Tag: in-the-news

As usual, Lat puts it very well in his “Original Jurisdiction” Substack newsletter (I’ve paid for a subscription, and highly recommend it):

Last fall, [Chief Judge Pryor] was widely criticized for hiring an allegedly racist law clerk—specifically, Crystal Clanton, now a 3L at George Mason aka Scalia Law. According to a 2017 New Yorker article, Clanton once texted a co-worker at Turning Point USA, the conservative nonprofit where she worked before law school, “I HATE BLACK PEOPLE. Like f**k them all…. I hate blacks. End of story.”

At the time, I did not jump on the Pryor-bashing bandwagon. After noting that he’s (1) a smart person who knows how to run a Google search and (2) a highly regarded Supreme Court feeder judge, I argued that Chief Judge Pryor “wouldn’t want to ‘waste’ a clerkship on someone who would be radioactive to the justices.” So I speculated that there must be more to this story—and that perhaps Justice Clarence Thomas, the nation’s highest-ranking and most famous Black jurist, had vouched for Clanton to Pryor. (Clanton worked for Justice Thomas’s wife, Ginni Thomas, after getting fired from Turning Point, and Chief Judge Pryor is a leading feeder judge to Justice Thomas.)

It turns out that there was more to the story. After seven members of Congress called for an investigation into Pryor’s hiring of Clanton, the Eleventh Circuit referred the complaint to the Second Circuit. Chief Judge Debra Ann Livingston of that court conducted an investigation and wrote up her findings, as reported by Bill Rankin of the Atlanta Journal-Constitution:

In her ruling, Livingston cited one of the Turning Point USA’s executives who said Clanton treated everyone with “kindness, respect and fairness.” This person also said “the media reports are not accurate,” Livingston wrote.

The Turning Point executive “had determined that the source of the allegations against (Clanton) was a group of former employees,” Livingston wrote. “One of these employees was fired after the organization learned that this person had created fake text messages to be used against co-workers, to make it appear that those co-workers had engaged in misconduct when they had not.”

Pryor and Maze knew about the allegations against Clanton when they interviewed and hired her. And both determined the allegations of racist behavior by Clanton were untrue and found she was highly qualified to serve as a clerk for them, Livingston wrote.

And as I had speculated, yes, Justice Thomas went to bat for Crystal Clanton:

In [a letter to the Second Circuit], Thomas said he and his wife took in the distraught Clanton after she left Turning Point USA. She lived in their home for almost a year, the justice said.

“I know Crystal Clanton and I know bigotry,” Thomas wrote. “Bigotry is antithetical to her nature and character.”

Thomas, who said he recommended to Pryor that he hire Clanton as a law clerk, added, “We have reached a sorry state of affairs when a young adult can be indelibly marked with today’s ‘scarlet letter’ of defamation. This is especially true in the judiciary.”

So why didn’t Crystal Clanton explain all of this at the time? According to the letter that Chief Judge Pryor wrote to the Second Circuit, she stayed silent because she’s bound by a non-disclosure agreement with Turning Point.

In my opinion, this was a misstep on Clanton’s part. She should have explained that she was framed, non-disclosure agreement be darned. Surely she could have gotten a waiver on the NDA; Charlie Kirk, founder and leader of Turning Point, was the Turning Point executive who cleared Clanton’s name.

But even if she couldn’t have gotten a waiver, the reputational damage to Clanton clearly outweighed any risk of being sued on the NDA. Maybe Clanton thought that staying silent was the honorable thing to do—but her silence wound up subjecting the two judges who hired her as a law clerk to unjustified criticism and an investigation. This all could have been avoided had she simply explained she had been framed (and if she was truly concerned about getting sued on the NDA, she probably could have gotten word out through surrogates—which might still have left her open to suit, but would have reduced the likelihood of a lawsuit even further).

Again, though, please note that I’m sharing with you what I happen to believe about L’Affaire Clanton; others believe differently. Rep. Hank Johnson (D-Ga.) told the Journal-Constitution that Chief Judge Livingston’s report was “nothing more than a rubber stamp that gives two influential federal judges cover for hiring a law clerk with a reported history of racist conduct.” Similarly, Kathryn Rubino of Above the Law, who broke the news of Clanton’s hiring, sounded skeptical notes about the claims of fabrication. So I urge you to read Livingston’s report, which I personally found credible, and make up your own mind.

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The British government hopes to use parents’ fears of child predators in a new marketing campaign designed to undermine end-to-end encryption.

Rolling Stone writer James Ball broke the news on Saturday, reporting that the United Kingdom’s Home Office (the British equivalent of America’s Department of Justice) was planning “a multi-pronged publicity attack.” That attack launched today with the Home Office announcing its partnership with various charities in a “No Place to Hide” campaign that will “urge social media tech companies to put children’s safety first on their platforms.”

“Right now,” an ad for the “No Place to Hide Campaign” asserts, “some social media companies can detect online child sexual abuse and report it to law enforcement. But some companies plan to introduce end-to-end encryption, which will make this much harder.”

End-to-end encryption is a form of tech security that prevents anyone but the sender and recipient of electronic communications from seeing the information that is being transmitted. This prevents third parties from discerning the content of communications or messages.

End-to-end encryption protects both individuals and institutions from having important or sensitive information intercepted by outsiders, particularly hackers with malicious intent. It is a vital tool that allows us to protect ourselves.

