Category: reason

From Dousa v. U.S. DHS, handed down yesterday by Judge Larry Alan Burns (S.D. Cal.):

“Access to public proceedings and records is an indispensable predicate to free expression about the workings of government.” The public’s interest in access is so weighty that the Court previously found that Plaintiff Kaji Dousa’s competing interest in protecting her social security number and birthdate outweighed the public interest “only slightly.”

U.S. Customs and Border Protection asks the Court to find the public interest again outweighed, this time by CBP’s interest in the secrecy of its sensitive law enforcement information. But the information CBP wants to seal has been on the docket since the turn of the year. It’s not secret anymore. CBP’s interest in a vain attempt to reclaim lost secrecy isn’t compelling enough to overcome the strong First Amendment interests in maintaining public access to the information….

CBP … asks to redact “confidential and law enforcement sensitive codes used in [CBP’s] Field Operation Reports.” CBP also asks the Court to seal the name, gender, race, and citizenship of three non-party individuals (although all that information save one name appears in unredacted form in the proposed replacement documents). The documents containing that information were first filed on December 20, 2019 and January 10, 2020 as part of briefing on a motion to dismiss and a motion for preliminary injunction. One document was re-filed on January 24, 2020 in connection with Dousa’s Motion to Seal a Previously Filed Document….

Because the public has an interest in the outcome of a motion to seal, a court can’t seal documents without independently weighing the movant’s interest against the public’s interest in access to court documents, even where no party opposes the motion. The public’s interest has deep roots, sprouting from the First Amendment to the United States Constitution. “The right of access is an essential part of the First Amendment’s purpose to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.”

Because this common law right is intended to promote public understanding of the judicial process and the bases for a court’s decision, the public’s interest is stronger where the information is part of briefing on a motion “more than tangentially related to the underlying cause of action.” The briefing in question—on a motion for preliminary injunction and a motion to dismiss—meets this description.

But just as clear as the public’s right to access is parties’ need for a forum in which they can litigate matters involving private information. In the case of a motion more than tangentially related to the underlying cause of action, the Ninth Circuit balances these considerations by permitted sealing orders only where the information is “traditionally kept secret” or where there are “compelling reasons” that outweigh the public’s interest….

Information “traditionally kept secret” is an exclusive club. Only categories of information with “neither a history of access nor an important public need justifying access” are allowed in. The doorkeeper applies this standard so strictly that the Ninth Circuit Court of Appeals has recognized only three members: grand jury transcripts, warrant materials during the pre-indictment phase of an investigation, and attorney-client privileged materials. Neither the personal information nor the “law enforcement sensitive” information CBP wants to redact fits any of these three categories.

Since CBP isn’t asking the Court to seal information “traditionally kept secret,” it must articulate compelling reasons supported by specific factual findings that outweigh the public’s right to access.

The Hope of Reclaiming Lost Secrecy Isn’t a Compelling Reason to Seal

CBP maintains that “[c]ontinued public disclosure of [its sensitive law enforcement material] would provide hostile actors with detailed insight into [CBP’s] capabilities” and “could provide an additional method of unauthorized access to” CBP’s intelligence reporting system. CBP argues that its “Associated Workspace” numbers, along with other law enforcement sensitive information regarding the development of its Field Information Reports, reveal “techniques and methods [of information collection], including intelligence-collection goals and priorities and the particular geographic and operational areas of focus.” The information also “reveals CBP’s assessment of the reliability of the information” contained in the Field Information Reports at issue, as well as “source descriptions, information about related CBP alerts and lookouts, and the virtual categorization of the Field Information Report.”

As for the redaction of non-parties’ personal information, CBP contends that the name, gender, race, and citizenship information it intended to redact are “sufficient information to harass or endanger” those non-parties.

The Court must conscientiously balance these concerns against the public’s interest. Performing the same analysis with respect to Dousa’s social security number and birthdate, the Court found a compelling reason to seal because the public didn’t have a legitimate interest in that information and there is no historic right of access to social security numbers.

