The Semifinal Round of the OT 2019 Harlan Institute-ConSource Virtual Supreme Court Competition

On the first Monday in October, the Harlan Institute and The Constitutional Sources Project (ConSource) announced the Seventh Annual Virtual Supreme Court Competition. This Term, the tournament focused on Espinoza v. Montana v. Department of Revenue. Twenty-one high school teams advanced to the semifinal rounds. They prepared briefs, and presented live oral arguments via Zoom. These students are very impressive–especially under the circumstances. They prepared joint arguments remotely, with all schools shut down. I am so proud of them. We will hold the quarter-final rounds, also by Zoom, later this month. And the championship round will be held in May.

Here are their entries, with links to their briefs:

Match #1

Match #2

Match #3

Match #4


Match #5

Match #6

Match #7

Match #8

Match #9

Match #10

Match #11

Match #12

Match #13


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Hardball Litigation Among Neighbors, or Obstruction of Justice?

From Cook v. State (Ind. Ct. App. Mar. 31, 2020):

Darren Collins … became aware of a dispute between [Jennifer] Cook and the Brumleys regarding noise coming from Cook’s house. Collins lived less than a quarter mile from Cook’s residence, the noise bothered him, and he called and made reports about it. At some point, a court proceeding was initiated as a result of the dispute, and Collins was subpoenaed to provide a deposition for the trial.

On April 26, 2018, Collins was mowing his cousin’s property, and Cook, whom he had not previously met, stood in the path of the mower and motioned for him to stop. Collins stopped the mower and removed his earplugs so he could hear what she was saying. Cook told him she wanted to meet him and he was one of the persons suing her, even though he had not sued her. She stated she wanted to know why he “was doing this” and asked what he “had to gain from this.” Collins said he did not know he was suing her, and she said, “well you are one of the persons that is involved with this.” Collins believed she was referring to the case with the Brumleys.

Cook said he had made numerous reports and she had a “document file of all of the times that [he had] called in.” Cook told him he “needed to consider what was going on and take this opportunity to bow out of the proceedings so that … [he] wouldn’t be further involved and … that [he] wouldn’t lose anything in the end.” She also said that she was a successful woman and “she had uh, the proof of that, by her home, and her cars and all of that, that she was a winner” and he “could stand to lose everything, and that [he] would wind up with nothing.” She also told him he “needed to make the right decision.” After the conversation, Collins was a “nervous wreck,” started parking his car differently, did not stay at home “a lot,” and was “just tore up.” …

The court found Cook guilty of attempted obstruction of justice as a level 6 felony … [and] sentenced Cook to one year all suspended to probation….

The majority, written by Judge Elaine Brown and joined by Judge Patricia Riley, upheld the conviction:

Ind. Code § 35-44.1-2-2 governs obstruction of justice and provides that “[a] person who … knowingly or intentionally induces, by threat, coercion, false statement, or offer of goods, services, or anything of value, a witness or informant in an official proceeding or investigation to … withhold or unreasonably delay in producing any testimony, information, document, or thing … commits obstruction of justice, a Level 6 felony ….” An ” ‘[o]fficial proceeding’ means a proceeding held or that may be held before a legislative, judicial, administrative, or other agency or before an official authorized to take evidence under oath, including a referee, hearing examiner, commissioner, notary, or other person taking evidence in connection with a proceeding.” …

“Under the obstruction of justice statute, the term ‘coercion’ ‘carries with it, at a minimum, the sense of some form of pressure or influence being exerted on the will or choice of another.’ ” “The form of pressure or influence ‘may vary widely—and certainly includes harassment, physical force, intimidation, and threats—as long as it is exerted knowingly or intentionally to induce conduct by a witness or informant that is proscribed’ by the obstruction of justice statute.” In addition, the failure to comply must be accompanied by a consequence….

We respectfully disagree with the dissenting opinion’s characterization of the statements by Cook to Collins, who was a witness subpoenaed to provide a deposition, that he needed to take the opportunity to bow out of the proceedings so that he would not lose anything in the end, that he could stand to lose everything, and that he would wind up with nothing, as merely a standard conversation between neighbors. When asked if he believed she was threatening him with something, he answered affirmatively….

