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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, IJ launched the third edition of its landmark report on civil forfeiture, Policing for Profit. The report presents the largest ever collection of forfeiture data and updated grades for the civil forfeiture laws of each state, D.C. and the federal government, which together have forfeited at least $68.8 billion since 2000. It also includes a new analysis finding no increase in crime after New Mexico abolished civil forfeiture and the profit incentive in 2015. Click here to read more from ProPublica.

  • State wiretapping laws often bar secret unconsented recordings, but Massachusetts goes a step further and prohibits such recordings even in public places. First Circuit: That violates the First Amendment as applied to recordings of police, as history shows such “newsgathering” plays a critical role in public debate and can be conducted without interfering in police work. But we can’t consider broader challenges to recordings of other government officials or other individuals without a reasonable expectation of privacy, as those challenges are overly hypothetical and not yet ripe.
  • Armed robber robs Pittsburgh store precisely when its safes are most likely to be full; he also knows about second safe that few others did. Yikes! There’s no evidence that the man convicted of the crime in 2006 had inside knowledge of the store’s operations, nor is he ever connected to the getaway car. Third Circuit: The fact that his fingerprint was on a manila envelope the robber left behind and the fact that he didn’t match the robber’s description (but also wasn’t so far off that it necessarily excluded him) do not add up to proof of guilt beyond a reasonable doubt. Habeas granted.
  • After seeing a drug dealer repeatedly enter and exit a woman’s house, Parma, Ohio police search the home and find over $68k in cash. Sixth Circuit: Because she did not present any evidence to substantiate her claim that she owns the money, she lacks Article III standing to challenge its forfeiture.
  • Eagle Towing—a Michigan towing company—finds itself brusquely removed from the towing lists of two Michigan State Police posts. But neither of the post commanders complied with the department’s detailed, written processes for removing towing companies from the lists. A due process violation? District court: Potentially, and the company’s property interest was clear enough to defeat qualified immunity. Sixth Circuit: Affirmed. Judge Sutton (dissenting): “Even assuming there is a protected property interest in staying on a towing call list, that interest is not clearly established.” (No comment in the dissent on what some might deem the most controversial aspect of the majority opinion: its use of an all-caps “NO” for emphasis on page 7.)
  • In March 2020, the Sixth Circuit held 2–1 that a lawsuit alleging sexual harassment in a University of Michigan executive MBA program could proceed to trial. But the dissent wins the day, as the en banc Sixth Circuit reverses, holding that the university appropriately escalated its response to the alleged harasser at each stage.
  • Does forcing public union members to vote—when they’d rather not vote—on whether to keep their union certified violate their right to free speech? How about preventing them from bargaining about anything other than base wages? Is that a speech thing? Well, the Seventh Circuit told a Wisconsin union that it doesn’t matter because either there’s no standing or the court has already said this stuff before.
  • In the Ninth Circuit‘s view, the Supreme Court’s recent ruling in Roman Catholic Diocese of Brooklyn v. Cuomo “arguably represented a seismic shift in Free Exercise law.” It also compels the result in this nearly identical case, in which churches successfully challenged Nevada’s COVID-19 restrictions on in-person church attendance.
  • Allegation: Woman sentenced to Stevens County, Wash. work crew for 81 days must listen daily to county employee’s “repulsive comments regarding masturbation, sex, and other people’s wives, daughters, and girlfriends,” among much else. Which was “inappropriate and unacceptable,” says the Ninth Circuit, but not cruel and unusual. Qualified immunity. And no suing the county either.
  • Pretrial detainee sues Jefferson County, Colo. jail, alleging guards put him in proximity to another inmate despite an order not to and then didn’t intervene quickly enough when that inmate attacked him, resulting in a five-day hospital stay. His complaint, filed without counsel, is dismissed as frivolous, and he misses the deadline to appeal. Man: I am homeless. I don’t have an address or phone number. Tenth Circuit: The complaint was properly dismissed. But we think he can try to revive it.
  • Allegation: Denver and Aurora, Colo. police arrest suspect outside his apartment. They don’t have a warrant to search the apartment, and the suspect repeatedly denies permission to enter, but officers go in with guns drawn, finding suspect’s sleeping infant. Tenth Circuit: We have caselaw saying you can sue officers who fail to intervene to stop other officers from using excessive force or making unlawful arrests. But this is an unlawful entry claim, and there are no (published) cases about failing to intervene in those. Qualified immunity.
  • Abortion protestors sue City of Norman, Okla., challenging the city’s disturbing-the-peace law. (Some of the protestors had previously been cited under the law for shouting, using loudspeakers, and the like.) District court: The protestors’ request for a preliminary injunction is denied; their First Amendment challenge is unlikely to succeed. Tenth Circuit: Just so. The law targets the volume of speech, not the content.
  • During Parkland, Fla. high school shooting, the police officer in charge of school security stood outside the building with his gun drawn and made no attempt to intervene. Police responding to the shooting likewise “staged” outside the school. Students sue, claiming this lackadaisical response violated due process. Eleventh Circuit: Police do not have a duty to protect schoolchildren from harm, as they are not in police custody. Students can state a due process claim only if they allege that police intended to cause them harm, and the students allege nothing like that here.