But the information here is different. The incompletely redacted personal information—comprised of names, gender, race, and citizenship—isn’t as sensitive as social security numbers or even birthdates. And the public does have a legitimate interest in accessing the law enforcement sensitive information at issue.

That interest applies more forcefully to information more closely connected to the underlying claims in a case. Dousa claims that CBP had an improper motive for surveilling her and its contrary justifications are mere pretext. As a result, the public has a legitimate interest in information that reveals CBP’s intelligence-collection goals—CBP’s internally-stated motives for surveillance. The public has an interest, too, in information that could support or undermine the claim that CBP’s surveillance was pretextual— information like CBP’s internal assessment of whether it could rely on its information about Dousa’s activities.

CBP’s countervailing interest in sealing nevertheless might have outweighed the public interest had CBP promptly raised the issue. But by the time of the Motion, CBP’s interest had lost its potency. The unredacted information was publicly accessible for five months before CBP’s motion, and in that time at least one news organization drew the public’s attention to the documents.

Removing the information from the docket now certainly “would prevent additional individuals … from accessing the information through the Court’s docket.” But this doubly qualified statement highlights the practical limitations of the Court’s power. The Court can neither take the information away from individuals who have already accessed it nor prevent them from distributing it to others. CBP’s need for such a questionably effective order isn’t compelling enough to overcome the public’s legitimate interest in maintaining access.

CBP asks the Court to close the stable door to keep an invisible horse from bolting. But that stable door sat open for five months before CBP asked the Court to secure it. Neither the Court nor CBP know whether the horse is gone, but the possibility that it’s still be there can’t outweigh public’s interest in open doors.

And the feathers of the invisible horse can’t follow the cat into the pillow bag with the genie.

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From Jennifer B. v. Trafford Borough, decided yesterday by Judge Mark R. Hornak (W.D. Pa.); note that this simply holds that such behavior would be unconstitutional as a matter of law—it doesn’t conclude that it took place as a matter of fact (there may need to be a trial for that):

This is a civil rights action brought to recover monetary relief for alleged constitutional violations by a local municipality (Trafford Borough) and several of its officials, namely a police officer (Holmes), the Chief of Police (Disso), and Trafford’s municipal Code Enforcement Officer (Hlad) (collectively “the Defendants”).

The Plaintiffs allege that the Defendants caused the unjustified removal of two minor children from the home of the Plaintiff mother (Jennifer B.) under false pretenses—namely that the police were instructed to remove the children by Children and Youth Services. They also allege that the Defendants sought to force Jennifer B.’s father to evict her from the residence she leased from him, and to cause him to be fined if he did not do so, in retaliation for the Plaintiff/mother’s threat of legal action against the police officers for the removal of her children.

Plaintiff Timothy Sanchez—who Plaintiffs allege is in a romantic relationship with Plaintiff Jennifer B.—also claims he is a victim of unconstitutional retaliation for his association with Plaintiff Jennifer B, alleging that, without evidence or probable cause, the Defendant police officers cited him for operating a motor vehicle without a license because of that romantic relationship….

The Defendants next ask that this Court dismiss the claims at Counts IV and V as against Hlad, Disso and Trafford. Jennifer B. pleads that Hlad and Disso retaliated against her in terms of allegedly telling her father that he would be fined if he did not throw Jennifer B. out of her residence (which the father owned) after Jennifer B. said that she planned on suing the involved police officers for removing her children from her home. The Complaint pleads that as a consequence of that conduct by those Defendants, the father/landlord has taken legal action against Jennifer B. in order to evict her from the property.

These Defendants acknowledge that such a claim of First Amendment retaliation is recognized in the law, and requires that the Plaintiff have engaged in constitutionally protected conduct, that the alleged retaliation that was threatened would deter a person of ordinary firmness for exercising their constitutional rights, and that there was some causal link between those two things. These Defendants say that the alleged actions of the police officers should be classified as de minimis and should be treated as akin to criticisms or reprimands which would not support such a claim.

