Tag: hit&run

One of four members of U.S. Special Operations forces charged in connection with the death of Staff Sgt. Logan Melgar, a member of the U.S. Army Special Forces, in Mali says Melgar’s death occurred as a result of a hazing incident that was to have included them videotaping Melgar being sexually assaulted by a Malian security guard. The claims come in a written stipulation of facts from Marine Staff Sgt. Kevin Maxwell as part of a plea deal in the case.

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I recently posted to SSRN a short essay, Justice Kennedy and the Counter-Majoritarian Difficulty.  The essay was published in the Hastings Law Journal as part of its recent symposium about Justice Kennedy’s work on the Supreme Court.

Here’s the Introduction:

Justice Kennedy is known for his vigorous view of the judiciary’s role. The statistics bear that out. In a study of how often Justices voted to strike down legislation from 1994 to 2005, Justice Kennedy voted at the highest rate of the Justices on the Court  A quick recall of Justice Kennedy’s most famous decisions naturally brings to mind decisions that invalidated legislative action. Think of Lawrence v. Texas, Obergefell v. Hodges, and Citizens United v. Federal Election Commission, just to name a few.

Some believe that Justice Kennedy lacked a consistent jurisprudential philosophy that guided his best-known work. I disagree. It’s true that Justice Kennedy’s opinions don’t fit the standard narratives that guide so much analysis of Supreme Court decisions. These days, a judicial philosophy tends to be evaluated either using theories of interpretation such as originalism or by considering whether a Justice’s opinions tend to favor consistently liberal or conservative outcomes. From those perspectives, Justice Kennedy’s opinions don’t seem to trace a straight line.

But I think Justice Kennedy’s opinions do reflect a consistent view of the Supreme Court’s role. It’s a judicial philosophy rooted in a particular answer to the famous problem of constitutional law known as the counter-majoritarian difficulty. As you know, that phrase is generally attributed to Alexander Bickel and his famous book The Least Dangerous Branch. The puzzle is this: judges exercising judicial review invalidate legislation. But how is it democratically legitimate for judges, who are not elected, to strike down laws that the people’s elected branches have enacted?

This brief Essay makes two points. First, it argues that Justice Kennedy’s jurisprudence was rooted in a particular answer to the counter-majoritarian difficulty. According to this view, a vigorous judiciary is not necessarily counter-majoritarian because the public, over time, wants the Supreme Court to take that role. A strong Supreme Court that invalidates legislative action can be popular and even beloved among the public over time. I think Justice Kennedy’s opinions are generally consistent with that theme.

Second, the Essay scrutinizes the assumptions of Justice Kennedy’s view. It argues that what we might call the “popular support” solution to the countermajoritarian difficulty can be expressed in four different ways. It then explores each of the four arguments and considers whether they are persuasive. The persuasiveness of the approaches depends on your background assumptions about constitutional structure and the broader role of constitutions.

I confess at the outset that I am not persuaded by Justice Kennedy’s view. I have some significant priors here: I’m a longtime fan of stare decisis, judicial restraint, and a modest view of the judicial role. Given that, my skepticism should be no surprise. But my interest in this Essay is not in the views of a single wayward former clerk like me. Instead, my goal is to try to contribute, in some small way, to understanding the assumptions on which Justice Kennedy’s jurisprudence rests.

 

 

 

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The U.S. Customs and Border Protection (CPB) disclosed earlier today that hackers have breached a database of travelers photos and license plates, according to the Washington Post. The agency declined to say how many people might have had their images stolen from the subcontractor that held them.

The CPB processes nearly 400 million travelers at ports of entry annually. In light of the fact that the CPB has been building an extensive photo database as part of its growing facial-recognition program, the privacy implications of this breach for American citizens and visitors could be grave.

“This breach comes just as CBP seeks to expand its massive face recognition apparatus and collection of sensitive information from travelers, including license plate information and social media identifiers,” said American Civil Liberties senior legislative counsel Neema Singh Guliani in a statement. “This incident further underscores the need to put the brakes on these efforts and for Congress to investigate the agency’s data practices. The best way to avoid breaches of sensitive personal data is not to collect and retain such data in the first place.”

 

 

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A cross-ideological group of constitutional and national security law scholars recently submitted a letter to Speaker of the House Nancy Pelosi urging her and the House of Representatives to initiate a lawsuit to halt the illegal US role supporting Saudi Arabia and its allies in the war in Yemen. The letter was drafted by Yale Law School Professor Bruce Ackerman, with assistance from the other participants. Signatories include Ackerman, Richard Albert (University of Texas), Rosa Brooks (Georgetown), Erwin Chemerinsky (dean of the law school at UC Berkeley), Mary Dudziak (Emory), Michael Glennon (Tufts), Jon Michaels (UCLA), Mary Ellen O’Connell (Notre Dame), Michael Ramsey (Univ. of San Diego, and one of the authors of the Originalism Blog), Aziz Rana (Cornell), Scott Shapiro (Yale), Ruti Teitel (New York Law School), and myself, among others (institutional affiliations listed for identification purposes only).

