L.A.’s Eternal Eviction Moratorium


topicsregulation

By this spring, nearly all the eviction moratoriums imposed during the COVID-19 pandemic had ended, either because courts blocked them or because legislators repealed them or allowed them to expire. One conspicuous exception was Los Angeles, where tenants were still protected from eviction by the city’s ongoing state of emergency.

L.A.’s moratorium, one of the strictest and most open-ended such policies in the U.S., is a major headache for landlords. David Greenhut is an owner of eight rent-stabilized properties in Los Angeles, totaling 221 units. As of late March, Greenhut says, he had 40 tenants who were not paying rent. He also complains that he is not allowed to evict tenants who blare music or who won’t allow pest control into their homes.

The city’s moratorium bars eviction for nonpayment or nuisances, provided either is related to COVID-19. It allows those tenants to self-certify that they have been affected by the pandemic. Landlords therefore have few means of removing people who game the system.

“If there is fraud, there’s nothing [the landlord] can do,” says Greenhut, who estimates that he is owed about $700,000 in back rent. Rising operating costs and the city’s rent freeze for rent-stabilized units—another feature of the eviction moratorium—have forced Greenhut to take out loans to keep his business afloat.

The association representing L.A. landlords has sued the city over its eviction moratorium, including the provision that says a tenant’s unverified claims are enough to qualify for protection. Last year, the U.S. Supreme Court ruled that a similar provision in New York’s eviction moratorium violated the right to due process. But even if the courts provide relief from L.A.’s eviction moratorium, landlords have already suffered two years of financial damage.

In the early days of COVID-19, moratoriums were pitched as necessary to allow unemployed people to safely shelter in place. The bans then became a time-buying measure that would allow federally funded rent relief to reach renters in need. Now that the pandemic is fading, job openings are hitting record levels, and much of the available rent relief has been spent, L.A.’s eviction moratorium seems like pure regulatory inertia.

That is to be expected. Every temporary measure creates beneficiaries who have an incentive to fight for its extension even when the original justifications for it no longer apply. Politicians, meanwhile, don’t want to be blamed for the sudden disappearance of a benefit to which people have become accustomed. L.A. politicians jumped on a tiger, and now they don’t know how to get down.

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Brickbat: We Will Get to Them Eventually


Seattle Police vehicle

Citing manpower shortages, an internal memo sent to interim Seattle Police Chief Adrian Diaz revealed the department stopped assigning detectives to new sexual assault cases involving adult victims in April. The department’s sexual assault unit is prioritizing cases with child victims and cases where a suspect is already in custody. The department began 2020 with 1,290 officers. As of March 2022, it had 968. And officials said many of its patrol officers are kept busy responding to calls at homeless camps.

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Is This Legal Doctrine a Garlic Press?

Have you ever heard a legal scholar criticize a doctrine because it does several different things, but it isn’t really good at any one of those things? That kind of criticism of a doctrine is much less common from a judge. Why is that? If you want the answer to these questions, there’s a Green Bag article I wrote a few years ago called On Doctrines That Do Many Things. It starts this way:

Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. The same distinction appears in legal doctrines. Some doctrines do one thing and are meant to do it very well. Others do many different things. They serve multiple functions, though perhaps all imperfectly.

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New Haven’s Removal of Columbus Statue from Public Park Isn’t a First Amendment Violation

From Friday’s decision by Judge Janet C. Hall (D. Conn.) in American Italian Women for Greater New Haven v. City of New Haven:

[T]he Columbus statue is government speech and, as such, AIW has no cognizable free speech interest in it. Indeed, the Supreme Court has directly foreclosed such a claim. In Pleasant Grove City, Utah v. Summum (2009), the Court “held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated.” Where a city is “communicat[ing] governmental messages,” as is the case here, it is “free to choose the [monument it displays] without the constraints of the First Amendment’s Free Speech Clause.” This is in contrast to when a city opens up a space “for citizens to express their own views,” thereby creating a public forum and subjecting that forum to First Amendment constraints.

