These Women Received a Death Sentence for Being Sick In Prison

FCI-aliceville

In the early hours of March 18, 2019, Hazel McGary’s cellmate woke up to find her on the floor.

This was all too common. McGary, an inmate at FCI Aliceville, a federal women’s prison in Alabama, had been having escalating health problems, including falling out of bed. Her cellmate had been taking care of her, escorting her in a wheelchair to and from the prison’s medical center several times a week, where McGary had been waging a monthslong battle with indifferent prison officials to prove she was seriously ill.

Something different happened that morning, though, when staffers took McGary to the prison’s medical services. She didn’t come back. 

Hazel McGary is one of three inmates identified by Reason who have died from alleged medical neglect since 2018 at FCI Aliceville. Numerous current and former inmates, as well as their families, say in interviews, desperate letters, and lawsuits, that women inside Aliceville face disastrous delays in medical care. They describe monthslong waits for doctor appointments and routine procedures, skepticism and retaliation from staff, and terrible pain and fear.

The Bureau of Prisons (BOP) listed the cause of death in all three cases as “natural causes,” according to public records obtained by Reason. That classification, while technically correct, erases the culpability of the agency. It’s like claiming a man accidentally drowned after you refused to throw him a life preserver.

But the agency doesn’t want to talk about what happened. When asked for more information, the BOP public affairs office said the agency “does not disclose the details of an inmate’s death.” The FCI Aliceville public information officer did not return multiple requests for comment. Reason has been waiting for more than a year for additional Freedom of Information Act records concerning these incidents.

None of these women was ever sentenced to death. But in Aliceville, that’s effectively the sentence they received—for nothing more than the crime of being sick. 

Although the severity of their offenses is irrelevant to their constitutional rights, all three were serving sentences for nonviolent crimes. Under the Eighth Amendment, which prohibits cruel and unusual punishment, the government had a legal obligation to provide basic necessities to them, including health care. This requirement is ostensibly what separates our enlightened justice system from the sadism of the past.

Their deaths are a reminder that the barbarism the Constitution intended to forbid never really disappeared and is still with us today. They also point toward the need, at the very least, for stronger independent oversight of the BOP’s medical services. At most, they raise the question of whether these women and other offenders should be sent to prison at all, given the U.S. government’s inability to meet the Eighth Amendment’s low bar.  

Beyond abstract principles, each one of these women had families who loved them. McGary’s daughters, Kentiesha and Apolonia Kimble, had been calling the prison for months trying to get help for their mother. 

“They ain’t do nothing,” Kentiesha tells Reason. “They laughed at her. They said she was faking. They told us she was too young to be having a heart attack.”

‘We called the jail. They were hanging up in our face.’

Hazel McGary

Prior to her death, McGary had been going to Aliceville’s medical center several times a week, complaining of chest pain, fatigue, and shortness of breath, according to an account written by Aliceville inmate Cheryl Singleton and sent to Strickland Webster, LLC, an Atlanta law firm. Singleton wrote that McGary’s vitals consistently showed “extremely high blood pressure,” but medical staff kept telling her to come back later.

One doesn’t simply stroll in to see a doctor or a nurse in federal prison. Inmates must ask a corrections officer for an appointment as the officer walks by at “sick call” every morning. If you miss it for whatever reason, tough luck. You have to wait until the next morning, unless you’re quite literally dying. Inmates put on the sick call list then go to a waiting room and wait, often for hours.

“Sometimes at sick call, you don’t get seen until 2 o’clock in the afternoon,” says Caroline Trude-Rede, a former inmate at FMC Carswell, a federal prison hospital for women in Texas.

Singleton wrote that McGary’s health problems started after a two-week stint in the “special housing unit” or SHU, a sanitized term for solitary confinement, where she experienced panic attacks, shortness of breath, and chest pains.

Her health began to seriously deteriorate in January 2019, according to Singleton’s account. McGary began suffering from severe fatigue, which was exacerbated by her being housed on an upper floor, requiring her to climb stairs to go to and from her cell.

By February, she was mostly confined to a wheelchair and could barely stand. McGary’s daughters say they were sending money to her cellmate, Crystal Green, to escort their mother to and from meals, showers, and her increasingly frequent trips to Aliceville’s medical services. But both McGary’s daughters and Singleton say she was turned away time and time again.

“I called Washington, I called the mayor’s office, I called region [BOP’s Southeast Regional Office]. Nobody could help us,”  Kimble says. “We called the jail. They were hanging up in our face.”

Finally, on the morning of March 18, 2019, Green woke up to find McGary on the floor.

“Why didn’t you call my name like you usually do?” Green asked, according to Singleton’s account.

McGary said she tried as loud as she could. Green pressed the medical emergency button, and five minutes later the staff came to take McGary away.

“They took her to medical, and that was the last time Green saw Hazel alive,” Singleton wrote.

McGary’s daughters say they didn’t receive a call from the prison about their mother until around 4 p.m., hours after she had died. “We were sitting around not even knowing our momma was dead,” Kimble says.

The daughters say an autopsy determined that McGary died of a blood clot that traveled from her leg to her heart. McGary’s daughters also say the prison never sent them their mother’s personal belongings, which they assume were destroyed.

The most disturbing part of reading the pleas for help from inmates at Aliceville is that many of them can plainly see what’s coming, but they’re powerless to stop it.

On March 9, 2019, a little more than a week before her roommate would wake up to find her on the floor of her cell, McGary sent a letter to the lawyers at Strickland Webster begging for help. The letter describes McGary’s months of futile trips to the prison’s medical services, the “heat rush” she felt in her chest every time she had to climb stairs, her suspicions that her medical records were being altered or destroyed, and staff’s open contempt for her. The letter says that when she finally managed to get a meeting with officials from the BOP’s regional headquarters, they tried to blame her heart problems on drug use or syphilis.