By its nature, such encryption also makes secret surveillance by police more difficult, which is why so many governments around the world would gladly shut it down. The United Kingdom has attacked end-to-end encryption for years now, as have Australia, the United States, and other countries.

Cybersecurity experts almost uniformly agree that compromising end-to-end encryption to give government officials “back doors” to bypass it would weaken everybody’s privacy and thus increase crime. Nevertheless, government officials deliberately ignore or downplay such risks in the hopes of convincing the public that weakening encryption is for the public’s own good.

According to Rolling Stone‘s reporting, the British Home Office is specifically hoping to use fears about child predators as a way to turn public sentiment against Facebook’s plans to add end-to-end encryption to its popular Messenger app. The Home Office reportedly has a budget of 534,000 pounds (about $725,000) for its anti-encryption marketing campaign.

Rolling Stone also reports:

The plans include a media blitz, campaign efforts from UK charities and law enforcement agencies, calls to action for the public to contact tech companies directly, and multiple real-world stunts—some designed to make the public “uneasy.”…

One key slide notes that “most of the public have never heard” of end-to-end encryption—adding that this means “people can be easily swayed” on the issue. The same slide notes that the campaign “must not start a privacy vs. safety debate.”

That last observation is particularly telling. Plain old fearmongering is clearly a central part of this latest campaign against end-to-end encryption. According to Rolling Stone, one proposed ad would put a child and an adult (both actors) in a plastic box with the adult looking “knowingly” at the child, suggesting predatory behavior. It’s a campaign designed to reach the sort of already hysterical people who see non-existent sex-traffickers everywhere they go.

Tech and privacy activist organizations are already pushing back. Open Rights Group, a U.K.-based outfit devoted to protecting privacy and free speech online, has put together a counter-advertisement noting how much criminals will love the British government’s plans to weaken encryption.

“If apps like Signal and WhatsApp break encryption to read your messages,” the Open Rights Group warns in its ad, “it will be possible for cyber criminals, hackers, and foreign governments to read them, too.”

The post The U.K. Government's Latest Encryption Fearmongering Relies on Child Sex-Trafficking Panics appeared first on Reason.com.

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From Levy’s Consumer Law & Policy Blog post, “Defending the Right to Be Funny” (and check out the demand letter itself):

Late last year, Harrison Greenbaum, a New York comedian and magician, included Christopher Nicholas Sarantakos, better known in the magician trade as Criss Angel, who is, apparently, a very well known magic act, in an annual satirical review that he offers of major figures in the magic trade. A particular point of this performance was a restaurant that Sarantakos opened in a rural area outside Las Vegas called Criss Angel Breakfast Lunch and Pizza, or CABLP. Greenbaum put together a parody of the restaurant’s menu, and put the menu online for the performance, using the domain name CABLPRestaurant.com, which was still available for purchase because Sarantakos, quite logically, chose some much shorter domain names (eatblp.com and cablp.com) which could much more easily be typed into a browser.

Angel was neither honored to have been included in the satirical hall of honor, nor amused by the jokes. He hired a lawyer in New York to send Greenbaum a demand letter asserting that the parody menu infringes his copyright and his trademark, and that the domain name infringes his trademark, and threatening both to sue for damages and to invoke the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”) to seize the domain name. Hoping to achieve a prompt resolution, Greenbaum’s initial reaction was to offer to give up the domain name, but at that point Sarantakos got greedy, demanding both a confidentiality clause as well as a commitment that Greenbaum would never again display the parody menu.

The result is that Sarantakos is likely to get nothing besides more publicity for the CABLP Restaurant parody. In a letter sent late last week, I explained both that the domain name for the parody menu is well protected by a line of cases that Public Citizen established back in the first decade of this century, and that the menu itself is a fully protected, noncommercial parody that cannot possibly be confused with Sarantakos’ commercial enterprise and in any event is fair use under both trademark and copyright laws….

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The Texas Review of Law & Politics is devoting its winter issue to the theme of Uncommon Fortitude. I wrote a short essay, titled Judicial Courage. Here is the even-briefer abstract:

What is judicial courage? Supreme Court justices often accuse their colleagues of lacking fortitude, but they seldom explain what this concept means. This essay will provide a brief discourse about judicial courage. Part I considers how Justices on the Supreme Court have used this doctrine—both to praise and to criticize. Part II attempts to define judicial courage. And Part III applies these principles to decisions of the lower courts.

Please email me with any comments or feedback.

 

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On Saturday, newly minted Virginia Gov. Glenn Youngkin, a Republican, declared an end to mask mandates in the state’s public schools; parents may now decide whether their children should wear masks.

Youngkin’s executive order has been met with furious opposition from public schools. Several districts—including Arlington and Alexandria City Public Schools, which both neighbor D.C.—vowed to openly defy the order, receiving encouragement from White House press secretary Jen Psaki. In response, the governor said he would pursue all legal options to compel schools to let parents decide the mask issue on an individual basis.

There is good reason to move away from district-wide mask mandates. In defense of continuing mandatory masking, education officials cited unpersuasive research from the Centers for Disease Control and Prevention (CDC) that ought to be rejected as the basis for an argument.

Neither Arlington nor Alexandria responded to my request for comment. When reached by The Daily Caller, Arlington Public Schools admitted that their policy of mandatory masking for everyone ages 2 and older came straight from the CDC. (Arlington’s first instinct was apparently to refuse comment entirely; a communications staffer for the district told the reporter, perhaps inadvertently, “I recommend not responding to The Daily Caller. It won’t get us anywhere.”)

