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The country is in the grip of a hallucinatory fever, one that has people seeing as monstrous or heroic any action that confirms that their side is right and the other is wrong. 

This was on display Sunday morning, when individuals and media accounts rationalized the point-blank killing of Aaron J. “Jay” Danielson: They claimed that he was an outsider (Danielson lived in Portland), that he’d been coming at the killer while a gun was in his hand (it would prove to be a can of Mace), that the murder of Danielson (who was white) was “a bit of justice for the black people that were killed by police” (at odds with any version of morality), and, always, that he was wearing a Patriot Prayer baseball cap.

This last detail may not mean much to those outside of Portland, but Patriot Prayer and its founder, Joey Gibson, are characterized by left-wing activists and protesters as right-wing extremists who come to Portland to bash heads and stoke division and, thus, are the enemy. Though Patriot Prayer had maintained virtually no presence in Portland since the protests began—up until Danielson’s murder by a self-proclaimed supporter of antifa, that is—that did not deter activists from seeing the murder as nothing to be sorry about. On Sunday morning, I watched a video of people cheering Danielson’s death. It is both an abomination and evidence of any movement’s ultimate failure. You cannot celebrate the shooting of one man by another, no matter how much you claim the killing conforms to your sense of justice, and expect to achieve justice.

Did any on the activist side feel contrition? Maybe. The morning after the murder, some people associated with antifa seemed spooked that a person on “their” side had gone ahead and done the killing that had been crackling in the air for weeks. One member tweeted that he’d gone home early Saturday night because he felt things were getting hot downtown and intimated it was OK for others to do the same, a sentiment that contradicts the nightly chant of, “Stay together! Stay tight! We do this every night!” Another member, who at first asked me to promote the idea that “last night’s shooter acted in self-defense,” went quiet after video revealed this was not the case and the shooter was positively identified as being on the pro-antifa side.

Which raises the question: What counts as being on someone’s side? The shooter, Michael Reinoehl, was a 48-year-old with a troubled past and a police record who in the spring locked in on Black Lives Matter (BLM) as a place he might find purchase. In a post on his Instagram account, he wrote: “Every Revolution needs people that are willing and ready to fight…I am 100% ANTIFA all the way! I am willing to fight for my brothers and sisters!…#Antifa #blaklivesmatter [sic] #fuckthepolice“

In July, Reinoehl was filmed saying he’d been shot while protecting BLM protesters; also, that he’d brought along his young daughter (seen eating from a takeout container in the front seat of a car) because “I’m trying to give her an education…she’s going to be contributing to running this new country that we’re fighting for.” 

Whether Reinoehl thought he would be seen as a hero, or had hate in his heart, or something else entirely may be determined later. What we can know today is that his actions are a symptom of what happens when a movement gets such a glow that it attracts people ready to take things to the next level. For most people, fatal violence causes an instinct to recoil, to take a step back and reconsider. But not for everyone. The night after Danielson’s murder, activists again tried to burn a police station. The night after that, they were back at Mayor Ted Wheeler’s apartment building, setting fires. That things will get worse before they get better seems inevitable; a movement that justifies intimidation and violence moves in only one direction, and anyone who says they did not see this coming to the streets of Portland has not been paying attention.

“He was courageous, but very gentle,” Joey Gibson said. It had been 19 hours since his friend Danielson had been shot and killed. Gibson, 36, was back home in Vancouver, Washington, just north of Portland. It had been one day since he and other members of Patriot Prayer had decided at the last minute to join a truck caravan in support of President Donald Trump they’d seen publicized on Facebook.

“It wasn’t even a Patriot Prayer thing,” he said. “We just went down with a bunch of guys.”

Gibson, who’s clashed with antifa in Portland many times, had not been overly nervous about the caravan entering the city. “I expected it to be okay because the organizer did not announce the route,” he said. “Antifa and these protesters, if you don’t give them preparation, it’s usually safe.”

It is not controversial to say that antifa does not like Gibson and that they see him as the embodiment of the oppression they are fighting: He looks white (Gibson is half-Japanese), he seems to be a Republican (Gibson claims he is a libertarian), and he’s a practicing Christian. He is also a provocateur aware of the reaction he provokes. He’s like catnip to antifa. Recent forays into Portland have resulted in him being mobbed by protesters, despite what he claims was his mission that day: to promote Black Lives Matter.