“I have been told for over eight months I am scheduled for a visit to the cardiologist,” McGary wrote. “Still have not made it there yet. The warden and the region are useless. They send us through all of these long, drawn-out procedures. By the time [they’re done] we will be home or dead.”

Nine days after she sent that letter, her latter prediction came true. She was 49 years old.

‘Y’all, they killed her, they killed her’

Rosemary Ofume (center) with her two sons.

Almost a year to the day before Hazel McGary’s death, another family received a heartbreaking call from Aliceville federal prison. Rosemary Ofume, 59, died on March 21, 2018.

Ofume had only been transferred to the prison earlier that month. According to her family and a civil rights lawsuit filed this March, she became seriously ill after having an adverse reaction to an unnecessary tuberculosis test that she was coerced into taking.

The lawsuit says Ofume “vocally objected to being administered this test on the grounds that she had been given the test twice before and her doctor warned her not to let anyone give her that test again due to hypersensitivity concerns.”

Ofumen’s health declined dramatically between March 15 and 19. She had a bad cough, and Grant Iriele, one of her sons, says attorneys who visited her at Aliceville told him that her skin had taken a sickly dark gray, dark blue color—a sign of cyanosis, which is caused by oxygen-depleted blood.

The lawsuit claims medical staff at Aliceville “were well aware of Rosemary’s suffering and serious medical need because when she was at the clinic [they] belittled her, turned her away, refused to diagnose her or otherwise provide her with medical care.”

Lorri Jackson-Brown was incarcerated at Aliceville until this May. She says she witnessed four inmates suffer fatal medical neglect at the prison during her stint there, including Ofume, McGary, and Doris Nelson, whose case is discussed further below. (The fourth case, not discussed in this story, is former Aliceville inmate Jean Cox. In 2017, A federal judge granted compassionate release to Cox, at the request of the BOP, after she was diagnosed with terminal cancer. Reason has been unable to learn more about that case.)

“When I met Ms. Rosemary, somebody was wheeling her out [of the prison’s medical center], and she was in tears,” Jackson-Brown says. “I knew the girl that was pushing her. I asked what’s wrong with her. She said, ‘They won’t even see her. This lady is sick, she’s spitting up blood.'”

Throughout her sickness, Ofume was in frequent contact with her children.

“I spoke to my mother the night before, and I remember pleading with her to get something to eat,” Iriele says. “She was saying that it was hard for her to make it to get something to eat because she felt so weak and drained.”

At the time, Iriele and the rest of his family thought she just had a bad cold. But the next morning, the prison called to deliver the news that she had died.

According to the lawsuit, which relies on eyewitness accounts from other inmates, Ofume was having severe breathing problems. Her cellmate pressed the emergency button to try to summon help, but the corrections officer who responded told her to fill out paperwork and wait for the next sick call. The roommate went to try and get medication. When she came back, Ofume’s condition was worse, and the roommate hit the button again, only to be dismissed by corrections officers, again. The third time her roommate hit the emergency button, a different officer took the situation seriously, but by that time it was too late. Ofume was unresponsive. 

“They locked us down that morning, and we knew something was wrong because we saw them running to her building,” Jackson-Brown recalls. “That same girl who was pushing her came out later crying. She said, ‘Y’all, they killed her, they killed her.'”

Iriele says that when his family asked for his mother’s body to be sent to them so that an independent autopsy could be performed, the BOP told them that it would not be released for two months.

The lawsuit says the BOP relented under pressure, and an independent autopsy found that Ofume died of pulmonary embolisms—small blood clots in her lungs.

The Mayo Clinic notes that pulmonary embolisms are fatal in about one-third of untreated cases, but “when the condition is diagnosed and treated promptly, however, that number drops dramatically.”

Iriele believes Aliceville is trying to cover up its mistakes. Portions of her medical records turned over by the BOP are missing or sloppy, the lawsuit says. His mother was also a meticulous note-taker, but Iriele says that when her journal was returned to the family along with her other belongings, several pages had been torn out from around the date when she received the tuberculosis test.

The most infuriating part, he says, has been what details he has learned from other Aliceville inmates.

“Her roommate kept pulling the alarm to get people’s attention, and they kept turning it off and callously telling [the roommate] to take her to the sick bay when it opened, which is not their protocol for when someone is in danger,” Iriele says. “They saw that she was unwell, and they couldn’t care less.”

‘I stay in pain and medical’s not doing anything for me. They won’t do anything.’

Last year, three months after McGary’s death, another inmate died. 

Doris Nelson’s sentencing documents show a federal judge recommended to the BOP in 2015 that she serve her sentence at a federal prison in Dublin, California, due to health issues. Instead, she ended up in Aliceville, where she taught classes for other inmates.

“She taught classes with me,” Jackson-Brown says. “Very nice lady, I loved Mrs. Nelson. One day I just happened to look up, and she’s in a wheelchair.” 

Jackson-Brown asked her what was wrong, and she says Nelson told her she felt flushed and couldn’t walk: “She said, ‘I stay in pain and medical’s not doing anything for me. They won’t do anything. I don’t know what’s going on with me.”

One day, Nelson delivered some startling news. 

“She said, ‘Do you know now these fools want to tell me they think I have cancer, and I’ve had it for a long period of time?'” Jackson-Brown remembers. “She said, ‘Who does that? Now all of a sudden you want to let me know I’ve got cancer?'”

“I told her to meet me at the library on a Saturday,” Jackson continued. “Two days later she was dead.”

Nelson, 60, died at Aliceville on June 14, 2019.

“There was an ongoing struggle to get her diagnostic treatments,” an attorney for Nelson’s family told the Spokane, Washington, newspaper Spokesman-Review after her death. “She was in terrible pain and when I know more, I’ll advise the family.” 

‘I’m lucky to be alive.’

Some former inmates say they barely escaped Aliceville with their lives. Holly Frantzen, 49, says she was fit and healthy when she first arrived at the prison in 2019. The only medication she was on was Effexor, an antidepressant.