Similarly, Alexandria Superintendent Gregory Hutchins (whose own child attends private school) said the district will continue to defer to the CDC’s finding that “masks, combined with multiple other ACPS mitigation measures, have been effective in helping to protect the collective health and safety of our students and staff and keep our schools open for in-person learning.” Hutchins’ letter to the community suggests that the mask requirement might get more stringent, rather than less: He said that he has received shipments of KN95 masks, and the alternative will be double-masking. Nearly two years into the pandemic, the public education bureaucracy’s desire to compel all students to vigorously conceal their faces hasn’t weakened—in fact, it’s growing stronger.

But the CDC’s research on schoolwide mask mandates is much less impressive than the agency seems to think. The Atlantic has highlighted numerous problems with its recommendations, which were based on a “profoundly misleading” study of Arizona schools.

It should be noted that other countries are far less militant about masking in schools. The World Health Organization does not advise masks for children ages 6 and under. The European Union recommends that students in K-8 schools be allowed to unmask.

“Scientists generally agree that, according to the research literature, wearing masks can help protect people from the coronavirus, but the precise extent of that protection, particularly in schools, remains unknown—and it might be very small,” wrote The Atlantic‘s David Zweig. “What data do exist have been interpreted into guidance in many different ways.”

In the face of the much, much more contagious omicron variant of COVID-19, the benefits from masking might be even smaller. Omicron has managed to evade mitigation efforts almost entirely; thankfully, the disease appears less virulent than previous strains, and vaccinated individuals should expect to have a mild bout with it. Healthy young people also have little to fear, rare exceptions aside.

None of that is to say there’s no benefit from wearing a mask. But district officials’ policy of deciding the matter on behalf of all students is difficult to justify. Indeed, throughout the pandemic, local politicians have often forced schools to be the most masked environments. The few times that D.C. Mayor Muriel Bowser has relaxed the city’s mask mandate, she has kept it in place for schools. No one’s faces are more concealed than young people’s.

The best thing to do would be to empower families to claim whatever money is being allocated to public schools on behalf of their children and use it to fund an educational option that fits their individual needs. In the current, less-than-ideal world, public school officials who deny choice to families should at least concede that the science isn’t actually on their side.

The post Citing Debunked CDC Research, Virginia School Districts Vow To Defy Youngkin on Mask Mandates appeared first on Reason.com.

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NPR has posted a story by Nina Totenberg suggesting that there are simmering tensions among the justices on the Supreme Court. From the article, “Supreme Court justices aren’t ‘scorpions,’ but not happy campers either”:

 . . . anybody who regularly watches Supreme Court arguments is used to seeing some testy moments in both big and little cases. But you don’t have to be a keen observer these days to see that something out of the ordinary is happening.

Some of it is traceable to the new conservative supermajority, including three Trump appointees, a court that may well end up more conservative than any since the 1930s. It’s a majority that has evidenced less and less respect for precedent, or the notion of deference to Congress in setting policy.

So it’s not surprising that the court’s three liberal justices would be upset. . . .

It’s not simply an ideological split, according to Totenberg. She reports that the conservatives may have some frustrations with each other.

There isn’t a lot of love lost among the court’s six conservatives either. They often agree on the outcome of a case but not the legal reasoning, with Chief Justice Roberts sometimes trying to rein in the court’s most aggressive conservatives. If you watch carefully, you can see conservative eyes rolling from time to time.

If so, this would not be particularly new. The late Justice Scalia was repeatedly critical of Chief Justice Roberts’ minimalist approach.

The opening of Totenberg’s story is getting a particular amount of attention, as it addresses how the justices have handled concerns about Covid-19. All of the justices have worn masks to oral argument, except for Justice Gorsuch, and Justice Sotomayor has been participating in oral argument remotely. From Totenberg:

It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What’s more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers.

Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.

Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.

Based upon this report, it seems like Justice Gorsuch is acting like an uncourteous cad, but is all what it seems? The particular wording of Totenberg’s report (italicized above) caught my eye. What does it mean that the Chief Justice asked the other justices “in some form”? Totenberg is a careful reporter, so this extra language is there for a reason. Just as reporters are often very careful about how they characterize anonymous sources, this qualifying language is serving some purpose. At the least, it suggests that there was not a formal, direct request from the Chief to all of the other justices, but something less than that (or that is all Totenberg’s source was willing to say. [And, for those who care, all the justices are vaccinated, so they are all compliant with the OSHA ETS rejected in NFIB v. OSHA, which did not require masks or testing for vaccinated employees.]

An additional reason for caution about Totenberg’s report is that some are quick to presume the worst about the Court’s conservatives or to see scandal when it is not there. Recall that when Justice Breyer joined Justice Sotomayor in participating remotely in oral argument, some commentators were quick to presume this was a response to Gorsuch’s decision not to wear a mask. Yet this was not so. Justice Breyer participated remotely because he had tested positive with a remote test.

So if the Chief Justice asked all the justices to wear masks to-from argument out of respect to Justice Sotomayor, and Gorsuch refused, I think it’s fair to call him out on that. Based on this report, however, I am not certain that is what happened. There may be more to the story.

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Democrats lost support during 2021. Throughout each year, Gallup looks at political party preferences in America. For decades, identification with the Democratic Party has outperformed identification with Republicans and last year was no different on average, with 46 percent of those surveyed saying they were or leaned Democrat and just 43 percent saying they were or leaned Republican. But drilling down on the data tells a different story.