Based upon the record, we conclude the State presented evidence of probative value from which the trier of fact could find beyond a reasonable doubt that Cook committed attempted obstruction of justice as a level 6 felony….

One of the three judges (John G. Baker) dissented:

Under First Amendment principles, it is well established that “[s]tatutes which threaten to inhibit the exercise of constitutional rights or which impose criminal penalties are subjected to greater scrutiny and less vagueness is tolerated in them than in other types of laws.” Though I do not question the constitutionality of the obstruction of justice statute, I note that we must evaluate these types of statutes with greater scrutiny, as they can chill ordinary speech between private individuals. And in my opinion, this colloquy between Cook and Collins amounts to a standard conversation between neighbors, plain and simple. Cook approached Collins while he was mowing his lawn, Collins was wearing earbuds and listening to music, and beyond Collins testifying that he “started parking the car differently and … didn’t stay home a lot,” he did not testify that he thought Cook would actually come through on anything she said.

It is true that Collins had previously given a deposition for a court proceeding involving Cook. But to convict Cook of attempted obstruction of justice for the aforementioned language is concerning and, quite frankly, a bit of a stretch. Nothing in this criminal statute precludes Cook from discussing the case with her friends, family, or even random strangers. And going forward, it is worth wondering what other “threatening” or “coercive” language might be proscribed under this statute and under the analysis employed by the majority.

In other words, should a conviction like this be upheld, I am worried that other individuals might be caught in the crosshairs of criminal prosecution for attempted obstruction of justice should they engage in similar conversations. If anything, we would encourage friends and neighbors to resolve disputes amongst themselves without any court involvement; allowing Cook’s conviction to stand could discourage these very resolutions from taking place. In my view, the evidence here is insufficient to support a conviction for attempted obstruction of justice, and no reasonable factfinder could find the elements of this crime proved beyond a reasonable doubt.


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Pennsylvania Has Made It Both Difficult and Dangerous to Buy Liquor

Last week, Canal’s Discount Liquor Mart, a liquor store in New Jersey located near the Pennsylvania border, reopened after several days of self-enforced closure.

The store’s owner had closed its doors because, like many New Jersey liquor stores along the state border, it had been flooded with customers in what Paul Santelle, executive director of the New Jersey Liquor Store Association, described to as “a panic, a tsunami of business.” 

The crush of customers, which the store’s owner said reached more than 120 percent of the store’s usual weekend capacity, didn’t come from inside the state. Instead, it came from Pennsylvania, which closed all of its liquor stores on March 16. 

Pennsylvania, a “control state” in which every liquor store is operated by the state, has some of the most onerous rules governing alcohol sales in the nation.

The state’s response during the COVID-19 pandemic provides both an unfortunate reminder of the folly of giving the state government a near-monopoly over liquor sales—and an object lesson in how the closure of businesses in the name of public health can backfire.

The shuttering of Pennsylvania’s state-run stores meant that for weeks, it was nearly impossible to buy liquor legally within state borders. Only in-state distilleries licensed for direct consumer sales were able to sell spirits.

“By closing all the stores, what they are doing is forcing a lot of people to simply go out of state,” says David Ozgo, the Senior Vice President of Economic & Strategic Analysis for DISCUS, the Distilled Spirits Council of the United States. Ozgo notes that while other states also own and operate liquor stores, Pennsylvania is “the only state in the country that has taken this extreme measure.” 

That didn’t just make it harder for Pennsylvanians to buy liquor. It also made it unusually dangerous, as the experience of liquor retailers across the border in New Jersey shows. As Matt Dogali, the president and CEO of the American Distilled Spirits Alliance, told me, “It’s counter to [COVID-19–related] containment measures to force people to travel long distances to crowded stores.”  

Social distancing guidelines encourage people to travel as little as possible and to keep their distance when in the presence of others. That’s much harder to do when the only option for purchasing liquor involves crossing a border. At least one county in West Virginia now prohibits the sale of liquor to Pennsylvania residents in order to stem the tide of border-crossing customers.

Pennsylvania’s closure of spirits stores sparked a similar effect inside the state, with customers reportedly rushing to state-run stores the day before they closed, resulting in record sales.

Perhaps unsurprisingly, the stores were not ready for the deluge. “We are depleted to a level we have never experienced before,” a liquor board spokesperson told in March, “because we were unable to plan for this rush of business.” 