Extended-release Effexor is only supposed to be ingested via capsule, according to the Mayo Clinic, which notes that one of the less-common side effects is rapid and irregular heartbeat. 

However, Frantzen says Aliceville staff abruptly began pouring it out of the capsule and giving it to her in a cup, either dry or suspended in water.

Frantzen says she complained that the crushed pills were making her feel strange, but she was ignored. Worse, she says the prison forgot to refill her prescription, leaving her without medication for three days, which is also not recommended because of severe withdrawal symptoms. Frantzen’s prescription was finally refilled, and she was given another crushed dose in the pill line that evening.

She doesn’t fully remember what happened the next morning, June 4, 2019.

“I guess I got up and woke my bunkie early in the morning and told her my arms and chest hurt, and I was real hot,” Frantzen writes in an email. “The guard opened the doors, my bunkie went and got me some ice water, and I stiffened up and fell over. My heart stopped.”

Frantzen says a staffer eventually resuscitated her via CPR, but she remained in a coma for about two weeks. The BOP never informed her family, according to Frantzen and her father, Weldon Wyckoff.

“We were emailing every day, and all of a sudden the emails stopped,” Wyckoff says. “I didn’t know what was going on for about a week. Ten days later I got a letter from one of the people she was incarcerated with that told me what happened.”

Wyckoff says the BOP has a moral responsibility to inform families. “Just because people are incarcerated doesn’t mean that they don’t have meaning,” he says.

Frantzen was transferred to FMC Carswell and now has a defibrillator in her heart.

“They would just brush you off and tell you to go buy Tylenol at the commissary,” Frantzen writes of her time in Aliceville. “It was awful really. They did not even call my family and let them know I was in a coma … So now here I am with PTSD [post-traumatic stress disorder] about meds and medical staff. I am lucky to be alive.”

‘What these people did is inhuman.’

“It’s so traumatic that I don’t think I want to relive it, because what these people did is inhuman,” a former Aliceville inmate says in an interview with Reason.

The woman, who wishes to remain anonymous, was incarcerated at Aliceville for four months between late winter 2013 and spring 2014. Now in her mid-30s, she says she suffered unbearable uterine pain and bleeding, and that prison staff and doctors repeatedly tried to coerce her into having a hysterectomy.

Before she arrived in the federal prison system, she says a doctor had prescribed her birth control to manage pain and bleeding from a previous surgery for ovarian cysts that resulted in one of her ovaries and one of her fallopian tubes being removed. But once inside prison, she was taken off birth control, and soon she began experiencing excruciating pain and heavy bleeding.

“I was going to lose my mind, I was so in pain,” she says.

The woman says at one point a physician assistant at Aliceville performed a vaginal exam on her using forceps. However, all she could cajole out of the prison staff for her pain and bleeding was extra-strength Tylenol with codeine.

She was only transported to a local hospital to see a doctor, she says, after her family enlisted then-U.S. Sen. Bill Nelson, a Democrat who represented Florida, to contact the prison on her behalf. 

Inmates and their families often try to recruit their representatives in Congress to press the BOP into action, with mixed results. For example, Reason reported in 2018 that Rep. Rob Wittman (R–Va.) contacted the BOP three times on behalf of the family of Frederick Turner, a nonviolent drug offender who was sent to a violent, gang-ridden federal penitentiary where he feared for his life. Turner’s requests for transfer were denied, and he was later found dead in his cell.

When the woman was finally taken to a local hospital, she says the doctor and prison officials tried to pressure her several times into having her remaining ovary removed. When she refused to consent to the surgery, she says she was retaliated against. She was put in the SHU and had her wheelchair, which she used when the pain became too intense, taken away.

“I’m a black woman with an accent who committed a crime, and to them I have no right to think that I should have kids or should want to procreate,” she says.

After several months of refusing to consent to surgery, she says she was abruptly transferred to FMC Carswell, where she saw “stomach-wrenching” medical neglect, including one woman who died of kidney disease.

“She could barely walk, her hair was falling off, she looked like a zombie, and surely enough, she died,” the former inmate says. “Her family did apply for compassionate release. They never released her. They let her die in prison.”

After she was eventually released from federal prison, the woman had a successful surgery to remove a cyst from her remaining ovary, but she says she still has long-term issues stemming from her incarceration.

“I still wake up at 5, 5:30 every day,” she says. “If I don’t get off my bed, I still hear them knocking on my door. I know I have PTSD.”

‘She belongs to the BOP.’

A mother of another current Aliceville inmate who wished to keep her daughter’s name anonymous to avoid retaliation says her daughter has been waiting for a routine surgery since last July.

“She was told by one person there at the health services administration that until she was throwing up blood every day, they weren’t going to do anything for her,” the mother says.

The delays, uncertainty, and fear weigh heavily on family members of incarcerated people.

“If they took her to the hospital, or something horrible happened, I’m not even going to know until it’s all over, because in an emergency situation, they don’t contact me,” the mother says. “In their eyes, she’s really no longer my daughter. She belongs to the BOP.”

Meanwhile, the women at Aliceville wait. One current Aliceville inmate says she is confined to a wheelchair because of ongoing medical neglect at the prison.

“I used to walk, and after medical neglect I am now in a wheelchair 24/7, 365!” Aliceville inmate Kerstin Jones writes in an email. “I was also witness to three inmate deaths here.”

Jones says she ended up in a wheelchair after suffering a grand mal seizure and a mild stroke. She also also says it took Aliceville officials nine months to send her out for an MRI, then another eight months to see a neurologist.

“What upsets me is the fact that they told me here that there was nothing wrong with me,” Jones writes. “They tell people that excuse all the time, and that’s how they die here.”

“We have women that have been told they have a short time to live, and they still will not do anything for them medically,” Jackson-Brown wrote in an email before her release. “One woman has only 13 percent of her heart working, and they don’t do anything for her. One woman has severe lupus, and they get her half the treatment that she needs. The list can go on and on.”

In her last letter to the Atlanta law firm, McGary mentioned an inmate with lupus as well.