Here is an excerpt:

In vetoing Congress’ joint resolution on Yemen, President Trump has defied fundamental principles of constitutional law laid down by the Supreme Court’s landmark decision in the [1953] Steel Seizure Case. The Court’s decision involved a genuine emergency. A steelworkers’ strike had halted production, and this led to a dramatic reduction of crucial war materiel required by American troops fighting in Korea. Faced with a clear and present danger to the war effort, President Truman seized the steel mills in his capacity as Commander-in-Chief and ordered the workers back to work. In taking this step, Truman refused to follow specific provisions of the Taft-Hartley Act that Congress had laid out to deal with strikes in national emergencies. He instead declared that, as Commander-in-Chief, he had the power to act independently of the law laid down by Congress. The Supreme Court rejected Truman’s assertion of unilateral power as unconstitutional in the Steel Seizure Case…

We call upon you, as Speaker of the House, to initiate a law-suit which calls upon the judiciary to vindicate Steel Seizure in the case of President Trump’s military support of the Saudi war against Yemen. President Trump raises the very same constitutional question decided by Youngstown – only this time, it is the War Powers Resolution, not the Taft-Hartley Act, which explicitly prohibits the president from using his power as commander-in-chief to engage in unilateral war-making.

President Trump’s decision to support the war in Yemen represents a clear violation of the [1973] War Power Resolution’s reaffirmation of the Founder’s grant to Congress over the ultimate question of war and peace. Section 8(a)(c) not only grants Congress power to forbid American troops from engaging in “hostilities” involving direct acts of violence. It explicitly defines “hostilities” very broadly to enable the House and Senate to prohibit American armed forces from engaging in actions which “coordinate” or “accompany” the “regular or irregular military forces of any foreign country.” Congress was acting well within its constitutional authority in insisting on this broad definition of “hostilities.” Given the ease with which military “coordination” with foreign powers can escalate into full-blown war under modern conditions, the Constitution’s “necessary and proper” clause gave Congress ample authority to include these indirect forms of military support in order to preserve its ultimate authority “to declare war.”

I offered some additional analysis of the illegality of US intervention in the Yemen War here (in a post that reflects solely my own views, and not necessarily those of other signers of the letter):

[In April], President Donald Trump vetoed a congressional resolution that would have terminated US military aid to Saudi Arabia and its allies in the Yemen conflict….

But Trump’s veto of the resolution is not enough to make the US role in this conflict legal. It is still in violation of the 1973 War Powers Resolution…  That legislation forbids the “introduction” of US forces into “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” for a period of more than 90 days without congressional authorization…. Significantly, the WPR defines “introduction” into hostilities to include  “the assignment of member[s] of [the US] armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.”

While US forces are not directly engaged in combat in Yemen, the Trump Administration itself admits that they have provided intelligence, logistical support, and—at times—even in-flight refueling of Saudi aircraft. As Utah Republican Sen. Mike Lee…, puts it, “We’re literally telling the Saudis what to bomb, what to hit, and what and who to take out.” That pretty clearly amounts to US involvement in the command, coordination, and “movement” of Saudi forces—exactly the sort of thing that the WPR forbids, absent congressional authorization.

US involvement in the Yemen War dates back to the Obama administration, and has long since passed the 90 day WPR deadline. Congress has never voted to authorize that involvement. Thus, it is illegal.

There is widespread bipartisan concern in Congress about the illegality of this conflict and the very dangerous precedent it sets. That is why the Yemen resolution passed in the first place, with support ranging from conservatives such as Senator Lee, to libertarians like Justin Amash, and virtually all Democrats. Rep. Ro Khanna, Vice-Chair of the House Progressive Caucus likewise supported the Yemen resolution, and now has also endorsed the lawsuit plan.

Unfortunately, widespread concern cannot stop the intervention by traditional legislative means alone, because the president can veto any congressional resolution he opposes, and the veto can only be overriden by an overwhelming two-thirds majority in both houses of Congress. By circumventing the War Powers Act Trump (like Obama before him) has shifted authority away from Congress to himself, ensuring that the default position is that he can continue the intervention, rather than that he must stop it unless Congress gives its affirmative consent. That makes a hash of the Founding Fathers’ scheme to ensure that the president cannot enter into new international conflicts without getting advance congressional approval.

A lawsuit could help redress this imbalance by enabling Congress to stop the illegal legislation without having to through a process in which the president can use the veto to shield his power grab. Even though success is far from certain, it is a strategy that deserves to be tried.

Some will likely condemn this strategy because the courts may dismiss such a lawsuit for lack of “standing.” But, in my view, Congress has a strong basis for standing in cases where the president has appropriated a core congressional power for himself.

