Oklahoma Court Bars Defendant “From Making Any Posts or Comments on Any Social Media” About Plaintiff

Smith is apparently involved with Jennings’ ex-wife, who is in a bitter custody battle with Jennings. Jennings, Smith alleged, had written posts falsely stating that Smith was a “pedophile” and a “known predator” (see the application for the TRO for more), so Smith sued Jennings for libel.

So far so good: Smith might have a valid libel claim. But instead of just getting damages, or even an injunctions against future libels, the court issued this pretrial restraining order (Smith v. Jennings (Okla. Dist. Ct.), dated Wednesday):

That can’t be constitutional, it seems to me.

But beyond that, Oklahoma is one of the several states that still forbids injunctions in libel cases, even narrow injunctions that ban repeating statements found to be libelous after a trial on the merits. See House of Sight & Sound, Inc. v. Faulkner, 912 P.2d 357, 361 (Okla. Civ. App. 1995); First Am. Bank & Trust Co. v. Sawyer, 865 P.2d 347, 352 (Okla. Civ. App. 1993). There is a narrow exception for “conspiracy, intimidation, or coercion,” but it is narrow indeed, and First Am. Bank & Trust Co. made clear that the “coercion” element is not satisfied simply by speech being aimed at pressuring a business to give the speaker a refund or similar benefit.

And I’ve seen plenty of other cases that issue such clearly unconstitutionally overbroad injunctions. Just a reminder, I think, that things happen in trial courts that are hard to reconcile with the appellate precedents—and if the losing party doesn’t have the money, energy, or time to fight the case on appeal, the trial judge’s decision stands.

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Police Unions Lose Bid To Block Release of Huge Trove of NYPD Misconduct Records

nypdcar_1161x653

A coalition of New York City police, firefighter, and prison guard unions have lost their bid to block the city’s planned release of a huge trove of police misconduct records. The ruling clears the way, at least for the moment, for New York City’s Civilian Complaint Review Board (CCRB) to post officers’ complaint histories, and for the New York Police Department to release separate disciplinary records it holds.

All those records had been confidential for the past 40 years under Section 50-a, a notorious police secrecy law. But the New York legislature repealed the law in June—a stinging defeat for police unions, who are still bitterly fighting to claw back what records they can. Today U.S. District Judge Katherine Polk Failla declined to grant a preliminary injunction barring New York City from releasing unsubstantiated misconduct allegations.

“Whoa!” an unidentified person on an unmuted line shouted during the telephonic court hearing, as Failla announced she was almost totally rejecting the police unions’ request.

Last month, Failla temporarily blocked New York City from disclosing the records while she weighed the unions’ arguments that the release of unsubstantiated complaints would lead to retaliation against police officers and harm their reputations and future employment prospects.

But before the unions filed their lawsuit, the review board released misconduct records to the New York Civil Liberties Union (NYCLU) and ProPublica, the latter of which published its own database of more than 4,000 complaints. A court initially blocked the NYCLU from releasing its records, but yesterday the 2nd Circuit Court of Appeals lifted that stay as well.

The NYCLU immediately published a database of more than 320,000 complaints filed against the city’s police officers since 1985. The New York Times reports that only 3 percent of those complaints were substantiated.

Today Failla ruled that the unions had failed to demonstrate the release would cause concrete harms or risks for officers.

“Plaintiffs have presented speculation only that these disclosures will increase risk of officer harm,” Failla said, noting that such records are public in a dozen other states.

Failla did, however, grant a narrow injunction blocking the city from releasing records on certain low-level disciplinary offenses that can be expunged under the officers’ collective bargaining agreement.

CCRB Chair Fred Davie said in a press release today that this outcome “is not only legally justified, but is the only logical path forward for preserving what New Yorkers and lawmakers intended through the repeal of 50-a. I applaud today’s decision—the fight for transparency has been delayed, but not deterred.”

The unions have until Monday afternoon to appeal Failla’s ruling to the 2nd Circuit Court of Appeals.

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Wall Funding Scandal Exposes Steve Bannon’s False Populism

sipaphotosten979485

Steve Bannon, former chief strategist to President Donald Trump, has been charged with defrauding donors to We Build the Wall, a private fundraising effort partially spearheaded by Bannon that collected donations in order to pay for portions of a U.S.-Mexico border barrier. Bannon built his public persona by amplifying anti-immigrant and pro-populist sentiments, first on Breitbart News, and then as Trump’s right-hand man during the 2016 campaign. Prosecutors now allege he fleeced his fellow America Firsters out of more than $1 million, which he then used to pay one of his co-conspirators and to cover his own personal expenses “unrelated to We Build the Wall.”

Bannon was indicted Thursday on one count of conspiracy to commit wire fraud and one count of conspiracy to commit money laundering.