So the rushed state shutdown of liquor stores didn’t just inconvenience residents—it repeatedly created situations of presumably unsafe crowding. It is reasonable to assume that the move negatively impacted public health in Pennsylvania, the opposite of the intended effect.

Last week, the state announced that it would allow some sales through its online portal. But the state-run website crashed almost immediately after opening, then stopped taking orders, citing “overwhelming demand.” 

The state’s liquor control board subsequently announced a plan to reopen the online sales portal in a limited capacity, with a smaller selection of wines and spirits available and a limit of six bottles per transaction and one order per customer per day. However, as of Monday afternoon, the site was still displaying a message indicating that the store was “not available at this time.” 

There are other concerns as well: In the weeks after closure, liquor suppliers in the state were losing $10 million–$12 million per week, according to Ozgo. That likely translates into millions in lost revenue for the state. Reopening online sales may reduce the economic impact somewhat, but the effects are still likely to be significant. 

Other control states haven’t taken the same drastic measures as Pennsylvania. Alabama, for example, closed its liquor stores but is allowing curbside pickup—albeit with strict limits on purchase quantities. Virginia, on the other hand, recently announced a plan to bypass state-run stores and let distilleries ship directly to consumers, a practice that’s normally prohibited in the state. 

These measures are ostensibly designed to protect both customers and employees. But state control of liquor sales isn’t necessary for such precautions to be implemented effectively.

Where I live in Washington, D.C., the many privately owned liquor stores have been able to continue operating after they were dubbed “essential businesses” by the city. These stores have taken elevated health risks seriously while continuing to serve customers. 

In recent weeks, I’ve seen area liquor store employees wearing surgical gloves and medical masks to protect from infection. Drizly, an online alcohol delivery service that partners with local retailers, makes it possible to get bottles delivered directly to your home from many local liquor stores, without the multiple interactions that in-store transactions sometimes require. Unlike many states, Washington, D.C., also allows residents to purchase and ship liquor from out of state through online outlets such as Caskers.  

And late last month, I received an email from Sherry’s Wine & Spirits, one of the city’s best liquor stores. The message asked that customers choose delivery or curbside pickup if at all possible, outlined a variety of enhanced sanitization procedures that were being implemented, and urged buyers to switch to contactless payment methods. The note raised the possibility of ending in-store sales but indicated that pickup and delivery options were expected to remain. 

Stores like Sherry’s, in other words, are figuring out ways to both stay open for business and stay safe. Pennsylvania, in contrast, by completely shutting down its state-owned liquor stores, has somehow managed to accomplish neither.

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The Federal Government’s “Police Power” and the Takings Clause: Part II

Part I in this series rejected the notion that the federal government has an inherent “police power” to seize property without providing just compensation. There may be such an inherent authority with respect to policing matters at the border. But such this would not extend to domestic matters.

Part II will now explore the most likely source of Congress’s authority to prohibit the possession of certain items within the homeland: the Commerce Clause and the Necessary and Proper Clause.

Let’s start with first principles. The Commerce Clause provides “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Under modern caselaw, the word “regulate” is an all-encompassing term that embraces every conceivable aspect of government activity. But it isn’t clear that, as an original matter, the power to “regulate” include the power to “prohibit.”

Champion v. Ames (1903) is the leading precedent on point.  The Lottery Case, as it is known, established the principle that Congress’s power to “regulate” interstate commerce include the power to “prohibit” that commerce. Justice John Marshall Harlan wrote the majority opinion. Randy and I discuss the case in An Introduction to Constitutional Law:

Justice Harlan concluded that [the power to “regulate” commerce give Congress the power to prohibit commerce]. By way of analogy, he observed that states have the police power to prohibit the intrastate sale of lottery tickets. If the states have that power, he asked, “why may not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another?” In short, just as a state has a police power over intrastate commerce — which includes the power to prohibit such commerce — Congress also has a police power over interstate commerce. To this day, Champion v. Ames is cited for the principle that the power to “regulate” commerce includes the power to prohibit some forms of commerce.

Harlan suggests that the Commerce Clause, read in conjunction with the Necessary and Proper Clause, vests Congress with plenary authority that is akin to the state’s police power.