“These medical experts have a lady here with lupus,” she wrote. “They have been altering her results back and forward. She’s been on a catheter for over four months. And they won’t send her to the nearest medical facility. These people here tell us to not hit the panic button unless our bunkies are dying […] Our lives here are in harm’s way.”

Since COVID-19 began sweeping through the federal prison system in late March, Frantzen and other inmates have been petitioning wardens and federal judges to grant them compassionate release. Frantzen filed a court petition on May 18, seeking compassionate release, arguing that, as a survivor of sudden cardiac arrest, she was at elevated risk for complications and death if she contracted COVID-19. A federal judge denied her petition a day after it was filed.  

 ‘The level of a constitutional violation’

It’s not just inmates, though, who have found Aliceville’s health care dangerously deficient. Last July, a federal judge granted Aliceville inmate Angela Beck’s petition for compassionate release after finding that Beck had suffered “grossly inadequate” delays in treatment for aggressive breast cancer while incarcerated.

U.S. District Judge Catherine Eagles ruled, over the opposition of federal prosecutors and the BOP, that Beck’s “invasive cancer and the abysmal health care Bureau of Prisons has provided qualify as ‘extraordinary and compelling reasons’ warranting a reduction in her sentence to time served.”

According to Eagles’ order, Aliceville officials made Beck wait two months for imaging after she first found lumps in her left breast. Then she had to wait eight months for a biopsy, which confirmed the cancer, and two more months for surgery. By that time, the cancer had spread to her lymph nodes, requiring a radical mastectomy. Five more months passed before Beck’s first appointment with an oncologist, who determined that it was too late to begin chemotherapy at that point.

Eagles wrote that the neglect Beck suffered “likely reached the level of a constitutional violation,” and that if she remained in BOP custody, she would continue to face “a substantial likelihood of substandard medical care for her life-threatening disease.”

Such orders are rare, though, and court dockets around the country are stuffed with similar claims.

Another Aliceville inmate, Terri Mollica, filed a petition for compassionate release in March, citing Beck’s case. According to a federal judge’s ruling on her petition, Mollica has an untreated uterine fibroid that weighs roughly 15 pounds and “causes ‘visible protrusions’ from Ms. Mollica’s abdomen and causes her pain, uterine bleeding, anemia, infection, and fevers.” She has been waiting in pain for nearly four years for outside treatment since an Aliceville physician first diagnosed the fibroid in 2016.

However, despite finding that Mollica’s condition was “undoubtedly a very painful burden,” U.S. District Judge Karon Bowdre ruled that Mollica had not proven she was at risk of death and that she wasn’t debilitated “to the extent that she cannot care for herself.” Bowdre recommended that Mollica file an Eighth Amendment lawsuit.

‘Deliberate indifference’

Maria Morris, a senior staff attorney at the American Civil Liberties Union’s (ACLU) National Prison Project, says that, while prisoners are guaranteed health care under the Eighth Amendment, the standard of care is fairly minimal. Under current Supreme Court precedent, an inmate challenging inadequate healthcare must show “deliberate indifference” by officials.

“I choose to believe that there are some prisons and jails that are doing a reasonably good job,” Morris says. “That said, at the ones that I have looked at—and I’m often caused to look at them due to complaints—it’s abysmal.”

Morris says that in the prisons and jails she investigates she often finds officials generate paperwork to give the illusion of care, while doing little to actually address medical issues.

“There are a shocking number of incidents in the health care systems that I’ve looked at where problems are acknowledged and then essentially ignored. Sometimes that can go on for weeks or months or even years.” 

“You see a complete lack of interest in resolving problems,” she continues. “You see people who have a serious problem one day, and then the next day it’s completely fine, according to the paperwork. Then the next day someone else is saying everything is terrible. You see people dying of bedsores.”

That’s not hyperbole. The ACLU has been in litigation with the Arizona Department of Corrections since 2012 over its healthcare services or lack thereof. Courthouse News, a news outlet that covers legal news around the country, summarizing a report by an independent doctor who toured one Arizona prison, described it as “an understaffed system in which an inmate died with infected lesions swarmed by flies, a man who ate his own feces was never seen by a psychiatrist, and a woman swallowed razor blades while allegedly under constant watch.”

Crystal Munoz was incarcerated at FMC Carswell, the federal prison hospital for women in Texas, for eight years, until President Donald Trump granted her clemency this February. She says she saw three women there die from negligence.

In one instance, she says she was sitting in sick call when she saw a woman pushing another inmate in a wheelchair. The two were banging on the door, begging for someone to look at the woman in the wheelchair, but they were repeatedly told to sit back down.

“After about three times, she pushed the lady in the wheelchair to the restroom, which was just right around the wall from where we were sitting, and [the woman in the wheelchair] fell over and died of a heart attack.”

“Had the staff paid attention in that moment instead of telling them to get away from the door and go sit down—you know, basically wait their turn—then the lady would still be alive.”

The Fort Worth Weekly newspaper published investigations in 2007 and again in 2012 detailing suspect deaths and abysmal medical care at Carswell.

The newspaper reported that in one case, “an ant infestation, in a ward for paralyzed and wheelchair-bound women, was so bad that ants were found swarming over—and in one case, inside—the women’s bodies.”

Although the BOP declined to comment on McGary, Ofume, or Nelson’s deaths, a spokesperson sent Reason a statement copied from a page on the BOP’s website about its health care services, which says the agency “has trained medical personnel at all of our correctional institutions and these institutions provide essential medical, dental, and mental health (psychiatric) services in a manner consistent with accepted community standards for a correctional environment. The BOP uses licensed and credentialed health care providers in its ambulatory care units, which are supported by community consultants and specialists.”

An Unanswered Question

This story could have been written about any number of prisons or jails. Medical neglect of incarcerated people is a problem across the country on federal, state, and local levels. It’s a national disgrace—the kind people prefer to ignore. Prison officials downplay or hide the scope of it, there is a high bar for inmates trying to bring Eighth Amendment lawsuits challenging prison conditions, and the public by and large pays little attention to what happens behind prison walls.