As the executive chairman of Breitbart News following the death of site founder Andrew Breitbart, Bannon shaped the outfit’s nativist stance—with stories on things like “scary descriptions of refugees“—and called it “the platform for the alt-right” in a 2016 interview. He would go on to become one of the architects of Trump’s travel ban aimed at Muslim-majority countries. And though the Trump administration has said on various occasions that it supports a legal immigration program, Bannon called legal immigration “the real beating heart of [the] problem.”

In addition to encouraging nativist discontent, Bannon has branded himself as one of America’s most prominent populists, bucking the establishment, in theory, to assist the Little Guy. The indictment against Bannon calls into question his dedication to advancing his goals, considering he allegedly deceived his fellow patriots for the sake of financing a lavish personal life.

Bannon, who was found and arrested Thursday morning on a $35 million yacht belonging to a close associate, has already called the indictment a “political hit job.” A few figures on the right have followed suit, including Fox News host Lou Dobbs, who characterized it as a “deep state plot,” and Jenna Ellis, a Trump 2020 campaign adviser, who tweeted it was “yet another malicious political prosecution,” referring to the growing list of close Trump aides who have faced criminal charges.

Yet the indictment describes an ornate plot set in motion by Brian Kolfage, Andrew Badolato, Timothy Shea, and Bannon, who used the fundraising ruse to regularly siphon large sums of money from people who believed that 100 percent of their donations would go toward construction and that the campaign organizers indicted this week were volunteering their time and resources without payment. The project raised a total of $25 million and, according to the campaign’s website, 100 miles are “ready to be built.” Though under five miles of border fencing has actually been erected, the site reads “Promises Made, Promises Kept.”

Bannon claimed this week that the prosecution was motivated by politics. “This entire fiasco is to stop people who want to build the wall,” he said as he left the federal courthouse in Manhattan on Thursday, though Bannon himself was one of the primary obstacles standing in the way of his project’s success.

If convicted, Bannon faces up to 40 years in prison, but his actual sentence will likely not come close to that statutory maximum penalty. The average federal sentence for wire fraud in 2019 was around two years, a range that’s stayed relatively consistent over the last decade. For money laundering, the average sentence falls around 75 months or a little over six years.

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Oklahoma Court Bars Defendant “From Making Any Posts or Comments on Any Social Media” About Plaintiff

Smith is apparently involved with Jennings’ ex-wife, who is in a bitter custody battle with Jennings. Jennings, Smith alleged, had written posts falsely stating that Smith was a “pedophile” and a “known predator” (see the application for the TRO for more), so Smith sued Jennings for libel.

So far so good: Smith might have a valid libel claim. But instead of just getting damages, or even an injunctions against future libels, the court issued this pretrial restraining order (Smith v. Jennings (Okla. Dist. Ct.), dated Wednesday):

That can’t be constitutional, it seems to me.

But beyond that, Oklahoma is one of the several states that still forbids injunctions in libel cases, even narrow injunctions that ban repeating statements found to be libelous after a trial on the merits. See House of Sight & Sound, Inc. v. Faulkner, 912 P.2d 357, 361 (Okla. Civ. App. 1995); First Am. Bank & Trust Co. v. Sawyer, 865 P.2d 347, 352 (Okla. Civ. App. 1993). There is a narrow exception for “conspiracy, intimidation, or coercion,” but it is narrow indeed, and First Am. Bank & Trust Co. made clear that the “coercion” element is not satisfied simply by speech being aimed at pressuring a business to give the speaker a refund or similar benefit.

And I’ve seen plenty of other cases that issue such clearly unconstitutionally overbroad injunctions. Just a reminder, I think, that things happen in trial courts that are hard to reconcile with the appellate precedents—and if the losing party doesn’t have the money, energy, or time to fight the case on appeal, the trial judge’s decision stands.

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Police Unions Lose Bid To Block Release of Huge Trove of NYPD Misconduct Records

nypdcar_1161x653

A coalition of New York City police, firefighter, and prison guard unions have lost their bid to block the city’s planned release of a huge trove of police misconduct records. The ruling clears the way, at least for the moment, for New York City’s Civilian Complaint Review Board (CCRB) to post officers’ complaint histories, and for the New York Police Department to release separate disciplinary records it holds.

All those records had been confidential for the past 40 years under Section 50-a, a notorious police secrecy law. But the New York legislature repealed the law in June—a stinging defeat for police unions, who are still bitterly fighting to claw back what records they can. Today U.S. District Judge Katherine Polk Failla declined to grant a preliminary injunction barring New York City from releasing unsubstantiated misconduct allegations.

“Whoa!” an unidentified person on an unmuted line shouted during the telephonic court hearing, as Failla announced she was almost totally rejecting the police unions’ request.

