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From Judge Wallace Tashima’s opinion (joined by Judges Milan Smith and Jacqueline Nguyen) in Miller v. Sawant, decided today by the Ninth Circuit (correctly, I think):

Plaintiffs Scott Miller and Michael Spaulding … are Seattle police officers who claim they were defamed by Defendant Kshama Sawant, a member of the Seattle City Council, through comments Sawant made about a deadly police shooting in which Plaintiffs were involved. The district court dismissed Plaintiffs’ defamation claims on the ground that their third amended complaint … failed adequately to allege that Sawant’s remarks were “of and concerning” them. We reverse.

Under the governing federal pleading standard, Plaintiffs plausibly have alleged that Sawant’s communications were of and concerning them. First, Sawant’s own words suggest that her remarks were directed not only at the police generally, but also at the individual officers involved in the shooting. She told the crowd that the shooting constituted “a blatant murder at the hands of the police,” and she called for the Seattle Police Department to be held accountable “for their … individual actions.”

Second, the complaint plausibly alleges that some of those who read or heard Sawant’s remarks—Plaintiffs’ families, friends, and colleagues, as well as members of the general public—knew that Plaintiffs were the officers involved in the shooting. Third, the complaint plausibly alleges that these readers and listeners understood that Sawant’s remarks were directed at Plaintiffs. These allegations are sufficient.

In concluding otherwise, the district court reasoned that “[t]he statements Councilmember Sawant made do not target or single out Plaintiffs or any specific officers, but rather speak to broader issues of police accountability.” At most, however, the district court has identified one reasonable interpretation of Sawant’s words, not the only reasonable interpretation. Where a communication is capable of two meanings, one defamatory and one not, it is for a jury, not a judge, to determine which meaning controls….

The facts:

In February 2016, Plaintiffs shot and killed Che Taylor, a Black man, while attempting to make an arrest. {Plaintiffs assert that the shooting was lawful. The complaint alleges that the Seattle Police Department, the City’s Force Investigation Team, the City’s Firearms Review Board, and an inquest convened by the King County prosecutor all cleared Plaintiffs of punishable wrongdoing.}

A few days after the shooting, Sawant told a crowd in front of the Seattle Police Department: “The brutal murder of Che Taylor, just a blatant murder at the hands of the police, show[s] how urgently we need to keep building our movement for basic human rights for black people and brown people.” She called for the Police Department to be held “accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling.”

In June 2017, following the fatal police shooting of Charleena Lyles, another person of color, Sawant repeated her allegation that “Che Taylor was murdered by the police.” … Although Sawant had not identified Plaintiffs by name in her remarks, the complaint alleges that Plaintiffs’ families, friends, and colleagues, as well as members of the general public, all knew that they were the officers who shot Taylor….

And some more details from the court’s analysis:

[A]lthough Sawant’s remarks appear aimed, at least in part, at the police generally, some of her language suggests that her words refer specifically to the officers who shot Taylor. Sawant asserted that Taylor’s death was “a blatant murder at the hands of the police,” and she called for the police to be held “accountable for their reprehensible actions, their individual actions. We need justice on the individual actions ….” This language suggests that Sawant was singling out Plaintiffs—characterizing them as murderers and calling for them to be held individually accountable.

In addition, apart from Sawant’s own words, the [Complaint] alleges that persons who heard or saw Sawant’s remarks understood that they referred to Plaintiffs…. These allegations are neither conclusory nor implausible. Hence, they are entitled to a presumption of truth at this stage of the proceedings….

It may be, as the district court surmised, that some listeners or readers would understand Sawant’s remarks as communicating solely criticism of the police generally. But that is only one reasonable meaning of the remarks, not the only such meaning….

We reject Sawant’s argument that this case is controlled by New York Times Co. v. Sullivan (1964). In Sullivan, the plaintiff argued that an advertisement was “of and concerning” him because it criticized certain acts of the police department, which he oversaw in his capacity as a city commissioner. The Supreme Court held that there was insufficient evidence to show that the advertisement was of and concerning the plaintiff.  This conclusion turned on the fact that the plaintiff had no “personal involvement in the acts in question.”  The plaintiff’s theory instead relied on “the bare fact that he was in overall charge of the Police Department.” …

Sullivan‘s reasoning is inapplicable here. First, Plaintiffs were personally involved in the acts in question—the Taylor shooting. As the California Court of Appeal has observed, “an entirely different picture would have been presented [in Sullivan] had the plaintiffs been police officers who were personally involved in the incidents referred to.” Second, this case does not involve an “impersonal attack on government operations,” and Plaintiffs do not administer the Seattle Police Department. The libel-on-government concerns underlying Sullivan, therefore, are absent here….