Justice Kennedy articulated this principle in his Lopez concurrence:

In another line of cases, the Court addressed Congress’ efforts to impede local activities it considered undesirable by prohibiting the interstate movement of some essential element. In the Lottery Case, (1903), the Court rejected the argument that Congress lacked power to prohibit the interstate movement of lottery tickets because it had power only to regulate, not to prohibit.

Under modern doctrine, if Congress has the power to regulate “x,” then it also has the power to prohibit “x.” And this prohibition would not effect a taking; no compensation is required.

Let’s use Lopez to illustrate this principle. In 1990, Congress enacted the Gun-Free School Zones Act (GFSZA). This law made it a federal crime “for any individual knowingly to possess a firearm” within 1,000 feet of a school zone. The law did not purport to regulate any commercial activity. Additionally, the government did not need to show that the firearm had traveled in interstate commerce — the so-called jurisdictional hook.

The Supreme Court declared this statute unconstitutional. The GFSZA, Chief Justice Rehnquist wrote, “has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Nor is the federal law “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” For this reason, the Act “cannot . . . be sustained under [the] cases upholding regulations of [intrastate economic] activities . . . which viewed in the aggregate, substantially affects interstate commerce.”

The GFSZA was declared unconstitutional, and Alfonso Lopez’s conviction was overturned. Going forward, could the government seize a gun that was carried near a school zone? The answer is no, at least under the 1990 statute. Such a seizure could not be supported by the federal government’s “police power.” Stated more precisely, that action is beyond the scope of Congress’s enumerated powers. If a federal agent seized Lopez’s gun, it would amount to a taking, and just compensation must be provided.

In September 1994, six months before Lopez was decided, Congress enacted a new version of the Gun-Free School Zones Act that included a jurisdictional hook. Now, to be convicted of violating this law, the government had to prove that the firearm in question “has moved in or otherwise affects interstate commerce.” As amended, the law remains in force. If a federal agents seizes a gun, under the authority of the new GFSZA, there would be no taking. The action would be within Congress’s enumerated powers, or what some courts may refer to as the federal government’s “police power.” No compensation would be required.

This post should be relatively non-controversial. In Part III, I will extend this analysis to the bump stock cases.

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India’s Modi Imports American Discrimination 

America’s success in delivering enviable living standards while protecting human rights has made it the moral gold standard of the world, inspiring global movements for social justice, freedom, and democracy. But the flip side is that when America departs from these principles, it hands a license to other countries to do the same. India is living proof.

Even before President Donald Trump brought nativism front and center in U.S. politics, India was rummaging through American jurisprudence for intellectual ammo to justify similar policies. The world’s second-most-populous country experienced a massive influx of Bangladeshi refugees in 1971 when Pakistan declared war on Bangladesh to prevent it from seceding. Pakistan’s brutality triggered the single largest displacement of people in the second half of the 20th century, with 10 million Bangladeshis, predominantly Muslim, fleeing to bordering Indian states.

Although two-thirds of these refugees eventually returned home, the rest settled in places such as Assam, a lovely, bucolic state famous for its tea, nestled in the northeastern Himalayan range. This generated tensions with the local Assamese. After some grisly episodes of bloodletting, the Indian Supreme Court intervened in 2005. It scrapped an existing law that it insisted was hamstringing the government’s expulsion efforts and created an expedited deportation timetable.

How did India’s highest court justify all this? By quoting an entire passage from the notorious 1889 ruling Chae Chan Ping v. United States, in which the U.S. Supreme Court upheld the Chinese Exclusion Act and declared that “the highest duty of a nation” is to “give security against foreign aggression and encroachment,” including from “vast hordes” of foreigners “crowding in upon us.”

This is exactly how Trump characterizes Central American refugees—and how Indian Prime Minister Narendra Modi characterizes Bangladeshi Muslim immigrants. Moreover, just as Trump is expanding detention camps to house asylum-seekers who illegally cross the border, the Modi government is building a vast network of detention camps to segregate Indian Muslims who can’t prove that their ancestors hailed from India.

The Modi government is also deploying well-meaning U.S. policies for immoral ends. Recently, Modi rammed through India’s Parliament something called the Citizenship Amendment Act (CAA), which will hand mass amnesty to nearly every religious refugee from Pakistan, Afghanistan, and Bangladesh living illegally in India, unless the refugees are Muslim.