Last month, Failla temporarily blocked New York City from disclosing the records while she weighed the unions’ arguments that the release of unsubstantiated complaints would lead to retaliation against police officers and harm their reputations and future employment prospects.

But before the unions filed their lawsuit, the review board released misconduct records to the New York Civil Liberties Union (NYCLU) and ProPublica, the latter of which published its own database of more than 4,000 complaints. A court initially blocked the NYCLU from releasing its records, but yesterday the 2nd Circuit Court of Appeals lifted that stay as well.

The NYCLU immediately published a database of more than 320,000 complaints filed against the city’s police officers since 1985. The New York Times reports that only 3 percent of those complaints were substantiated.

Today Failla ruled that the unions had failed to demonstrate the release would cause concrete harms or risks for officers.

“Plaintiffs have presented speculation only that these disclosures will increase risk of officer harm,” Failla said, noting that such records are public in a dozen other states.

Failla did, however, grant a narrow injunction blocking the city from releasing records on certain low-level disciplinary offenses that can be expunged under the officers’ collective bargaining agreement.

CCRB Chair Fred Davie said in a press release today that this outcome “is not only legally justified, but is the only logical path forward for preserving what New Yorkers and lawmakers intended through the repeal of 50-a. I applaud today’s decision—the fight for transparency has been delayed, but not deterred.”

The unions have until Monday afternoon to appeal Failla’s ruling to the 2nd Circuit Court of Appeals.

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Wall Funding Scandal Exposes Steve Bannon’s False Populism

sipaphotosten979485

Steve Bannon, former chief strategist to President Donald Trump, has been charged with defrauding donors to We Build the Wall, a private fundraising effort partially spearheaded by Bannon that collected donations in order to pay for portions of a U.S.-Mexico border barrier. Bannon built his public persona by amplifying anti-immigrant and pro-populist sentiments, first on Breitbart News, and then as Trump’s right-hand man during the 2016 campaign. Prosecutors now allege he fleeced his fellow America Firsters out of more than $1 million, which he then used to pay one of his co-conspirators and to cover his own personal expenses “unrelated to We Build the Wall.”

Bannon was indicted Thursday on one count of conspiracy to commit wire fraud and one count of conspiracy to commit money laundering.

As the executive chairman of Breitbart News following the death of site founder Andrew Breitbart, Bannon shaped the outfit’s nativist stance—with stories on things like “scary descriptions of refugees“—and called it “the platform for the alt-right” in a 2016 interview. He would go on to become one of the architects of Trump’s travel ban aimed at Muslim-majority countries. And though the Trump administration has said on various occasions that it supports a legal immigration program, Bannon called legal immigration “the real beating heart of [the] problem.”

In addition to encouraging nativist discontent, Bannon has branded himself as one of America’s most prominent populists, bucking the establishment, in theory, to assist the Little Guy. The indictment against Bannon calls into question his dedication to advancing his goals, considering he allegedly deceived his fellow patriots for the sake of financing a lavish personal life.

Bannon, who was found and arrested Thursday morning on a $35 million yacht belonging to a close associate, has already called the indictment a “political hit job.” A few figures on the right have followed suit, including Fox News host Lou Dobbs, who characterized it as a “deep state plot,” and Jenna Ellis, a Trump 2020 campaign adviser, who tweeted it was “yet another malicious political prosecution,” referring to the growing list of close Trump aides who have faced criminal charges.

Yet the indictment describes an ornate plot set in motion by Brian Kolfage, Andrew Badolato, Timothy Shea, and Bannon, who used the fundraising ruse to regularly siphon large sums of money from people who believed that 100 percent of their donations would go toward construction and that the campaign organizers indicted this week were volunteering their time and resources without payment. The project raised a total of $25 million and, according to the campaign’s website, 100 miles are “ready to be built.” Though under five miles of border fencing has actually been erected, the site reads “Promises Made, Promises Kept.”

Bannon claimed this week that the prosecution was motivated by politics. “This entire fiasco is to stop people who want to build the wall,” he said as he left the federal courthouse in Manhattan on Thursday, though Bannon himself was one of the primary obstacles standing in the way of his project’s success.

If convicted, Bannon faces up to 40 years in prison, but his actual sentence will likely not come close to that statutory maximum penalty. The average federal sentence for wire fraud in 2019 was around two years, a range that’s stayed relatively consistent over the last decade. For money laundering, the average sentence falls around 75 months or a little over six years.

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Democratic Convention Recap: Biden and Harris Vow To Make Government Even Bigger

Biden-Harris at DNC 2020

The Democratic Party just hosted its first-ever virtual national convention, where it nominated Joe Biden and Kamala Harris for president and vice president. The goal of the four-day event was to unify the party’s moderates and progressives by focusing on President Donald Trump’s moral and political failings. 

