Category: reason

From Straw v. Dentons US LLP, decided in June by Judge Louis L. Stanton (S.D.N.Y.);

Plaintiff Andrew U.D. Straw, an attorney appearing pro se, brings this action alleging that “language printed against [his] interest in a blog by defendant McGoff (of counsel of defendant Dentons) was in fact retaliation for [his] ADA work and inflicted emotional injuries as well.” Named as Defendants are Dentons US LLP; Kevin P. McGoff; Indiana University McKinney School of Law (IU McKinney); and Publisher Thomson West, Publisher of North Eastern Reporter….

In 2017, the Indiana Supreme Court suspended Plaintiff from the practice of law in Indiana on the ground that he had violated Indiana Professional Conduct Rule 3.1, “which prohibits bringing a proceeding or asserting an issue therein unless there is a basis in law and fact for doing so that is not frivolous.” … The court [wrote]:

“Further, we categorically reject Respondent’s arguments that he is being persecuted for his disability-related advocacy. A necessary corollary of the frivolousness of Respondent’s lawsuits is that no relief benefitting the plaintiffs (whether a client or Respondent himself) possibly could have come from those actions. Further, Respondent’s actions risked harm to himself and his client in the form of sanctions, and by Respondent’s own acknowledgement the relief he sought in Straw v. American Bar Association et al. could have led to discrimination against disabled law school faculty. In sum, Respondent does not face discipline for standing up for disabled persons’ rights, as he perceives, but rather for having done so incompetently.” …

Plaintiff brings this complaint … [based on] (1) a blog entry written by Kevin P.] McGoff on Lexology.com, “The Top Ten Ethics Problems for Lawyers,” which, in its section on malpractice, included a summary of the disciplinary action against Plaintiff; (2) the Indiana Law Review’s “2017 Survey of Indiana Lawyer Discipline Decisions,” which included the disciplinary action against Plaintiff; and (3) the North Eastern Reporter’s publication of the decision In Re Straw, 68 N.E.3d 1070 (Ind. 2/14/2017).

[A.] Plaintiff’s allegations against McGoff

Plaintiff argues that “[t]his ‘Top 10’ serves to ridicule lawyers who were disciplined[.]” … Plaintiff … quotes the blog’s summary of his case [emphasis by plaintiff]:

“In Matter of Straw, 68 N.E.3d 1070 (Ind. 2017), Respondent advanced a series of frivolous claims and arguments in four lawsuits, three of which were filed on his own behalf. The first suit was a defamation suit where opposing counsel sought information from Respondent and in response, Respondent sued opposing counsel in federal court, alleging racketeering activity and seeking $15,000,000 in damages and injunctive relief. The second suit was in federal court against the ABA and 50 law schools, alleging violations of the Americans with Disabilities Act (‘ADA’), which was dismissed for lack of standing. Respondent lost the third suit, an employment discrimination claim, because he let the statute of limitations lapse without filing. The fourth case was a post-dissolution proceeding where Respondent filed suit alleging defendants had violated the ADA by discriminating against the former husband, which was dismissed. The Court held that a suspension for a period of 180 days, without automatic reinstatement, was warranted for Respondent’s misconduct.” …

Plaintiff argues, “I didn’t lose anything”; “none of my cases were frivolous and use of the word frivolous was part of a scheme of collusion between my former employer [‘a Title II entity’], the Indiana Supreme Court, and other courts.” McGoff’s “only source was the Indiana attack made against me after I made an ADA complaint about the Indiana Supreme Court.” McGoff should “have mentioned my federal lawsuit to stop this vicious attack against me,” as well as “the cheating that went on, with the 7th Circuit hiring my hearing officer from Indiana WHILE HE WAS MY APPELLEE,” and “that the disciplinary complaint was made by the ADA coordinator in immediate retaliation against my own ADA complaint in 2014 against her very same employer.”

The “language [Plaintiff] object[s] to in this blog entry concerns [his] bogus Indiana Supreme Court discipline.” For these reasons, Plaintiff “must have justice against Attorney McGoff and his firm, who don’t know what they are talking about and published very hurtful and painful things against [him] without even asking [him] what happened or [his] side.”

[B.] Plaintiff’s allegations against IU McKinney and Thomson West

Plaintiff’s claims against IU McKinney and Thomson West arise out of similar facts—both of these Defendants reported about the disciplinary case against Plaintiff. It appears that Thomson West did nothing more than publish the Indiana Supreme Court’s decision in the North Eastern Reporter, but according to Plaintiff, the “Northeast Reporter is published by a private publishing company called Thomson West and even if the Indiana Supreme Court and its judges are immune … repeating rubbish that otherwise would be IIED or defamation or an ADA violation does not insulate the private publisher from paying damages in collusion with a state entity.”