The allegations that the police and Code Enforcement Officer, acting under the color of state law, threatened to impose a fine on Jennifer B.’s father/landlord if he did not evict her, which allegedly led to him beginning the legal proceedings to do just that, all because she threatened to sue the police officers could easily be found by a jury to deter not only a person of “ordinary firmness” from exercising a right protected by the First Amendment (to access the courts and bring a lawsuit), but in the Court’s judgment could be found to deter a person of even special toughness.

The Plaintiffs’ allegation that, as a direct and proximate consequence of the Defendants’ threats, the landlord (Jennifer B.’s father) has begun the process of taking legal action to evict Plaintiff Jennifer B. especially counsels in favor of this conclusion. That is a tangible and substantial consequence triggered by the alleged threats of the police officers. The claims alleged against the individual Defendants at Count IV more than “show” a plausible claim for relief, and will not be dismissed, at least not at this stage of the case….

Lastly, the Defendants move to dismiss Plaintiff Sanchez’s claim of unconstitutional retaliation (Count III) based on qualified immunity. Sanchez asserts that he was punished by the Trafford Police by being cited for driving without a license, without any factual or legal basis, just because he was in a romantic relationship with Jennifer B. The Defendants say that such does not state a valid claim of a constitutional violation, but even if it did, the police officers here would not be subject to liability for money damages by virtue of the doctrine of qualified immunity.

Qualified immunity shields governmental actors from money damages liability unless they have violated a federal constitutional or statutory right, and when they did so, the unlawfulness of their conduct was clearly established or they were plainly incompetent…. [T]he First and Fourteenth Amendments protect the ability of any individual to closely associate with another person of their choosing, including in a consensual romantic or intimate relationship, even one that is outside of marriage.

It would appear to the Court that for quite some time now, the right to associate with others, and in particular to associate for purposes of what could be fairly described as a consensual intimate or “romantic” relationship, has been clearly established such that every law enforcement officer would know that. Lawrence, decided in 2003, would seem to plainly and “clearly” stand for the proposition that criminal sanctions cannot be exacted against a person because they engage in such a relationship, particularly the most intimate of relationships. See Christensen v. Cnty. of Boone, IL, 483 F.3d 454, 463 (7th Cir. 2007) (citing Lawrence) (intimate relationship between non-married consenting adults is form of intimate association protected by the Constitution); Anderson v. City of LaVergne, 371 F.3d 879, 881–82 (6th Cir. 2004) (same)….

[T]he Defendants [also] acknowledge that it is well-settled that government officials cannot subject a person to adverse governmental actions because the person engages in conduct protected by the First Amendment. These are not new or “murky” principles of law, but ones coming from clear and direct announcements in Supreme Court and Courts of Appeals cases.

Here, the Complaint expressly pleads that Defendant Holmes charged Sanchez with a motor vehicle code violation, without probable cause, in order to retaliate against Sanchez for Sanchez’s “romantic” association with Jennifer B., an association facially protected by the First and Fourteenth Amendments. The Complaint therefore appears to squarely fit the pleading bill laid out in Nieves—Constitutionally protected conduct (the romantic relationship), retaliatory action (the motor vehicle code charges), the lack of probable cause to support those charges, and the direct causal relationship between the fact of the relationship and the charges. So, the Complaint “shows” a claim for relief under the applicable law.

The Court also concludes that the above referenced Supreme Court and Circuit court decisions plainly and unequivocally identify the protected rights and the allegedly unconstitutional conduct in the context of the violations pleaded here with sufficient precision to defeat a claim of qualified immunity. Based on those cases, the Court concludes that every police officer, perhaps even the “plainly incompetent,” would have known that he could not bring an adverse criminal or otherwise punitive charge against an adult based on the fact of that adult having an otherwise lawful consensual romantic or intimate relationship with another adult. The Court concludes that existing precedent from the Supreme Court would have placed that question beyond debate….