[In order to get standing to sue, a plaintiff] must prove that it has 1) suffered an “injury in fact” that is “concrete” and “particularized,” 2) that there is a causal link between the injury and the defendant’s supposedly illegal conduct, and 3) that the injury can be redressed by a judicial ruling. Presidential circumvention of the War Powers Act  inflicts a “concrete” and “particularized” injury on Congress by depriving it of its share of control over the deployment of US military forces—an extremely important national asset. In addition, there is no doubt there is a causal link between the president’s actions and Congress’ injury. And a court can redress the injury by ordering a halt to unauthorized US military assistance to the Saudis and their allies.

Presidential usurpation of congressional war powers is not a new problem. Along with others, Bruce Ackerman and I spoke out against it during the Obama years. The time has come to consider new strategies for reining in the executive in order to ensure that no one person has the power to take the nation to war. As James Madison put it, “[i]n no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department…. [T]he trust and the temptation would be too great for any one man…”

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On Thursday, the U.S. Supreme Court conference will consider whether to hear an important case on vagueness, Copeland v. Vance (docket page, with links to all briefs). As an earlier post by Eugene noted, the case arises from unusual knife control laws in New York City and New York State. This post provides some background about the case.

Types of knives. A switchblade or automatic is a knife that has a “bias towards open.” When the blade is folded into the handle, the blade is under constant pressure (from a spring) towards opening. The only reason that the blade stays closed in the handle is that the blade is held in place by a lock. When the user presses a switch or button, the lock is released, and the blade is propelled by the spring into the open position.

Common folding knife (CFK). A common folding knife has a bias towards closure. The closed blade stays in the handle until the user applies force to move the blade to the open position. For example, the blade might have a small hole or a tang that can be engaged by the user’s thumb, so the user can move the blade the full distance into the open position.

Gravity knife. Technically speaking, a gravity knife is one with no bias towards open or closed. Being neutral, the knife can be opened by gravity. So if the knife is held in a certain position, gravity will take over, and the blade will slide out of the handle. Gravity knives are best-known as paratrooper arms from World War II. Easy one-handed opening was helpful for paratroopers who were entangled in a tree.

New York’s odd definition. In the late 1950s, the New York legislature enacted a law that, among other things, banned gravity knives. But the legislature wrote an unusual definition, backed by a confusing legislative history. At least arguably, the definition is broad enough to encompass a common folding knife that can be flicked open when the user snaps his wrist.

The vagueness of the “flick test.” Some people are very adept at flicking knives, and most are not. While New York City police officers teach each other knife-flicking, most other New Yorkers are not mentored in the skill. As the gravity knife law has been enforced in New York City, any common folding knife is an illegal “gravity knife” if someone can flick it open.

Owners and vendors of common folding knives can never tell whether their folding knives are illegal. Suppose the user tests his knife regularly to make sure it can’t flick; or suppose the user shows the knife to a police officer, and the police officer cannot flick it either. But later, some other officer is able to flick the knife. The user is then a criminal. As the record in Copeland demonstrates, New York City criminally prosecutes cases such as this. Indeed, gravity knife prosecutions in New York City consist almost exclusively of flick cases, and virtually never involve real gravity knives.

Effect of repeal of part of the State “gravity knife” statute. Recently, the New York legislature passed and Governor Cuomo signed a bill repealing the State’s gravity knife ban. Amending the statute that prohibited possession of certain weapons, the bill simply removed every occurrence of the words “gravity knife.” However, the bill did not remove the definition of “gravity knife” from a separate statute in the New York Penal Law.

Unhappy with the repeal, the administration of New York City Mayor Bill de Blasio has pointed out that the NYC Municipal Code contains a provision against carrying a “gravity knife” on the subway or busses. He has announced that the City will prosecute people who violate this law (that is, people with a common folding knife that at a single police officer has been able to flick open). According to the New York Police Department, the  folding knives that tradesmen buy at Home Depot are actually “rapidly-deployable combat knives.”

Is the case moot? So argue defendants New York City and NY District Attorney Cyrus Vance. But their letter to the Court mentions only the state law repeal statute. As petitioners pointed out in their own letter, the defendants failed to inform the Court about their own plans to prosecute persons who live, work, or travel in the City, based on the city ordinance–an ordinance whose definition of “gravity knife” is parasitic on the still-existing state definition–the definition that has always been the heart of the constitutional challenge in Copeland v. Vance.

Additionally, the state repeal of the gravity knife prohibition was not retroactive. Given the two-year statute of limitations, New York retailers, including one of the plaintiffs, are still subject to prosecution for their sales in the last two years–such as if some officer can flick an individual’s knife that was purchased in the past two years.