Inmates know all this, but they send emails and letters anyway, like messages in bottles, hoping they will drift by chance to someone who can do something about it.

Last year on March 18, the day that Hazel McGary died, another woman at Aliceville sent an email to her mother, who in turn sent it to FAMM, a criminal justice advocacy group. FAMM passed the message along to Reason, which led to this investigation.

“Today the fourth person died since I have been here,” the inmate, who wishes to remain anonymous for fear of retaliation, wrote. “She died in medical at around 1 p.m. after sitting in medical complaining of chest pains since 8 a.m., waiting to be seen. My friend from my unit was in medical with her and described the lack of concern shown to this poor woman. Her family I pray learns the truth of how she died, in the hallway slumped over in a wheelchair, until she fell out into the floor dying, laying there with no one rushing over to assist her—praying for an ambulance that never came.”

“My friend told me that that lady today in medical kept saying, ‘I am going to die, I am going to die,'” the message continued. “And she did … but did she have to?”

That’s a question Reason has been asking for the last year, and a question the BOP appears to have no interest in answering.

Zuri Davis contributed to this story.

Note: Written accounts from inmates in this story have been edited for clarity and style.

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Bill Barr Crosses the Rubicon

For the first time in twenty years, the Justice Department is finally free to campaign for the encryption access bill it has always wanted.  Sens. Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.), and Marsha Blackburn (R-Tenn.) introduced the Lawful Access To Encrypted Data Act. (Ars Technica, Press Release) As Nick Weaver points out in the news roundup, this bill is not a compromise. It’s exactly what DOJ wants – a mandate that every significant service provider or electronic device maker build in the ability, when served with a warrant, to decrypt any data it has encrypted.

In our interview, Under Secretary Chris Krebs, head of the Cybersecurity and Infrastructure Security Agency, drops in for a chat on election security, cyberespionage aimed at coronavirus researchers, why CISA needs new administrative subpoena authority, the value of secure DNS, and how cybersecurity has changed in the three years since he took his job.

Germany’s highest court has ruled that the German competition authority can force Facebook to obtain user consent for internal data sharing, to prevent abuse of a dominant position in the social networking market. Maury Shenk and I are dubious about the use of competition law for privacy enforcement. Those doubts could also send the ruling to a still higher forum – the European Court of Justice.

You might think that NotPetya is three years in the rear-view mirror, but the idea of spreading malware via tax software, pioneered by the GRU with NotPetya, seems to have inspired a copycat in China. Maury reports that a Chinese bank is requiring foreign firms to install a tax app that, it turns out, has a covert backdoor. (Ars Technica, Report, NBC)

The Assange prosecution is looking less like a first amendment case and more like a garden variety hacking conspiracy thanks to the government’s amended indictment. (DOJ, Washington Post) And, as usual, the more information we have about Assange, the worse he looks.

Jim Carafano, new to the podcast, argues that face recognition is coming no matter how hard the press and NGOs work to demonize it. And working hard they are. The ACLU has filed a complaint against the Detroit police, faulting them for arresting the wrong man based on a faulty match provided by facial recognition software. (Ars Technica, Complaint)

The Facebook advertiser moral panic is gaining adherents, including Unilever and Verizon, but Nick and I wonder if the reason is politics or a collapse in ad budgets. Whatever the cause, it’s apparently led Mark Zuckerberg to promise more enforcement of Facebook’s policies.

In short hits, the U.S. Department of Homeland Security sent a letter to chief executives of five large tech companies asking them to ensure social media platforms are not used to incite violence. Twitter has permanently suspended the account of leak publisher DDoSecrets. (Ars Technica, Cyber Scoop). Rep. Devin Nunes (R-Calif.) was told what he must have known when he filed his case: he cannot sue Twitter for defamation over tweets posted by a parody account posing as his cow. (Ars Technica, Ruling) Nick explains why it’s good news all around as Comcast partners with Mozilla to deploy encrypted DNS lookups on the Firefox browser. And Burkov gets a nine-year sentence for his hacking.

Download the 322nd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

 

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Bill Barr Crosses the Rubicon

For the first time in twenty years, the Justice Department is finally free to campaign for the encryption access bill it has always wanted.  Sens. Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.), and Marsha Blackburn (R-Tenn.) introduced the Lawful Access To Encrypted Data Act. (Ars Technica, Press Release) As Nick Weaver points out in the news roundup, this bill is not a compromise. It’s exactly what DOJ wants – a mandate that every significant service provider or electronic device maker build in the ability, when served with a warrant, to decrypt any data it has encrypted.

In our interview, Under Secretary Chris Krebs, head of the Cybersecurity and Infrastructure Security Agency, drops in for a chat on election security, cyberespionage aimed at coronavirus researchers, why CISA needs new administrative subpoena authority, the value of secure DNS, and how cybersecurity has changed in the three years since he took his job.

Germany’s highest court has ruled that the German competition authority can force Facebook to obtain user consent for internal data sharing, to prevent abuse of a dominant position in the social networking market. Maury Shenk and I are dubious about the use of competition law for privacy enforcement. Those doubts could also send the ruling to a still higher forum – the European Court of Justice.

You might think that NotPetya is three years in the rear-view mirror, but the idea of spreading malware via tax software, pioneered by the GRU with NotPetya, seems to have inspired a copycat in China. Maury reports that a Chinese bank is requiring foreign firms to install a tax app that, it turns out, has a covert backdoor. (Ars Technica, Report, NBC)

The Assange prosecution is looking less like a first amendment case and more like a garden variety hacking conspiracy thanks to the government’s amended indictment. (DOJ, Washington Post) And, as usual, the more information we have about Assange, the worse he looks.