But despite all the talk of change, it was clear that after four years of rising walls, spiraling debt, and rule by executive order, the Democrats are resolved to stay the course and continue expanding the size and scope of the federal government.

Biden blasted the Trump administration for its disastrous response to the coronavirus pandemic and pledged to institute a national mask mandate; the rest of his plan was short on specifics. New York Gov. Andrew Cuomo, whose decision to return elderly people infected with COVID-19 to nursing homes led to thousands of deaths, was summoned to provide the party’s vision for responsible leadership.

The Democrats sought to exploit the coronavirus to justify bigger government—what they call “bold” federal action. They pledged strong gun control measures to respond to an “epidemic of gun violence,” even though the gun homicide rate today is half what it was in the early ’90s.

They promised that a Biden-Harris administration would address systemic racial bias and reform a criminal justice system that, ironically, Biden played a lead role in creating. But the speeches were short on specifics about what a Democratic White House would actually do to reverse the impact of laws like the 1994 crime bill, which Biden defended all the way up until the beginning of his presidential campaign last year. 

The party did offer numerous proposals for new government mandates and increased spending on social programs to fight racial and wealth inequality. It also tied social justice issues to Biden’s $2 trillion plan to address climate change, which he’s selling as a form of economic stimulus—even as the federal debt just climbed above 100 percent of gross domestic product.

Similar to Trump, Biden promises to move jobs back to the U.S. And though former President Bill Clinton attacked Trump’s tariffs on China, Biden hasn’t committed to repealing those tariffs if elected.

A major theme was Trump’s incompetence, divisiveness, and general inability to rise to the challenges he has confronted. Convention organizers sought to convince voters that Joe Biden would bring back decency and the pre-Trump normal. 

Hawaii Rep. Tulsi Gabbard, the Democrats’ most visible critic of our endless wars, wasn’t invited, but former Secretary of State Colin Powell, who alongside Biden helped make the case for the Iraq War, delivered a speech. He argued that a Biden administration would bring back the glory days of America projecting its power around the globe.

Hillary Clinton called Trump’s concerns about vote-by-mail fraud a conspiracy theory, and then repeated one of her own, claiming that it wasn’t her fault she lost the election: Russia stole it away. 

Even if you’re disaffected with 2-party politics-as-normal, even if you find the major candidates unacceptable election after election, the 2020 Democratic National Convention was designed to convince you that you can create change at the polls this time for real, and that voting is not just your right but your responsibility—just as long as you vote for Joe Biden and Kamala Harris.

Written and edited by Justin Monticello. Graphics by Isaac Reese and Meredith Bragg. Research by Regan Taylor. Audio production by Ian Keyser.

Music: Lance Conrad and Russo.

Photos: Democratic National Convention via CNP/SplashNews/Newscom; Democratic National Convention via CNP/SplashNews/Newscom; Caroline Brehman/CQ Roll Call/Newscom; CNP/AdMedia/Newscom; CNP/AdMedia; Anna Moneymaker—Pool via CNP/MEGA/Newscom; Anna Moneymaker—Pool via CNP/MEGA/Newscom; David Cliff/ZUMA Press/Newscom; Lev Radin/ZUMA Press/Newscom; John Lamparski/ZUMA Press/Newscom; Everett Collection/Newscom; Rod Lamkey—CNP/Sipa USA/Newscom; Ron Sachs/dpa/picture-alliance/Newscom; Richard Ellis/ZUMA Press/Newscom; Jeff Malet Photography/Newscom; Ron Sachs/picture alliance/Consolidated News Photos/Newscom; SMG/ZUMA Press/Newscom; MIKE THEILER/UPI/Newscom; CARLOS BARRIA/Reuters/Newscom; BRIAN SNYDER/UPI/Newscom; Anna Moneymaker—Pool via CNP/MEGA/Newscom; David Crane/ZUMA Press/Newscom; Dennis Brack/DanitaDelimont.com “Danita Delimont Photography”/Newscom; Democratic National Convention V/ZUMA Press/Newscom; CNP/AdMedia/SIPA; Democratic National Convention via CNP/picture alliance/Consolidated News Photos/Newscom; GARY I ROTHSTEIN/UPI/Newscom; Allison Ross/TNS/Newscom; Tia Dufour/White House/ZUMA Press/Newscom

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Democratic Convention Recap: Biden and Harris Vow To Make Government Even Bigger

Biden-Harris at DNC 2020

The Democratic Party just hosted its first-ever virtual national convention, where it nominated Joe Biden and Kamala Harris for president and vice president. The goal of the four-day event was to unify the party’s moderates and progressives by focusing on President Donald Trump’s moral and political failings. 

