Category: reason

Today, the Texas Bar had an eight-hour marathon meeting. One of the key issues was whether to refer ABA Model Rule 8.4(g) to the Discipline and Client Attorney Assistance Program Committee (DCAAP) Committee. Over 60 bar members spoke about the rule. (I was one of them). Over a divided vote, the motion passed. Now the Committee will consider 8.4(g). They will also consider possible revisions to Texas Disciplinary Rule 5.08.

Perhaps the Committee will recognize that 8.4(g) is unconstitutional and abandon the effort. The more likely outcome: the Committee tries to transmogrify 8.4(g) to make it look palatable, but it will still suffer from constitutional defects.

My remarks from this morning preview what will happen if the Bar adopts this rule:

Thank you for the opportunity to speak. My name is Josh Blackman. I am a constitutional law professor at the South Texas College of Law Houston, but I am here in my capacity as a member of the bar. Today, I would like to briefly discuss the proposal to refer ABA Model Rule 8.4(g) to a committee for study.  

In the current moment, I appreciate the Bar’s desire to take steps to promote racial and other types of equality. But moving forward with ABA Model Rule 8.4(g) would fail to achieve those goals. Specifically, the adoption of this controversial rule would be challenged immediately in court. I suspect the same plaintiffs who challenged the integrated bar will line up for an encore suit. And the Texas Attorney General, who ruled the proposal unconstitutional, has hinted he will file suit as well. If a single district court enters a preliminary injunction, the validity of the rule would remain in doubt for years. And the bar may unwittingly set a precedent in the Fifth Circuit or in the Texas Supreme Court. Throughout this entire time, the bar would be enjoined from taking the important steps that it needs to take. And in the process, acrimony will build among members of the bar about this divisive rule. 

My suggestion: take the easier route. Consider a narrowly tailored rule that addresses the specific problems attorneys face in the legal practice in Texas. Don’t overshoot, and rubber-stamp an ABA-drafted, burdensome restriction on the freedom of speech and the free exercise of religion. Thank you for your consideration.

You can watch the video at 36:44.

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Last summer, in Trump v. Vance, the Supreme Court held that a sitting President potentially must answer a state criminal subpoena. But along the way to the Supreme Court, the case encountered the federal courts doctrine known as Younger abstention, which requires that “When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution.”

In Vance, there was a pending criminal proceeding in the New York state courts. President Trump, acting in his personal capacity, went to federal court to seek an injunction. So one might think this was a natural case for Younger abstention. And indeed, that is what the district court held.

But on appeal, the Second Circuit decided that abstention was inappropriate (although it still ruled against President Trump on the merits). It concluded that Younger abstention ought not apply to litigation brought by the United States, and a personal suit by the President was close enough to create similar considerations.

Making such an exception is kind of a big deal. Until now, the usual black letter rule is that Younger abstention can be set aside only in narrow circumstances—bad faith, harassment, or patent unconstitutionality—none of which had been shown in President Trump’s case. Indeed, Professor Fred Smith recently wrote an excellent article criticizing the ossification of Younger abstention doctrine and calling on courts to be more ready to recognize new exceptions. But in doing so he was rowing against the current.

Recognizing such a new exception would both change the black letter law of Younger abstention, and also change the message that no new exceptions to Younger abstention are appropriate. It changes both the doctrine and the meta-doctrine.

So do we have such a new exception? The Supreme Court noted this dispute about Younger abstention passively at the beginning of its opinion:

The District Court abstained from exercising jurisdiction and dismissed the case based on Younger v. Harris, which generally precludes federal courts from intervening in ongoing state criminal prosecutions. In an alternative holding, the court ruled that the President was not entitled to injunctive relief.

But a later passage of the opinion can be read to bless the Second Circuit’s analysis. In noting that the President has ample options to stop unconstitutional subpoenas, the Court wrote:

We generally “assume[ ] that state courts and prosecutors will observe constitutional limitations.” Dombrowski v. Pfister, 380 U.S. 479, 484 (1965). Failing that, federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here. See 42 U.S.C. § 1983; Ex parte Young, 209 U.S. 123, 155-156 (1908) (holding that federal courts may enjoin state officials to conform their conduct to federal law).