If not for the pandemic, Elizabeth Brokamp could provide talk therapy to D.C. residents in person in Virginia, where she is a licensed professional counselor. But now she is only seeing clients online, and she cannot talk to new D.C. clients at their D.C. homes without a D.C. license. As a result, when D.C. residents have contacted her asking for help, she has had to turn them away. Now Elizabeth has joined with IJ to challenge D.C.’s licensing restriction as a violation of the First Amendment. Talk therapy is speech; Elizabeth doesn’t prescribe drugs or do anything other than talk. And under the First Amendment the government cannot prohibit unauthorized talking. Click here for more.

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Libel Case Can’t Be Litigated with Alleged Libel Sealed—and the Alleged Libel Is Now Unsealed

I wrote about this in November:

In Manhattan Telecommunications Corp. [MetTel] v. Granite Telecommunications, LLC, MetTel sued its competitor Granite for allegedly libeling MetTel in statements to customers; but the allegedly libelous statements were redacted from the publicly available Complaint.

Not allowed, says Delaware Court of Chancery Vice Chancellor Joseph R. Slights III, dealing with my notice opposing such sealing. (Many thanks to my local counsel Garrett Rice of Ross Aronstam & Moritz LLP for all his invaluable help, and to UCLA law student Jenna Battaglia, who worked on the case with me.) Here is an excerpt from the Vice Chancellor’s opinion; for similar federal cases, see Parson v. Farley (which I had also filed) and Holmes v. Grambling:

Court of Chancery Rule 5.1 … codifies the “powerful presumption of public access” to court proceedings and records…. [Confidential treatment is allowed only if a party] can demonstrate that “the public interest in access to Court proceedings is outweighed by the harm that public disclosure of sensitive, non-public information would cause.”

By design, the burden of demonstrating [this] is exacting, recognizing that “[t]hose who decide to litigate in a public forum … must do so in a manner consistent with the right of the public to follow and monitor the proceedings and the result of [the] dispute.” In this regard, our courts appreciate that public access to the courts and their business is “fundamental to a democratic state and necessary in the long run so that the public can judge the product of the courts in a given case.” And the public cannot “judge the product of the courts in a given case” if the information being withheld is necessary for understanding “the nature of the dispute” or the court’s bases for a decision….

There’s more, which you can see at the original post. Today, the Court of Chancery actually unsealed the documents (I presume because the time for appeal has lapsed), and we now know what the allegations were; I underline the material that had been redacted:

[3.] MetTel discovered that Granite has undertaken a coordinated effort, which appears to stretch from entry level sales personnel all the way to the CEO, to contact current and potential MetTel clients and tell them that MetTel is in dire financial straits and not likely to survive the COVID-19 crisis. These statements are completely false without any basis in fact, and Granite either knows they are false or is recklessly indifferent to whether they are true or false. Granite is making these false statements to sow doubt with MetTel’s existing and potential clients about MetTel’s near term viability, and generate fear of losing essential telecommunications services in the near future.

[4.] Granite’s conduct is even more despicable because many of MetTel’s clients are in healthcare, public service, public safety, and federal, state and local governments. MetTel provides essential services for its clients—a service all the more essential under the current circumstances, when the majority of employees in the U.S. who are able to do so are working solely by telecommuting, and telecommunications is the only practical way to remain connected to patients, customers and the public. Even more so during these times, clients need to know they are partnered with a financially secure company who can ensure continuation of their telecommunications services, which they are with MetTel. False word of MetTel’s supposedly impending financial ruin is the kind of rumor that will spread throughout the market and poison MetTel’s prospects, particularly among those for whom an interruption in telecommunications services would be the most devastating at this time: healthcare and government operations on the front lines of the pandemic….

[17.] Granite has begun telling MetTel’s current and potential clients—falsely—that MetTel is in bad financial shape and probably will not survive the COVID-19 crisis. The purpose of these lies is to convince MetTel’s clients and potential clients that MetTel is an unreliable telecom provider that will likely leave them without essential services when they are needed most….

There are a few other such items throughout the Complaint, and some supporting exhibits, but this seems to be the heart of the matter. I pass it along so readers can see for themselves how it bears on the sealing question on which I intervened, and which I had blogged about. (Naturally, I have no opinion on whether the allegations about MetTel were indeed libelous; that is left to be determined, though in a normal, publicly accessible proceeding.)

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What a Frozen Cherry Pie Says About FDA Regulatory Foot-Dragging

cherrypie_1161x653

American cherry pie manufacturers may soon be able to decide for themselves how many cherries their frozen pies should have, free of burdensome federal regulations.

Former Food and Drug Administration (FDA) head Scott Gottlieb tweeted out praise that his former staff have successfully arranged to deregulate the contents of cherry pies after—no kidding—two years of hard work (and he’s actually understating it, but I’ll get to that):

So, is this now federal pie anarchy? No. (Unfortunately.) In 1971, the FDA established regulations imposing particular standards for frozen cherry pies. The lengthy regulations (read them here) determine not just how much of the pie must be made of cherries (25 percent by weight) and how many of the cherries may be “blemished,” or have scabs, or be of less than stellar quality (under 15 percent, even though pies are a great place to put blemished fruit to keep it from going to waste), but also establishes complicated rules for determining compliance.