Jim Carafano, new to the podcast, argues that face recognition is coming no matter how hard the press and NGOs work to demonize it. And working hard they are. The ACLU has filed a complaint against the Detroit police, faulting them for arresting the wrong man based on a faulty match provided by facial recognition software. (Ars Technica, Complaint)

The Facebook advertiser moral panic is gaining adherents, including Unilever and Verizon, but Nick and I wonder if the reason is politics or a collapse in ad budgets. Whatever the cause, it’s apparently led Mark Zuckerberg to promise more enforcement of Facebook’s policies.

In short hits, the U.S. Department of Homeland Security sent a letter to chief executives of five large tech companies asking them to ensure social media platforms are not used to incite violence. Twitter has permanently suspended the account of leak publisher DDoSecrets. (Ars Technica, Cyber Scoop). Rep. Devin Nunes (R-Calif.) was told what he must have known when he filed his case: he cannot sue Twitter for defamation over tweets posted by a parody account posing as his cow. (Ars Technica, Ruling) Nick explains why it’s good news all around as Comcast partners with Mozilla to deploy encrypted DNS lookups on the Firefox browser. And Burkov gets a nine-year sentence for his hacking.

Download the 322nd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

 

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Brickbat: Move Along Now

violin_1161x653

Video shows Aurora, Colorado, police using pepper spray to break up an apparently peaceful protest Saturday over the death of Elijah McClain, who died after officers placed him in a chokehold. The protest began early in the day. As night began to fall, a group of violinists began to play in honor of McClain, who was a violinist. But officers told the remaining protesters that it was now an “illegal gathering.” When they did not leave, the officers sprayed them with pepper spray.

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Brickbat: Move Along Now

violin_1161x653

Video shows Aurora, Colorado, police using pepper spray to break up an apparently peaceful protest Saturday over the death of Elijah McClain, who died after officers placed him in a chokehold. The protest began early in the day. As night began to fall, a group of violinists began to play in honor of McClain, who was a violinist. But officers told the remaining protesters that it was now an “illegal gathering.” When they did not leave, the officers sprayed them with pepper spray.

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The Chief Justices Battle over the Removal Power

Seila Law was the Court’s most significant separation of powers case since Noel Canning. Yet, this decisions is–at best–a symbolic victory for conservatives; not nearly enough to staunch the June gloom. I don’t think people will embroider “Overrule Humphrey’s Executor” on red baseball hats.

As a practical matter, this case will have little impact. Whether the President can fire the CFPB Director for cause, or at will, will not make much of a difference. (Had the broadly read the phrases “”inefficiency, neglect of duty, or malfeasance in office,” we could have see significant shifts in administrative law.) The more likely course is to simply wait for the Director’s five-year term to expire. Recall that President Trump chose not to fire Richard Cordray. (Conveniently, Cordray resigned to embark on a failed gubernatorial campaign.)

Perhaps the most significant–and rewarding–aspect of the case was the battle royale between the actual and de facto Chief Justices: John Roberts and Elena Kagan. They are the two leaders of the Court. And from my vantage point, the two best writers on the Court. It is a joy to read their prose.

Roberts writes with a level of surgical precision that every lawyer should emulate. There is seldom a wasted word. When I edit a Roberts opinion, there is very little to remove. He puts so much care and thought into every syllable. Meticulous and polished.

Kagan writes with a delightful conversational flair. I found myself chuckling at several of her quips. I adore her rhetorical questions:

  • What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.)
  • The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent?

I encourage people to emulate Roberts’s style. But don’t try to fake Kagan’s style. This type of wit cannot be forced. It must come naturally, and from within.

Justice Kagan name-dropped to great effect. In one spot, she relied on Justice Frankfurter’s attack on Chief Justice Taft’s Meyers decision:

Expressing veiled contempt as only he could, Justice Frankfurter wrote for the Court that Chief Justice Taft’s opinion had “laboriously traversed” American history and that it had failed to “restrict itself to the immediate issue before it.”No wonder Humphrey’s had “narrowly confined the scope of the Myers decision.” Justice Frankfurter implied that the “Chief Justice who himself had been President” was lucky his handiwork had not been altogether reversed.

Kagan referred to Taft as “a judicial presidentialist if ever there was one.”

Kagan criticized Roberts for misreading the FTC’s power. She name-dropped big names.

The majority’s reply that a court including Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and Harlan Stone somehow misunderstood these powers lacks all plausibility

Roberts crushes on Chief Justice Hughes. That burn was personal.

Though, one name was surprisingly lacking in a case about the removal power: Scalia. In Bostock, the Justices fell over themselves to claim Nino’s mantle. But here, his famous dissent was barely mentioned. The majority didn’t cite Scalia’s dissent. And here is how Kagan described Morrison:

The Morrison Court, over a one-Justice dissent, upheld for-cause protections afforded to an independent counsel with power to investigate and prosecute crimes committed by high-ranking officials.

“A one-Justice dissent.” That’s it? Kagan previously praised Scalia’s writing in Morrison. But she did not praise its reasoning.

Justice Kagan also cited her famous article, Presidential Administration, twice. I previously criticized Justice Kavanaugh for citing himself. Here, the Kagan citations are against interest. In her article, she articulated a broad understanding of executive power. But in her Seila dissent, she defers to congressional limits on executive powers. Kagan was trying to signal that this dissent does not necessarily reflect her priors. Consider the cites:

And debates about the prudence of limiting the President’s control over regulatory agencies, including through his removal power, have never abated. FN1

FN1: In the academic literature, compare, e.g., Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies), with, e.g., Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715 (2007) (generally favoring administrative independence).

She is contrasting her own work favoring presidential control, with Peter Strauss, who favors independence. Kagan makes this point later with a snappy signal:

The President’s engagement, some people say, can disrupt bureaucratic stag- nation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times, the arguments favor greater independence from presidential involvement.

“Some people” is her. She says that. And then she rules in the opposite direction. Kagan But cf.‘d herself! (Justice Kavanaugh cited himself again in Agency for Int’l Development v. Alliance for Open Society–this time to Bluman v. FEC (D.D.C. 2011)).