While this passage is not exactly clear about it, it seems to bless the course of litigation in the Second Circuit (“as the President has done here”). The citations to Section 1983 and Ex parte Young are the background law that is precluded by Younger, so they are relevant only if Younger is inapplicable.

I happen to think Younger abstention is basically correct on principles of equity, so exceptions can be made when principles of equity might suggest. This means I am not necessarily against this kind of modification. But it’s kind of a big deal that the Supreme Court may have modified Younger abstention, and I’m surprised I haven’t heard more about it.

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Walter Barnette knew he owed property taxes to the Nebraska county where he lived, but he didn’t know that his own land had been sold out from under him until it had already happened.

Under Nebraska state law, counties are allowed to seize properties with delinquent taxes and turn those properties over to private investors—and as Barnette learned the hard way in 2013, it can happen without the current property owner even being notified. But after the Nebraska Supreme Court upheld the seizure and selling of Barnette’s land without his knowledge, attorneys from the Pacific Legal Foundation, a pro-market law firm, are petitioning the U.S. Supreme Court to review the practice.

What happened to Barnette seems like it could happen to anyone. He’d bought an acre of land in Bellevue, Nebraska, in 2002 but fell behind on his tax payments during the Great Recession. He owed $986 in back taxes by 2013—plus a few hundred dollars in fees, interest, and penalties—when Sarpy County offered Barnette’s land to a private investor who offered to pay off the debt.

Under state law, the investor, Pontian Land Holdings LLC, was required to notify Barnette of the potential sale before it could take possession of his title by sending a letter via certified mail. But the letter was never delivered—it was, according to court documents, returned to Pontian three times as unclaimed—and the state does not require any additional follow-up.

Having met the incredibly limited notification requirements under state law, Pontian was able to obtain a new deed for the property, which was assessed for about $25,000. Barnette was left with nothing.

“You would think that the government would have to ensure that you get a fair notice,” says Christina Martin, the Pacific Legal Foundation attorney who filed the cert petition asking the U.S. Supreme Court to review the case. “They didn’t even have to put a stamp on that same letter and send it back in the regular mail so he might have seen it.”

The entire process is bizarre and seems ripe for cronyism. Unfortunately, it’s not unique to Nebraska. There are at least a dozen states where counties are empowered to seize and sell private property to settle tax debts, even when the property is far more valuable than the taxes owed. The specifics of this so-called home equity forfeiture process can differ from place to place, but the end result is usually the same: property owners losing far more than what they owe to their local governments.

What happened to Barnette has some infuriating similarities to a case of home equity forfeiture that I wrote about last year for Reason. In that case, Cass County, Michigan, seized a multi-million-dollar lakefront home from Sergei Antipov when the property (which was still under construction) fell into tax delinquency. County officials sent certified letters to the home on multiple occasions before seizing the land, but no one was living there to receive them and officials did not take any additional steps to notify Antipov.

They hardly had an incentive to do so. In a subsequent lawsuit challenging the forfeiture, it was revealed that the county treasurer and other county employees exchanged emails planning future backyard barbeques at the property while the forfeiture proceeding was taking place. When Antipov eventually realized what had happened, he offered to pay the back taxes immediately. The county refused to accept his check, taking the property instead.

Part of the problem in all these cases, Martin says, is that the courts view forfeiture action differently than legal action taken against a person. In other words, if a county is going to sue you for some reason, it would have to exhaust every available measure to serve you that lawsuit. But if it sues your home, it can simply send a letter and call it a day.

“It’s not fair,” says Martin. She compares it to what might happen when someone fails to pay a utility bill or misses a payment for their internet service.

“When you fall behind on those types of debts, you’ll get phone calls, emails, text messages,” she says, “but in Nebraska, apparently, all they have to do is try to send a single letter via certified mail.”