While the FDA has been granted the power by Congress to regulate frozen foods and fruits, including pies, it’s very important to explain that these regulations were only implemented for cherry pies. There are no other similar regulations for other types of fruit pies. And there are no similar regulations for fresh pies to control the number and quality of the cherries in them. Just frozen pies, and only the cherry ones.

And so under Gottlieb and by request of the American Bakers Association (ABA), a trade association and lobbying organization, the FDA began rethinking this rule. The ABA argued that consumers, not the federal government, should decide whether they want to shell out more money for pies with more fruit in them or spend less money on lower-quality pies, if that’s what they can afford.

Ultimately the FDA agreed with the ABA, because, they note in the proposed rule change, there has been no push to regulate any other similar types of fruit pies:

We are not aware of any evidence suggesting that consumers have different expectations for unbaked, frozen cherry pies than for other cherry pies. At the same time, no other cherry pies are subject to a standard of identity or a standard of quality, and we are aware of no evidence indicating that such standards are necessary to promote honesty and fair dealing in the interest of consumers or to ensure that those cherry pies meet consumer expectations. Similarly, other fruit pies are not subject to standards of identity or quality, and we are aware of no evidence indicating that such standards are necessary to promote honesty and fair dealing in the interest of consumers or to ensure that the pies meet consumer expectations.

The agency also notes that the regulations forbid the use of artificial sweeteners in unbaked frozen cherry pies, and only those pies and no other types of pies (including unfrozen cherry pies). So the feds are forbidding bakers from creating lower-sugar options, even if that’s what consumers are asking for.

This is actually a notification of the rule change and not the rule change itself, so Gottlieb’s celebration is possibly a little premature. There’s a 90-day commenting process that ends in March, under the leadership of President-elect Joe Biden.

Does this mean that we’re suddenly going to get cherry pies full of all sorts of awful garbage? Well, no. Who would buy them? Your local grocer’s freezers are likely full of frozen blackberry, blueberry, and apple pies as well that don’t have these regulations. Are they all terrible? No. You might not even know because your grocer’s bakery probably offers remarkably cheap fresh pies, including cherry pies, that don’t fall under these regulations anyway, and you might just pick up one of those and save time.

The reality is that it’s not 1971 anymore, and innovations in both agriculture and food preparation have given Americans more options and competition, such that people don’t actually have to settle for crappy frozen cherry pies. But the federal government implemented regulations that added additional costs to enforce compliance. The FDA study notes that there are currently 40 distinct frozen cherry pies produced by 20 different companies. That’s a lot of competition for your pie money forcing companies to be honest.

It seems like a silly thing for Gottlieb to celebrate, but it was a silly thing for the federal government to regulate in the first place. And it took years for the government to reconsider it. Yet even now, people responding to Gottlieb’s tweet think that food companies just can’t wait to fill their cherry pies full of crappy, rotten fruit and filler, even though they haven’t been doing that all along to the pies that weren’t being regulated.

What’s amazing about all of this, and very relevant given all the horrible foot-dragging we’ve seen from the FDA in responding to the COVID-19 pandemic, is that the petition from the ABA was submitted to the FDA in 2005. It has taken 15 years and an FDA head who was actually interested in deregulation to get rid of an obsolete rule that didn’t really serve any valuable role in protecting consumers.

The FDA’s terrible management of America’s attempts to innovate solutions for the COVID-19 pandemic put its dysfunctional bureaucracy into the spotlight. Thousands of people are now dying every day. The drawn-out effort to get rid of completely unnecessary frozen cherry pie regulations shows how poorly the agency is able to evaluate and react to risks and harms.

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What a Frozen Cherry Pie Says About FDA Regulatory Foot-Dragging

cherrypie_1161x653

American cherry pie manufacturers may soon be able to decide for themselves how many cherries their frozen pies should have, free of burdensome federal regulations.

Former Food and Drug Administration (FDA) head Scott Gottlieb tweeted out praise that his former staff have successfully arranged to deregulate the contents of cherry pies after—no kidding—two years of hard work (and he’s actually understating it, but I’ll get to that):

So, is this now federal pie anarchy? No. (Unfortunately.) In 1971, the FDA established regulations imposing particular standards for frozen cherry pies. The lengthy regulations (read them here) determine not just how much of the pie must be made of cherries (25 percent by weight) and how many of the cherries may be “blemished,” or have scabs, or be of less than stellar quality (under 15 percent, even though pies are a great place to put blemished fruit to keep it from going to waste), but also establishes complicated rules for determining compliance.

While the FDA has been granted the power by Congress to regulate frozen foods and fruits, including pies, it’s very important to explain that these regulations were only implemented for cherry pies. There are no other similar regulations for other types of fruit pies. And there are no similar regulations for fresh pies to control the number and quality of the cherries in them. Just frozen pies, and only the cherry ones.

And so under Gottlieb and by request of the American Bakers Association (ABA), a trade association and lobbying organization, the FDA began rethinking this rule. The ABA argued that consumers, not the federal government, should decide whether they want to shell out more money for pies with more fruit in them or spend less money on lower-quality pies, if that’s what they can afford.