“I went in there by myself after Marquise Love pulled that guy out of the truck and kicked him in the head,” Gibson said. “I showed up with a bullhorn 24 hours later and went down[town] and called them out. ‘You want to stand for black lives? Okay, good. Let’s do that. But let’s call out these people who are trying to murder other people.'”

If Gibson considers himself a peacekeeper, most Portlanders see him as a fascist. The day after Danielson was killed, Gov. Kate Brown released a statement. “The right-wing group Patriot Prayer and self-proclaimed militia members drove into downtown Portland last night, armed and looking for a fight,” she declared. “Every Oregonian has the right to freely express their views without fear of deadly violence. I will not allow Patriot Prayer and armed white supremacists to bring more bloodshed to our streets.”

It is true that members of Patriot Prayer sometimes carry weapons. It is true that the truck caravan, made up of different pro-Trump factions, blasted street protesters with paintball guns and Mace. In turn, protesters pelted them with various objects and sprayed them with urine from Super Soakers.

Had this been the Portland of a year ago, the clash between the right and left might have ended there. A Proud Boys versus antifa rally in August 2019 seemed mostly to be LARPing and boo-ya! 

“In the past, it felt like more of a professional wrestling or football type of thing. George Floyd changed that,” said Gibson. “Then you’ve got COVID, you’ve got the lockdown, everyone’s angry. A lot of people aren’t working. Tensions are really high. It’s definitely true and you can feel it. It’s in the air. Even last night, I felt something just in the air, that tension.”

Aaron Danielson and Chandler Pappas were in downtown Portland just after 8 p.m. on Saturday. The friends were no longer part of the truck caravan, more scouting out what was still going on of the confrontation. Both were carrying Mace and Danielson carried a knife. Both were wearing Patriot Prayer hats. At 8:38 p.m., Pappas heard someone say, “Got a couple of ’em right here! Got a couple of ’em right here!” and, a moment later, “Pull it out! Pull it out!” He and Danielson turned around, and if Danielson registered that a gun was being pointed at them, Pappas did not. Then two shots rang out and people started running. Pappas tried to process what had happened; did someone just shoot at them? He was OK. Danielson was not, he was on the ground. One bullet had gone through the can of Mace he was holding. The other had gone through his chest. 

“Jay’s dead because he believed something different,” Pappas would say the next day. “Jay’s not a racist, he’s not a xenophobe or whatever label. He’s not an –ist or an –ism. He’s an independent man. And he’s a good man. And he didn’t do anything to earn a bullet in the chest.”

When asked what he would want Trump to do in reaction to the killing, Pappas said, “Send troops. Send troops.”

The city of Portland and the state of Oregon would not request federal troops. On the contrary, during a press conference the day after the killing, Mayor Wheeler was adamant about placing much of the blame for the city’s violence and the violence gripping the nation with the Trump administration and what Wheeler sees as the president’s rhetoric of hate. Whatever one feels about Wheeler’s or Trump’s blind spots or inadequacies, sending federal troops to Portland right now would almost surely escalate the conflict.

Perhaps understanding this, Gov. Brown instead came up with a six-point plan. She would need to mollify multiple groups in Portland at the expense of others. She would have nearby municipalities shore up the Portland Police Bureau. She would request that the FBI “commit additional resources for investigation of criminal activity.” Earlier in the plan is where she’d mentioned, “The right-wing group Patriot Prayer and self-proclaimed militia members drove into downtown Portland last night, armed and looking for a fight.” There was no mention of any other faction involved in the fight.

Brown’s plan to reinstate peace backfired within a day, with the sheriffs in both Washington and Clackamas counties, which border Portland, refusing to offer more than ancillary support. The departments laid out the steps that had gotten Portland where it was—the defunding of certain police programs, the decriminalization of violent acts committed by protesters—and essentially said, you broke it, you fix it.

Gibson had left the truck caravan early Saturday evening and headed back to its starting point in Clackamas, 16 miles south of Portland. At that point he saw some video of trucks that seemed like they were “stuck and being attacked” and decided to head back to the city, along with a friend. 

“It was just a coincidence we showed up right where Jay’s body was,” he said, though he did not see Danielson or yet know that he had been killed. He did see the protesters, who recognized him immediately.

“I came around the corner, and all of a sudden, there’s like 300, 400 of them,” he said. “I cannot run from them, because when you run, they psychologically just get into the mob mentality of, ‘Let’s beat him up.'”