At the start of 2021, 49 percent aligned more with Democrats and 40 percent with Republicans. By the second quarter of 2021, this gap had shrunk: 49 percent still aligned with Democrats, but 43 percent now aligned with Republicans. And by the third quarter identification had basically converged, with 45 percent aligning Democrat and 44 percent Republican.

Then, in the final quarter of 2021, things flipped completely. An average of 47 percent of those surveyed in this quarter said they were or leaned Republican, while just 42 percent said they were or leaned Democrat.

What’s going on here? The survey itself—composed of telephone interviews with 12,000 randomly sampled American adults—can’t actually tell us. All we’re left with is room to speculate, and several factors seem plausible:

• The Trump factor. For all the fanatical loyalty among former President Donald Trump’s base, he’s a polarizing figure among independents and moderates. It’s not surprising that the further we moved from Trump’s time in office, the more the Republican Party regained some of its sheen.
• COVID policies. Many Democratic responses to the pandemic have not been popular, especially in the post-vaccine era. Perhaps as Democrats continued to push mask mandates, school closures, and other restrictions, more people grew disillusioned with them.
• Grass-is-always-greener syndrome. Whichever party is in power—in this case, the Democrats—has more opportunities to piss people off and gets more blame (fairly or unfairly) for any economic and cultural woes.

Whatever the explanation (and it’s probably a bit of all these and more), it seems Democrats became less popular over the course of 2021 and their GOP counterparts more popular. The result was to create an atypically large gap in partisan identification.

2021 was an outlier in Gallup polling. “Both the nine-point Democratic advantage in the first quarter and the five-point Republican edge in the fourth quarter are among the largest Gallup has measured for each party in any quarter since it began regularly measuring party identification and leaning in 1991,” Gallup reports. “The GOP has held as much as a five-point advantage in a total of only four quarters since 1991.”

Previous times Republicans held a five-point or more lead in party identification in Gallup’s poll were in early 1991 and early 1995.

“Democrats held larger, double-digit advantages in isolated quarters between 1992 and 1999 and nearly continuously between mid-2006 and early 2009,” notes Gallup. It last had a 9-point lead back in 2012.

Notably, in Gallup’s December poll, the gap between Republican and Democratic identification began to close again. In December, 46 percent identified as Republican or Republican-leaning and 44 percent identified as Democratic or Democratic-leaning.

What about independents? Gallup asked those who identified as independent to pick which of the two main parties they leaned toward more; there was no option to identify with the Libertarian Party or other third parties. On average, 8 percent identified as not leaning either way and roughly equal proportions said they leaned Democrat (17 percent) or Republican (16 percent).

The fact that most independents do lean either Republican or Democrat hides an interesting data point: More Americans identify as independent than as either Republican or Democrat.

In last year’s poll, an average of 42 percent of survey respondents said they were politically independent, while just 29 percent identified off the bat as Democrat and 27 percent as Republican.

The proportion of independents is up slightly from recent years (39 percent in 2020 and 41 percent in 2019). And it reflects a “broader trend toward an increasing share of political independents [that] has been clear over the past decade,” notes Gallup: “At least four in 10 Americans have considered themselves independents in all years since 2011, except for the 2016 and 2020 presidential election years. Before 2011, independent identification had never reached 40%.”

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FREE MINDS

The Electronic Frontier Foundation (EFF) continues fight over copyright rules. EFF says the rules—part of Section 1201 of the Digital Millennium Copyright Act (DMCA)—”violate the First Amendment and criminalize certain speech about technology, preventing researchers, tech innovators, filmmakers, educators, and others from creating and sharing their work.”

Section 1201 of the DMCA “makes it a crime to engage in or even distribute information about [circumventing digital locks], even if the circumvention serves an otherwise lawful purpose,” EFF’s appeal explains. It “is likely unconstitutional on its face, as a speech restriction that cannot survive strict or intermediate scrutiny, or as an unconstitutional speech-licensing regime,” EFF argues.

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FREE MARKETS

Walmart is getting into cryptocurrency. Paperwork the retail giant filed with the U.S. Patent and Trademark Office lays the groundwork for a Walmart cryptocurrency and a collection of nonfungible tokens (NFTs). Walmart “filed several new trademarks late last month that indicate its intent to make and sell virtual goods, including electronics, home decorations, toys, sporting goods and personal care products,” CNBC reports. “In a separate filing, the company said it would offer users a virtual currency, as well as NFTs.”

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QUICK HITS

• A fourth shot of a COVID-19 vaccine (a.k.a. a second booster) is no match for omicron, an Israeli study suggests.

• A volcanic eruption on an uninhabited island in the Pacific Ocean was strong enough to send shock waves all the way to Michigan.

• A British gunman held four people hostage inside a Texas synagogue for hours on Saturday. The gunman—44-year-old Malik Faisal Akram—eventually released the hostages and was killed by an FBI team.

• “Senate Democrats plan to press ahead this week with an effort to push new voting rights protections through Congress, in an all but doomed attempt to enact a key piece of President Biden’s agenda,” The New York Times reports. The Senate will begin to debate the voting bill on Tuesday.

• The U.S. Court of Appeals for the 5th Circuit punted on Texas’ abortion ban.

• States ask to be able to sue Facebook for alleged antitrust violations again.