But despite all the talk of change, it was clear that after four years of rising walls, spiraling debt, and rule by executive order, the Democrats are resolved to stay the course and continue expanding the size and scope of the federal government.

Biden blasted the Trump administration for its disastrous response to the coronavirus pandemic and pledged to institute a national mask mandate; the rest of his plan was short on specifics. New York Gov. Andrew Cuomo, whose decision to return elderly people infected with COVID-19 to nursing homes led to thousands of deaths, was summoned to provide the party’s vision for responsible leadership.

The Democrats sought to exploit the coronavirus to justify bigger government—what they call “bold” federal action. They pledged strong gun control measures to respond to an “epidemic of gun violence,” even though the gun homicide rate today is half what it was in the early ’90s.

They promised that a Biden-Harris administration would address systemic racial bias and reform a criminal justice system that, ironically, Biden played a lead role in creating. But the speeches were short on specifics about what a Democratic White House would actually do to reverse the impact of laws like the 1994 crime bill, which Biden defended all the way up until the beginning of his presidential campaign last year. 

The party did offer numerous proposals for new government mandates and increased spending on social programs to fight racial and wealth inequality. It also tied social justice issues to Biden’s $2 trillion plan to address climate change, which he’s selling as a form of economic stimulus—even as the federal debt just climbed above 100 percent of gross domestic product.

Similar to Trump, Biden promises to move jobs back to the U.S. And though former President Bill Clinton attacked Trump’s tariffs on China, Biden hasn’t committed to repealing those tariffs if elected.

A major theme was Trump’s incompetence, divisiveness, and general inability to rise to the challenges he has confronted. Convention organizers sought to convince voters that Joe Biden would bring back decency and the pre-Trump normal. 

Hawaii Rep. Tulsi Gabbard, the Democrats’ most visible critic of our endless wars, wasn’t invited, but former Secretary of State Colin Powell, who alongside Biden helped make the case for the Iraq War, delivered a speech. He argued that a Biden administration would bring back the glory days of America projecting its power around the globe.

Hillary Clinton called Trump’s concerns about vote-by-mail fraud a conspiracy theory, and then repeated one of her own, claiming that it wasn’t her fault she lost the election: Russia stole it away. 

Even if you’re disaffected with 2-party politics-as-normal, even if you find the major candidates unacceptable election after election, the 2020 Democratic National Convention was designed to convince you that you can create change at the polls this time for real, and that voting is not just your right but your responsibility—just as long as you vote for Joe Biden and Kamala Harris.

Written and edited by Justin Monticello. Graphics by Isaac Reese and Meredith Bragg. Research by Regan Taylor. Audio production by Ian Keyser.

Music: Lance Conrad and Russo.

Photos: Democratic National Convention via CNP/SplashNews/Newscom; Democratic National Convention via CNP/SplashNews/Newscom; Caroline Brehman/CQ Roll Call/Newscom; CNP/AdMedia/Newscom; CNP/AdMedia; Anna Moneymaker—Pool via CNP/MEGA/Newscom; Anna Moneymaker—Pool via CNP/MEGA/Newscom; David Cliff/ZUMA Press/Newscom; Lev Radin/ZUMA Press/Newscom; John Lamparski/ZUMA Press/Newscom; Everett Collection/Newscom; Rod Lamkey—CNP/Sipa USA/Newscom; Ron Sachs/dpa/picture-alliance/Newscom; Richard Ellis/ZUMA Press/Newscom; Jeff Malet Photography/Newscom; Ron Sachs/picture alliance/Consolidated News Photos/Newscom; SMG/ZUMA Press/Newscom; MIKE THEILER/UPI/Newscom; CARLOS BARRIA/Reuters/Newscom; BRIAN SNYDER/UPI/Newscom; Anna Moneymaker—Pool via CNP/MEGA/Newscom; David Crane/ZUMA Press/Newscom; Dennis Brack/DanitaDelimont.com “Danita Delimont Photography”/Newscom; Democratic National Convention V/ZUMA Press/Newscom; CNP/AdMedia/SIPA; Democratic National Convention via CNP/picture alliance/Consolidated News Photos/Newscom; GARY I ROTHSTEIN/UPI/Newscom; Allison Ross/TNS/Newscom; Tia Dufour/White House/ZUMA Press/Newscom

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

The year 2020 has brought unprecedented crises. First, a global and deadly pandemic swept our country from coast to coast. It continues to cost Americans their lives, as well as their livelihoods, with over 40 million Americans unemployed in a devastated economy. And the video of a Black American dying at the hands of law enforcement, coupled with other killings, reignited festering issues with official misconduct. Long-standing laws and policies have exacerbated each of these crises. It’s time to reset. It’s time to upend the status quo and make 2021 a year of recovery. That’s why this week IJ launched the 2021 Initiative, a program to help state and local lawmakers draft tailored, impactful, and responsive legislation to create economic opportunity, increase availability of health care, and instill accountability in government. Click here to learn more.