As for IU McKinney, when it “published an attack on me by the executive director of the Indiana Attorney Disciplinary Commission, Mr. Michael Witte, this was also an ADA Titles II & V retaliation,” and IU McKinney “was fully aware that it was publishing on the Internet and seeking maximum coverage all over the country, including New York.” …

[A.] Retaliation Claims Under the Americans with Disabilities Act

Plaintiff’s claims against Defendants relies on a long chain of causation. He argues that he “had a right to file that 2014 ABA lawsuit and the others motivating the discipline.” Indiana’s “attack on this lawsuit was retaliation against it.” Indiana’s disciplinary complaint was also retaliation. And therefore, Defendants’ act of “[r]epublishing the vicious attacks of my former employer and a disloyal ADA coordinator and saying ‘I should have known better’ amount[s] to additional retaliation and collusion with that state supreme court.”

The antiretaliation provision of the ADA provides: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”

To state a claim for retaliation under the ADA, a plaintiff must show: “(i) [the] plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.”

Plaintiff argues that the ADA antiretaliation provision applies broadly “to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights,” and that any “form of retaliation or coercion, including threats, intimidation, or interference, is prohibited if it interferes with the exercise of rights under the Act.” But the statute does not apply as broadly as Plaintiff claims. For one thing, the Second Circuit has held that the retaliation provision of the ADA, like the rest of the ADA, does not provide for individual liability. For this reason, Plaintiff’s ADA claim or claims against McGoff must be dismissed.

Even assuming that Thompson West or IU McKinney—which Plaintiff sues as publishers, not as employers, public entities, or any other “covered entities” as defined by the ADA—could be liable to Plaintiff under the ADA, Plaintiff fails to allege facts that would establish the elements of a retaliation claim.

Generally, “any activity designed ‘to resist or antagonize …; to contend against; to confront; resist; [or] withstand’ discrimination prohibited by Title VII constitutes a protected oppositional activity.” A lawsuit intended to eradicate discrimination thus ordinarily constitutes protected activity, even if the suit is unsuccessful, but only if the plaintiff “can establish that he possessed a good faith, reasonable belief that the underlying challenged actions … violated th[e] law.”

Here, it is questionable whether Plaintiff can establish that his lawsuits constituted protected activity, since at least two courts—the Indiana Supreme Court and the Seventh Circuit Court of Appeals—have already held that Plaintiff’s lawsuits did not have a good-faith basis, and therefore warranted the disciplinary action taken against him.

In any event, Plaintiff cannot satisfy the remaining elements of a retaliation claim, because Thomson West’s publication in a book (a regional reporter of state-court rulings and opinions) of a decision of the Indiana Supreme Court cannot constitute prohibited adverse action, and nor can the other Defendants’ authoring or publication of commentary, whether in a blog post or law review or elsewhere, about that decision. In any event, there is no indication that the authors or publishers were motivated by any animus against Plaintiff….

For these reasons, Plaintiff fails to state a claim that any Defendant retaliated against him in violation of his rights under the ADA.

[B.] Intentional Infliction of Emotional Distress

… Plaintiff’s allegations that information about his disciplinary proceedings was published do not involve “extreme and outrageous conduct.” Moreover, the full decision in that disciplinary matter is already a matter of public record and is available in publicly accessible case law databases. Plaintiff’s allegations that Defendants reprinted information about his suspension therefore do not state a claim for intentional infliction of emotional distress, and the Court dismisses these allegations for failure to state a claim on which relief can be granted.

[C.] The First Amendment

Because Plaintiff seeks to hold Defendants liable based on their having published a court decision and commentary about that decision, Plaintiff’s claims raise issues under the First Amendment. “[S]peech is of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of general interest and of value and concern to the public.'” A state supreme court decision is certainly a matter of public concern, and attorney disciplinary proceedings are as well.

The Court also notes that “the Free Speech Clause of the First Amendment can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress.” The Court cannot punish or hold Defendants liable merely for publishing a summary of Plaintiff’s disciplinary action and their commentary about that decision. Because Defendants’ actions constitute speech on a matter of public concern, the First Amendment is a defense to any liability.