• OnlyFans “has hired its first federal lobbyists,” Politico reports.

• Inside Texas school book bans.

• Former staffers at a Michigan women’s prison have filed a lawsuit alleging all sorts of mistreatment and abuse of women imprisoned there.

• In the U.K., “academics who examined the experiences of 22 women who were pregnant while serving time in English prisons have called for alternatives to custodial sentences,” such as community or suspended sentences. “The prison environment only adds another layer of trauma for these women and can be dangerous for the unborn child,” lead study author Rona Epstein of Coventry University said.

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From Judge Stephanie Gallagher’s opinion Thursday in Cottman v. Baltimore Police Dep’t:

The following facts are assumed to be true for purposes of adjudicating Defendants’ motions. The Amended Complaint alleges that the BPD engages in a “pattern and practice of unconstitutionally searching, seizing, retaining, and destroying the personal property of victims of violent crimes in Baltimore” in violation of the Fourth … and Fourteenth Amendments to the United States Constitution….

Plaintiff Faye Cottman alleges that a stranger shot her and her 11-year-old son at a playground near the Cherry Hill neighborhood in Baltimore on March 14, 2019. While she was in a disoriented state, Defendant Officer Destinee Macklin seized her jacket, phone, wig, and shoes without her consent. At some point thereafter, Defendant Macklin and/or other unnamed BPD officers illegally searched Ms. Cottman’s phone without her consent or a warrant.

In a subsequent conversation at the hospital, Defendant Macklin told Ms. Cottman that her phone was evidence, even though Ms. Cottman told Defendant Macklin that she had no prior relationship with the shooter and had never seen the shooter before. In September, 2019, the Baltimore City Circuit Court found the shooter not criminally responsible, committed her to a psychiatric institution, and closed the case. In May, 2020, Defendant Macklin was contacted regarding Ms. Cottman’s property. After initially agreeing to return it, Defendant Macklin did not respond to further attempts to contact her, and Ms. Cottman’s property remains in BPD custody.

On March 20, 2020, Plaintiff Amber Spencer attended a cookout to celebrate her boyfriend’s birthday, where she was shot by a stranger. While at the hospital, Defendant Officer Jeffrey Converse seized Ms. Spencer’s cell phone, jeans, shirt, shoes, and approximately $400 in cash. Someone from the BPD also seized the key to her car. When Ms. Spencer later contacted Defendant Converse, he stated that he was unable to return her property, and that she could retrieve her property once the State of Maryland and the City of Baltimore entered “Phase 3” of the COVID-19 recovery. Ms. Spencer’s property remains in BPD custody.

On June 29, 2019, a stranger shot Plaintiff Damon Gray while he was walking down the street. Mr. Gray was transported by ambulance to the hospital. Once there, Defendant Officer AnnMarie DiPasquale seized Mr. Gray’s cell phone, a bracelet, a necklace, and several articles of clothing. That property remains in BPD custody.

On June 9, 2018, Dwayne Cheeks—Plaintiff Audrey Carter’s son—was shot and killed. BPD officers seized, inventoried, and logged Mr. Cheeks’s property in the Evidence Control Unit (“ECU”), including a cell phone, a watch, a driver’s license, debit and credit cards, earphones, a lottery ticket, a key holder with two keys, two separate silver keys, a partially empty pack of cigars, a lighter, $435 dollars in U.S. Currency, and numerous articles of clothing. Ms. Carter repeatedly reached out to Defendant Officers Ryan O’Connor, Robert Ross, and Mark Walrath in an effort to retrieve her son’s property. On December 12, 2019, Defendant Walrath informed Ms. Carter that Defendant O’Connor would arrange to return to her the $435 in cash. However, he also informed her that the BPD had destroyed several of the items seized from her son, including the: driver’s license; Visa card; independence card; at least two debit/credit cards; earphones; lottery ticket; key holder with two keys; two separate silver keys; and partially empty pack of cigars.

Defendant Ross wrote to Ms. Carter explaining that, although he did not know why the property was destroyed, Defendant Officer Scott Dressler had authorized its destruction. Ms. Carter emailed several members of the Baltimore City Council to ask for help but received no assistance. She also contacted the ECU and Defendant Dressler directly who told her that a letter had been mailed to her deceased son and, later, to her at an address of an apartment she had not been living in for five years. However, Ms. Carter had been in near-constant contact with Defendant O’Connor since her son’s death, and he knew Ms. Carter’s current address.

Ms. Carter filed two formal complaints with the BPD’s Public Integrity Bureau but received identical form responses that her allegations had not been sustained. Ms. Carter emailed then-City Council President Brandon Scott asking for help. He responded asking for more information but took no further steps to investigate or address the issues Ms. Carter had raised, including since he has been sworn in as Mayor. On June 2, 2021, the United States Attorney’s Office for the District of Maryland unsealed an indictment naming Mr. Cheeks’s suspected killer. Aside from the cash Mr. Cheeks had on him when he was shot, BPD has not returned any of what remains of his property to Ms. Carter….

The court allowed plaintiffs’ claim that the Police Department was liable for the unconstitutional searches and seizures—and for the taking of their property without due process—on the theories that they were part of a “persistent and widespread practice of municipal officials” of a sufficient “duration and frequency”; that the city had failed to properly train police officers about how to comply with the law here; and that the city had failed to properly supervise its officers, despite having “actual and constructive knowledge of widespread Fourth Amendment and due process violations.”