Such a religious test for citizenship has generated massive protests in India and condemnation abroad. But Modi’s cheerleaders claim that the CAA is no different from the Lautenberg Amendment, an obscure American law that was sponsored by the eponymous Democratic senator from New Jersey and passed in 1990 to hand Soviet Jews and Christians an expedited pathway to refugee status.

The concern at that time was that the political instability generated by the fall of the USSR would make these groups—but especially Jews—even more vulnerable to persecution by fellow citizens and new regimes. (Lautenberg was subsequently expanded to include Iranian Jews, Christians, and Baha’is.) Today, Modi’s supporters claim that there is no functional difference between the Lautenberg Amendment and the CAA, because both laws create special channels for some religiously persecuted minorities without eliminating existing channels for any group.

While it would certainly be better if Lautenberg had been written in a religiously neutral fashion, this comparison has holes bigger than the Khyber Pass. The most obvious one is that Lautenberg wasn’t meant to cater to dominant religious prejudices, while the CAA is a blatant attempt to feed them. Moreover, Lautenberg aimed to admit more refugees into America, not to create a discriminatory standard for those inside the country. When it comes to attaining U.S. citizenship, one uniform rule applies for everyone, regardless of race, caste, creed, religion, or nationality. Most importantly, America had “normal channels” to accept refugees when Lautenberg was passed, while India does not.

Modi would have found a way to advance his Hindu nationalist agenda no matter what. But his job becomes a whole lot easier when he can enlist American laws to make his case for him.

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Commonsense Suspicion: Thoughts on Kansas v. Glover

The Supreme Court has handed down Kansas v. Glover, a Fourth Amendment case I have blogged about a few times on whether the police had reasonable suspicion to pull over a driver based on a database hit that the registered owner of a car spotted on the road had a revoked license.  In a brief opinion by Justice Thomas, the Court ruled that the stop is permitted.  The decision was 8-1, with Justice Sotomayor dissenting.  Justice Kagan concurred, joined by Justice Ginsburg.

I’ll start by going through the opinions, and then I’ll offer some thoughts of my own.

I.  The Majority Opinion

For Justice Thomas, writing for the majority, this was an easy case.  It was simply a matter of common sense.  Indeed, the heart of the opinion is really just a single sentence (in bold below):

Before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. He also knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle. From these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.

Why was this common sense?  Justice Thomas doesn’t detail that.  But he does detail reasons why the common sense intuition is not negated by various contrary arguments:

(a) Was the intuition negated by the fact that Glover’s license was revoked and therefore he could not legally drive?  No, Justice Thomas says.  Studies suggest that people often drive illegally after their license was revoked.  This is particularly likely in Kansas, Justice Thomas argues, because Kansas only revokes licenses when someone has shown to be pretty lawless with their cars: Those people are particularly likely to disregard the law.

(b) Was the intuition negated by the lack of evidence in the record that the officer had personal experience or training with it?  No, Justice Thomas says. Reasonable suspicion is normally (and here) about commonsense intuition, not an individual officer’s training or experience. While an officer’s particular training or experience can help establish or negate reasonable suspicion, it’s not required to make inferences that are widely shared and understood.  Anyone can make those inferences, including judges, without an officer’s testimony on it.

(c) Was the intuition negated by lack of individualized suspicion?  No, there was individualized suspicion here: The officer had a specific reason to think a particular person was violating a particular law.  The officer’s “[c]ombining database information and commonsense judgments in this context is fully consonant with this Court’s Fourth Amendment precedents.”

Importantly, this doesn’t mean that a license revocation always creates reasonable suspicion that the owner of the car is driving.

We emphasize the narrow scope of our holding. . . . [T]he presence of additional facts might dispel reasonable suspicion.  For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not “raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” Cortez, 449 U. S., at 418; Ornelas, 517 U. S., at 696 (“‘[e]ach case is to be decided on its own facts and circumstances'” (quoting Ker v. California, 374 U. S. 23, 33 (1963))). Here, Deputy Mehrer possessed no exculpatory information—let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck—and thus the stop was justified.