Alas, Kagan flew too close to the rhetorical sun. In two spots, she made not-so-veiled attacks of President Trump. First, consider this comment about the Federal Reserve:

Insulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy. (Con- sider, for example, how the Federal Reserve’s independence stops a President trying to win a second term from manipulating interest rates.)

I wonder what President she could possibly be talking about?! Here, she is obviously alluding to the President’s never-ending badgering of the Fed to lower interest rates to help his re-election campaign. But her next barb in Footnote 11 was much worse.

Second, the majority complains that the Director’s five-year term may prevent a President from “shap[ing the agency’s] leadership” through appointments. Ante, at 24. But again that is true, to one degree or another, of quite a few longstanding independent agencies, including the Federal Reserve, the FTC, the Merit Systems Protection Board, and the Postal Service Board of Governors. (If you think the last is unimportant, just ask the current President whether he agrees.)

Here, Kagan is referring to the fact that Trump recently appointed a political donor to become the next Postmaster General. And, this appointment was closely related to Trump’s opposition to mail-in ballots. Of course, the Court already decided RNC v. DNC from Wisconsin. Moreover, Kagan broke the fourth-wall (or is it the third branch!?) by speaking to “the current President.” In Trump v. Hawaii, Roberts expressly distinguished “a particular” from “the Presidency itself.” I really wish Kagan dropped this line. It sullied an otherwise pitch-perfect dissent. I suspect Justice Breyer was not too keen about signing onto this footnote.

Kagan had one other topical reference, though it probably hit closer to home. In footnote 12, she discusses the Independent Counsel statute at issue in Morrison:

The majority, seeking some other way to distinguish Morrison, as- serts that the independent counsel’s “duties” were more “limited” than the CFPB Director’s. Ante, at 17–18. That’s true in a sense: All (all?) the special counsel had to do was decide whether the President and his top advisers had broken the law. But I doubt (and I suspect Presidents would too) whether the need to control those duties was any less “central to the functioning of the Executive Branch” than the need to control the CFPB’s.

Of course, Morrison did not involve an investigation of the President. But her former boss was investigated for years by Ken Starr. Another statement against interest.

One final detour. Roberts alluded, indirectly to special counsel Robert Mueller. He noted that the Office of Special Counsel (OSC, a federal investigatory agency) is different from the Special Counsel’s Office:

The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allegations related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC

After sitting through the impeachment trial, I would have thought Roberts could have avoided this citation. But he didn’t.

I will have more to say about the specific moves in Seila Law in due course. Now, we wait. Opinions in about 7.5 hours.

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The Chief Justices Battle over the Removal Power

Seila Law was the Court’s most significant separation of powers case since Noel Canning. Yet, this decisions is–at best–a symbolic victory for conservatives; not nearly enough to staunch the June gloom. I don’t think people will embroider “Overrule Humphrey’s Executor” on red baseball hats.

As a practical matter, this case will have little impact. Whether the President can fire the CFPB Director for cause, or at will, will not make much of a difference. (Had the broadly read the phrases “”inefficiency, neglect of duty, or malfeasance in office,” we could have see significant shifts in administrative law.) The more likely course is to simply wait for the Director’s five-year term to expire. Recall that President Trump chose not to fire Richard Cordray. (Conveniently, Cordray resigned to embark on a failed gubernatorial campaign.)

Perhaps the most significant–and rewarding–aspect of the case was the battle royale between the actual and de facto Chief Justices: John Roberts and Elena Kagan. They are the two leaders of the Court. And from my vantage point, the two best writers on the Court. It is a joy to read their prose.

Roberts writes with a level of surgical precision that every lawyer should emulate. There is seldom a wasted word. When I edit a Roberts opinion, there is very little to remove. He puts so much care and thought into every syllable. Meticulous and polished.

Kagan writes with a delightful conversational flair. I found myself chuckling at several of her quips. I adore her rhetorical questions:

  • What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.)
  • The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent?

I encourage people to emulate Roberts’s style. But don’t try to fake Kagan’s style. This type of wit cannot be forced. It must come naturally, and from within.

Justice Kagan name-dropped to great effect. In one spot, she relied on Justice Frankfurter’s attack on Chief Justice Taft’s Meyers decision:

Expressing veiled contempt as only he could, Justice Frankfurter wrote for the Court that Chief Justice Taft’s opinion had “laboriously traversed” American history and that it had failed to “restrict itself to the immediate issue before it.”No wonder Humphrey’s had “narrowly confined the scope of the Myers decision.” Justice Frankfurter implied that the “Chief Justice who himself had been President” was lucky his handiwork had not been altogether reversed.

Kagan referred to Taft as “a judicial presidentialist if ever there was one.”

Kagan criticized Roberts for misreading the FTC’s power. She name-dropped big names.

The majority’s reply that a court including Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and Harlan Stone somehow misunderstood these powers lacks all plausibility

Roberts crushes on Chief Justice Hughes. That burn was personal.

Though, one name was surprisingly lacking in a case about the removal power: Scalia. In Bostock, the Justices fell over themselves to claim Nino’s mantle. But here, his famous dissent was barely mentioned. The majority didn’t cite Scalia’s dissent. And here is how Kagan described Morrison:

The Morrison Court, over a one-Justice dissent, upheld for-cause protections afforded to an independent counsel with power to investigate and prosecute crimes committed by high-ranking officials.

“A one-Justice dissent.” That’s it? Kagan previously praised Scalia’s writing in Morrison. But she did not praise its reasoning.

Justice Kagan also cited her famous article, Presidential Administration, twice. I previously criticized Justice Kavanaugh for citing himself. Here, the Kagan citations are against interest. In her article, she articulated a broad understanding of executive power. But in her Seila dissent, she defers to congressional limits on executive powers. Kagan was trying to signal that this dissent does not necessarily reflect her priors. Consider the cites:

And debates about the prudence of limiting the President’s control over regulatory agencies, including through his removal power, have never abated. FN1

FN1: In the academic literature, compare, e.g., Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies), with, e.g., Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715 (2007) (generally favoring administrative independence).