  • While Massachusetts state troopers book a man for a DUI, he cuts his head and needs 11 staples. Officers say he accidentally fell head first into the toilet. The man says they deliberately walked him into something. A jury awards the man $78k after determining that one of the officers deliberately injured him and that all three officers assented to the use of excessive force and intended to cover it up—a conspiracy to violate the Fourth Amendment. First Circuit: Which is supported by the evidence.
  • Maine DEA obtain a dozen search warrants that lead to the discovery of lots of drugs and convictions for a dealer called Deuce. The First Circuit brings you its affirmance of Deuce’s convictions and, along with it, a Judge Selya vocab quiz: immurement, asseverational, aborning, dysphemism.
  • Tardigrades, also known as “water bears” and “moss piglets,” are fascinating microscopic critters that can survive in boiling hot springs, buried under layers of ice, and even in the vacuum of space. They also feature prominently in this copyright suit, in which the creator of a videogame in which tardigrades assist with instantaneous space travel sues the creators of Star Trek: Discovery, a recent entry in the Star Trek canon, in which tardigrades assist with instantaneous space travel. Will he win? Second Circuit: Shaka, when the walls fell.
  • Costco, purveyor of bulk toilet paper and 24-can packs of sparkling water, also sells engagement rings in a variety of styles. One is the Tiffany setting, a six-prong diamond solitaire. (Available for purchase is a 10-carat ring for a cool $400k.) These are not blue-box rings; they are unbranded rings from another vendor with the word “Tiffany” in display-case signs. Trademark infringement? District court: Yes. Pay $21 million. Second Circuit: Not so fast. A jury ought to consider whether the signs were confusing or the term was a generic descriptor used in good faith.
  • Rappers 50 Cent and Rick Ross have feuded for years. The current stage: 50 Cent’s lawsuit (brought as part of his bankruptcy) alleging that Rick Ross’s “In Da Club (Ft. 50 Cent)” remix violates 50 Cent’s common law right of publicity. But the Second Circuit doesn’t buy it, holding the claim is preempted by the Copyright Act.
  • Connecticut health officials fear eight people may have been exposed to Ebola, order them to quarantine for 21 days. Mid-quarantine, the CDC changes its policy to recommend no restrictions for people like these eight. But the quarantine remains with police stationed outside their homes. (None end up infected.) Unreasonable seizures or due process violations? Second Circuit: Well, it’s unlikely to reoccur, so they can’t seek prospective relief. And to the extent they sought damages, qualified immunity. Partial dissent: Gov’t power to prevent the spread of disease may not be exercised arbitrarily. The plaintiffs should be able to seek damages.
  • To grant licenses for at-home possession of a firearm, New York requires that applicants have “good moral character.” Which is neither unconstitutionally vague nor a violation of the Second Amendment, says the Second Circuit.
  • In this case from western Pennsylvania, “the District Judge’s law clerk conducted a one-hour-and-fifteen-minute unrecorded and untranscribed telephone conference where he advised counsel that the Judge intended to exclude the proposed expert report”—a conference that apparently led the defendant to plead guilty. Third Circuit: Unusual, inappropriate, vacated.
  • A three-judge panel of the Sixth Circuit achieved the rare sexpartite fracture, with Judge Moore writing for herself and Judge Siler with Judge Nalbandian dissenting; Judge Siler writing for himself and Judge Nalbandian with Judge Moore dissenting; and Judge Nalbandian writing for himself and Judge Siler with Judge Moore dissenting. The upshot? A jury will decide whether a prisoner found hanging in a Brown County, Ohio jail cell really committed suicide or the scene was staged by the guards who killed him.
  • Cleveland, Ohio EMT captain allegedly uses his personal Facebook page to make incendiary comments about the shooting of 12-year-old Tamir Rice. Cleveland fires him. He sues. Sixth Circuit: Because the Facebook posts addressed a matter of public concern, the captain’s firing at least implicates the First Amendment. For now, his case can proceed.
  • Alerted that a “creepy” car is parked (legally) on a street, two city of Euclid, Ohio police officers awaken the man sleeping in the driver’s seat. Following a struggle—in which one officer ends up in the passenger’s seat—the man slowly drives away. The seated officer repeatedly strikes the man, tases him, strikes him with the taser, and then shoots him to death after the car comes to a stop. Sixth Circuit: The shooting was unreasonable enough to violate the Fourth Amendment but not enough to trump qualified immunity. (The state-law claims may proceed, though). Judge Donald, dissenting in part: Qualified immunity should not shield the officer.
  • Federal inmate imprisoned in Forrest City, Ark. desires to hire someone to murder his ex-wife and her boyfriend. Posing as a hitman, undercover agent has lengthy written and in-person discussions with inmate, culminating in a written murder-for-hire contract. Prosecution under federal murder-for-hire statute ensues. And because the inmate was decidedly not entrapped, Eighth Circuit affirms, his conviction stands.
  • After sitting on the Missouri grand jury that declined to indict Darren Wilson (the Ferguson police officer who killed Michael Brown), a former juror sues to challenge the state’s grand-jury-secrecy law. Juror: The law violates my First Amendment right to talk about my experience on the grand jury. Eighth Circuit: If the First Amendment applies at all, it’s not violated here.
  • In 2016, California enacted a ban on possessing “large-capacity magazines”—firearm magazines that can hold more than 10 rounds. Which cannot be squared with the Second Amendment, holds two-thirds of a Ninth Circuit panel.
  • After the Supreme Court decided Citizens United v. FEC, nonprofits that are not generally required to disclose their donors began running political ads. Watchdog group sues the Federal Election Commission, alleging that federal law requires disclosure of donors to any group spending more than $250 on such ads and that the FEC is failing to enforce this requirement. FEC: We interpret the law to require disclosure only for contributions that are earmarked for political ads. D.C. Circuit: Nope. If a nonprofit spends more than $250 on political ads, it has to disclose the name of everyone who has given it more than $200 in the relevant reporting period.
  • And in en banc news, the Second Circuit will not reconsider its decision reinstating a case alleging that President Trump’s financial stake in certain businesses violates the Emoluments Clause. The denial features several dissents and dueling statements from senior judges unable to vote to take the case en banc but who nonetheless wish to share their opinions.