The court also allowed the claims against individual officers to go forward, because their behavior (if it was in fact as alleged) wasn’t shielded by qualified immunity:

[T]he Amended Complaint states a claim that Officer Defendants Macklin, Converse, and DiPasquale each engaged in conduct that violated Plaintiffs’ Fourth Amendment rights. The Amended Complaint states a claim that each of those Defendants participated in unlawfully seizing non-evidentiary property—in other words, property for which there was allegedly no probable cause to believe that it was evidence of a crime. Defendant Macklin allegedly seized Ms. Cottman’s jacket, phone, wig, and shoes, all without a warrant. Similarly, Defendant Converse allegedly seized Ms. Spencer’s cell phone, jeans, shirt, shoes, and cash—again, all without a warrant. And Defendant DiPasquale allegedly seized Mr. Gray’s phone, bracelet, necklace, and clothes without a warrant….

Similarly, the Amended Complaint states a claim against Defendant Dressler insofar as it alleges that he unlawfully authorized the destruction of Plaintiff Carter’s son’s property. Taking that allegation to be true, it states a plausible claim that he participated in violating Plaintiff Carter’s right to due process. The Amended Complaint, here, alleges that no process was afforded. The Amended Complaint acknowledges that the BPD attempted to send a letter to Ms. Carter and her deceased son, though the contents of the letter are unknown. However, it also alleges that BPD officials acknowledged that Defendant Dressler’s authorization of the destruction of Ms. Carter’s son’s property violated BPD policy. Defendants will have the opportunity to show that Defendant Dressler’s conduct did not arise to a due process violation, but the Amended Complaint sufficiently alleges that his authorization constituted participation in such a violation….

The question, then, with respect to Defendants Macklin, Converse, DiPasquale, and Dressler, is whether the rights that they allegedly violated are clearly established. With respect to the Fourth Amendment violations, the Officer Defendants argue that “Plaintiffs have no viable Fourth Amendment claim because, in the simplest terms, officers lawfully may seize from the person or vicinity of crime victims clothing and other personal property that may be evidence of [a] crime.” That is undoubtedly true, but the Amended Complaint alleges that the Officer Defendants searched and seized property that was not evidence of a crime. It is axiomatic that a police officer may not seize property whose “probative value remain[s] uncertain,” or when there exists no “probable cause to associate the property with criminal activity.” The Fourth Amendment’s requirements that officers have probable cause to seize property—whether with a warrant or based on an exception to the warrant requirement—is, therefore, “clearly established.”

The same can be said for the Fourteenth Amendment’s guarantee of due process before the government deprives someone of property….

As the facts develop in this case, Defendants may uncover evidence that muddies the water with respect to whether the Officer Defendants violated clearly established rights, or even whether they violated any rights at all. For example, as the Officer Defendants suggest in their briefing, the facts might show that the officers had probable cause, and a valid warrant exception, to seize some of Plaintiffs’ property.

As this case progresses, the Officer Defendants are free to reraise their qualified immunity defense, and, if they do, this Court will reevaluate whether Plaintiffs have done enough to overcome it. For now, though, Plaintiffs have alleged that Defendants Macklin, Converse, DiPasquale, and Dressler personally participated in the violation of basic constitutional rights by conducting warrantless seizures of, and destroying, non-evidentiary property. They are entitled to an opportunity to prove it….

The post Crime Victims Allege Baltimore Police Department Unconstitutionally Seized (and Destroyed) Their Property appeared first on Reason.com.

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I’ve just finished up a rough draft of this article (6 years in the making), and I thought I’d serialize it here, minus most of the footnotes (which you can see in the full PDF). I’d love to hear people’s reactions and recommendations, since there’s still plenty of time to edit it. You will also be able to see all the posts, as they come up, here.

[* * *]

Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn’t go along. And, as often happens, Craig’s threatened crime is endangering not just Danielle but also innocent bystanders.

Should the legal system require Danielle to comply with the demands, on pain of civil liability (for negligent injury or nuisance), or even of criminal punishment (for disturbing the peace or perhaps reckless endangerment)? Or should Danielle have, in effect, a right to defy Craig’s demands, even if this means a higher risk to bystanders?

These questions can arise in many different situations:

1. Danielle’s abortion clinic has been firebombed in the past, by people who want it to close or at least to leave town. Neighbors sue the clinic, claiming its operation is a nuisance, because it makes them fearful that future attacks will harm them as well.[1] If the neighbors win, that in effect means that Danielle had a legal duty to comply with the arsonists’ demands (at least to the extent of moving to a place that may be more expensive for her, and less convenient for patients).
2. The clinic is indeed attacked again, and neighbors or visitors who are injured sue the clinic for negligently increasing the risk of such attack. The same can of course apply to any controversial business or enterprise, such as a church, synagogue, or mosque; an animal experimentation facility; a political organization; or a bookstore that sells books that contain the Mohammed cartoons or other material that highly offends some people.[2]
3. A store is being robbed. Danielle, a store employee, refuses to go along with the robbers’ demands that she turn over money, so they injure a customer to accentuate those demands. The customer sues the store, claiming the employee’s actions foreseeably increased the risk of the injury.­­­ If the customer wins, that in effect means that Danielle had a legal duty to comply with the robber’s demands.
4. Craig kidnaps Danielle’s employee, and demands ransom. Danielle refuses to pay, so Craig kills the employee; the employee’s family sues Danielle for negligence, claiming that she had a duty to pay the ransom.
5. Danielle and her fellow protesters carry signs insulting a religion. Craig and a group of his friends start throwing things at the protesters. The police order the protesters to leave, hoping to keep the confrontation from escalating,[3] and threaten to punish them with prosecution for breach of the peace or for resisting a lawful order if they don’t comply.