Here, the City has reserved the statue for its own expression and has not opened up Wooster Square for citizens to display statues of their own choosing there. Thus, the decision to display (or remove) the statue is government speech not subject to “the constraints of the First Amendment’s Free Speech clause.”

Clearly correct, I think. The government can choose which statues to put up and which not to put up, and does so all the time; it can likewise choose which ones to take down.

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Targeting Employee for Op-Ed Criticizing “Anti-Racism” Because She’s White May Be Race Discrimination

From the decision Thursday by Judge Katherine Polk Failla (S.D.N.Y.) in Maron v. Legal Aid Society:

On July 23, 2020, Plaintiff Maud Maron, a career public defender at Defendant The Legal Aid Society (“LAS”), penned an op-ed in the New York Post entitled “Racial Obsessions Make it Impossible for NYC Schools to Treat Parents, Kids As People” (the “Op-Ed”). Speaking simultaneously in her capacities as a mother, public defender, elected public school council member, and then-candidate for New York City Council, Plaintiff recounted in the Op-Ed her experience at an anti-bias training run by the New York City Department of Education (“DOE”).

She decried what she perceived as DOE’s endorsement of the “chilling doctrine called anti-racism,” which she asserted “insists on defining everyone by race, invites discrimination[,] and divides all thought and behavior along a racial axis.” Responding to the Op-Ed, the Black Attorneys of Legal Aid (“BALA”), a caucus of Defendant Association of Legal Aid Attorneys (“ALAA,” or the “Union,” and together with LAS, “Defendants”), issued a public statement denouncing Plaintiff’s “racist” views and characterizing her “as a classic example of what 21st century racism looks like.” LAS followed with its own statement, which similarly rebuked Plaintiff’s “racist perspective” and questioned the ability of any public defender to “effectively and fully” engage in public interest work if they do not embrace an anti-racist mandate….

The court considered Plaintiff’s Title VII claim “that the public statements issued by LAS and BALA criticized Plaintiff and her ability to work as a public defender because of her race”:

[T]he LAS Statement … expressly [ties] white attorneys’—specifically Plaintiff’s—ability to do the work of a public defender to whether they accept the anti-racist credo and assume the attendant responsibilities. Poignantly, the LAS Statement imposes additional obligations on white public defenders “merely because” they are white:

To be anti-racist, to dismantle racism here at LAS, and in every organization, we must all recognize that white supremacy drives every policy and law, every opportunity and every advantage. For those of us who are white, it is a recognition that power and privilege has been granted merely because we are white. While you have dedicated your life to public interest, you cannot do this work effectively and fully unless and until you face that reality and own that you are part of the problem. You cannot stop there, you must actively work to dismantle the systems that lend you privilege and oppress BIPOC people. To push against the deep work needed to change and be threatened by the conversation, is the exact definition of white fragility…. White people have a duty to no longer be silent and a responsibility to confront these systems of oppression and to shun all forms of white supremacy in our society, in our workplaces, and within our hearts and minds.

Espousing a similar view, the BALA Statement doubted Plaintiff’s “commitment to zealous representation of poor people of color,” in part because she falls into the category of “white practitioners [who believe] that being public defenders preclude[s] them from being racist.” BALA characterized Plaintiff as “one of many charlatans who took this job not out of a desire to make a difference, but for purposes of self-imaging,” and made clear that public defenders “cannot oppose anti-racism and effectively represent Black and Brown people.”

The context and content of Defendants’ statements, including in particular LAS’s stated expectation that white public defenders must shoulder additional responsibilities based solely on their race, convinces the Court that Plaintiff has adequately alleged that the statements were motivated, at least in part, by her race. That these statements also rebuke Plaintiff for the views she articulated in the Op-Ed does not strip the statements of their racial overtones….

Given Defendants’ avowed disappointment that Plaintiff was a white person who failed to accept that her race and job title obligated her to adhere to their understanding of anti-racism—as expressed in explicit racial lines in their statements—the Court concludes that Plaintiff has adequately alleged that the BALA and LAS Statements were motivated, at least in part, by her race.