Sawant also raises a policy argument: “If police officers could transform their political critics into defamation defendants by relying on the conclusions of ‘friends, families and colleagues’ to satisfy the ‘of and concerning’ requirement,” she contends, “then police could weaponize litigation to silence their critics.” The law, however, makes clear that defamation claims may be based on how a communication is understood by individuals who know the plaintiffs….

Sawant, moreover, mischaracterizes Plaintiffs’ allegations. Plaintiffs do not rely solely on the conclusions of the family, friends, and colleagues to satisfy the of-and-concerning requirement. There are two sets of allegations in the complaint that support the conclusion that Sawant’s statements can reasonably be understood to refer to Plaintiffs: Sawant’s words themselves, and the conclusions drawn by Plaintiffs’ family, friends, and colleagues. If Plaintiffs had relied solely on the allegation that a friend or family member understood a communication to refer to Plaintiffs, this might be a different case. As the Restatement points out, a communication is of and concerning the plaintiff when recipients reasonably understand that it was intended to refer to the plaintiff. Restatement (Second) of Torts § 564 (1977). “It is not necessary that everyone recognize the [plaintiff] as the person intended,” but “the fact that only one person believes that the plaintiff was referred to is an important factor in determining the reasonableness of his belief.” Id. cmt. b. Here, Plaintiffs’ allegations regarding family, friends, and colleagues are consistent with Sawant’s words themselves. Their allegation that the communications were of and concerning them, therefore, clears the plausibility threshold.

We emphasize, moreover, that, at this stage of the case, it is not our function to decide whether Sawant is liable for defaming Plaintiffs. We hold only that Plaintiffs have plausibly pleaded the single element of their defamation claims at issue on this appeal—the of and concerning element….

The court doesn’t deal with the separate question whether the label “murder” (1) should be seen as an opinion based on disclosed or widely known facts, much as saying “O.J. Simpson is a murderer” would be generally seen as opinion (opinions aren’t actionable libel), or (2) should be seen as a claim that the Councilwoman knew some other undisclosed facts that show the police officers engaged in deliberate non-self-defense killing (such implicit factual assertions may be actionable libel, if they are factually false and said with the requisite mental state).

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Kyle Rittenhouse is the star witness in the Kyle Rittenhouse trial. And today the 18-year-old took the stand, testifying that he acted in self-defense when he shot three men, ultimately killing two, during unrest in Kenosha, Wisconsin, on August 25, 2020.

The testimony was arguably the climax in the proceedings against Rittenhouse, who is facing multiple homicide charges and has become symbolic of just about everything the viewer wants to see. To many on the left, he’s a vigilante upholding racist structures; to some on the right, a protector who filled a void left by law enforcement.

But there was another courtroom fixture centerstage on Monday: Assistant District Attorney Thomas Binger, who—no matter how you feel about Rittenhouse—should serve as a reminder of just how pitifully low prosecutors will stoop while in pursuit of a conviction.

Binger’s Rittenhouse cross-examination should have been a big moment, which it was, but not for the reasons Binger would have hoped. He began with a probe of Rittenhouse’s interest in purchasing an AR-15, asserting that Rittenhouse must have declined a pistol or a shotgun because of his Call of Duty habit. There are a few problems here: Players use many different sorts of guns in simulation games, including pistols and shotguns. But more fraught is the implication that playing violent video games somehow makes you a murderer, or more likely to murder someone—a hysterical assumption that is not based on fact.

The questioning was desperate, but it quickly moved from breathless to potentially unconstitutional as Binger faced off multiple times with Judge Bruce Schroeder after the former noted Rittenhouse’s post-arrest silence with the insinuation that it somehow indicated his guilt.

“I was astonished when you began your examination by commenting on the defendant’s post-arrest silence,” the judge said. “That’s basic law. It’s been basic law in this country” for decades, adding, “I don’t know what you’re up to.”

They also squared off over the Binger’s attempt to introduce evidence to the jury that Schroeder had already said was likely inadmissible. The chain of events prompted Rittenhouse’s defense to ask for a mistrial with prejudice—meaning the state would not be permitted to bring the same charges—which Schroeder said he would take under advisement. “Don’t get brazen with me,” Schroeder told Binger. “When you say that you were acting in good faith, I don’t believe that.”

Binger is not the first prosecutor to receive such admonishment.