A version of this problem also arises when Craig hasn’t expressly demanded that Danielle do something, but rather Craig obviously doesn’t want Danielle to do it:

6. Danielle dances suggestively with a new lover in front of her estranged husband Craig (whom Danielle knows to be jealous). Craig shoots the lover, whose relatives sue Danielle for wrongful death, claiming her actions created a risk of injury by enraging Craig.[4] Again, their prevailing would mean that Danielle in effect had a duty to comply with Craig’s implicit demands not to show romantic affection for others in front of him.
7. Danielle lets her niece stay at her home, because the niece is fleeing Craig, the niece’s violent estranged husband. Craig comes to Danielle’s house to attack the niece and Danielle, and the gardener gets caught in the crossfire. The gardener’s relatives sue Danielle for wrongful death, claiming her actions created a risk of injury by foreseeably enraging Craig.[5]

And a version of this problem arises with the “duty to retreat” that thirteen states still recognize in self-defense cases, and the more general “duty to comply with a negative demand” that seven states still recognize. These “duties” don’t threaten criminal punishment or civil liability just for defying a criminal’s demands (whether the demands are just “leave,” as in the duty to retreat, or “stop doing X” in the duty to comply). But the “duties” do provide that a victim who refuses to go along with certain demands is stripped of her legal right to use lethal force in self-defense should such force be required.

8. Danielle dances suggestively at a bar with a new lover in front of her estranged husband Craig. Craig demands that they stop, but they don’t. Craig tries to knife Danielle, but she shoots him in self-defense. Danielle is then prosecuted, because state law provides that deadly force can’t be used in self-defense if “[t]he actor knows that he can avoid the necessity of using such force with complete safety … by complying with a demand that he abstain from any action which he has no duty to take.”
9. A racist mob demands that Danielle leave the place where she lawfully is. She refuses, and she is attacked with deadly force; she defends herself with deadly force, and is then prosecuted because she failed to retreat.[6]

All these cases, I think, involve a tension between two approaches to the risk of retaliatory violence. We might call one approach the immediate pragmatism approach:

• The unfortunate reality is that a criminal is threatening to retaliate against some lawful action X.
• That reality creates serious risks to bystanders.[7]
• This pragmatic concern has a moral component: The bystanders have the right not to be unreasonably endangered.
• Even innocent victims of the threat thus have a duty to try to minimize such risks, even if that requires some constraint on their liberty.

And we might call the opposite approach the right to defy criminals’ demands approach:

• Everyone has the right to act without having to obey criminals’ demands (or criminals’ expected wishes, which would in effect be implied demands).
• The law shouldn’t step in on the side of the criminal by adding the threat of criminal liability, civil liability, or liability for self-defense to the criminals’ threats.
• This moral concern has a pragmatic component: By giving legal force to the criminal’s unlawful demands, the law would encourage more such unlawful demands.
• Even innocent bystanders should thus have no claim on the innocent victims that would require the victims to obey the criminals.

In some of these situations, this right to defy has been recognized (though not under that name). In others, the right has been rejected. In others, the matter is unsettled.

In this Article, I will try to chart the scope of this right, and the authority for and against it. To my knowledge, this is the first attempt to do so in a way that draws connection between these various areas; and I hope that showing these connections can more clearly illuminate the core principles underlying the right.

And I will argue that, on balance, such a right is sound: Generally speaking, the legal system should let people insist on their liberty, in the face of violent threats, and in the face of the danger that is therefore created by such defiance. Contrary to a claim often made against the duty to retreat, the question isn’t so much letting people preserve honor or reputation or “manliness,” but letting them preserve liberty—freedom from domination by criminals—and the dignity that comes with such liberty.[8] Some may argue that this liberty and dignity comes at too high a cost, and ought to be restrained to protect bystanders, or even to protect the criminals. But whatever the right bottom line, we should acknowledge the cost of such a safety-first approach.[9]

To be sure, when our activities cause hazards to others, we often have to cease those activities, at least if the magnitude of the hazard is seen as “unreasonable.” We are expected to avoid off-loading those hazards onto our neighbors or our visitors. Thus, for instance, if our commercial establishment attracts vermin that then go onto neighbors’ land, and there’s nothing we can do stop it, we might have to close up shop or move to an area where there are no neighbors nearby.

But if our establishment attracts criminal enemies who try to force us to stop operating, and in the process the criminals create a threat to our neighbors (whether as a deliberate tactic or just as a side effect of their attacks), we shouldn’t have to close or move. To the extent our behavior is a but-for cause of the criminal hazard to our neighbors, that is a hazard that our neighbors should have to bear, as part of the common danger all of us face from criminals. It is the law’s job to prevent crime, chiefly by deterring and incapacitating criminals. If the law instead arms our neighbors or the police with the right to stop our behavior when criminals so demand (through threat of civil liability or criminal punishment), the law is arming criminals with an extra weapon against us.