Constitutional issues. Copeland was not brought as a Second Amendment case. Given the Second Circuit’s hostility to the Second Amendment (see, e.g., my recent amicus brief on the NYC handgun transport ban, which will be argued next term), the plaintiffs were probably correct to worry that mentioning the Second Amendment would inflame the Second Circuit. This is too bad, since knives are certainly among the “arms” protected by the Second Amendment, as I argued in the law view article Knives and the Second Amendment. [Cited in Seattle v. Evans, 366 P.3d 906, 914 n.10, 919, 926, (Wash. 2015); State v. Herrmann, 873 N.W.2d 257, 262 (Wisc. App. 2015), State v. DeCiccio, 105 A.3d 165, 193, 197 n.34, 200 (Conn. 2014); People of the State of New York v. Anthony Trowells, No. 3015/2013 (Aug. 4, 2014; Sup. Ct., Bronx Cty., Part 92) (Justice Troy Webber); People v. Genel, 2018 WL 1919053 (Cal. App. Apr. 24, 2018).]

Copeland v. Vance, at the Supreme Court stage, involves only a single and very important issue of criminal law. In a facial vagueness challenge to a statute, does the challenger have to prove that the statute is vague in all possible applications? The Supreme Court so indicated in the 1987 U.S. v. Salerno. But more recent cases, namely Johnson v. U.S. (2015) and Sessions v. Dimaya (2018), have taken a different approach. Four federal circuits have followed the newer rules while the Second Circuit clings to the old Salerno standard.

The circuit split is central to Copeland, since all parties agree that the New York statutory definition is not vague as applied to real gravity knives (that is, knives with no bias, such as paratrooper knives).

An amicus brief by law professors, including Eugene Volokh, urges the Court to clarify its rules on facial and as-applied challenges. Another brief from more law professors, plus the Cato Institute, elaborates on the vagueness problem, pointing out that literally millions of people are criminalized under a strict liability statute with no mens rea, and no means of determining whether their conduct is lawful. Finally, a Legal Aid Society brief details the atrocious record of enforcement of the “gravity knife” ban in New York City, where  85% of persons arrested are Black or Hispanic, and 96% are men. As the brief details, some such defendants have been sent to prison for years for peaceably possessing small utility knives that are sold at hardware stores throughout the City. The brief’s photos of some of these knives belie the de Blasio administration’s preposterous rhetoric about “combat knives.”

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From Friday’s nonprecedential decision in People v. Ketchens (Cal. Ct. App.), an appeal by defendants who had been convicted of voluntary manslaughter and weapons charges, the facts:

Defendants contend that their rights under the Sixth Amendment’s confrontation clause were violated when the court allowed [Salome] Stephenson to testify while wearing a head scarf covering part of her face….

When Stephenson appeared in court to testify during trial, she wore a garment the court described as a white “scarf that cover[ed] her entire face”; her right eye was “visible slightly, a portion of her nose, and a little bit of her left eye; otherwise, her head and face [were] fully covered.” … Outside the presence of the jury, the court asked Stephenson why she was wearing “a head garment.” Stephenson responded, “I’m Muslim.” The court then inquired, “Is that part of the Muslim faith that requires you to have the head scarf in the manner that you have [it]?” Stephenson answered, “Yes.”

The court then allowed the prosecutor to begin his direct examination of Stephenson without instructing Stephenson to remove her scarf. After approximately 10 minutes of questioning, the court recessed for the day and informed counsel that it would “take up the issue of the witness and the head scarf ” the next morning.

The next day, the court described Stephenson’s head scarf more fully as follows: “It covers her face and head with the exception of her [face] from her hairline down to her right cheek. Her right eye is visible and her side of her nose is visible at times. It otherwise covers her lower jaw area on the right side, her mouth, and it covers almost the entire left side of her face. It’s tight against her face. You can see clearly the outline of her face when she talks, her lips. She is speaking clearly under questioning by counsel. Her body language is apparent to the jurors. I’ll describe her dress as no different as if a male had a full face beard with the exception that you would not be able to see her left eye and her nose in the manner in which she currently appears.”

The court stated that it had considered the authorities that counsel had submitted on the confrontation clause question, then informed counsel of its tentative ruling to allow Stephenson to testify while wearing the head scarf. The court explained: “The court finds that on balance, recognizing the important interests in this case as discussed is the religious protection and freedom of the witness in this case. I have no reason to inquire further or allow further inquiry when she states that her appearance in court today is because of a religious reason. It’s not for this court to question as to whether her interest is genuine or not. I accept her representations that she is wearing the head scarf for religious purposes in court….