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Of the 10 sitting judges on President Donald Trump’s new list of 20 potential Supreme Court nominees, James Ho may have the most interesting track record. Ho, who replaced Texas Sen. Ted Cruz (who also made the list) as that state’s solicitor general in 2008 and joined the U.S. Court of Appeals for the 5th Circuit in 2018, is a mixed bag from a libertarian perspective, combining robust respect for the right to armed self-defense and freedom of speech with a troubling deference to police accused of abusing their powers.

As Damon Root noted before Trump nominated Ho for the 5th Circuit in 2017, Ho wrote a 2006 law journal article rebutting the claim that birthright citizenship can be restricted or repealed by statute. Ho, a naturalized U.S. citizen who was born in Taiwan, argued that anyone born in the United States, including children of unauthorized residents, is American by birth under the original understanding of the 14th Amendment. A constitutional amendment, he concluded, is “the only way to restrict birthright citizenship.” That position, Root noted, “is directly at odds with the stated views of Donald Trump.”

Months after joining the appeals court, Ho was already attracting criticism for injecting policy commentary into his opinions. University of Southern California law professor Orin Kerr, a Volokh Conspiracy blogger, said a passage from a 2018 Ho dissent in a case involving limits on campaign contributions “reads like a politician’s op-ed, not a legal opinion” and should have been excised because “judges should stick to the law.” The blog’s co-founder, UCLA law professor Eugene Volokh, was more forgiving, saying “what we’re seeing from Judge Ho is a judge who, because he’s really interested in law and ideas, wants to write more about the bigger picture.”

Whatever your take on that controversy, Ho’s comments about campaign finance regulations were strikingly libertarian. “Many Americans of good faith bemoan the amount of money spent on campaign contributions and political speech,” he wrote. “But if you don’t like big money in politics, then you should oppose big government in our lives. Because the former is a necessary consequence of the latter. When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen’s
prerogative—it becomes a human necessity. This is the inevitable result of a
government that would be unrecognizable to our Founders.”

Another controversial Ho dissent, in a 2018 case involving federal restrictions on interstate gun sales, likewise should resonate with libertarians. “The Second Amendment guarantees the right of the people to keep and bear arms,” Ho wrote. “For decades, the Supreme Court has referred to the Second Amendment as a fundamental civil right, comparable to other provisions of the Bill of Rights….Yet the Second Amendment continues to be treated as a ‘second-class’ right—as at least three Justices have noted in recent years.”

Unlike Ho’s comments about restrictions on campaign contributions, that observation falls squarely within the judicial role of enforcing the Constitution, although it might offend gun control advocates. By contrast, Ho’s comments about abortion in a 2018 concurrence went beyond the issue before the court.

The case involved a challenge to a Texas law that requires burial or cremation of “fetal remains.” The appeal challenged a subpoena requiring the Texas Conference of Catholic Bishops (TCCB), which was not a litigant, to produce internal emails and other private records within 24 hours. “The district court discounted the burdens of production on TCCB and failed to require more than a minimal, if any, rationale for discovery of TCCB’s internal communications,” a unanimous three-judge panel concluded. “The court was too quick to reject TCCB’s privilege claims. By acting in unnecessary haste, the court deprived TCCB of a fair opportunity to make its case for quashing the discovery.”

Ho went considerably further in his concurring opinion. “The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains,” he wrote. “By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.” Ho suggested that the subpoena was partly motivated by the desire to “retaliate against people of faith for not only believing in the sanctity of life—but also for wanting to do something about it.”

A 2019 Ho dissent likewise illustrates a tendency to offer opinions that stray beyond the questions presented. “If we want to stop mass shootings,” he declared in the opening line, “we should stop punishing police officers who put their lives on the line to prevent them.” The context of that remark makes Ho’s attitude especially troubling.