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In a world where Facebook recognizes more than 70 sexual identities, are we really witnessing what author Debra Soh calls The End of Gender?

The Toronto-based sex researcher’s new book is subtitled “debunking the myths about sex and identity in our society” and she tells Nick Gillespie that scientific rigor is being tossed aside in the name of political activism when it comes to talking about gender differences and flashpoint issues such as allowing pre-pubescent children to transition sexually. Unapologetically “sex-positive” and in favor of letting consenting adults do whatever they want with their bodies, Soh worries that a new form of science denialism mostly on the left will ultimately undermine all sorts of social progress.

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“Is it a bunch of hooligans or decent people??? So sick of this sh*t I could scream!” 

One of my Twitter followers, who is apparently reluctant to tweet profanity, left this comment on a video of marchers I posted Monday night. I understand her frustration. It was the 82nd straight day of protests in Portland. The night before, a driver had been pulled from his truck and attacked by a mob of young people, one of whom was caught on video roundhouse kicking him in the head. The driver, who had done nothing to incite violence despite the crowd randomly shouting that he might have been there to run them down, was hospitalized. (He’s since been released.) The assailant was identified but as of this writing had not been arrested. Two nights later, fires would be alight once again, this time in the lobby of a county social services building.

But on Monday, a seemingly fatigued black bloc showed a different face to Portland, further complicating an already frustrating search for good guys and bad guys in the mess. 

Meanwhile, the majority of Portlanders go about their lives, participating in none of what is seen on TV, except when it bleeds into their neighborhoods, which it increasingly does. The federal building is no longer under nightly attack and demonstrators—of the kind we do see on TV—are finding other targets, at the moment mostly buildings used by Portland police. The police are now the object of visible and nightly wrath, their stations and union halls trashed, broken into, set on fire. Usually this results in the police facing off with demonstrators, mostly the faction of antifa known as black bloc, who then spill into residential streets. Earlier this month, several dozen ran through a three-block business district, setting fire to newly installed tables and barriers. Their excuse was that the cops chased them away from the nearby police union they were ransacking. OK. But did they have to set the tables on fire?

On Friday, the night marchers were on the move through residential streets, which for the most part are single-family homes, and unlit by streetlamps. It’s a surreal scene, hundreds of black-helmeted people funneling on to the narrow streets in the dark. Sometimes residents stand on their porches and watch. One couple and their three young children did so a few nights ago; the father applauded. This, right before the crowd started to chant, “LIAR LIAR GENTIFIER!” and “BLACK PEOPLE USED TO LIVE HERE!” I did not see how the couple, who were white, reacted, but I’ve spoken to many people who are afraid to appear in any way unsupportive of BLM, despite mission creep so severe that people, including local and state officials, equivocate about the setting on fires and seek near blanket exoneration for people bashing property of all kinds.

The good news is that some of the demonstrators are getting tired and bored. They’re almost always young, and if they had school or work or life as they once knew it to go back to, they probably would. 

Instead, here they are on a Monday night, gathering in a park in Portland’s Kenton neighborhood. The crowd of about 150 is almost entirely made of college-age kids in black militia chic. I am struck by how ungainly most of them look; how the uniform is what bequeaths a sense of stature, of belonging, of power. Individually they are frail, uncoordinated, splay-footed, or fat. They are not an elite fighting force, regardless of how they appear as they move monolithically into the streets. 

On the 82nd night of the demonstrations, the chants of “Stay together! Stay tight! We do this every night!” are low-energy. Once the crowd reaches its destination, the Portland Police Association (PPA), a squat building they’ve previously graffitied and set fire to, it does not seem to know what to do. There is no leader, no agenda. For 30 minutes, people loiter; they drink water; they check Instagram.

“Donut?” asks a young man, offering a boxful from Heavenly Donut across the street.