II. Justice Kagan’s Concurrence

Justice Kagan concurred, joined by Justice Ginsburg.  Although she joined the majority, she offered a narrower approach than the majority opinion seems to contemplate.

Justice Kagan thought it “crucial[]” that this was a case about a revoked license in a state that only allowed license revocations when a person was shown to have a “penchant for ignoring driving laws.” In a state that suspended licenses for all sorts of reasons, Justice Kagan reasoned, a database report that a person’s license was merely suspended would be a different case: That would not suggest a driver’s lawlessness, and therefore wouldn’t suggest the driver was unlawfully driving impermissibly.

Justice Kagan then offered various ways that a defendant can try to show that the commonsense judgment identified by the majority does not apply in a particular case.

III. Justice Sotomayor’s Dissent

Justice Sotomayor filed a solo dissent. She argued that reasonable suspicion should be based only on an officer’s established training or experience, and that the majority’s approach effectively put the burden on the defendant to show circumstances negating the majority’s inference.  The result, she argues, is that the police will have no incentive to look into whether the “commonsense judgment” is valid in a particular case.  And the defense will have to way to challenge whether the inferencer is valid.

IV.  My Thoughts on the Case

A few thoughts on the case, in no particular order:

(1) The result in the case isn’t surprising. I also wasn’t particularly surprised by the vote count, although the case seemed significantly more divided at oral argument than the 8-1 that eventually emerged.

(2) Glover ends up as a minor case in the grand scheme of things. Its ruling will be practically important in a specific set of cases, but it didn’t break new theoretical ground. To be sure, Justice Sotomayor argues in her dissent that the majority takes a new approach by relying on common sense rather than an officer’s experience and training.  But I think she’s wrong on that. As the majority properly points out, the Court taking the lead on the inferences is the way reasonable suspicion is normally evaluated.

(3) When I first blogged on the case, I noted that there were three basic conceptual ways the Court could rule:  (a) by reliance on a judicial sense, (b) through general statistics, and (c) through specific statistics.  The Court opted strongly for the first of the three approaches, approach (a).  I think that was the right approach, as I argued in my first post.

(4) With the above said, it was puzzling that the majority didn’t unpack its “common sense” intuition in the opinion.  Presumably the idea is that people usually own cars in order to drive them.  For the most part, people drive the cars that they own.  So when you see a car on the road, it’s a common sense inference—at least enough to get to reasonable suspicion in most cases—that the owner is driving.  I think that makes a lot of sense given how low the reasonable suspicion standard is.  But it’s somewhat odd that this thinking is not actually explained in the majority opinion.  It’s sort of like a paragraph is missing, in which the Court explains why its intuition is indeed based on common sense.

(5) Justice Kagan was really interested in some of the more conceptual questions at oral argument, and I wasn’t surprised she ended up writing in the case. I have significant sympathy with her concerns, and her opinion is thoughtful as always, but I’ll be interested to see if lower courts follow her narrower approach or take the majority opinion as more of a bright-line rule. My guess is more the latter than the former, in part because lower courts may find some of her suggestions hard to implement.

Take the question of whether there is really such a big difference between revocation and suspension.  Justice Kagan suggests that the more lawless a person has to be to get the legal treatment, the more likely it is that the owner will be driving unlawfully. (The majority suggested that, too—perhaps at Justice Kagan’s prompting?—but seemed less focused on that than Kagan’s concurrence.) Perhaps.  At the same time, I’m not sure how much of a difference that would really make. I can imagine a lot of people thinking that suspension for a really minor reason is not that big a deal, and that it’s probably not the end of the world to keep driving because of it even if it’s technically not legal. So maybe that’s a big difference, but maybe it’s not.

Given these kinds of uncertainties, I suspect lower courts will probably interpret Glover broadly.  Although lower courts will realize that the majority opinion is not a bright-line rule, the gravitational pull of its clear answer, and the relative brevity of the opinion, are likely to lead to a broader interpretation.  My guess, anyway.

(6) Finally, I wonder if Glover will come up in debates on the recent practice, in at least some states, of pulling over drivers with out-of-state plates to make sure that the people in the car are following quarantine rules.  Whether that practice is legal can partly be resolved under the special needs line of cases that don’t require suspicion.  But to the extent a suspicion-based doctrinal approach is applied, I wonder how far courts will take Glover‘s reasoning. If it’s common sense that the owner is behind the wheel, is it also common sense that out-of-state plates indicates that someone in the car is driving away from that state?