But the court concluded that the defendants’ actions, even if based on plaintiff’s race, weren’t sufficient to create a hostile work environment for her (her objection here was just to the statements, not to any tangible employment action, such as firing or demotion):

To adequately plead a claim against an employer for hostile work environment under Title VII, a plaintiff must plausibly allege that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” This test has both objective and subjective elements: “the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” …

“As a general rule, incidents must be more than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'” “Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness,” although “even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff’s workplace.” … “[E]xcessive criticism and rudeness do not constitute a hostile work environment.” …

The court began by concluding that two other incidents that plaintiff pointed to didn’t contribute to a hostile environment, and then rejected the claim that the BALA and LAS statements sufficed to create such an environment:

Plaintiff contends that LAS worked a transformation of her workplace when it issued a public statement calling into question her ability to perform her responsibilities as a public defender. Plaintiff posits that following the publication of the LAS Statement, her clients—a majority of whom are individuals of color—cannot be expected to trust that she will provide them adequate representation when her employer has publicly disavowed her ability to do so….

As critical of Plaintiff as the LAS Statement is, it uses no racial epithets, reveals no personally sensitive or private information, and levies no salacious allegations, any of which would enhance the statement’s severity for the purpose of the Title VII analysis.

To be sure, the content of the statement makes clear that LAS harbors doubts concerning Plaintiff’s ability to represent individuals of color as a public defender, and the Court has already determined that LAS’s decision to release this statement was motivated in part by Plaintiff’s race. While the Court views the statement as sufficiently implicating Plaintiff’s race to bring it within the ambit of the federal civil rights laws, the statement is more than just a missive targeting Plaintiff. It stakes out LAS’s stance on an issue of public importance; articulates the organization’s mission vis-à-vis the constituencies it works to support; calls on the organization as a whole for failing to realize this mission; and commits the organization to doing more to address issues of systemic racism in the future. Even accepting Plaintiff’s characterization that the statement constituted an unfair attack and mischaracterized her views, it does not meet the requisite standard for a Title VII hostile work environment claim….

[T]he fact that Plaintiff injected herself into the public discourse on a matter of public importance implicating race, and identified herself as a public defender in doing so, provides important context to LAS’s decision to release the statement in the first place. In other words, the statements were not gratuitous, out-of-the blue, racialized attacks on Plaintiff, but rather represented LAS’s attempt to distance itself from the position articulated in the Op-Ed….

The Court’s conclusion that Plaintiff has not alleged a hostile work environment under Title VII is not intended to trivialize the harsh criticism that Plaintiff encountered during the 24-hour period in July 2020 when BALA and LAS released the statements at issue. But harsh criticism, even that Plaintiff alleges was unwarranted, does not itself make out a claim for hostile work environment. Here, the totality of the circumstances—namely, the fact that the statements were in response to a highly politicized Op-Ed authored by Plaintiff, that Plaintiff was on sabbatical campaigning for City Council at the time the statements were issued, and that LAS sought to stake out a broader position on a matter of public policy, beyond merely criticizing Plaintiff—counsel against finding that LAS’s retweet of the BALA Statement and publication of its own statement rise to the level of severity or pervasiveness to state a hostile work environment under Title VII….

Plaintiff also claimed that LAS constructively discharged her, arguing that “[w]here an employer proclaims to the world that you are not capable of performing your job because you are a white woman who holds beliefs the employer opposes white employees from having, it is so intolerable that a reasonable person would feel compelled to resign.” But the court rejected that. First,

Fatal to Plaintiff’s constructive discharge claim is her failure to allege that she has actually resigned from LAS. Instead, by Plaintiff’s own allegations, she remains on sabbatical with an open offer to return to LAS.

And beyond that,

Even if Plaintiff had alleged her resignation from LAS, her allegations would still fail to state a claim for constructive discharge. Constructive discharge is generally “regarded as an aggravated case of hostile work environment.” “Here, because plaintiff has not stated a hostile work environment claim … a fortiori [she] has not stated a claim for constructive discharge.”