She is contrasting her own work favoring presidential control, with Peter Strauss, who favors independence. Kagan makes this point later with a snappy signal:

The President’s engagement, some people say, can disrupt bureaucratic stag- nation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times, the arguments favor greater independence from presidential involvement.

“Some people” is her. She says that. And then she rules in the opposite direction. Kagan But cf.‘d herself!

Alas, Kagan flew too close to the rhetorical sun. In two spots, she made not-so-veiled attacks of President Trump. First, consider this comment about the Federal Reserve:

Insulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy. (Con- sider, for example, how the Federal Reserve’s independence stops a President trying to win a second term from manipulating interest rates.)

I wonder what President she could possibly be talking about?! Here, she is obviously alluding to the President’s never-ending badgering of the Fed to lower interest rates to help his re-election campaign. But her next barb in Footnote 11 was much worse.

Second, the majority complains that the Director’s five-year term may prevent a President from “shap[ing the agency’s] leadership” through appointments. Ante, at 24. But again that is true, to one degree or another, of quite a few longstanding independent agencies, including the Federal Reserve, the FTC, the Merit Systems Protection Board, and the Postal Service Board of Governors. (If you think the last is unimportant, just ask the current President whether he agrees.)

Here, Kagan is referring to the fact that Trump recently appointed a political donor to become the next Postmaster General. And, this appointment was closely related to Trump’s opposition to mail-in ballots. Of course, the Court already decided RNC v. DNC from Wisconsin. Moreover, Kagan broke the fourth-wall (or is it the third branch!?) by speaking to “the current President.” In Trump v. Hawaii, Roberts expressly distinguished “a particular” from “the Presidency itself.” I really wish Kagan dropped this line. It sullied an otherwise pitch-perfect dissent. I suspect Justice Breyer was not too keen about signing onto this footnote.

Kagan had one other topical reference, though it probably hit closer to home. In footnote 12, she discusses the Independent Counsel statute at issue in Morrison:

The majority, seeking some other way to distinguish Morrison, as- serts that the independent counsel’s “duties” were more “limited” than the CFPB Director’s. Ante, at 17–18. That’s true in a sense: All (all?) the special counsel had to do was decide whether the President and his top advisers had broken the law. But I doubt (and I suspect Presidents would too) whether the need to control those duties was any less “central to the functioning of the Executive Branch” than the need to control the CFPB’s.

Of course, Morrison did not involve an investigation of the President. But her former boss was investigated for years by Ken Starr. Another statement against interest.

One final detour. Roberts alluded, indirectly to special counsel Robert Mueller. He noted that the Office of Special Counsel (OSC, a federal investigatory agency) is different from the Special Counsel’s Office:

The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allegations related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC

After sitting through the impeachment trial, I would have thought Roberts could have avoided this citation. But he didn’t.

I will have more to say about the specific moves in Seila Law in due course. Now, we wait. Opinions in about 7.5 hours.

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Blue June Glooms On

I have now finished reading June Medical Services and Seila Law. Collectively, they total 243 pages! Both cases are now edited for the Barnett/Blackman supplement–down to 26 pages each. It took me all day. If you’d like a copy, please e-mail me: josh-at-josh-blackman-dot-com.

Last week I predicted that Roberts would write June Medical and Breyer would write Seila Law. I whiffed on Seila. I mostly got June Medical correct.

June Medical split 4-1-4. By my reading, Roberts’s opinion is the most narrow. But putting asides the nuances of the confounding Mark Rule, the writing is on the wall for the future of Whole Woman’s Health. Justice Kavanaugh offered a helpful count in his dissent:

Today, five Members of the Court reject the Whole Woman’s Health cost-benefit standard. Ante (ROBERTS, C. J., concurring in judgment); ante (THOMAS, J., dissenting); ante (ALITO, J., joined by THOMAS, GORSUCH, and KAVANAUGH, JJ., dissenting); ante (GORSUCH, J., dissenting). A different five Members of the Court conclude that Louisiana’s admitting-privileges law is unconstitutional because it “would restrict women’s access to abortion to the same degree as” the Texas law in Whole Woman’s Health. Ante (opinion of ROBERTS, C. J.); see also ante (opinion of BREYER, J., joined by GINSBURG, SOTOMAYOR, and KAGAN, JJ.).

Going forward, there are five votes to limit the Court’s abortion framework to consider a a law’s burdens, without weighing the law’s benefits.  The Chief has effectively overruled Whole Woman’s Health to the extent it departs from Casey. The Court didn’t swing to the left; at most, he feinted for the day.

Of course, who knows what the next abortion case will bring? Maybe the Chief’s game of “87‐​dimensional chess” will finally yield a checkmate.

Speaking of the proverbial “long game,” Roberts largely viewed Seila Law as a continuation of Free Enterprise Fund v. PCAOB (2010). That case was decided a decade ago–the same period of time that elapsed between Meyer and Humphrey’s Executor. Yet, Roberts described that decade-old case as being decided “recently.” That simple descriptor reveals the glacial pace with which Roberts views the law. Ten years is a blip. After all we are now twelve years from Heller. Still waiting.

On that note, Justice Thomas had a delightful footnote in June Medical about the Court’s Second Amendment jurisprudence:

Today, the plurality reaffirms our precedent allowing beer vendors to assert the Fourteenth Amendment rights of their potential customers. Ante (citing Craig v. Boren (1976)). But it is fair to wonder whether gun vendors could expect to receive the same privilege if they seek to vindicate the Second Amendment rights of their customers. Given this Court’s ad hoc approach to third-party standing and its tendency to treat the Second Amendment as a second-class right, their time would be better spent waiting for Godot.

I will have much more to say about these two cases. For now, Blue June rolls on. And we will see another batch of decisions in about 8 hours.

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