“Prosecutorial immunity, which basically provides absolute immunity to prosecutors, has served as essentially a perverse incentive in this type of a situation,” Anya Bidwell, an attorney at the public interest law firm Institute for Justice, tells Reason. “Prosecutors—especially when they act inside of a courtroom, like in this case—they are 100 percent immune from any kind of civil liability, so they can lie, they can bend [the facts] whichever way they want…and they will not be held accountable.” A recent example: A prosecutor in Louisiana was given immunity after working to derail rape allegations against an assistant warden at the Louisiana State Penitentiary.

That case remained low-profile. High-profile cases like Rittenhouse’s tend to turn a swell of brief attention to the criminal justice system, at which point people may find their preconceived notions challenged. That’s doubly true here with people on both sides of the aisle holding up Rittenhouse’s actions as indicative of whatever narrative they want to believe.

Consider J.D. Vance, for example, the Republican candidate for Senate in Ohio. Binger is a “lawless thug,” he said—unexpected words from someone who has touted the importance of law-and-order. And then there was conservative commentator Matt Walsh, who tweeted that the prosecutor is a “corrupt piece of shit brazenly violating the constitution” as well as “a raging asshole.”

“Based on what I’ve seen, objectively it does seem like the prosecution really messed this up. I think that’s a fair assessment. But I’m not the least bit confident that folks like J.D. Vance and Matt Walsh and whoever else have just come to that decision through neutral civil libertarian principles,” says Jay Schweikert, a research fellow with the Cato Institute’s project on criminal justice. “On the other side, I’ve seen tons of nominally progressive people who in their day jobs care a lot about criminal justice, and yet seem to be howling for a conviction, and convinced that anything the judge is doing to push back against the prosecutor is because he’s racist and biased.”

After the trial’s conclusion, both sides will probably retreat back to their respective corners. But a criminal defendant’s right to due process should not hinge on how sympathetic he is, and a prosecutor’s disdain for the rules is by no means constrained to the assistant district attorney in Kenosha County, Wisconsin.

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All respiratory pandemics follow a script, one that’s as much social and political as it is medical or epidemiological, says Yale sociologist and medical doctor Nicholas Christakis, who has just released a new paperback edition of his authoritative book, Apollo’s Arrow: The Profound and Enduring Impact of Coronavirus on the Way We Live.

In his conversation with Nick Gillespie, Christakis pulls no punches when slamming the failures of our politicians and public health officials to act quickly and speak honestly about the COVID-19 pandemic which has left 750,000 Americans dead. 

As a newly minted member of the advisory council for the Foundation for Individual Rights in Education (FIRE) and a high-profile target of ultra-woke campus activists, Christakis talks about how COVID misinformation has also been spread by pundits and politicians who seem more interested in pushing ideology than science and why the best way forward—really, the only way forward—is through robust debate in the public square. He also argues that recent events on campuses—such as Massachusetts Institute of Technology canceling a talk by a scientist due to his critical views on affirmative action—underscore the need for a radical shift in favor of free speech at our colleges and universities.

Christakis previously appeared on The Reason Interview in April 2019, to discuss his book Blueprint: The Evolutionary Origins of a Good Society and his viral showdown with students over Halloween costumes. Listen to it or watch it here.

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In November 2020, Maira Oviedo-Granados of Knoxville, Tennessee, called 911 from inside a locked bedroom with her three young children nearby. Her boyfriend came home after beating a man he thought she was having an affair with and she feared for her safety, alleging to a dispatcher that her boyfriend was armed and had tried to grab her.

The police arrived and instead arrested Oviedo-Granados for simple assault, as her boyfriend alleged she had struck him during an argument and officers saw marks on his face. Then, because of Oviedo-Granados’ citizenship status, authorities sent her to an immigration detention facility in Louisiana. She was there from November 2020 to early January 2021 and kept apart from her three children, per reporting by Angela Dennis and Tyler Whetstone for the Knoxville News Sentinel.

Now, Oviedo-Granados is suing over Knox County’s “illicit immigration enforcement” program that landed her in detention for months.

In 2018, Knox County signed a contract with Immigration and Customs Enforcement (ICE) that allowed its law enforcement agencies to enforce federal immigration laws. Under Section 287(g) of the Immigration and Nationality Act, the Department of Homeland Security may forge agreements with state and local law enforcement agencies and deputize officers to carry out certain duties typically performed by federal immigration agents. For example, state and local law enforcement officers may begin deportation proceedings and transfer noncitizens to ICE custody.