Instead, he and his friend walked slowly. They had to; they were surrounded by antifa and other protesters screaming, “GO HOME JOEY!” Someone in the crowd, whom Gibson called “one brave girl,” joined them, as did several other people who broke away from the protesters and acted as de facto bodyguards. They got Gibson to a gas station, where he took refuge as dozens of protesters shouted and pounded on the building.

“Anyone else you see in that video that was protecting us? These are Black Lives Matter types,” he said “It means a lot to see them step up and try to protect us and put themselves basically in danger.”

Gibson claiming to need protection will strike some as hilarious or posturing or evil misdirection. It complicates the picture to see someone nearly always presented as the aggressor as anything else. Being unwilling to complicate the picture—to see people’s actions only through a scrim of ideology, or as Brown or Trump would have us see it—has gotten us where we are.

While the grievous police shooting of Jacob Blake earlier in the week in Kenosha, Wisconsin, provoked an enormous national response, the reaction to the killing in Portland has been much more muted. Someone who livestreamed Danielson’s killing told the New York Times that he “believed the Portland police should not have allowed the pro-Trump caravan to enter an area they knew would be occupied by opposing protesters.” While any protest death can become a political football, some are deemed more useful than others in advancing a narrative. If we want to transcend the deadly impasse at which we find ourselves, we cannot start assigning value to one person’s life but not another’s, no matter how doing so mixes up the picture.

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Late last week, a federal district court issued a decision striking down a Trump Administration State Department policy denying citizenship to some children of US-citizen same-sex couples born abroad. The decision was written by a Trump appointee, Judge Michael L. Brown, of the US District Court for the Northern District of Georgia. I previously wrote about the case here. Here is an excerpt from Judge Brown’s decision, describing the facts of the case:

Plaintiffs James Derek Mize and Jonathan Daniel Gregg are U.S. citizens married to one another. In 2018, they had a child using Gregg’s sperm, an anonymously donated egg, and a gestational surrogate. The child, Plaintiff S.M.-G., was born in England, and that country issued a birth certificate listing Mize and Gregg as S.M.-G.’s parents. The couple later applied for a U.S. passport and other proof of citizenship for their daughter. The U.S. Department of State (“State Department”) denied S.M.-G.’s applications, concluding she was not a U.S. citizen at birth because she shares a biological relationship with only one of her citizen parents (Gregg) who had not been physically present in the United States for long enough. In doing so, the State Department treated S.M.-G. as if she had been born out of wedlock.

Plaintiffs filed suit challenging that determination and arguing the State Department’s actions violate the Immigration and Nationality Act (“INA”), the Due Process Clause of the United States Constitution, and the Administrative Procedures Act (“APA”).

As I noted in my earlier post on the case, State Department policy generally does not treat children of opposite-sex married couples born abroad as being born “out of wedlock,” even if one of the parents lacks a “biological” relationship to the child (for example, because they parents had to use assisted reproduction technology or a surrogate). This issue is further discussed in a June decision striking down the same policy issued by Judge Theodore Chuang of the US District Court for the District of Maryland (a liberal Obama appointee). As Judge Chuang and I pointed out, this discriminatory treatment of opposite-sex and same-sex couples violates the Supreme Court’s ruling in Obergefell v. Hodges (2015), and Pavan v. Smith (2017), which  entitle same-sex married couples to the same “rights, benefits, and responsibilities” of marriage as opposite-sex ones. That surely includes the right to transmit citizenship to their foreign-born children.

For that reason, among others, Judge Chuang interpreted the relevant provision of the INA as requiring a grant of US citizenship to children of same-sex couples born abroad, even if one of the parents lacks a “biological” relationship to the child. Doing so is mandated by the canon of “constitutional avoidance,” which requires courts to interpret federal statutes in ways that avoid constitutional problems, wherever it is reasonably feasible to do so.

Judge Brown reaches the same conclusion by a  similar, but slightly different route. As he notes, Section 301(c) of the INA grants US citizenship to “a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.” The State Department interprets the phrase “born….of parents” as requiring a “biological” connection to both parents. That  categorically excludes children born to a same-sex male couple, since two men can never be biological parents of the same child. It also appeared to exclude female and opposite-sex couples that use assisted reproduction technology (ART).