Friends, we hate to tell you this, but there’s a good chance that your state is CONning you. That’s because 35 states currently have “certificate of need” or “CON” laws that set hard caps on a variety of medical services, including much-needed ICU beds. A new IJ report details how this patchwork of decades-old laws hinders health care providers’ ability to meet the needs of the nation, and provides suggestions for reform.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

The year 2020 has brought unprecedented crises. First, a global and deadly pandemic swept our country from coast to coast. It continues to cost Americans their lives, as well as their livelihoods, with over 40 million Americans unemployed in a devastated economy. And the video of a Black American dying at the hands of law enforcement, coupled with other killings, reignited festering issues with official misconduct. Long-standing laws and policies have exacerbated each of these crises. It’s time to reset. It’s time to upend the status quo and make 2021 a year of recovery. That’s why this week IJ launched the 2021 Initiative, a program to help state and local lawmakers draft tailored, impactful, and responsive legislation to create economic opportunity, increase availability of health care, and instill accountability in government. Click here to learn more.

  • While Massachusetts state troopers book a man for a DUI, he cuts his head and needs 11 staples. Officers say he accidentally fell head first into the toilet. The man says they deliberately walked him into something. A jury awards the man $78k after determining that one of the officers deliberately injured him and that all three officers assented to the use of excessive force and intended to cover it up—a conspiracy to violate the Fourth Amendment. First Circuit: Which is supported by the evidence.
  • Maine DEA obtain a dozen search warrants that lead to the discovery of lots of drugs and convictions for a dealer called Deuce. The First Circuit brings you its affirmance of Deuce’s convictions and, along with it, a Judge Selya vocab quiz: immurement, asseverational, aborning, dysphemism.
  • Tardigrades, also known as “water bears” and “moss piglets,” are fascinating microscopic critters that can survive in boiling hot springs, buried under layers of ice, and even in the vacuum of space. They also feature prominently in this copyright suit, in which the creator of a videogame in which tardigrades assist with instantaneous space travel sues the creators of Star Trek: Discovery, a recent entry in the Star Trek canon, in which tardigrades assist with instantaneous space travel. Will he win? Second Circuit: Shaka, when the walls fell.
  • Costco, purveyor of bulk toilet paper and 24-can packs of sparkling water, also sells engagement rings in a variety of styles. One is the Tiffany setting, a six-prong diamond solitaire. (Available for purchase is a 10-carat ring for a cool $400k.) These are not blue-box rings; they are unbranded rings from another vendor with the word “Tiffany” in display-case signs. Trademark infringement? District court: Yes. Pay $21 million. Second Circuit: Not so fast. A jury ought to consider whether the signs were confusing or the term was a generic descriptor used in good faith.
  • Rappers 50 Cent and Rick Ross have feuded for years. The current stage: 50 Cent’s lawsuit (brought as part of his bankruptcy) alleging that Rick Ross’s “In Da Club (Ft. 50 Cent)” remix violates 50 Cent’s common law right of publicity. But the Second Circuit doesn’t buy it, holding the claim is preempted by the Copyright Act.
  • Connecticut health officials fear eight people may have been exposed to Ebola, order them to quarantine for 21 days. Mid-quarantine, the CDC changes its policy to recommend no restrictions for people like these eight. But the quarantine remains with police stationed outside their homes. (None end up infected.) Unreasonable seizures or due process violations? Second Circuit: Well, it’s unlikely to reoccur, so they can’t seek prospective relief. And to the extent they sought damages, qualified immunity. Partial dissent: Gov’t power to prevent the spread of disease may not be exercised arbitrarily. The plaintiffs should be able to seek damages.
  • To grant licenses for at-home possession of a firearm, New York requires that applicants have “good moral character.” Which is neither unconstitutionally vague nor a violation of the Second Amendment, says the Second Circuit.