Ultimately the FDA agreed with the ABA, because, they note in the proposed rule change, there has been no push to regulate any other similar types of fruit pies:

We are not aware of any evidence suggesting that consumers have different expectations for unbaked, frozen cherry pies than for other cherry pies. At the same time, no other cherry pies are subject to a standard of identity or a standard of quality, and we are aware of no evidence indicating that such standards are necessary to promote honesty and fair dealing in the interest of consumers or to ensure that those cherry pies meet consumer expectations. Similarly, other fruit pies are not subject to standards of identity or quality, and we are aware of no evidence indicating that such standards are necessary to promote honesty and fair dealing in the interest of consumers or to ensure that the pies meet consumer expectations.

The agency also notes that the regulations forbid the use of artificial sweeteners in unbaked frozen cherry pies, and only those pies and no other types of pies (including unfrozen cherry pies). So the feds are forbidding bakers from creating lower-sugar options, even if that’s what consumers are asking for.

This is actually a notification of the rule change and not the rule change itself, so Gottlieb’s celebration is possibly a little premature. There’s a 90-day commenting process that ends in March, under the leadership of President-elect Joe Biden.

Does this mean that we’re suddenly going to get cherry pies full of all sorts of awful garbage? Well, no. Who would buy them? Your local grocer’s freezers are likely full of frozen blackberry, blueberry, and apple pies as well that don’t have these regulations. Are they all terrible? No. You might not even know because your grocer’s bakery probably offers remarkably cheap fresh pies, including cherry pies, that don’t fall under these regulations anyway, and you might just pick up one of those and save time.

The reality is that it’s not 1971 anymore, and innovations in both agriculture and food preparation have given Americans more options and competition, such that people don’t actually have to settle for crappy frozen cherry pies. But the federal government implemented regulations that added additional costs to enforce compliance. The FDA study notes that there are currently 40 distinct frozen cherry pies produced by 20 different companies. That’s a lot of competition for your pie money forcing companies to be honest.

It seems like a silly thing for Gottlieb to celebrate, but it was a silly thing for the federal government to regulate in the first place. And it took years for the government to reconsider it. Yet even now, people responding to Gottlieb’s tweet think that food companies just can’t wait to fill their cherry pies full of crappy, rotten fruit and filler, even though they haven’t been doing that all along to the pies that weren’t being regulated.

What’s amazing about all of this, and very relevant given all the horrible foot-dragging we’ve seen from the FDA in responding to the COVID-19 pandemic, is that the petition from the ABA was submitted to the FDA in 2005. It has taken 15 years and an FDA head who was actually interested in deregulation to get rid of an obsolete rule that didn’t really serve any valuable role in protecting consumers.

The FDA’s terrible management of America’s attempts to innovate solutions for the COVID-19 pandemic put its dysfunctional bureaucracy into the spotlight. Thousands of people are now dying every day. The drawn-out effort to get rid of completely unnecessary frozen cherry pie regulations shows how poorly the agency is able to evaluate and react to risks and harms.

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Effigy’s German Serial Killer Drama Weaves Intoxicating—and Toxic—Tale

Effigy_1161x653

Effigy: Poison and The City. Available now on Laemmle Virtual Cinema.

In German director Fritz Lang’s creepy 1931 classic M, suspected serial-child killer (except he’s played by Peter Lorre, so you know he’s guilty) Hans Beckert is facing “trial” before a panel of street criminals who intend to execute him. “I cannot help myself!” he protests. “I have no control over this evil thing that is inside me—the fire, the voices, the torment!”

Surely Gesche Gottfried, the arsenic epicurean in Effigy: Poison and The City, is a spiritual descendent of Beckert. Imprisoned on charges of poisoning practically everybody she ever met—her husbands, parents, children (“That motherhood thing is overrated,” she explains to one investigator), neighbors, even a couple of visitors to her jail cell—she listens with rapt attention as the prison chaplain recounts the Biblical tale of Abraham, preparing to sacrifice his own son on orders from God. “Was he enjoying that?” she breathily inquires of the priest.

The odd, unnerving little Effigy—like M, both set and made in Germany—has been kicking around film festivals around the world for more than a year, winning a lot of awards but never an American theatrical release or television showing, until its debut today on the streaming service Laemmle Virtual Cinema. Made by a team of rookies—its director and three screenwriters have one previous feature film on their collective resume—it’s an eccentric yet intriguing mix of murder, psychopathy, weird feminism and primitive police procedural.

Set in 1828 in the German port city of Bremen, Effigy follows the investigation of Gottfried, a real-life serial killer who would eventually be decapitated after conviction for 15 murders. (Townspeople still spit on the spot on the ground where her severed head stopped rolling.) If it seems that suspicions might reasonably have been aroused after the first five or six—well, there were reasons for Bremen authorities to have doubted they had a serial killer on their hands.

Gottfried was famously sweet to her family—even nursing on his deathbed a notoriously unfaithful husband who (it was whispered) had contracted a terminal case of syphilis. She was kind to her less fortunate neighbors, feeding them meals during hard times. And who could be so unkind as to summon for official questioning such a pretty (and flirtatious!) woman whose life had been such a magnet for misfortune?