“I recognize that there is an intrusion with the right to confrontation. The jurors, counsel can[ ]not see the entirety of the witness’s face in the manner in which I’ve described. However, the intrusion and interference with the right to confrontation is a minimal intrusion. The jurors are quite clearly able to hear her voice, see her facial expressions even through the head scarf …. [T]he head scarf that was worn yesterday was tightly worn against the face where you could see the outline of her lips when her mouth was opening, the expression of her face to some extent. Her body language is clear and apparent to the jurors. And while I recognize that there’s probably two-thirds of her face that’s not visible, I do find that on balance, the interest of the religious freedom and rights of the … witness in this case as compared to the rights of confrontation as to both defendants are minimally diminished by the appearance of the witness in court today.” …

[But t]he court and Stephenson then engaged in the following colloquy outside the presence of the jury:

“The court: Ms. Stephenson, yesterday we had a brief conversation in regards to your head dress and head scarf. Today you have both eyes exposed. Your nose is not exposed. The manner in which you’re wearing your head scarf, are you able to move and expose any more of your face?

“[Stephenson]: If you need to see my nose, that’s fine.

“The court: And is there any religious reason as to why you can’t expose the remainder of your face?

“[Stephenson]: It’s to protect my beauty.

“The court: Okay. So the witness has pulled down the head scarf. Her nose is exposed, both eyes are exposed.” The court added that, with “the benefit of watching her testimony for about [10] minutes yesterday,” it believed that the manner in which Stephenson wore the scarf caused “a minimal negligible intrusion upon the Sixth Amendment right to confrontation.” The court then adopted its tentative ruling and the prosecutor resumed his examination of Stephenson. During the ensuing colloquy, Stephenson reiterated each of the substantive points she testified to the day before….

And the Court of Appeal’s legal analysis:

The Sixth Amendment provides the accused in a criminal prosecution with “the right … to be confronted with the witnesses against him.” This right … “‘provides two types of protections for a criminal defendant: [T]he right physically to face those who testify against him [or her], and the right to conduct cross-examination.'”

The right to a face-to-face meeting between accused and accuser follows from the confrontation clause’s “primary object”: “to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”

As this statement indicates, the face-to-face encounter implicit in the confrontation clause is not only between accuser and accused, but between accuser and jury. That encounter enables the jurors “‘to obtain the elusive and incommunicable evidence of a witness'[s] deportment while testifying'”; an ability, our Supreme Court has explained, that is “as important a component of the right of confrontation as the defendant’s opportunity to cross-examine the adverse witness.”

The ability of the defendant and counsel to observe the witness’s demeanor may also be critical for cross-examination. During cross-examination, counsel may, for example, notice that the witness appears comfortable or uncomfortable, hesitant or confident, indifferent or nervous; and such observations may “guide counsel in prodding, cajoling, and prying information from the witness to the benefit of the accused.”

Apart from the opportunity for jurors, defendants, and counsel to evaluate the witness’s demeanor, face-to-face confrontation also “enhances the accuracy of fact[ ]finding” because of its effect upon the witness. “It is always more difficult,” the high court has explained, “to tell a lie about a person ‘to his face’ than ‘behind his back.'”

Lastly, the requirement that prosecution witnesses testify face-to-face serves a “symbolic purpose.” There is, the high court has explained, “something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.'” These “human feelings of what is necessary for fairness” not only explains why the phrase, “‘Look me in the eye and say that'” “has persisted,” but also why “the right of confrontation ‘contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails.'”

The right to a face-to-face confrontation is not satisfied by the mere physical presence of the witness in the courtroom. In Coy, supra, 487 U.S. 1012, for example, although the testifying witness and defendant were both present in the courtroom, the placement of a screen between the two constituted an “obvious” violation of the “right to a face-to-face encounter.” (Id. at p. 1029.) And in Herbert v. Superior Court (1981) 117 Cal.App.3d 661, the defendant’s confrontation right was denied because the court placed the defendant and his accuser in positions within the courtroom where the defendant could hear, but not see, the witness. (Id. at p. 671; see also People v. Murphy (2003) 107 Cal.App.4th 1150, 1157–1158 [placement of one-way glass that prevented witness from seeing defendant violated confrontation clause].)

Similarly, the defendant is deprived of a face-to-face encounter with a witness who testifies in court wearing a ski mask (People v. Sammons (1991) 191 Mich.App. 351 [478 N.W.2d 901] (Sammons)) or a disguise that conceals “almost all of [the witness’s] face from view” (Romero v. State (Tex.Crim.App. 2005) 173 S.W.3d 502, 503 (Romero)). Allowing the witness to use such a disguise would effectively “remove the ‘face’ from ‘face-to-face confrontation.'” (Id. at p. 506; see also U.S.v. Alimehmeti (S.D.N.Y. 2018) 284 F.Supp.3d 477, 489 [court rejected undercover officer’s use of disguise, “such as using a niqab” while testifying because it would compromise the jury’s ability to evaluate the credibility of the officer].)