  • In this case from western Pennsylvania, “the District Judge’s law clerk conducted a one-hour-and-fifteen-minute unrecorded and untranscribed telephone conference where he advised counsel that the Judge intended to exclude the proposed expert report”—a conference that apparently led the defendant to plead guilty. Third Circuit: Unusual, inappropriate, vacated.
  • A three-judge panel of the Sixth Circuit achieved the rare sexpartite fracture, with Judge Moore writing for herself and Judge Siler with Judge Nalbandian dissenting; Judge Siler writing for himself and Judge Nalbandian with Judge Moore dissenting; and Judge Nalbandian writing for himself and Judge Siler with Judge Moore dissenting. The upshot? A jury will decide whether a prisoner found hanging in a Brown County, Ohio jail cell really committed suicide or the scene was staged by the guards who killed him.
  • Cleveland, Ohio EMT captain allegedly uses his personal Facebook page to make incendiary comments about the shooting of 12-year-old Tamir Rice. Cleveland fires him. He sues. Sixth Circuit: Because the Facebook posts addressed a matter of public concern, the captain’s firing at least implicates the First Amendment. For now, his case can proceed.
  • Alerted that a “creepy” car is parked (legally) on a street, two city of Euclid, Ohio police officers awaken the man sleeping in the driver’s seat. Following a struggle—in which one officer ends up in the passenger’s seat—the man slowly drives away. The seated officer repeatedly strikes the man, tases him, strikes him with the taser, and then shoots him to death after the car comes to a stop. Sixth Circuit: The shooting was unreasonable enough to violate the Fourth Amendment but not enough to trump qualified immunity. (The state-law claims may proceed, though). Judge Donald, dissenting in part: Qualified immunity should not shield the officer.
  • Federal inmate imprisoned in Forrest City, Ark. desires to hire someone to murder his ex-wife and her boyfriend. Posing as a hitman, undercover agent has lengthy written and in-person discussions with inmate, culminating in a written murder-for-hire contract. Prosecution under federal murder-for-hire statute ensues. And because the inmate was decidedly not entrapped, Eighth Circuit affirms, his conviction stands.
  • After sitting on the Missouri grand jury that declined to indict Darren Wilson (the Ferguson police officer who killed Michael Brown), a former juror sues to challenge the state’s grand-jury-secrecy law. Juror: The law violates my First Amendment right to talk about my experience on the grand jury. Eighth Circuit: If the First Amendment applies at all, it’s not violated here.
  • In 2016, California enacted a ban on possessing “large-capacity magazines”—firearm magazines that can hold more than 10 rounds. Which cannot be squared with the Second Amendment, holds two-thirds of a Ninth Circuit panel.
  • After the Supreme Court decided Citizens United v. FEC, nonprofits that are not generally required to disclose their donors began running political ads. Watchdog group sues the Federal Election Commission, alleging that federal law requires disclosure of donors to any group spending more than $250 on such ads and that the FEC is failing to enforce this requirement. FEC: We interpret the law to require disclosure only for contributions that are earmarked for political ads. D.C. Circuit: Nope. If a nonprofit spends more than $250 on political ads, it has to disclose the name of everyone who has given it more than $200 in the relevant reporting period.
  • And in en banc news, the Second Circuit will not reconsider its decision reinstating a case alleging that President Trump’s financial stake in certain businesses violates the Emoluments Clause. The denial features several dissents and dueling statements from senior judges unable to vote to take the case en banc but who nonetheless wish to share their opinions.

Friends, we hate to tell you this, but there’s a good chance that your state is CONning you. That’s because 35 states currently have “certificate of need” or “CON” laws that set hard caps on a variety of medical services, including much-needed ICU beds. A new IJ report details how this patchwork of decades-old laws hinders health care providers’ ability to meet the needs of the nation, and provides suggestions for reform.

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