Oviedo-Granados fell victim to the county’s 287(g) program due to her status as an asylum seeker. She arrived in the U.S. in 2014 from Honduras and filed for asylum on the basis of gender-based violence in her home country (a claim that is still pending). Despite calling 911 about a partner she said had hurt her before, Oviedo-Granados was arrested.

Such 287(g) programs are controversial among immigration advocates due to their tendency to target nonthreatening individuals, emboldening officers to arrest migrants over minor, nonviolent offenses. In Gwinnett County, Georgia, almost two-thirds of 287(g) detainees were booked for traffic infractions. The American Civil Liberties Union of Tennessee found that “the vast majority of the time, deportations through Davidson County’s 287(g) program were triggered by minor, often traffic-related offenses.” The county wasted resources to deport low-level offenders over “driving without a license, trespassing, and fishing without a license.”

Enforcement has also raised questions about racial profiling in some parts of the country. In Alamance County, North Carolina, “sheriff’s deputies set up checkpoints at entrances to Latino neighborhoods” and “Latino drivers were up to 10 times more likely to be stopped than non-Latino drivers,” according to the American Immigration Council. Latino drivers were stopped at a similarly disproportionate rate in Maricopa County, Arizona, where Sheriff Joe Arpaio’s deputies carried out regular “sweeps” in Latino neighborhoods. Federal authorities terminated both counties’ 287(g) programs following Department of Justice investigations.

Setting aside these general issues, Knox County’s 287(g) program may have also been illegally instituted. Tennessee state code allows local law enforcement agencies to enter federal immigration enforcement agreements “upon approval by the governing legislative body.” The Knox County Commission would be the approving body in this case, but former Knox County Sheriff Jimmy Jones didn’t get the commission’s approval before signing a contract with ICE in 2018.

Jones previously asked ICE to sign a 287(g) agreement with Knox County in 2013, but the agency rejected his request on the basis of budgetary constraints. “I will continue to enforce these federal immigration violations with or without the help” of ICE, Jones said then. “If need be, I will stack these violators like cordwood in the Knox County Jail until the appropriate federal agency responds.”

Jones and other local officials have insisted that Knox County’s now-active 287(g) program did not need approval from the Knox County Commission. Randy Nichols, who served as special counsel for the Sheriff’s Office during Jones’ tenure, said the agreement didn’t require commission approval because it didn’t amount to immigration enforcement. Immigration lawyers interviewed by Whetstone disagree with that claim.

Oviedo-Granados alleges that she was detained without an ICE interview or warrant and was refused access to her attorney or a translator. Her lawsuit further claims that a Knox County General Sessions magistrate ordered her release after 12 hours. The simple assault charges against Oviedo-Granados have been dropped, and she is scheduled to attend immigration court proceedings in the spring as her asylum claim is processed.

Oviedo-Granados’ lawsuit notes that the “injuries and civil rights violations inflicted on her are typical of more than 1,000 people” detained under Knox County’s 287(g) program. Local law enforcement agencies across the country may make arrests like this under the guise of defending federal immigration law, but that enforcement often comes at the expense of true justice and community trust.

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Yesterday, a federal district court in the District of Columbia rejected former President Donald Trump’s attempt to prevent the National Archives from releasing information to the House Committee investigating the January 6 attack on the U.S. Capitol Judge Tanya Chutkan’s opinion in Trump v. Thompson nicely summarized the privilege claims and other arguments against disclosure, and why they should not prevail in this instance. An appeal is sure to follow quickly.

From Judge Chutkan’s introduction:

On January 6, 2021, hundreds of rioters converged on the U.S. Capitol. They scaled walls, demolished barricades, and smashed windows in a violent attempt to gain control of the building and stop the certification of the 2020 presidential election results. This unprecedented attempt to prevent the lawful transfer of power from one administration to the next caused property damage, injuries, and death, and for the first time since the election of 1860, the transfer of executive power was distinctly not peaceful.

The question of how that day’s events came about and who was responsible for them is not before the court. Instead, the present dispute involves purely legal questions that, though difficult and important to our government’s functioning, are comparatively narrow in scope. Plaintiff—former President Donald J. Trump—challenges the legality of a U.S. House of Representatives Select Committee’s requests for certain records maintained by the National Archives and Records Administration (“NARA”) pursuant to the Presidential Records Act. Plaintiff argues that the Committee’s requests are impermissible because at least some of the records sought are shielded by executive privilege and because the requests exceed Congress’ constitutional power. He seeks an injunction prohibiting Defendants—the House Select Committee, the Chairman of the House Select Committee, NARA, and the Archivist of NARA—from enforcing or complying with the Committee’s requests. For the reasons explained below, the court will deny Plaintiff’s requested relief.