The legal system needn’t worry about incentive effects on animals (“if garbage dumps have to move because they attract rats, this will give an incentive to rats”), but it should worry about incentive effects on humans (if abortion clinics have to close or move because arsonists threaten to burden them down, this will provide an incentive for such threats). And having to do things to prevent harmful animal incursions doesn’t undermine our dignitary interests the same way that having to comply with human criminals’ demands does.

In what follows, I hope to lay this out in more detail. I begin by discussing how a possible right to defy criminals arises as to negligence (Part I), nuisance (Part II), criminal law generally (Part III), and the duties to retreat and comply (Part IV). In Part V, I discuss possible limits on the right to defy: for instance, perhaps Danielle’s behavior may still be punishable if it’s independently wrongful (e.g., fighting words); if it has the specific purpose of provoking violence; if forbidding that behavior imposes only a modest intrusion on liberty (one possible rationale for a limited duty to retreat); if the behavior is legal but constitutionally unprotected; or if her defiance is unreasonable. Or perhaps even if Danielle’s behavior may not be legally punishable, it should still lead to a lesser penalty for the criminal who is provoked by such behavior.

Finally, Part VI will ask whether it’s legitimate for the law to require expensive precautions against threats, short of requiring compliance with criminal demands—for instance, by requiring threatened people or institutions to hire armed guards, put up physical barriers, or warn visitors or neighbors of the threat.[10] I think these precautions aren’t as violative of the threat victims’ dignity, because they don’t enlist the state on the side of the criminal threatener. At the same time, courts and legislatures should be cautious about imposing such obligations, because they do let the threateners use the legal system to impose potentially massive costs on their victims. And, I’ll argue, that is especially so when the duty is a duty to warn, which may intrude on the victims’ privacy and lead people to shun them.

[1] These are roughly the facts of McBrayer v. Governors Ridge Off. Park Ass’n, Inc., 860 S.E.2d 58 (Ga. Ct. App. 2021), which led to a $1.5 million verdict in favor of the neighbors; the court of appeals reversed the verdict. I filed an amicus brief in this case on behalf of various law professors (including myself) and advocacy groups, urging reversal.

[2] Cf. Charlie Hebdo Shooting: Belgian Bookstores Selling Magazine Sent Warning Letters; Muslim Leaders Condemn New Magazine Issue, ABC News (Australia) (Jan. 14, 2015, 1:08 PM) (“‘I recommend that you do not spread these cartoons of our beloved Mohammed in this despicable Charlie Hebdo magazine, at the risk of reprisals against you and your horrible business,’ the letters said ….”).

[3] See Bible Believers v. Wayne County, 805 F.3d 228, 239 (6th Cir. 2015) (en banc).

[4] This is based on Hurn v. Greenway, 293 P.3d 480 (Alaska 2013); see also Touchette v. Ganal, 922 P.2d 347 (Haw. 1996); Starr v. Gregory, No. 53-2004CA-000161, 2004 WL 5213002 (Fla. Cir. Ct. Polk Cnty. Oct. 19, 2004); John C.P. Goldberg & Benjamin C. Zipursky, Intervening Wrongdoing in Tort: The Restatement (Third)’s Unfortunate Embrace of Negligent Enabling, 44 Wake Forest L. Rev. 1211, 1217 (2009) (“A woman is aware of her ex-boyfriend’s violent jealousy, as well as his occasional appearances at a bar located in their small town. She nonetheless agrees to meet a date for a drink at the bar. If her ex-boyfriend shows up and proceeds to pummel her date, she is subject to liability [under the Restatement (Third) of Torts.”).

[5] Cf. Rojas v. Diaz, No. B144346, 2002 WL 1292996 (Cal. Ct. App. June 12, 2002).

[6] This is based on the facts of Laney v. United States, 294 F. 412 (D.C. Cir. 1923). The issue can arise even with solo racist attackers, see, e.g., Commonwealth v. Benoit, 892 N.E.2d 314, 327 (Mass. 2008) (concluding that self-defense was indeed unavailable in such a case).

[7] Even violent self-defense against the threatener, as in the last two examples, can create a risk to bystanders who might get caught in the shootout when the threatener responds, or in any future cycle of retaliation.

[8] In principle this would also apply to tortious demands: Say the abortion opponents in example 1 don’t firebomb the clinic but instead just libel the clinic’s neighbors, and the neighbors sue the clinic claiming that the clinic’s continuing presence is a foreseeable cause of the libel; I’m inclined to say that there too the clinic shouldn’t be held liable. But I’m not sure whether there would be libel liability in such a case. (Some libel cases allow lawsuits against an original libeler based on republication by third parties when such republication is “reasonably to be expected,” Restatement (Second) of Torts § 576(c) (1977), but I’ve seen none that allow lawsuits against a nonlibeler whose actions foreseeably lead to libels.) And more broadly, it would be a rare scenario where a demand would be merely tortious and not criminal, and would at the same time threaten an innocent bystander in a manner for which the target of the demand would normally be legally liable.

[9] I don’t claim that this dignitary interest is a general constitutional right as such (except in specific situations, such as speakers’ or abortion clinics’ refusal to obey shutdown demands). But I think it is a facet of liberty that the legal system ought to protect.

[10] See, e.g., Rocky Mountain Planned Parenthood, Inc. v. Wagner, 467 P.3d 287 (Colo. 2020).

The post The Right to Defy Criminal Demands: Introduction appeared first on Reason.com.

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1/18/1873: Bradwell v. Illinois argued.

The post Today in Supreme Court History: January 18, 1873 appeared first on Reason.com.

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