Judge Stanton later transferred the case, and Straw’s motion for reconsideration, to another judge:

Plaintiff seeks to have this matter reassigned to a Judge “who does not have a Marine Corps officer background from the time the base where my mother and I were poisoned started being toxically fouled by the U.S. Marine Corp.” … I have no wish to have my long-ago service as a Marine Corps officer a source of belief in a pro se litigant that his complaint was unfairly dismissed. He is utterly convinced that when he was a baby he and his mother were poisoned by the Marine Corps while they were in the Naval Hospital at Camp Lejeune, North Carolina where his father was serving as a marineand the poisoning gave him mental disabilities which have plagued his life….

[A] decent respect for the prose litigant’s core feelings can be stretched, in a multi-judge court, to “any other reason justifying relief.”

But in July, Judge John G. Koeltl reaffirmed Judge Stanton’s analysis:

[T]his Court has independently reviewed the complaint and concludes that Judge Stanton’s dismissal order dated June 11, 2020 was correct. In particular, and as Judge Stanton noted, the plaintiff is complaining about the publication of a decision by the Supreme Court of Indiana that the defendants had a First Amendment right to disseminate and describe. Moreover, the plaintiff has failed to allege a plausible claim for violation of the ADA or for the intentional infliction of emotional distress.

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Attorney General William Barr and FBI Director Christopher Wray frequently and insistently demand that social media platforms and messaging apps implement encryption backdoors that allow law enforcement to bypass user security in order to access communications. Cybersecurity experts and tech companies warn that such backdoors will inevitably compromise everybody’s data and lead to hacking and intrusion by foreign governments.

It turns out the federal government already knows this because it has already happened…to the federal government. Reuters reports today that the National Security Agency (NSA), which historically has worked to have encryption backdoors secretly placed in computers by tech companies to ease foreign surveillance, saw a security system subsequently compromised, possibly by the Chinese government.

The company involved is California-based Juniper Networks, which agreed to install an encryption system component that the NSA could exploit and bypass. According to Reuters, in 2015, Juniper Networks discovered malicious code in some of its firewall products. Researchers later discovered that whoever introduced the code had turned the firewalls into their own spying tool.

While Reuters doesn’t officially know who the customer was or who the hackers were, researchers told them that the client was likely a U.S. government agency. Do you recall when China was accused of hacking into the federal Office of Personnel Management (OPM) and stealing millions of records? That was also discovered in 2015, though it’s not clear whether there’s a relationship between these hacks.

The reason for the lack of clarity is due to NSA secrecy, according to Reuters. After the NSA got burned with its own backdoor, the agency told staffers for Sen. Ron Wyden (D–Ore.) it had put together a “lessons learned” report about what happened with new guidance on implementing backdoors. But, now the NSA says it can’t find the report.

That the NSA had secretly been negotiating backdoors into some encryption systems was one of the details revealed by Edward Snowden in his whistleblowing. Wyden, a leading Democrat on the Senate Intelligence Committee (and advocate of preserving strong encryption and data privacy), has been trying to find out what sort of guidelines the NSA had developed, but he’s been stonewalled.

Wyden grasps the potential threat of secret backdoors and warned Reuters, “Secret encryption back doors are a threat to national security and the safety of our families–it’s only a matter of time before foreign hackers or criminals exploit them in ways that undermine American national security.”

At the same time, the Justice Department is still relentlessly trying to make our encryption worse, and so have other governments, like the United Kingdom, Australia, Canada, New Zealand, India, and Japan. Earlier this month, national law enforcement leaders from all these countries signed a letter demanding that encryption be weakened, claiming that police need access to fight child sexual exploitation.

Privacy and technology experts have been warning all along that these demands would actually make everybody more vulnerable to crime for very little gain and would compromise everybody’s privacy and data security.

From today’s Reuters report, we now know that not only does the federal government understand the fatal flaws of encryption backdoors, but the government itself was likely a victim of hacking as a result of a backdoor. That makes it all the more shameful that people like Barr and other governments continue to demand them.

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The Fourth Amendment right to be free from “unreasonable…seizure” includes the right to be free from unreasonable arrest or detainment. Does it also include the right to be free from what we might call unreasonable attempts or efforts at arrest or detainment? The late Justice Antonin Scalia thought that it did. “The mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee,” Scalia wrote for a unanimous Supreme Court in California v. Hodari D. (1991), qualifies as a seizure for Fourth Amendment purposes.

Earlier this month, however, the Supreme Court heard oral arguments in a new Fourth Amendment that asks whether Scalia might have got it wrong.

In Torres v. Madrid (2019), the U.S. Court of Appeals for the 10th Circuit held that no seizure occurred when officers with the New Mexico State Police shot Roxanne Torres twice in the back, because their bullets did not actually stop her from getting away. According to that court, “an officer’s intentional shooting of a suspect does not effect a seizure unless the ‘gunshot…terminate[s] [the suspect’s] movement or otherwise cause[s] the government to have physical control over him.'”