One of the primary issues presented in the case is the extent to which a former President may prevent the disclosure of Executive Branch materials when the current President does not believe such materials should be protected by privilege. From the opinion:

This case presents the first instance since enactment of the PRA in which a former President asserts executive privilege over records for which the sitting President has refused to assert executive privilege. Plaintiff argues that at least some of the requested records reflect his decision-making and deliberations, as well as the decision-making of executive officials generally, and that those records should remain confidential. Specifically, Plaintiff claims such records fall within two constitutionally recognized  categories of executive privilege—the presidential communications privilege and deliberative process privilege—and that he can prevent their disclosure. He argues that his power to do so extends beyond his tenure in Office, in perpetuity, and that his assertion of privilege is binding on the current executive branch. Plaintiff also argues that to the extent the PRA constrains his ability to assert executive privilege, the Act is unconstitutional. In the alternative, he contends that when a former President and current President disagree about whether to assert privilege, a court must examine each disputed document and decide whether it is privileged.

Defendants acknowledge that executive privilege may extend beyond a President’s tenure in office, but they emphasize that the privilege exists to protect the executive branch, not an individual. Therefore, they argue, the incumbent President—not a former President—is best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the on the ability of future executive branch advisors to provide full and frank advice. The court agrees. . . .

At bottom, this is a dispute between a former and incumbent President. And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight. This principle is grounded in “the fact that the privilege is seen as inhering in the institution of the Presidency, and not in the President personally.” Dellums, 561 F.2d at 247 n.14 (citing Nixon v. Adm’r of Gen. Servs., 408 F. Supp. 321, 343 (D.D.C. 1976), aff’d, 433 U.S. 425 (1977)). Only “the incumbent is charged with performance of the executive duty under the Constitution.” Nixon v. GSA, 433 U.S. at 448. And it is the incumbent who is “in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” Id. at 449.

Plaintiff does not acknowledge the deference owed to the incumbent President’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power “exists in perpetuity.” Hearing Tr. at 19:21- 22. But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President “is not constitutionally obliged to honor” that assertion. Public Citizen v. Burke, 843 F.2d 1473, 1479 (D.C. Cir. 1988). That is because Plaintiff is no longer situated to protect executive branch interests with “the information and attendant duty of executing the laws in the light of current facts and circumstances.” Dellums, 561 F.2d at 247. And he no longer remains subject to political checks against potential abuse of that power. Nixon v. GSA, 433 U.S. at 448.

Moreover, contrary to Plaintiff’s assertion that President Biden’s decision not to invoke executive privilege is “unprecedented,” Pl. Mot. at 2, history is replete with examples of past Presidents declining to assert the privilege. From President Nixon permitting the unrestricted congressional testimony of present and former White House staff members, to President Ronald Reagan’s decision to authorize testimony and the production of documents related to the IranContra affair, including information about his communications and decision-making process, to President George W. Bush’s  decision to sit for an interview with the 9/11 Commission to answer questions about his decision-making process in the wake of the attack, past Presidents have balanced the executive branch’s interest in maintaining confidential communications against the public’s interest in the requested information. The Supreme Court noted that this tradition of negotiation and compromise between the legislative and executive branches extends back to the administrations of Washington and Jefferson. See Mazars, 140 S. Ct. at 2029-31. President Biden’s decision not to assert executive privilege because “Congress has a compelling need in service of its legislative functions to understand the circumstances” surrounding the events of January 6, see Pl. Mot., Exs. 4, 6, is consistent with historical practice and his constitutional power.

Judge Chutkan’s reasoning is not-too-different from that in this statement on Trump’s privilege claims released by members of Checks & Balances earlier this month. I signed this statement, as did my co-bloggers Ilya Somin and Keith Whittington, along with several former executive branch officials.

The court also considered, and rejected, Trump’s challenge to the constitutionality of the Presidential Records Act and challenge to Congress’s authority to seek these records under the Mazars decision. Of note, it is much more difficult for Trump to argue that Congress lacks a legitimate legislative purpose in obtaining information about executive branch actions than it was to argue that Congress had no such purpose in seeking Trump’s personal, private financial records. (I discussed the Mazars decision in depth in this piece.)

As noted above, an appeal is sure to follow (if it has not been filed already). Fortunately, this case is moving along quickly.

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