This all changes the moment a new investigator enters the scene. Cato Böhmer is smart and experienced in the relatively new science of forensic medicine, making use of autopsies and tissue tests at a time when most murders are solved through confessions. But the most formidable weapon at Bohmer’s command is gender: The lone woman in a pack of prosecutors and police, she is immune from Gottfried’s coquetry and unimpressed with stereotypical ideas about the innate nurturing qualities of mothers and wives. Neither does she buy the idea that no mere woman could plan and carry out a string of murders without help—that “the female’s fragile mind requires guidance from a man,” an argument that had been used to hobble Böhmer’s own career.

Using lab work to prove that the trail of death following Gottfried is the result not of cholera or typhoid fever, as many of the cops believe, but arsenic poisoning, Böhmer quickly builds a strong circumstantial case against her quarry. Even so, her male superiors are troubled by the lack of apparent motive, reluctant to argue in court that Gottfried launched a murder spree without “rhyme or reason, as if she were in some kind of frenzy,” as one of them puts it.

But Gottfried is clever, too. Taunting and teasing the authorities—particularly by admitting her guilt to them one at a time, knowing that German law of the day made confessions admissible only when heard by two witnesses—she spreads division in their ranks. Political corruption (Bremen is in the midst of controversy whether it should continue funding port operations or switch to support of a new transportation technology, the railroad) further muddles the picture.

What really makes Effigy work is the outstanding job by its two leading actresses, neither of them well known in the United States. Elisa Thiemann is a marvel of prim restraint as Cato Böhmer, who endures grating abuse from both sides of the law as she dreams of America where, she’s heard, a woman can go to law school. And Suzan Anbeh (who had a small role 15 years ago in the Lawrence Kasdan caper-comedy French Kiss) exudes so much good will and tempting sexuality as Gottfried that you cannot help but wonder if she could really be a murderer, no matter what you just saw with your own eyes.

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Effigy’s German Serial Killer Drama Weaves Intoxicating—and Toxic—Tale

Effigy_1161x653

Effigy: Poison and The City. Available now on Laemmle Virtual Cinema.

In German director Fritz Lang’s creepy 1931 classic M, suspected serial-child killer (except he’s played by Peter Lorre, so you know he’s guilty) Hans Beckert is facing “trial” before a panel of street criminals who intend to execute him. “I cannot help myself!” he protests. “I have no control over this evil thing that is inside me—the fire, the voices, the torment!”

Surely Gesche Gottfried, the arsenic epicurean in Effigy: Poison and The City, is a spiritual descendent of Beckert. Imprisoned on charges of poisoning practically everybody she ever met—her husbands, parents, children (“That motherhood thing is overrated,” she explains to one investigator), neighbors, even a couple of visitors to her jail cell—she listens with rapt attention as the prison chaplain recounts the Biblical tale of Abraham, preparing to sacrifice his own son on orders from God. “Was he enjoying that?” she breathily inquires of the priest.

The odd, unnerving little Effigy—like M, both set and made in Germany—has been kicking around film festivals around the world for more than a year, winning a lot of awards but never an American theatrical release or television showing, until its debut today on the streaming service Laemmle Virtual Cinema. Made by a team of rookies—its director and three screenwriters have one previous feature film on their collective resume—it’s an eccentric yet intriguing mix of murder, psychopathy, weird feminism and primitive police procedural.

Set in 1828 in the German port city of Bremen, Effigy follows the investigation of Gottfried, a real-life serial killer who would eventually be decapitated after conviction for 15 murders. (Townspeople still spit on the spot on the ground where her severed head stopped rolling.) If it seems that suspicions might reasonably have been aroused after the first five or six—well, there were reasons for Bremen authorities to have doubted they had a serial killer on their hands.

Gottfried was famously sweet to her family—even nursing on his deathbed a notoriously unfaithful husband who (it was whispered) had contracted a terminal case of syphilis. She was kind to her less fortunate neighbors, feeding them meals during hard times. And who could be so unkind as to summon for official questioning such a pretty (and flirtatious!) woman whose life had been such a magnet for misfortune?

This all changes the moment a new investigator enters the scene. Cato Böhmer is smart and experienced in the relatively new science of forensic medicine, making use of autopsies and tissue tests at a time when most murders are solved through confessions. But the most formidable weapon at Bohmer’s command is gender: The lone woman in a pack of prosecutors and police, she is immune from Gottfried’s coquetry and unimpressed with stereotypical ideas about the innate nurturing qualities of mothers and wives. Neither does she buy the idea that no mere woman could plan and carry out a string of murders without help—that “the female’s fragile mind requires guidance from a man,” an argument that had been used to hobble Böhmer’s own career.

Using lab work to prove that the trail of death following Gottfried is the result not of cholera or typhoid fever, as many of the cops believe, but arsenic poisoning, Böhmer quickly builds a strong circumstantial case against her quarry. Even so, her male superiors are troubled by the lack of apparent motive, reluctant to argue in court that Gottfried launched a murder spree without “rhyme or reason, as if she were in some kind of frenzy,” as one of them puts it.

But Gottfried is clever, too. Taunting and teasing the authorities—particularly by admitting her guilt to them one at a time, knowing that German law of the day made confessions admissible only when heard by two witnesses—she spreads division in their ranks. Political corruption (Bremen is in the midst of controversy whether it should continue funding port operations or switch to support of a new transportation technology, the railroad) further muddles the picture.