As always, stay tuned.



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Brickbat: This Night Saved Our Country

Crowley, Louisiana, Police Chief Jimmy Broussard says he did not realize the siren sound his department used to signal the start of a curfew was the same one used in The Purge films and television series. The series depicts a dystopian future in which on one day each year for 12 hours all crimes are legal. Acadia Parish, in which Crowley is located, created a 9 p.m. to 6 a.m. curfew to try to stop the spread of the coronavirus. Broussard says the siren will not be used again.

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The Coronavirus Is Scary Enough. Governments Shouldn’t Make It Scarier by Withholding Information.

Early in Taffy Brodesser-Akner’s 2019 novel Fleishman Is in Trouble, there’s a scene in which a man recently separated from his wife is interrogated by another parent in his child’s class.

It was a familiar pattern: “Had things been hard for long?” “Had you tried therapy? “Did you guys have a regular date night?”

Brodesser-Akner’s character observes, “these questions weren’t really about him…people pretended to care for him while they were really asking after themselves.”

So it is with the COVID-19 crisis.

As David Lat, a legal blogger-turned-recruiter who was on a ventilator at NYU Langone Medical Center, put it, “Suddenly getting lots of queries about my health (from folks not familiar with my story). I’m 44, not overweight, no smoking, no drugs, hardly any drinking. No health conditions except exercise-induced asthma, which I manage with an inhaler.”

We want to know these things, not because we are particularly curious about Lat, but because we want to reassure ourselves by distinguishing our own medical history and demographic profile from his and others afflicted with severe or deadly cases of COVID-19.

In reporting COVID-19 fatalities, state health authorities seem to be trying to strike a balance between protecting patient privacy and feeding the public’s insatiable desire for details.

Different states are trying different approaches. Massachusetts, where I live, is reporting deaths by age (“100s,” “90s”), sex, county, preexisting conditions (yes/no/unknown), and whether the person had been hospitalized.

There have been medical journal articles and journalistic speculation linking COVID-19 risk to everything from blood type (A is higher risk, O is lower) to blood-pressure medication (it might hurt, or it might help). There may be genetic predispositions. Merely describing someone as having a “preexisting condition” isn’t much help, as by some expansive definitions (high blood pressure, obesity) the federal government has claimed that as many of 50 percent of Americans have some sort of pre-existing condition.

It’d be useful for the states or federal authorities to publish this information. Were the coronavirus fatalities smokers or vapers? If they had pre-existing conditions, what precisely were they? What prescription or over-the-counter medications were they on?

Modern “big data” analytic computer science is quite sophisticated at finding patterns in data like this, especially if there is a way to compare the data for the COVID-19 deaths with recovered severe cases, with milder cases, or with the general population.

The point isn’t only to provide reassurance to the public, but also to guide policymakers who have to make decisions on things such as opening or closing public schools, libraries, or playgrounds. Individuals make risk assessments all the time. Do I get on this airplane, get in this Uber, walk down this city sidewalk, go for this swim in the ocean, take this downhill ski trail, eat this steak with French fries? In most cases those choices are informed by life experience and, in some cases, by rigorous long-term observational studies like the Framingham Heart Study and the Nurses’ Health Study.

What’s baffling about COVID-19 is that it is so new—literally, the novel coronavirus—that people don’t have a decent sense of what their risk is. Testing is so limited that no one understands well what the chances are of dying of it are. The chances could be less than one in a thousand, or they could be more.

Anyway, government officials have taken aggressive action in response to the disease, from infringing on freedoms of assembly and religion to ordering General Motors to make ventilators and imposing stay-at-home orders on large populations.

So long as the government is ordering people and businesses around, let it order up some transparency. It may help find a cure for the disease, or, at the very least, allow preventive measures that are more narrowly tailored than shutting down much of the American economy. Maybe insurers can use the data to devise actuarial tables, allowing people to eventual insure some of their COVID-19 risk.

Best of all, such transparency can help individuals make better informed, less panicked decisions about their own risks. Without it, instead of making our own free choices, we’re all prisoners of politicians following rapidly changing epidemiological models.