“A dumpster should appear any minute,” says a reporter, in reference to what’s become part of the ritual, the setting of dumpsters on fire. The closest dumpster, when I find it, has already been burned. Maybe the young dudes around the corner, the ones scaling the fence to the PPA’s parking lot, are looking for something there to set on fire? But no, they’re ripping plywood from the building’s boarded-up windows. 

“Start a chant!” one guy says. 

Another guy runs toward the crowd. “Breonna! Taylor!” he shouts, the chant is taken up and covers the sound of a window being broken. A gangly young man sees me scribbling in my pad and approaches. I expect to be told to move. Black bloc policy is not to speak to or be observed by any media. 

“Press?” he asks.

“Yes,” I tell him. I volunteer that I wouldn’t want to live next door; that they must be putting up with a lot of noise every night.

“I wouldn’t want to live within five blocks of any of the places,” he says, meaning the spots he and his fellow black blockers descend on, the PPA, the North Precinct police station, the Justice Center downtown.

I ask him about what happened the night before, that guy being pulled out of the truck. Does black bloc have any feelings about that? 

“It’s the 7-Eleven kids, the kids that hang out at the 7-Eleven,” he says, noting that they’re not affiliated with anyone. “The cops know they’re there,” he adds. “They’ve got them on video. They should have been there.” 

Right, but the cops are chasing black bloc all over the city, I remind him. Which seems to give him pause.

“They should have been there,” he repeats, showing something less than anarchistic purity.

Across the street, three locals watch what’s happening behind the PPA. 

“Do you have phones?” a girl asks them. “You’re not allowed to film.”

“Who says I am not allowed to film?” a woman of about 50 years old responds. 

The girl, who is holding a steel baton, repeats, “You’re not allowed the film.” 

“What are you going to do? You are going to kill me?” asks the woman, taking a step toward the girl. “I live on this street. You are not going to tell me what to do.”

The girl steps back. 

“You have nothing, and I am telling you, your parents did not raise you this way,” the woman says, causing the girl to pivot away and look undone, her magic black uniform offering no strength on its own. But she does not run toward her group—not yet—she seems for a moment to absorb the middle ground she’s in.

“They are children,” the woman, whom I later learn is named Marta, tells me. “I know her parents and grandparents did not raise her to believe this. She is Latina, like me.”

Earlier in the day, I’d seen a video from the protests on Saturday night, where cops moved through a shield line like a hot knife through butter, scattering black-clad figures. I’d watched those same people during their pre-protest “shield practice.” They’d responded heartily in the affirmative when told, “If you feel like you can put a target on your back, get out there and do it. Hold that line.”

There is some comfort in the lack of familiarity these young people exhibit with actual violence or even a little maternal discipline. The tricky part is that the image they are projecting, of people ready to burn down the world, will inevitably attract people with their own agenda, people who will start bigger trouble, or will come to oppose what they see as trouble.

Did I mention the Proud Boys are staging a rally in Portland on Saturday? 

The police finally appear tonight. They stretch out in several lines and say not one word. The demonstrators flow among them, shouting in their faces, squeezing piggy squeaker toys and telling the cops to quit their jobs, to kill themselves. The cops do not react; they stand there and let the jibes and provocation flow past them in turn. And then they go back to their vehicles. The demonstrators pursue, the cops toss one smoke bomb, the demonstrators run away. The end.

“Do you want to see better?” the gangly boy asks, offering to shine a flashlight over the fence so I can see the extent of tonight’s destruction of the PPA: a broken window, a box of Christmas decorations, a cash box holding some old raffle tickets. 

“Watch your step,” he says, and I climb down from the concrete rise I’m on. The kid is polite, he’s maybe 20. He appears uninterested in what’s happening at the end of the street: Demetria Hester, a figurehead of BLM, is thrusting her hips in the direction the cops have gone and chanting in her signature rasp, “FUCK the po-lice!” several hundred times. Three young women astride mimic her, with waning enthusiasm. 