Over time, however, the State Department modified the policy to count as “biological” connection situations where a US female parent either donated an egg implanted in a surrogate or was herself the “gestational” parent for an egg donated by someone outside the marriage. That opened the door to granting citizenship to many children born abroad to same-sex female couples, and opposite-sex married couples using ART. In addition, as already noted, the State Department in practice presumed that there was a sufficient “biological” connection in cases where the parents are an opposite-sex married couple. But male same-sex couples were categorically excluded. As Judge Brown puts it, “The State Department says two married men can never have a child abroad that it considers having been born in wedlock.”

Judge Brown ruled that this state of affairs violates the canon of constitutional avoidance:

“[T]he Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples.” Pavan v. Smith, 137 S. Ct. 2075, 2076 (2017). This includes equal access not just to the “symbolic recognition” of marriage but also to the “material benefits” that come with it. Obergefell v. Hodges, 576 U.S. 644, 669 (2015)….

These cases raise serious doubts about the constitutionality of a biological parent-child requirement in Section 301(c). That provision allows married U.S. citizens to confer birthright citizenship on their foreign-born children if either spouse resided previously in the United States for any length of time. The ability to confer citizenship under
these circumstances, without the additional burdens imposed by other provisions, could reasonably be viewed as a “benefit.” That benefit is “linked to marriage” because it is unavailable to unmarried couples. And, under the Biological Reading, Section 301(c) would preclude married same-sex male couples from accessing this benefit because it is “impossible” for two men to be related biologically to the same child….

The Court finds that Section 301(c) is reasonably consistent with the Non-Biological Reading, even if it is also consistent with the Biological Reading. Because the Non-Biological Reading is “fairly possible,” and because the Biological Reading would raise serious constitutional questions, the Court must adopt the former under the doctrine of constitutional avoidance.

Earlier in the opinion, Judge Brown offers a good explanation of why the “non-biological” interpretation of Section 301(c) is at least as plausible as the “biological” one, if not more so.

Judge Brown’s analysis could have been even stronger had he recognized, as did Judge Chuang, that the State Department, in practice, makes little effort to enforce any “biological” constraints on citizenship grants to children born to opposite-sex married couples. That further undermines the claim that the policy discriminates purely based on “biological” ties, as opposed to the sex of the parents.

In my earlier post, I also explain additional reasons why this policy qualifies as unconstitutional sex discrimination, even aside from the related, but partly distinct issue of running afoul of Obergefell.

Judge Brown’s ruling also addresses a number of procedural issues, most notably the question of why the baby and her parents continue to have standing to pursue this lawsuit, despite the fact that she was ultimately granted citizenship as a “naturalized” citizen. I would add that one additional reason why such standing continues, is that there is at least one relevant difference between naturalized citizens and those who gain citizenship at birth. Only the latter are allowed to become president of the United States under the Natural Born Citizen Clause of the Constitution.

The litigation over this question is likely to continue in federal appellate courts, at least so long as the Trump administration remains in office. Should Joe Biden win the election, the new administration may well just concede these cases and change the State Department policy. Either way, it is notable that two such ideologically divergent judges as Judge Brown and Judge Chuang (a liberal Obama appointee) have reached the same conclusion on this issue.

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Two commenters on Josh Blackman’s recent post about ideology and law reviews repeated a common assertion: “[F]ew courts or judges pay much attention to [law reviews].” “They serve no useful purpose except resume building.”

It’s hard to measure the value of law reviews, but here’s one data point: I did a quick search on Lexis for cases in just one year (2019) that cite an “L. Rev.” or an “L.J.,” and it yielded 3724 cases. It seems that about 10% might be false positives (chiefly from references to litigants or third parties that had “L.J.” in their names or pseudonyms), and doubtless others might be some false negatives (since many law reviews aren’t called Law Review or Law Journal). There may also have been a different kind of false positive—judges citing an article even though they didn’t find it at all helpful to their analysis, but just because they think it might be useful to readers—and a different kind of false negative: judges or law clerks finding an article useful but not citing it. Still, the 3724 number should give you a sense that many judges do find law reviews useful at least sometimes.

Naturally, this says nothing about whether the social benefits of producing law review articles (which would presumably extend beyond their benefits to judges) exceed the social costs; whether we should switch to some better approach to law review article publishing; how much weight we should give to the fact most court decisions don’t cite law review articles (perhaps that’s just because the analysis is straightforward and doesn’t require an academic perspective, or because the lawyers didn’t cite the articles and the judges and clerks didn’t see the need to themselves search for such articles); or a variety of other topics.

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