Covering part of a witness’s face, however, does not necessarily implicate the confrontation clause. In U.S.v. de Jesus-Casteneda (9th Cir. 2013) 705 F.3d 1117 (de Jesus-Casteneda), the government requested that a confidential informant be permitted to wear a wig, sunglasses, and mustache “to ‘help disguise some of his features.'” (Id. at p. 1119.) After the defense objected, the witness was “‘permitted to testify while wearing a fake mustache and wig but no sunglasses; his eyes remained visible.'” (Ibid.) The trial court found that “the disguise was a ‘very small impingement … on the ability of the [jury] to judge [the informant’s] credibility.'” (Ibid.) The Ninth Circuit affirmed, holding that “the disguise in the form of a wig and mustache did not violate the [c]onfrontation [c]lause.” (Id. at p. 1121.)

[Footnote:  In addition to de Jesus-Castaneda, the Attorney General relies on Morales v. Artuz (2d Cir. 2002) 281 F.3d 55. In that case, a New York state court allowed, over the defendant’s objections, a witness to testify while wearing “dark” sunglasses. On habeas review, the Second Circuit Court of Appeals rejected the defendant’s confrontation clause challenge, explaining that the “obscured view of the witness’s eyes … resulted in only a minimal impairment of the jurors’ opportunity to assess [the witness’s] credibility.” We do not necessarily agree with the Morales court’s conclusion.]

Here, the Attorney General argues that Stephenson’s wearing of her scarf did not deprive defendants of their confrontation rights because it “amounted to a minimal impairment of [defendants’] face-to-face confrontation rights.” As we explain below, we agree with the Attorney General as to Stephenson’s second day of testimony, and we need not decide whether defendants’ confrontation rights were violated during the first day of Stephenson’s testimony because any error that occurred was harmless beyond a reasonable doubt.

Prior to Stephenson’s second day of testimony, the court described Stephenson’s scarf as being white and “tight against her face,” which allowed the jurors, defendants, and counsel to “see clearly the outline of her face [and her lips] when she talks,” and to “see her facial expressions even through the head scarf.” The scarf thus appears to have been somewhat transparent. The jurors were also “quite clearly able to hear her voice,” the court stated, and her “body language [was] apparent to the jurors.” The court compared her scarf covering to a “full face beard” on a man’s face, “with the exception that you would not be able to see her left eye and her nose.” After discussion among the court, counsel, and Stephenson, Stephenson ultimately pulled down her scarf so that both eyes and her nose were exposed, thereby rendering the coverage no greater than that of a man’s full beard.

In light of the facts that Stephenson ultimately revealed her eyes and nose and that the scarf did not prevent others from seeing her lips and facial expressions through the scarf, it appears that the scarf did not prevent the trial participants from evaluating “‘the elusive and incommunicable evidence of a witness'[s] deportment while testifying,'” or from noticing whether the witness appears comfortable or uncomfortable, hesitant or confident, indifferent or nervou. The same ability to discern Stephenson’s facial expressions mitigates the concern that Stephenson would be more likely to “to tell a lie” about the defendants from behind a concealing mask or weaken the “symbolic purpose” of the confrontation clause. Because the purposes and salutary benefits of the face-to-face confrontation right were not meaningfully impaired by the nature of Stephenson’s scarf and the way she wore it on the second day of her testimony, we conclude that the defendants’ right to face-to-face confrontation was thereby not infringed.

The manner in which Stephenson wore her scarf on the first day of her testimony presents a more difficult issue. Her scarf, the court explained, “cover[ed] her entire face,” but for her right eye, which was “visible slightly, a portion of her nose, and a little bit of her left eye.” Because Stephenson’s scarf covered substantially more of her face on the first day of her testimony, the greater coverage arguably crossed the constitutional line that exists somewhere between the ski mask worn in Sammons, supra, 478 N.W.2d 901 and the disguise in Romero, supra, 173 S.W.3d 502, on one side, and the less concealing wig and fake mustache in de Jesus-Castaneda, supra, 705 F.3d 1117.

We need not, however, decide whether the scarf triggered the defendants’ confrontation clause rights, because even if it did, any error was harmless…. Stephenson’s testimony on the first day takes up nine pages of the reporter’s transcript, and according to the court, lasted only 10 minutes. She was not cross-examined and she was shown no exhibits. The second day, after Stephenson revealed enough of her face to avoid a violation of defendants’ confrontation rights, Stephenson’s testimony, including cross-examination, filled the morning session of the trial and most of the afternoon session, encompassing 112 pages of the reporter’s transcript…. [T]here are no material facts that Stephenson testified to on her first day of testimony that she did not repeat on her second day. Indeed, the second day began with the prosecutor and Stephenson effectively reviewing and reproducing Stephenson’s testimony from the day before. Under these circumstances, and based on our review of the entirety of Stephenson’s testimony, we are convinced beyond a reasonable doubt that, if Stephenson’s brief testimony on her first day of testifying violated defendants’ confrontation rights, the error was harmless.