What really makes Effigy work is the outstanding job by its two leading actresses, neither of them well known in the United States. Elisa Thiemann is a marvel of prim restraint as Cato Böhmer, who endures grating abuse from both sides of the law as she dreams of America where, she’s heard, a woman can go to law school. And Suzan Anbeh (who had a small role 15 years ago in the Lawrence Kasdan caper-comedy French Kiss) exudes so much good will and tempting sexuality as Gottfried that you cannot help but wonder if she could really be a murderer, no matter what you just saw with your own eyes.

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California Judge Blocks Enforcement of State and Local Bans on Restaurant Dining in San Diego County

Cheetahs-San-Diego-Yelp

A California judge this week blocked enforcement of state and local orders prohibiting dining in San Diego County restaurants, finding no evidence that such bans help curtail the COVID-19 epidemic. “Given every opportunity,” San Diego County Superior Court Judge Joel Wohlfeil said, the county and the state have “provided the Court with no evidence that San Diego County businesses with restaurant service, such as Plaintiffs’ establishments, who’ve implemented protocols as directed by the County, present any risk—much less a greater risk than before Governor Newsom issued his December 3, 2020 Regional Stay at Home Order.”

The case involves two strip clubs with restaurant service, Cheetahs Gentlemen’s Club and Pacers Showgirls International, which initially challenged local cease-and-desist orders. Gov. Gavin Newsom subsequently issued an order that imposes many restrictions, including a ban on both indoor and outdoor restaurant dining, on regions where the available ICU capacity has fallen below 15 percent. That order currently applies to all of Southern California, including San Diego County, and Wohlfeil included Newsom in his preliminary injunction.

Wohlfeil noted that the plaintiffs had implemented various COVID-19 precautions, including physical distancing, masks for employees, and sanitization. They are following “all provisions of the State of California Industry Guidance for restaurants, wineries and bars.” Dancers perform in roped-off areas at least 15 feet from tables, and patrons are not allowed to approach them. No COVID-19 outbreaks have been traced to either business.

“The County possesses contact tracing data and has the power to produce such evidence to refute Plaintiffs’ assertions that Plaintiffs providing live adult entertainment and San Diego County businesses with restaurant service, such as Plaintiffs’ establishments, subject to protocols, do not present any risk,” Wohlfeil noted. Yet the county failed to produce any such evidence, leading Wohlfeil to conclude that the strip clubs “have done nothing to contribute to the spread of COVID.”

More generally, Wohlfeil said, the government had not presented any evidence implicating restaurants in the local spread of COVID-19. To the contrary, he noted, San Diego County Public Health Officer Wilma Wooten, who sent the cease-and-desist letters to the strip clubs, last month was saying that “penalizing sectors like restaurants and gyms for the case increase is wrong.” She also worried that the “closure of indoor restaurants during wintertime will move people into homes and encourage high risk gatherings.”

State and local officials now say restricting restaurants to delivery and takeout (not really a viable option for the plaintiffs in this case) is justified in light of the continuing increase in COVID-19 cases and deaths. But as Wohlfeil noted, that argument hinges on the assumption that restaurants are a significant source of virus transmission even when they follow public health precautions, which the government has failed to demonstrate.

Last week a Los Angeles County judge ruled that a local ban on outdoor dining was “not grounded in science, evidence, or logic.” Around the same time, California Health and Human Services Secretary Mark Ghaly admitted that the same thing is true of Newsom’s ban on outdoor dining. Ghaly said that policy is “not a comment on the relative safety of outdoor dining” but is instead aimed at discouraging Californians from leaving home.

Wohlfeil’s injunction applies to indoor and outdoor dining, and it covers Newsom’s order as well as the county’s restrictions. The San Diego Union-Tribune yesterday editorialized that his decision “must be quickly overturned.” The paper said “a precedent that authorities must have specific proof that indoor businesses are risky before they face restrictions invites chaos—and at the worst possible time.”

The Union-Tribune expressed sympathy for the view that bans on outdoor dining are not scientifically justified. “A credible case can be made that outdoor dining with adequate social distancing is generally safe, even now with virus deaths at record levels,” it said. “Research in many nations shows relatively little outdoors transmission.”

But the same cannot be said of indoor dining, the paper argued: “There is vast agreement among public health authorities that spending time indoors in a room with strangers—whether at a grocery store, a gym, a strip club or a restaurant—is a surefire way to spread the virus. Spending time at a restaurant drinking indoors is an invitation to disaster.”

Other things being equal, it is certainly true that indoor settings are more dangerous than outdoor settings. At the same time, it clearly is not true that visiting “a grocery store, a gym, a strip club or a restaurant” is “a surefire way to spread the virus.” Local and state governments across the country, including California’s until recently, have allowed these businesses to continue operating, subject to occupancy restrictions and other safeguards. Grocery stores and other retailers throughout California are still allowed to operate as long as they follow state guidelines. If those precautions do not reduce the risk of virus transmission to a tolerable level, what is the point of requiring them?

If virus transmission in these settings is inevitable, as the Union-Tribune insists, the government should be able to cite at least a few COVID-19 infections that occurred there. But in this case, Wohlfeil said, the county and the state offered no evidence beyond general concerns about upward trends in COVID-19 infections and deaths.

