960s, American manufacturers such as Winchester and Remington made fine rifles—but at $100–$150 new, they were comparatively expensive. Interarms started a mail-order catalog, Hunters Lodge, that sold some military surplus rifles for as little as $9.95 (about $80 today, adjusting for inflation). They were literally marketed as “throwaway guns” a hunter could abandon in the woods after bagging his deer. It was the domestic demand for guns that caused his warehouses in Alexandria to reach peak capacity.

Also of interest is how his guns arrived in Alexandria in the first place. When Cummings started buying up warehouses in the only non-union port on the East Coast, there was just one other major company using the port: The Washington Post. Cummings struck a deal with the same Finnish shipping line that brought the paper its newsprint to also pick up his arms shipments. For years, the Post subsidized an unholy percentage of the world’s small arms traffic.

Interarms’ commercial peak ended in 1968, when Congress, prodded by domestic gun manufacturers upset over their lost market share, passed a law prohibiting the import of military surplus guns. (It didn’t help that Lee Harvey Oswald had assassinated JFK with a cheap mail-order Italian rifle.)

Fortunately for Cummings, by then he also had a firm grip on the international arms trade. He was eagerly sought out for his ability to seemingly conjure weapons out of thin air. When the Sudanese ceremonial camel corps needed new lances, he just happened to have some World War I–era German lances made of blue steel in an Alexandria warehouse.

Governments the world over owed Cummings favors, big and small. Oddly, he was trusted by nearly everyone. When the Falklands War broke out, Argentina, as one of Cummings’ biggest customers, approached him for weapons. Cummings—by then a British citizen—flatly refused to do business with the country, even as he cheerfully advised its leaders on where they might obtain what they needed. After the brief conflict ended, the British Ministry of Defense held a symposium on the war and wanted to get the Argentine military to participate as well. The diplomatic niceties could not be resolved in time for the event, so Cummings represented the Argentine position, to the satisfaction of everyone involved.

Aside from his regular dealings with the press—he received major coverage in The New York Times and was the subject of an Esquire profile in the magazine’s ’70s heyday—Cummings made his political influence felt in surprising ways. He had surrendered his U.S. citizenship not for any business or legal reason but for his family. By the early 1970s, he was remarried with two daughters and living full-time in Monte Carlo and Geneva. In 1971, the Supreme Court ruled that children born to Americans abroad could not become U.S. citizens unless they lived in the United States for three consecutive years before they turned 18. Both Monaco and Switzerland had restrictive citizenship laws, so his children were destined to be stateless. Cummings applied for and received British citizenship, surrendering his status as an American so his children could get a passport.

Still, surrendering his birthright chafed him quite a bit. Instead of making good on sending soldiers from Alexandria over the Memorial Bridge to threaten Congress, Cummings hired a lobbyist to change the law like everyone else. In 1980, thanks in part to his efforts, Congress passed legislation invalidating the Supreme Court ruling and allowing his daughters to claim U.S. citizenship.

The final noteworthy episode of Cummings’ life was a tragedy—but an ironic one, considering how much he both doted on his children and courted press attention. In 1997, his daughter Susan shot and killed her unfaithful Argentine polo player husband on the lavish estate in Virginia’s horse country that her father had given her. She claimed the husband was abusive and had threatened her with a knife. She was convicted of voluntary manslaughter and spent 57 days in jail.

The episode was irresistible to the gossip rags. Cummings died of a series of strokes in April 1998, the same month a lurid Vanity Fair story about his daughter’s crime was on newsstands. He was 71.

At the time of Cummings’ death, the industrial Alexandria waterfront was already largely redeveloped. He would be unsurprised to see tourists eating ice cream where his lethal empire once stood. But while Interarms’ warehouses may be gone, the news that Americans bought 5 million new guns this year would certainly bring a smile to Cummings’ face.

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SCOTUS Enjoins Santa Clara County Prohibition on Indoor Worship

On February 12, a Ninth Circuit panel upheld Santa Clara’s prohibition on indoor worship. How could that opinion possibly be squared with South Bay II? It can’t.

On February 17, a church in Santa Clara sought an injunction from the Supreme Court. On February 24, the County filed a reply. And on February 25, the County informed the Court that the restrictions would be lifted on March 3. The County needs to learn to play whac-a-mole. You repeal the policy before the reply brief is due.

In any event, the Court did not wait. Friday, February 26, the Court enjoined the Santa Clara policy:

The application for injunctive relief presented to Justice Kagan and by her referred to the Court is granted pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. The Ninth Circuit’s failure to grant relief was erroneous. This outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021). Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

“Clearly dictated.” I don’t remember such direct language in a shadow docket order. I’m sure the Justices were annoyed that Judges Canby, Graber, and Friedland wasted everyone’s time.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented for the reasons set out in Kagan’s South Bay II dissent.

The County should pay fees here. Enforcing their policy after South Bay II was a very poor decision.

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SCOTUS Enjoins Santa Clara County Prohibition on Indoor Worship

On February 12, a Ninth Circuit panel upheld Santa Clara’s prohibition on indoor worship. How could that opinion possibly be squared with South Bay II? It can’t.

On February 17, a church in Santa Clara sought an injunction from the Supreme Court. On February 24, the County filed a reply. And on February 25, the County informed the Court that the restrictions would be lifted on March 3. The County needs to learn to play whac-a-mole. You repeal the policy before the reply brief is do.

In any event, the Court did not wait. Friday, February 26, the Court enjoined the Santa Clara policy:

The application for injunctive relief presented to Justice Kagan and by her referred to the Court is granted pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. The Ninth Circuit’s failure to grant relief was erroneous. This outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021). Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

“Clearly dictated.” I don’t remember such direct language in a shadow docket order. I’m sure the Justices were annoyed that Judges Canby, Graber, and Friedland wasted everyone’s time.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented for the reasons set out in Kagan’s South Bay II dissent.

The County should pay fees here. Enforcing their policy after South Bay II was a very poor decision.

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Beauty Pageant Has First Amendment Right to Exclude Male-to-Female Transgender Contestants

Judge Michael W. Mosman announced his oral decision yesterday, promising a written “opinion to follow.” I’ll blog about the opinion when it’s out, but in the meantime you can see the pageant’s motion for summary judgment (which the court granted), the would-be contestant’s opposition, and the pageant’s reply.

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