[Footnote: The Supreme Court has explained that the face-to-face confrontation right is not absolute and “must occasionally give way to considerations of public policy and the necessities of the case.” This exception applies when the deprivation of the face-to-face encounter is “necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Reliability is evaluated by considering the “combined effect of [four] elements of confrontation—physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.” The Attorney General contends that this exception applies here because allowing Stephenson to wear her scarf was necessary to further the important public policy of respecting and accommodating witnesses’ religious beliefs. Because we resolve the issues in this case on other grounds, we do not reach this issue.]

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From N.J. Div. of Child Protection & Permanency v. J.B. (N.J. Super. Ct. App. Div.):

The age appropriate immunizations required by N.J.A.C. 3A:51-7.1(a)(2) are a reasonable means of ensuring the health and safety of the children in the care and custody of the Division, especially during a measles outbreak. Parental rights must yield to the safety and well-being of Son and Daughter under these circumstances. See, e.g., Sadlock, 137 N.J.L. at 88 (“[T]he police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” (quoting Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905))). Requiring immunization is an appropriate use of the State’s police power. Providing age-appropriate vaccinations to Son and Daughter will protect them from needlessly contracting diseases that would subject them to potentially serious complications. Children in the care and custody of the Division deserve nothing less.

The children have been in the continuous care and custody of the Division since October 2017. {Father is a Megan’s Law offender subject to community supervision for life. As such, Father is prohibited from “initiating, establishing, or maintaining” or “attempting to initiate, establish, or maintain contact with any minor” and from “residing with any minor,” which includes “[s]taying overnight at a location where a minor is present” without prior approval from the District parole Supervisor. [The children were removed from mother’s custody because, despite that prohibition,] Father was living with the children and Mother was allowing Father to have unsupervised contact with them.} While parents do not lose all of their parental rights when their children are placed under the care, custody, and supervision of the Division as a result of substantiated abuse and neglect, they are situated differently than parents who retain legal and physical custody.

When children are removed from parents under Title 9, the Division is charged with the duty to provide appropriate medical care and treatment. We view this duty as encompassing the authority to administer age-appropriate immunizations over the religious objections of the parents. See In the Interest of C.R., 570 S.E.2d 609 (Ga. Ct. App. 2002); In re Deng, 887 N.W.2d 445 (Mich. Ct. App. 2016); In re Stratton, 571 S.E.2d 234 (N.C. Ct. App. 2002); Dep’t of Human Servs. v. S.M. (In re M.M.), 323 P.3d 947 (Or. 2014). To rule otherwise would needlessly jeopardize the health and safety of children in placement and undermine the discharge of the Division’s duty to provide care, particularly when a known risk of exposure to a disease preventable by vaccination is present.

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From the cert. petition:

In United States v. Salerno, 481 U.S. 739, 745 (1987), this Court held that to maintain a facial challenge, a plaintiff must establish that “no set of circumstances exists under which the Act would be valid.” The federal courts of appeals are starkly split on the question of whether this rule was relaxed by the Court in the context of vagueness cases in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

The Fourth and Eighth Circuits have answered in the affirmative. See Kolbe v. Hogan, 849 F.3d 114, 148 fn.19 (4th Cir. 2017); United States v. Bramer, 832 F.3d 908 (8th Cir. 2016). By contrast, the Second Circuit expressly insisted below that no such relaxation has taken place. Copeland v. Vance, 893 F.3d 101, 113 fn.3 (2d Cir. 2018).

The question presented is: Whether a plaintiff need show that a law is vague in all of its applications to succeed in a facial vagueness challenge.

You can read the government’s response, the reply, and the amicus briefs here. (I signed one, though did not write it.) You can also see the debate about whether the case is moot—10 days ago, the New York Legislature repealed the underlying statute, but people could still be prosecuted for their pre-repeal conduct (yes, that’s the legal rule in most jurisdictions with regard to statutory repeals), and gravity knives (defined using the same definition that is being challenged as vague) remain forbidden on New York City subways and buses. Very interesting stuff.

The Court will be considering the case at its conference Thursday.

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We kick off Episode 267 with Gus Hurwitz reading the runes to see whether the 50-year Chicago winter for antitrust plaintiffs is finally thawing in Silicon Valley. Gus thinks the predictions of global antitrust warming are overhyped. But he recognizes we’re seeing an awful lot of robins on the lawn: The rise of Margrethe Vestager in the EU, the enthusiasm of state AGs for suing Big Tech, and the piling on of Dem presidential candidates and the House of Representatives. Judge Koh’s Qualcomm decision is another straw in the wind, triggering criticism from Gus (“an undue extension of Aspen Skiing”) and me (“the FTC needs a national security minder when it ventures into privacy and competition law”). But Matthew Heiman thinks I’m on the wrong page when I suggest that Silicon Valley’s suppression of conservative speech is the kind of detriment to consumer welfare that the antitrust laws should take into account, even in a Borkian world.