Is “specific proof that indoor businesses are risky” really too much to ask for when the government plans to wipe out people’s livelihoods in the name of fighting COVID-19? Given all the arbitrary, illogical, and scientifically dubious restrictions politicians have dreamed up, as exemplified by California’s ban on outdoor dining and New York’s onerous restrictions on houses of worship, such questions are long overdue.

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The Opinions Clause Makes A Rare Appearance in Trump v. New York

Today, the Supreme Court decided Trump v. New York. In this case, the District Court enjoined the Secretary of Commerce from providing certain census data to the President. The Supreme Court vacated the lower-court decision on jurisdictional grounds. There was no merits ruling, but there was a reference to an obscure constitutional provision.

The Opinions Clause of Article II provides, “The President…may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”

This Clause is seldom litigated for obvious reasons: the government seldom puts restrictions on the sort of information the President can request from his principal officers. (Fun fact: the phrase “principal officers,” a common feature of Appointments Clause jurisprudence, does not actually appear in the Appointments Clause; it appears only in the Opinions Clause). But welcome to 2020. A federal district court issued an injunction that barred the Secretary of Commerce from providing certain information to the President.

Today, the Supreme Court hinted that this injunction may violate the Opinions Clause:

The remedy crafted by the District Court underscores the contingent nature of the plaintiffs’ injuries. Its injunction prohibits the Secretary from informing the President in his §141(b) report of the number of aliens without lawful status. In addition to implicating the President’s authority under the Opinions Clause, U. S. Const., Art. II, §2, cl. 1, the injunction reveals that the source of any injury to the plaintiffs is the action that the Secretary or President might take in the future to exclude unspecified individuals from the apportionment base—not the policy itself “in the abstract,” Summers v. Earth Island Institute, 555 U. S. 488, 494 (2009).

Woah! Talk about a drive-by constitutional ruling. The injunction, based on the APA, may be unconstitutional if it unduly burdens the President’s ability to request opinions from the Secretary?! I did not see this argument raised in the SG’s opening brief or reply brief. And the issue did not come up during oral arguments. This single aside may be the most significant aspect of the jurisdictional punt.

Last term, Justice Kagan referenced the Opinions Clause in footnote 3 her Seila Law dissent:

Article II’s Opinions Clause also demonstrates the possibility of limits on the President’s control over the Executive Branch. Under that Clause, the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” §2, cl. 1. For those in the majority’s camp, that Clause presents a puzzle: If the President must always have the direct supervisory control they posit, including by threat of removal, why would he ever need a constitutional warrant to demand agency heads’ opinions? The Clause becomes at least redundant—though really, inexplicable—under the majority’s idea of executive power.

I have worked on a draft article that focuses on this footnote. The analysis in footnote 3 provides some insights into how Kagan reads constitutional text. I will be happy to share that article in due course.

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California Judge Blocks Enforcement of State and Local Bans on Restaurant Dining in San Diego County

Cheetahs-San-Diego-Yelp

A California judge this week blocked enforcement of state and local orders prohibiting dining in San Diego County restaurants, finding no reasonable connection between such bans and the goal of curtailing the COVID-19 epidemic. “Given every opportunity,” San Diego County Superior Court Judge Joel Wohlfeil said, the county and the state have “provided the Court with no evidence that San Diego County businesses with restaurant service, such as Plaintiffs’ establishments, who’ve implemented protocols as directed by the County, present any risk—much less a greater risk than before Governor Newsom issued his December 3, 2020 Regional Stay at Home Order.”

The case involves two strip clubs with restaurant service, Cheetahs Gentlemen’s Club and Pacers Showgirls International, which initially challenged local cease-and-desist orders. Gov. Gavin Newsom subsequently issued an order that imposes many restrictions, including a ban on both indoor and outdoor restaurant dining, on regions where the available ICU capacity has fallen below 15 percent. That order currently applies to all of Southern California, including San Diego County, and Wohlfeil included Newsom in his preliminary injunction.

Wohlfeil noted that the plaintiffs had implemented various COVID-19 precautions, including physical distancing, masks for employees, and sanitization. They are following “all provisions of the State of California Industry Guidance for restaurants, wineries and bars.” Dancers perform in roped-off areas at least 15 feet from tables, and patrons are not allowed to approach them. No COVID-19 outbreaks have been traced to either business.

“The County possesses contact tracing data and has the power to produce such evidence to refute Plaintiffs’ assertions that Plaintiffs providing live adult entertainment and San Diego County businesses with restaurant service, such as Plaintiffs’ establishments, subject to protocols, do not present any risk,” Wohlfeil noted. Yet the county failed to produce any such evidence, leading Wohlfeil to conclude that the strip clubs “have done nothing to contribute to the spread of COVID.”

More generally, Wohlfeil said, the government had not presented any evidence implicating restaurants in the local spread of COVID-19. To the contrary, he noted, San Diego County Public Health Officer Wilma Wooten, who sent the cease-and-desist letters to the strip clubs, last month was saying that “penalizing sectors like restaurants and gyms for the case increase is wrong.” She also worried that the “closure of indoor restaurants during wintertime will move people into homes and encourage high risk gatherings.”