Plaintiff’s argument that a reasonable person might not want to return to a workplace following the release of a statement such as that released by LAS is well taken by the Court. But, letting a constructive discharge claim survive on these allegations runs the risk of diminishing the applicable standard, which is saved for cases in which “the abusive working environment became so intolerable that [plaintiff’s] resignation qualified as a fitting response.” As described above, the circumstances of this case convince the Court that Plaintiff was not exposed to a hostile environment, especially given the fact that she was on sabbatical doing work unconnected to her role as a public defender at the time the statements at issue were released. Therefore, the Court dismisses Plaintiff’s claim for constructive discharge.

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Pennsylvania Supreme Court Agrees to Hear Home Shooting Range Case

[Photo by Oleg Volk.]

From today’s order granting review in Barris v. Stroud Township:

The issue, as rephrased, is:

Whether an ordinance that limits target shooting to two non-residential zoning districts, and thus does not provide for shooting ranges at all private residences, is facially unconstitutional under the Second Amendment to the United States Constitution?

In addressing this issue, the parties are directed to discuss in their briefs the following subsidiary matters: (1) whether this Court should adopt the two-step framework for addressing Second Amendment challenges utilized by the lower court; (2) whether the core Second Amendment right to possess firearms for self-defense recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), also implies a corresponding right to acquire and maintain proficiency in their use; (3) whether such a corresponding right, if it exists, must extend to one’s own home; and (4) the level of scrutiny courts should apply when reviewing enactments that burden individuals’ ability to maintain firearms proficiency.

The lower court had allowed plaintiff’s Second Amendment challenge to go forward; note that plaintiff wants to set up a range on his “4.66-acre tract of land,” not (say) in a studio apartment:

The Ordinance imposes a burden on the Second Amendment right to maintain proficiency in firearm use by essentially imposing an outright ban on target shooting everywhere in the Township except two specific zoning districts. The Township did not meet its burden under the intermediate scrutiny standard to justify such an outright ban on personal shooting ranges at one’s residence, because it did not establish that the Ordinance “does not burden more conduct than is reasonably necessary.”

In reaching our conclusion, we do not discount the importance of regulating target shooting in a residential environment and the important policy reasons for the Ordinance, nor are we holding that every person needs to have the ability to have a personal shooting range on his property. To the contrary, a municipality clearly may regulate such activity. This Court has recognized that Second Amendment rights are “not unlimited” and “may be restricted in the exercise of police power for the good order of society and [the] protection of citizens.” Yet, as we have previously held:

It must be remembered … that the police power delegated by the state is not infinite and unlimited. The action taken thereunder must be reasonable, it must relate to the object it purports to carry out, and it must not invade the fundamental liberties of the citizens. It must also be remembered that even legitimate legislative goals cannot be pursued by means which stifle fundamental personal liberty when goals can be otherwise more easily achieved.

Thus, our decision does not in any way prohibit the Township from enacting an ordinance targeted to protecting the public, provided that it satisfies the intermediate scrutiny test as described above. As we have repeatedly stated throughout this opinion, there must “be a reasonable fit between [the] asserted interest and the challenged [ordinance], such that the [ordinance] does not burden more conduct than is reasonably necessary.”

For instance, the Township may determine that the goal of protecting the public could be met by imposing requirements on personal shooting ranges, such as a minimum lot size, setback requirements, safety requirements (e.g., targets and backstops be built and used according to certain standards), and requirements on the configuration or positioning of a shooting range on the property to account for distances between buildings or other obstacles beyond the target. The ordinance could require that the Township or law enforcement inspect the personal shooting range and approve it annually to ensure that the safety requirements are being met.

If the Township chooses to enact a new ordinance that imposes reasonable limitations in the forms described above, it is entirely possible that the ordinance could pass the intermediate scrutiny test. In order to do so, however, the Township must balance the constitutional rights of individuals to maintain proficiency in firearm use through firearm-related activity on their properties with the Township’s important goals of keeping the general public safe.

The opinion below was written by then-Judge Kevin Brobson, joined by Judge Mary Hannah Leavitt, with a dissent by Judge Bonnie Brigance Leadbetter. Judge Brobson has since been elevated to the Pennsylvania Supreme Court, but the order granting review states that now-Justice Brobson “did not participate in the consideration or decision of this matter,” so presumably he won’t participate in the hearing on the merits.