By midnight, the crowd is again aimless. After listening to Letha Winston, whose son was shot and killed by police, tell them they’re “a bunch of clowns” for attacking buildings, the demonstrators debate among themselves where to march and, failing to reach consensus, go their separate ways into the night.

On Tuesday they are back—or some faction is back anyway—setting fire to a building where, as a local politician notes in a statement, “the first same-sex marriage in Oregon took place, and where millions of pieces of personal protective equipment are being distributed to help our community battle COVID-19, was damaged.” 

Not uncertain, but still oddly directionless, the black bloc marches blindly on. Maybe those heard chanting, “What did you see? Didn’t see shit!” as the fire burns have not yet learned it’s impossible to build with your eyes closed.

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A police officer who allegedly kneed a suspect 20 to 30 times in the eye after the man had been restrained is entitled to qualified immunity and thus cannot be sued over the incident, a federal court confirmed Monday.

Charles McManemy, who law enforcement suspected was making a drug delivery, claims that Deputy Bruce Tierney of Iowa’s Butler County Sheriff’s Office violated his Fourth Amendment rights by using excessive force after McManemy had surrendered with at least four cops already on top of him. Following the incident, McManemy says he suffered lasting damage in his eye with increased light sensitivity and “floaters.” But while a majority of the U.S. Court of Appeals for the Eighth Circuit held that Tierney did indeed violate McManemy’s rights, his suit “fails for a different reason: the absence of a clearly established right.”

“McManemy must point to a case that ‘squarely governs the specific facts at issue'” to prevail in withholding qualified immunity from Tierney, writes Circuit Judge David R. Stras. Such is the standard required by the legal doctrine, which shields public officials from civil liability: if a plaintiff cannot point to a near-identical scenario of police misconduct that has already been litigated and condemned in pre-existing case law, they may not sue the officer or officers who harmed them—even when the court finds the conduct in question violated their rights. 

Stras cites two 8th Circuit excessive force precedents—Gill v. Maciejewski (2008) and Krout v. Goemmer (2009)—that he says are different enough from what McManemy endured that Deputy Tierney could not have known his conduct was unconstitutional. Stras also ruled in favor of other deputies, who McManemy sued for not intervening. Of particular interest: Stras emphasizes that McManemy began resisting after voluntarily surrendering and laying face down on the ground; McManemy countered that he has a shoulder injury and was reacting in pain as he was handcuffed and tased. 

The Supreme Court created the “clearly established” standard in Harlow v. Fitzgerald (1982), cutting against Section 1983 of the Civil Rights Act, which previously allowed the American public to sue public officials when their rights were violated. While they still technically have that right, qualified immunity has made it considerably more difficult. Many plaintiffs, such as McManemy, are denied the right to bring a lawsuit if the “clearly established” threshold is not met. (Qualified immunity has no impact on criminal prosecution.)

Though it was theoretically constructed to protect civil servants from vacuous lawsuits, it has instead emboldened bad behavior. As I wrote earlier this month:

The legal doctrine has protected two cops who allegedly stole $225,000 while executing a search warrant; a sheriff’s deputy who shot a 10-year-old boy while aiming at the child’s non-threatening dog; prison guards who forced a naked inmate to sleep in cells filled with raw sewage and “massive amounts” of human feces; two cops who assaulted and arrested a man for the crime of standing outside of his own house; two officers who sicced a police dog on a surrendered suspect. That list is not exhaustive.

Writing in dissent, Circuit Judge L. Steven Grasz notes that it is, in fact, clearly established by current precedent that a needless show of force after someone has been overpowered is unconstitutional. “Viewed in a light most favorable to McManemy, the facts establish Deputy Tierney repeatedly—twenty to thirty times—kneed McManemy in the eye area after he was subdued and restrained,” he writes. A jury, he says, could reasonably believe that the force occurred after the situation necessitated it. But McMenemy won’t have a chance to present his case to any such jury, even though, as Grasz concludes, it has been “clearly established that gratuitous force” toward a subdued suspect “violates the Fourth Amendment.”

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