The case involved a 2013 fatal shooting in which police seem to have mistaken a 25-year-old mentally handicapped man on a bicycle for a suspect who had been destroying mailboxes, making threats, and firing a gun. When Kaufman County, Texas, sheriff’s deputies arrived at the scene, the suspect—uniformly identified by witnesses and police as a black man wearing a brown shirt who was on foot—took a shot at them before ducking out of sight. When Gabriel Winzer, a black man in a blue shirt (or possibly a blue jacket—the accounts in the district court decision and the 5th Circuit ruling differ on that detail) appeared on a bicycle, the deputies killed him, claiming that he had aimed a pistol at them.

U.S. District Judge David Godbey dismissed the civil rights lawsuit filed by Winzer’s family against the officers involved in the shooting. Among other things, he concluded that Officer Matthew Hinds was protected by qualified immunity, a doctrine that limits such claims to cases where police are accused of violating “clearly established” rights. Because Hinds had “probable cause” to believe that Winzer “posed a threat of serious bodily harm,” Godbey said, his use of deadly force was “objectively reasonable” in the circumstances.

Deeming that conclusion premature, a three-judge panel of the 5th Circuit sent the case back to the district court. “We conclude that a jury could find that the use of deadly force was unreasonable if it credited and drew reasonable inferences from the Winzers’ account,” the panel majority said. When the full court declined to rehear the case, Ho wrote a dissent that accepted the police version of events at face value and dismissed the countervailing evidence.

Winzer’s father said his son wanted to show the cops his orange cap gun, which he took with him on his bicycle. But according to this account, Winzer was not holding the toy in his hand and never raised his arm or made any threatening gestures. That affidavit, combined with the fact that Winzer did not resemble the suspect and the fact that police never found an actual gun, strongly suggests that they shot the wrong man, as the 5th Circuit panel concluded.

“The person on the bicycle was Gabriel Winzer, and not the suspect who had fired at Hinds and [Officer Gerardo] Hinojosa,” the panel said. “Appellants’ summary judgment evidence indicates that at the time of this shooting, Gabriel Winzer, the decedent, was inside his father’s house and did not fire this shot at the officers.”

Dissenting from the decision against rehearing the case, Ho did not just argue that Hinds reasonably feared his life was in danger when he saw Winzer. He also asserted that Winzer was the man who had fired at the deputies after all. “The panel majority suggests that Winzer might not have been the suspect,” Ho wrote (in fact, the panel majority flatly stated as much). “But as the district court noted, a forensic report later detected the presence of gunshot residue on Winzer’s body.”

Ho did not mention a possibility raised by a law enforcement expert who testified for the plaintiffs: The residue could have been transferred from the officers (who had just fired their guns) as they handcuffed a mortally wounded Winzer. If the case were allowed to proceed, that issue could be assessed by a jury. Likewise the conflicting accounts of the shooting and the difference between Winzer’s appearance and the suspect’s description. At this stage of the case, courts are supposed to view the evidence in the light most favorable to the plaintiffs, which Godbey and Ho conspicuously failed to do.

“It is unknown how many lives were saved by these deputies on April 27, 2013,” Ho wrote, although the answer might well be less than zero, since the cops killed a man who apparently posed no real threat. “What is known, however, is that Kaufman County will now stand trial for their potentially life-saving actions—and that its taxpayers, including those who will forever be traumatized by Winzer’s acts of terror, will pick up the tab for any judgment. I have deep concerns about the message this decision, and others like it, sends to the men and women who swear an oath to protect our lives and communities. For make no mistake, that message is this: See something, do nothing.”

Ho’s credulous acceptance of the police account, combined with his warning that allowing a jury to assess their conduct would jeopardize public safety, reflects a mindset similar to Donald Trump’s uncritical “defend the police” stance. By contrast, Neil Gorsuch, Trump’s first Supreme Court nominee, has been notably alert to the dangers of reflexively deferring to law enforcement.

Assuming Trump gets another chance to pick a justice, we would be lucky to get someone like Gorsuch. But we probably will have to settle for someone more like Ho.