State and local officials now say restricting restaurants to delivery and takeout (not really a viable option for the plaintiffs in this case) is justified in light of the continuing increase in COVID-19 cases and deaths. But as Wohlfeil noted, that argument hinges on the assumption that restaurants are a significant source of virus transmission even when they follow public health precautions, which the government has failed to demonstrate.

Last week a Los Angeles County judge ruled that a local ban on outdoor dining was “not grounded in science, evidence, or logic.” Around the same time, California Health and Human Services Secretary Mark Ghaly admitted that the same thing is true of Newsom’s ban on outdoor dining. Ghaly said that policy is “not a comment on the relative safety of outdoor dining” but is instead aimed at discouraging Californians from leaving home.

Wohlfeil’s injunction applies to indoor and outdoor dining, and it covers Newsom’s order as well as the county’s restrictions. The San Diego Union-Tribune yesterday editorialized that his decision “must be quickly overturned.” The paper said “a precedent that authorities must have specific proof that indoor businesses are risky before they face restrictions invites chaos—and at the worst possible time.”

The Union-Tribune expressed sympathy for the view that bans on outdoor dining are not scientifically justified. “A credible case can be made that outdoor dining with adequate social distancing is generally safe, even now with virus deaths at record levels,” it said. “Research in many nations shows relatively little outdoors transmission.”

But the same cannot be said of indoor dining, the paper argued: “There is vast agreement among public health authorities that spending time indoors in a room with strangers—whether at a grocery store, a gym, a strip club or a restaurant—is a surefire way to spread the virus. Spending time at a restaurant drinking indoors is an invitation to disaster.”

Other things being equal, it is certainly true that indoor settings are more dangerous than outdoor settings. At the same time, it clearly is not true that visiting “a grocery store, a gym, a strip club or a restaurant” is “a surefire way to spread the virus.” Local and state governments across the country, including California’s until recently, have allowed these businesses to continue operating, subject to occupancy restrictions and other safeguards. Grocery stores and other retailers throughout California are still allowed to operate as long as they follow state guidelines. If those precautions do not reduce the risk of virus transmission to a tolerable level, what is the point of requiring them?

If virus transmission in these settings is inevitable, as the Union-Tribune insists, the government should be able to cite at least a few COVID-19 infections that occurred there. But in this case, Wohlfeil said, the county and the state offered no evidence beyond general concerns about upward trends in COVID-19 infections and deaths.

Is “specific proof that indoor businesses are risky” really too much to ask for when the government plans to wipe out people’s livelihoods in the name of fighting COVID-19? Given all the arbitrary, illogical, and scientifically dubious restrictions politicians have dreamed up, as exemplified by California’s ban on outdoor dining and New York’s onerous restrictions on houses of worship, such questions are long overdue.

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The Opinions Clause Makes A Rare Appearance in Trump v. New York

Today, the Supreme Court decided Trump v. New York. In this case, the District Court enjoined the Secretary of Commerce from providing certain census data to the President. The Supreme Court vacated the lower-court decision on jurisdictional grounds. There was no merits ruling, but there was a reference to an obscure constitutional provision.

The Opinions Clause of Article II provides, “The President…may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”

This Clause is seldom litigated for obvious reasons: the government seldom puts restrictions on the sort of information the President can request from his principal officers. (Fun fact: the phrase “principal officers,” a common feature of Appointments Clause jurisprudence, does not actually appear in the Appointments Clause; it appears only in the Opinions Clause). But welcome to 2020. A federal district court issued an injunction that barred the Secretary of Commerce from providing certain information to the President.

Today, the Supreme Court hinted that this injunction may violate the Opinions Clause:

The remedy crafted by the District Court underscores the contingent nature of the plaintiffs’ injuries. Its injunction prohibits the Secretary from informing the President in his §141(b) report of the number of aliens without lawful status. In addition to implicating the President’s authority under the Opinions Clause, U. S. Const., Art. II, §2, cl. 1, the injunction reveals that the source of any injury to the plaintiffs is the action that the Secretary or President might take in the future to exclude unspecified individuals from the apportionment base—not the policy itself “in the abstract,” Summers v. Earth Island Institute, 555 U. S. 488, 494 (2009).

Woah! Talk about a drive-by constitutional ruling. The injunction, based on the APA, may be unconstitutional if it unduly burdens the President’s ability to request opinions from the Secretary?! I did not see this argument raised in the SG’s opening brief or reply brief. And the issue did not come up during oral arguments. This single aside may be the most significant aspect of the jurisdictional punt.

Last term, Justice Kagan referenced the Opinions Clause in footnote 3 her Seila Law dissent:

Article II’s Opinions Clause also demonstrates the possibility of limits on the President’s control over the Executive Branch. Under that Clause, the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” §2, cl. 1. For those in the majority’s camp, that Clause presents a puzzle: If the President must always have the direct supervisory control they posit, including by threat of removal, why would he ever need a constitutional warrant to demand agency heads’ opinions? The Clause becomes at least redundant—though really, inexplicable—under the majority’s idea of executive power.

I have worked on a draft article that focuses on this footnote. The analysis in footnote 3 provides some insights into how Kagan reads constitutional text. I will be happy to share that article in due course.

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via IFTTT