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Is DeSantis a Principled Governor or a Retaliatory Culture Warrior?


Governor DeSantis speaking to a crowd on clear day

In this week’s Reason Roundtable, editors Matt Welch, Peter Suderman, Katherine Mangu-Ward, and Nick Gillespie scrutinize Florida Gov. Ron DeSantis’ style of conservatism and touch on President Joe Biden’s upcoming visit with the House of Saud.

1:28: DeSantis and his approach to governance

30:36: Weekly Listener Question: You guys occasionally talk about the Libertarian Party, and you might be aware of the recent convention which saw power go to one faction that many describe as quite alienating. This has led to many of the traditional libertarians leaving the party altogether. My question for you all is do you think that the Libertarian Party is necessary for facilitating more libertarian representation in politics? If not, how do you see libertarian ideals grow in the traditional duopoly?

38:39: Biden’s forthcoming visit to Saudi Arabia

52:30: Media recommendations for the week

This week’s links: 

The Death of Walt Disney’s Private Dream City? by Zach Weissmueller and Danielle Thompson

Anti-LGBT Panics Are Bad for Everyone’s Liberty,” by Scott Shackford

Blame Biden for High Gas Prices,” by Nick Gillespie and Regan Taylor

Saudi Prince’s Plan for ‘Walkable’ City of Single-File Buildings Could Be Two Miles-Long Skyscrapers Instead,” by Christian Britschgi

Alex Epstein: Why the Future Needs More Fossil Fuels,” by Nick Gillespie 

Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.

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Over 45,000 Americans Have Applied To Sponsor Displaced Ukrainians


Ukrainian woman on a bus as she flees her home

In late April, the Department of Homeland Security (DHS) announced the launch of a new private sponsorship program through which American citizens could support Ukrainians displaced by the Russian invasion. According to DHS data shared with CBS News last week, over 45,000 Americans have applied to help resettle Ukrainians in the United States since the Uniting for Ukraine program began.

United Nations data indicate that more than 14 million Ukrainians have left their homes since Russia invaded Ukraine in late February. Nearly 7 million of them fled to neighboring countries. Though millions of displaced people have already returned to safer regions in Ukraine, much of the nation remains under siege—and many Ukrainians are seeking family reunification and more stable homes elsewhere in the world.

Roughly 6,500 Ukrainians had arrived in the U.S. through the sponsorship program as of June 1, while another 27,000 have been authorized to travel here to join their American sponsors. Those coming here aren’t refugees in the technical sense of the word. Rather, they’re parolees, which means they can only live and work in the country for two years. The relief is designed to be temporary, which will deprive many Ukrainians of a lasting haven. But the program is nonetheless an important component of the global response to the exodus in Eastern Europe.

It arose at least partially in response to deep deficiencies in the U.S. immigration system. The American refugee resettlement program slowed severely thanks to the Trump administration and pandemic-era restrictions on cross-border movement. Just 11,411 refugees were resettled in the U.S. in FY 2021, short of an annual cap of 62,500. Other visa pathways have severe application backlogs, meaning that few existing immigration options were well-suited to handle the massive flight of Ukrainians. The fact that 22,000 Ukrainians were admitted after crossing the southern border only solidifies the necessity of laying out a predictable, direct pathway.

This private sponsorship initiative cuts the refugee program and its agency-based resettlement process out of the mix entirely. Instead, private citizens must connect with displaced Ukrainians (via Facebook, for example) and agree to financially support them before they may come to the United States. This ensures that Ukrainians arrive with a built-in safety net. The program’s breadth is directly linked to citizen-level generosity and welcome—important factors for sustainable refugee resettlement. The resettlement structure also helps funnel Ukrainians into the communities best-equipped to receive them. About 15 percent of American sponsors live in the New York metro area, and all other top sponsorship regions are major cities—many of them with large Ukrainian populations.