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A bipartisan trio of senators has introduced a bill that could potentially keep people charged with federal drug crimes out of unnecessary pretrial detention. Sens. Dick Durbin (D–Ill.), Mike Lee (R–Utah), and Chris Coons (D–Del.) have introduced the Smarter Pretrial Detention for Drug Charges Act of 2020.

Currently, if you’re arrested for federal drug charges, a judge will determine your release conditions on the presumption that you will be let free, unless the judge concludes you’re a danger to the community or a flight risk. This, logically, is how pretrial detention should be handled in accordance with the Fifth Amendment of the Constitution. People who are suspected of crimes, but not yet convicted, shouldn’t be treated as guilty and imprisoned solely on the basis of unproven suspicion.

However, if you face a federal drug charge with a potential sentence of more than 10 years, the judge is required to treat you with the presumption that you will be detained, just as if you’d a serious violent federal offense and even if no violence was involved in your drug case. As a result, Durbin’s office noted, defendants charged with drug crimes end up being stuck in jail in two-thirds of federal cases. The average defendant will spend 255 days in pretrial detention without having been convicted of a crime.

Durbin, Lee, and Coons’ bill will put all drug offenses on the same level. People charged with drug offenses that could potentially result in long prison sentences will no longer be treated with a presumption or pre-trial detention. But this is also not a “Get Out of Jail Free” pass. A judge can still order the confinement of a defendant who is deemed a threat to the community or a flight risk. The difference is that the courts will no longer presume that this threat exists without any evidence.

“The Fifth Amendment protects the life, liberty, and property of all Americans from government interference without due process of law. This legislation seeks to better protect the right of all Americans against unjust imprisonment by changing the presumption for pretrial detention,” said Lee in a prepared statement. “This change to a presumption against pretrial detention will allow judges more discretion to consider each defendant’s individual and unique circumstances when deciding whether pretrial detention is appropriate and necessary.”

The bill has the support of criminal justice reform groups across the political spectrum. The American Civil Liberties Union, the Innocence Project, and the Drug Policy Alliance all support it, as does Americans for Prosperity, Justice Action Network, Americans for Tax Reform (federal pretrial detention costs taxpayers $18,615 per defendant), and FreedomWorks.

“At a time when pretrial detention is at a record high, COVID-19 continues to spread rapidly through our prisons and jails—creating a deadly situation where incarcerated people are twice as likely to die from this deadly pandemic,” Holly Harris, president and executive director of Justice Action Network, said in a statement. “Our criminal justice system was in desperate need of reform well before COVID-19 hit, but it is now in a state of emergency. We urge members of Congress from both sides of the aisle to support this legislation and ensure that we take smart steps to reduce incarceration and save the lives of people in prisons, correctional workers, and our communities at large.” 

So far there have been 13,139 reported COVID-19 infections in federal prisons and 125 deaths. There are currently about 226,000 people in federal detention, either convicted of crimes, awaiting trial, or being held over immigration issues.

How many people will Durbin, Lee, and Coons’ bill actually help? Probably not a huge number when compared to the entire population of people being held in prisons and jails in America. According to data from the Prison Policy Initiative, only about 22,000 people are being held in pre-trial detention in federal jails for drug crimes, but nearly half a million people being held in pretrial detention in state and local jails. The percentage of imprisoned people who may be freed under these new rules is in the single digits.

But the possibility that this law helps only a couple of thousand people per year doesn’t make this bill bad or worthy of dismissal. The FIRST STEP Act proves that criminal justice reforms can have huge, positive impacts on the lives of federal inmates, even if only a small number of the total prison population reaps its benefits.

Rather, the reason it’s worth noting the small number of people this bill will help is to illustrate that comprehensive criminal justice reform does not result from a single bill, or five, or 10. Given that most people are imprisoned by the states, not the federal government, reform will continue to require a wide network of activism and supportive lawmakers across the country, and many, many changes to laws and policies.

The Smarter Pretrial Detention for Drug Charges Act of 2020 is just a small part of these reforms, but it will certainly mean a lot for several thousand people each year if it passes.

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