Torres was sitting in her car in her apartment building’s parking lot when it went down. The officers were there to arrest somebody else. They claimed they approached her because she was acting suspiciously. According to Torres, she thought she was about to be carjacked, later testifying that the officers never identified themselves as they crowded her vehicle. Fearing for her safety, she drove away. The officers then shot her twice as she fled. She only learned that it was the police who pulled the trigger when she was arrested a day later at the hospital.

The Supreme Court heard oral arguments in Torres v. Madrid on October 14. “Roxanne Torres was not seized by either [Officer] Janice Madrid or [Officer] Richard Williamson,” New Mexico lawyer Mark Standridge told the justices. “At no time did the officers acquire possession, custody, or control over her. Indeed, [Torres] never stopped in response to the police action. As the officers did not seize [Torres], they cannot be held liable to her for excessive force in violation of the Fourth Amendment.”

Unsurprisingly, the Court’s most hawkish Fourth Amendment advocate, Justice Sonia Sotomayor, did not seem to find that position particularly palatable. “Counsel, there is an element to the Fourth Amendment that all of our cases, including Hodari, recognized by Justice Scalia,” she said, “that has to do with the Fourth Amendment’s protection of bodily integrity. It is why we call putting a needle in someone’s arm a seizure that requires either probable cause or exigent circumstances, et cetera.”

And that conception of bodily integrity, Sotomayor continued, includes “the seizure of the person with respect to the touching of that person because even a touch stops you. It may be for a split second, but it impedes your…movement and offends your integrity.”

What you are asking the Court to do, Sotomayor told Standridge, is “reject the clear line drawn by Hodari and say that Justice Scalia was wrong about what the common law showed.” Sotomayor left little doubt that she was with Scalia on that one.

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I helped draft Prop. 209, the 1996 ballot measure generally providing that “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The California legislature (and other parts of the California establishment) have put a measure on the ballot, Prop. 16, to repeal Prop. 209; you can see the Arguments and Rebuttals here. (Our own Gail Heriot co-signed one of the arguments, and is Co-Chair of No on Prop. 16.)

I regret that I put off contributing to the ballot measure, but I just remedied that this morning, and I encourage you do the same, if you share my opposition to race-based public university admissions, government hiring, and the like—whether or not you’re in California.

To my pleasant surprise, it appears that the No on Prop. 16 side might well prevail (even though the Yes side has raised $22.7 million to the No side’s $1.25 million): A UC Berkeley Institute of Governmental Studies poll, the most recent one in the race, reports that registered voters split 49% No to 38% Yes, up from 41%-33% a month ago.

Indeed, there’s broad support among many members of various racial and ethnic groups: Asians are on the No side 50%-39%, non-Hispanic whites 53%-35%, Latinos are essentially tied (42%-40% on the No side, but within the margin of error), and 33% of blacks take the No side, too (33%-58%).

And while of course this is a subject on which conservatives and liberals tend to differ, even many liberals take the No position (28% of the “somewhat liberal,” though only 12% of the “very liberal”). And moderates take the No view by a 54%-31% margin. Still, the race is close and uncertain enough that I thought it important to contribute to help the No side.

I don’t say much here about my reasons for supporting this position (which, at the most general level, are largely similar to those in the ballot statement that Gail co-signed), because I imagine most of you have heard the arguments on both sides of such questions and have made up your minds about it.

But I think that if race preferences can be defeated in 2020 in now-deep-Blue California, I think that will send the right message more broadly: that further classifying people by race, and setting up different standards (admissions and otherwise) for different racial groups is not the solution to America’s or California’s problems. That’s why supporting the No side here struck me as especially important.

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With their survival on the line amidst a new round of government restrictions targeted at slowing the spread of COVID-19, many Illinois restaurants and bars are refusing to comply. It’s the sort of defiance that erupted during the early days of the pandemic, but more widespread and better organized by business owners who say they have nothing to lose, since their only other option is disaster.

This is a rebellion that could have been foreseen by anybody who understands how people necessarily respond when their backs are against the wall. In fact, it was predicted, repeatedly. That needs to be taken into account by government officials already imposing new lockdowns and poised to inflict yet more pain on a public growing increasingly unwilling to submit.

“Unless the state of Illinois takes a more reasonable approach to mitigation, thousands of restaurants are at risk of permanent closure,” the Illinois Restaurant Association (IRA) warned last week. “To be clear—the IRA is not advising for operators to disobey any state orders while we strongly advocate for necessary changes to the state’s mitigation plan.”