Uniting for Ukraine isn’t a perfect answer for every displaced Ukrainian, but it allows private citizens to get involved in immigration relief in a novel way. A far-off emergency scenario can leave many benevolent people wishing they had a practical way to help. This program is a meaningful start. The fact that 45,000 people have already volunteered to participate bodes well for the future of private sponsorship.

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Lawsuit Against Kevin Spacey for Allegedly Touching Minor’s “Intimate Parts” Can Proceed

From today’s opinion by Judge Lewis Kaplan (S.D.N.Y.) in Rapp v. Fowler:

Plaintiff Anthony Rapp brings this action pursuant to New York’s Child Victims Act against Kevin Spacey Fowler, better known as Kevin Spacey, for sexual assault allegedly committed in Manhattan in 1986 when Mr. Rapp was 14 years of age….

Very briefly stated, Mr. Rapp claims that Mr. Fowler lifted him up, that Mr. Fowler’s hand his “grazed” Mr. Rapp’s clothed buttock for seconds as he did so, that Mr. Fowler placed Mr. Rapp back­ down on a bed, and Mr. Fowler then briefly placed his own clothed body partially beside and partially across Mr. Rapp’s. Mr. Rapp “wriggled out,” got up, and left the premises. Mr. Rapp testified at his deposition that there was no kissing, no undressing, no reaching under clothes, and no sexualized statements or innuendo. He acknowledges that the entire incident took no more than two minutes.

The complaint alleges that Mr. Fowler’s actions constituted assault, battery and intentional infliction of emotional distress. Mr. Rapp seeks compensatory and punitive damages….

Under the usually applicable New York statutes of limitations, these claims all would be time barred. In 2019, however, the Legislature enacted the Child Victims Act, which [revives otherwise time-barred claims based on] “injury … suffered as a result of conduct which would constitute a sexual offense … against a child less than eighteen years of age ….” …

[Mr. Fowler argues that, v]iewing the evidence in the light most favorable to the plaintiff and drawing in favor of the plaintiff all inferences reasonably drawn, as I must on Mr. Fowler’s motion [for summary judgment], a jury could not reasonably conclude that Mr. Fowler’s alleged actions constituted “a sexual offense as defined in article one hundred thirty of the penal law.” Mr. Rapp’s opposition to the motion relies exclusively on Penal Law Sections 130.52 and 130.55, which define the misdemeanors of forcible touching and sexual abuse in the third degree, respectively….

Forcible touching, in relevant part, occurs when a “person intentionally, and for no legitimate purpose … forcibly touches the sexual or intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire.” It “includes squeezing, grabbing or pinching.” …

The Appellate Division, First Department, of the New York Supreme Court has made clear that the term “intimate parts” as used in Penal Law Section 130.52, subd. 1, is not defined solely in terms of anatomy. In a case involve a kiss on the victim’s neck, it wrote: “… We conclude that, under general societal norms, the neck qualifies as an intimate part because it is sufficiently personal or private that it would not be touched in the absence of a close relationship between the parties. Moreover, since ‘intimacy is a function of behavior and not merely anatomy,’ the manner and circumstances of the touching should also be considered …. Here, defendant stripped naked, climbed onto the sleeping victim, and licked her neck. This conduct clearly fell within ‘the plain, natural meaning’ of the statute.” …

Accordingly, this Court is obliged to consider the manner and circumstances in which the touching allegedly took place in addition to the specific body parts with which contact allegedly was made. In this context, there is a genuine issue of material fact as to whether Mr. Fowler engaged in forcible touching of Mr. Rapp’s “intimate parts.” … [And] the record now before me, viewed in the light most favorable to the plaintiff, raises a genuine issue of material fact as to whether Mr. Fowler acted “for the purpose of gratifying … sexual desire.”

{There is no contention that there was any touching of Mr. Rapp’s “sexual parts.”}

The court held that the same analysis applied to the third-degree sexual abuse claim as well. Rapp’s “simple, common law assault claim” (which was based on “physical conduct placing the plaintiff in imminent apprehension of harmful contact,” rather than based on the harmful contact itself) couldn’t go forward, the court concluded, because the claim wasn’t covered by the Child Victims Act. But the court did allow the battery and intentional infliction of emotional distress claims to go forward.

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