To return to the Fleishman Is in Trouble example, it’d be as if rather than letting individuals decide for themselves whether to get married, the politicians decided to pause all dating based on some demographer’s prediction about the future divorce rate. People prefer to know the details of the individual cases, and for good reason.

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District Court OK’s Closing Gun Shops as “Non-Essential”

Today’s decision in Brandy v. Villanueva held that L.A. County and the City of L.A. were entitled to include gun shops as “non-essential” businesses that could be closed because of the coronavirus emergency. (Sheriff Villanueva had announced “that firearms and ammunition retailers constitute essential businesses under the County Order and thus may remain open.” But the court held that “this change in policy is not reflected in changes in ordinances or regulations, but rather came from Sheriff Villanueva’s public announcement,” so the court could review the Order as it had been written, before the Sheriff’s exclusion of gun shops.)

Here was the court’s analysis:

Assuming without deciding that the County and City Orders burden conduct protected by the Second Amendment by “affecting the ability of law-abiding citizens to possess [a handgun],” Fyock v. Sunnyvale, 779 F.3d 991, 999 (9th Cir. 2015), intermediate scrutiny is warranted because the County and City Orders are “simply not as sweeping as the complete handgun ban at issue in [District of Columbia v. Heller, 554 U.S. 570 (2008).]” Id.; see also [McDougall v. County of Ventura (C.D. Cal. Apr. 1, 2020)] (holding that the City Order is subject to intermediate scrutiny).

In applying intermediate scrutiny to the County and City Orders, the Court must consider (1) whether the government’s stated objective is significant, substantial, or important, and (2) whether there is a reasonable fit between the challenged regulation and the asserted objective. See Chovan, 735 F.3d at 1139. The City’s and County’s stated objective—reducing the spread of COVID-19, a highly dangerous and infectious disease—undoubtedly constitutes an important government objective. Moreover, because this disease spreads where “[a]n infected person coughs, sneezes, or otherwise expels aerosolized droplets containing the virus,” the closure of non-essential businesses, including firearms and ammunition retailers, reasonably fits the City’s and County’s stated objectives of reducing the spread of this disease. Accordingly, Plaintiffs fail to demonstrate a likelihood of success on the merits of the Second Amendment claim against the County and City Orders.

McDougall similarly reasoned,

Although the County Order may implicate the Second Amendment by impacting “the ability of law-abiding citizens to possess the ‘quintessential self-defense weapon’—the handgun,” Fyock, 779 F.3d at 999 (quoting District of Columbia v. Heller, 554 U.S. 570, 629 (2008), this Court finds that intermediate scrutiny is appropriate because the County Order “is simply not as sweeping as the complete handgun ban at issue in Heller.” Id. The County Order does not specifically target handgun ownership, does not prohibit the ownership of a handgun outright, and is temporary. Therefore, the burden of the County Order on the Second Amendment, if any, is not substantial, so intermediate scrutiny is appropriate.

I think both courts erred here, because they understated how much the orders (as written, without the exception recognizes by the Sheriff) interferes with the right to keep and bear arms.

An order shutting down gun stores completely and indefinitely blocks L.A. County residents who don’t already have a gun from acquiring a gun (especially since they can’t even leave the County, given the state stay-at-home order). That’s a much more sweeping restriction than the large-capacity magazine ban in Fyock. And while it’s somewhat less sweeping than the D.C. handgun ban, in that it will presumably be lifted at some unknowable future time (though we hope it won’t be long), it’s even more sweeping because it blocks buying even rifles and shotguns, and not just handguns, as in D.C.

Any restriction that basically makes it impossible for millions of L.A. residents (those who don’t already have a gun) from exercising their constitutional right can’t be viewed as a mild constraint that’s subject merely to intermediate scrutiny. It should be judged at least under strict scrutiny, and the government should have to show that less restrictive means (such as the protective measures being used at supermarkets, liquor stores, and other places) can’t lower the risk to an acceptable level. And I think they can indeed so lower the risk, especially since the transactions can be quick (quicker than in supermarkets), and done with a minimum of physical interaction between the buyer and the seller.

For more on how I would analyze these questions (as to guns, abortions, and other matters), see this post.

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