But restaurateurs don’t need advice on how to respond as they grapple with orders that ban indoor dining, restrict outdoor seating, limit operating hours, and implicitly promise doom.

“Stagecoach WILL be open for INDOOR dining/carry out/and delivery until further notice,” the Lockport Stagecoach of Lockport, Illinois, notes on its Facebook page. “We have over 30 employees (most of whom live in Lockport with children) that depend on Stagecoach for their livelihoods.”

“We are NOT trying to be rebellious or are anti-masks, anti-people’s health or any of the other nonsense. This is a decision out of survival,” the post adds.

More than 30 bars and restaurants in Winnebago County have been written up for ignoring pandemic restrictions, according to the Chicago Tribune. In Kankakee County, “70 area business owners met Thursday night and agreed to keep serving customers inside their establishments, despite the state’s order that some counties stop indoor service to slow the coronavirus,” reports Chicago’s NBC affiliate.

In response, Illinois Gov. J.B. Pritzker threatens retaliation against the eatery insurgency. “If we need to close down restaurants and bars, or take away their liquor licenses, take away their gaming licenses, we will do that,” he huffed during a daily briefing.

That may not be terribly persuasive to businesses that face closure, anyway, if they aren’t allowed to serve customers. And why should they sacrifice themselves when Pritzker—among other political figures—has happily exempted himself and his family from inconvenient pandemic rules?

Even if people for some reason trusted Pritzker and the rest of officialdom, another round of lockdowns is exhausting when authorities keep moving the goalposts on how long restrictions are supposed to last—well beyond the 15 days we were promised back in March.

“Shutting down the economy and society for an unspecified period of time can have large economic and psychological costs,” note Guglielmo Briscese, Nicola Lacetera, Mario Macis, Mirco Tonin for VOXEU, an economics website. “Extending the lockdown after creating the expectation that it would end by a certain date, however, might reduce people’s acceptance, trust in public authorities, and ultimately reduce compliance with the rules.”

Realistically, those large economic and psychological costs can’t continue indefinitely. Eventually, they deplete even the most patient people’s savings, attenuate relationships with customers, and erode the ability to endure hardship.

“A more stringent lockdown deepens the recession which implies that poorer parts of society find it harder to subsist,” Ricardo Hausmann and Ulrich Schetter find in a working paper for the Center for International Development at Harvard University which looks at less-developed countries but is applicable to any society. “This reduces their compliance with the lockdown, and may cause deprivation of the very poor, giving rise to an excruciating trade-off between saving lives from the pandemic and from deprivation.”

As we see, many people, including a large number of restaurant and bar owners in Illinois, are done with suffering government-ordered deprivation as a means of combating the pandemic. And their fears are far from exaggerated.

Yelp reported in September that restriction-related business closures are up across the country, with a majority of those closures permanent. “The restaurant industry continues to be among the most impacted with an increasing number of closures—totaling 32,109 closures as of August 31, with 19,590 of these business closures indicated to be permanent (61%).”

It’s not difficult to imagine the desperation of struggling entrepreneurs contemplating a similar fate for their own livelihoods.

And fatigue with seemingly endless impositions is hardly confined to Illinois. Germans, Italians, and Spaniards took to the streets this week to protest against new limits on their lives in the name of public health.

“Protests against a fresh round of coronavirus restrictions hit about a dozen cities in Italy on Monday evening amid a surge in infection numbers across the country and the continent,” according to NBC News. “Dozens of demonstrators in Turin in northern Italy threw huge firecrackers and bottles at the regional government’s headquarters. Police responded with volleys of tear gas as they tried to restore order in the city.”

By contrast, a multitude of eateries serving burgers and beer to paying customers in defiance of intrusive rules seems wonderfully restrained, no matter how much it upsets Pritzker.

As suggested by the Lockport Stagecoach’s Facebook post, those businesses aren’t just ignoring health risks. The Illinois Restaurant Association calls for “a pragmatic, tiered approach” that allows for indoor dining with reduced capacity. Many of the rebellious restaurant owners give press interviews while wearing face masks and boasting of their hygiene procedures. And, of course, they cater only to customers who voluntarily enter their premises. By all appearances, they’re willing to make an effort—but not to be forced into destitution.

Officials might not agree with members of the public on how best to limit the spread of COVID-19. But letting people make their own decisions and voluntarily do business with like-minded others makes a lot more sense than pursuing an unwinnable enforcement campaign against a fed-up population.

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