I mock Austrian Greens for suing to censor those who called it a “fascist party” – stopping their mouths not just in Austria but around the world. Yeah, guys, that’ll show ’em who the fascists are. Less funny is the European Court of Justice’s advocate general, who more or less buys the Greens’ argument. And thereby reminds us why we miss Tom Wolfe, who famously said, “The dark night of fascism is always descending in the United States and yet lands only in Europe.”

Nate Jones answers the question, “Were the Russians much better at social media than we thought?” All the adjustments to that story, he notes, have increased our assessment of the sophistication in Russia’s social media attacks. And in This Week in Host Self-Promotion, I take advantage of Nate’s remarks to urge my own solution to the utterly unsolved problem of hack-and-dox attacks by foreign governments on US candidates they don’t like: Ban the distribution of data troves stolen from candidates and officials. Nate agrees that First Amendment doctrine here is a lot friendlier to my proposal than most people think, but he cautions that the details get messy fast.

Matthew comments on Baltimore’s tragedy of errors in handling its ransomware attack. The New York Times’ effort to pin the blame on NSA’s EternalBlue, which always looked tendentious and agenda-driven, now has another problem: It’s almost certainly dead wrong. EternalBlue doesn’t seem to have been used in the ransomware attack. Baltimore’s best case now is that its cybersecurity sucked so bad that other, completely unrelated hackers were using EternalBlue to wander through the city’s system at the same time as the ransom bandits.

Speaking of cybersecurity, Matthew reminds us of two increasingly common and dangerous hacker tactics: (1) putting the “P” in APT by hanging around the system so long that you’ve downloaded all the manuals, taken all the online training, and know exactly when and how to scam the system; and (2) finding someone with lousy network security who’s connected to a harder target and breaking in through the third party.

Finally, Gary Goldsholle helps us make sense of the litigation between the SEC and Kik, which first launched a cryptotoken that it insisted wasn’t a security offering and then crowdfunded a lawsuit to that effect against the SEC. So, finally: good news for lawyers if nothing else, and perhaps for future Initial Popcorn Offerings.

Download the 267th Episode (mp3).

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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 the firm.

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By now, you probably know that YouTube is pure evil. Or maybe just dumber than a box of rocks. Either way, get ready for major political and regulatory action against Google, which has owned the video platform since 2006, and is now the target of a Department of Justice antitrust investigation and a congressional investigation along the same lines. Earlier today in an interview with CNBC, President Donald Trump praised the more-than-$9-billion in fines levied against the internet giant by the European Union since 2017 and declared, “Obviously, there’s something going on in terms of monopoly.”

These days, whether you’re a right-wing free-marketer or a left-wing democratic socialist, whether you’re Tucker Carlson or Sen. Elizabeth Warren (D–Mass.), you probably worry more about Big Tech than Islamic terrorism and agree that all or most of the so-called FAANG companies (Facebook, Amazon, Apple, Netflix, and Google) need to be broken up, hemmed in, or regulated as public utilities. Hell, even the leaders of those companies are calling for regulation. A month ago, Google’s CEO Sundar Pichai took to the op-ed pages of The New York Times to plead with Congress to pass “comprehensive privacy legislation” similar to the European Union’s General Data Protection Regulation (GDPR) that would cover all online businesses. Ironically—or maybe strategically—Pichai didn’t mention that a year after the GDPR’s implementation, Google’s marketshare had grown.

Last week, in a truly inspired set of self-owns, YouTube managed to piss off conservatives—by apparently demonetizing the videos of right-wing comedian Steven Crowder—and to enrage progressives by not actually banning him for jokes directed at a gay Vox reporter.

When YouTube’s not using its supposedly all-powerful, super-spooky algorithm to recommend videos that will turn you into a pedophile or a marathon runner, it’s turning decent, red-blooded, red-state American boys into alt-right monsters. The theory here is that, in a bid to extend the amount of time viewers stay on the site, YouTube keeps recommending slightly more extreme, provocative videos of the sort you just watched. You go from watching old Milton Friedman clips to Ben Shapiro disquisitions to Stefan Molyneux rants on “race realism” and, well, it was nice knowing you. It goes without saying that viewers are largely unable to exercise any meaningful volition when faced with such modern-day magic. Back in the 1990s, it was supposedly ultra-violent and hyper-sexual cable TV that was programming us into slobbering fools. Today, it’s PewDiePie, Logan Paul, et al.

“Caleb Cain was a college dropout looking for direction. He turned to YouTube,” reads the ominous subtitle to a widely read New York Times about a 26-year-old West Virginia resident who started watching a bunch of alt-right videos and came to identify with that movement of Trump-friendly, quasi-racists, traditionalists, and nativists. Until, that is, he watched yet more YouTube videos and changed his mind:

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