Category: reason

Former Morgan County, Alabama, jail officer Jarvis Moore faces seven felony extortion charges tied to taking honey buns and other commissary items from inmates. Moore admits he took the items but says he was following jail practices to discipline inmates who caused problems. He says the charges are retaliation over his support for releasing a video showing a man who died in custody. The sheriff says Moore was under investigation even before then.

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Florida Governor Ron DeSantis recently appointed Judge Adam Tanenbaum to the state supreme court. This will likely be DeSantis’s final appointment to a Court he has completely reshaped. This seat faced some stiff competition. It was reported in Bloomberg that the Governor was looking for a “bloodthirsty” originalist. I think he got one.

In a speech, Tanenbaum said “I subscribe to the fixation thesis and the constraint principle.” I would wager that most law professors have no clue what those things are. When you put a bloodthirsty originalist on the bench, litigants better be ready.

Yesterday, Tanenbaum had his first oral argument. The case was not particularly controversial. It turned on the meaning of the word “enterprise” in the state RICO statute. Aruging on behalf of Florida was Jason Muehlhoff, the deputy Solicitor General. Muehlhoff is no squish. He clerked for Judge VanDyke and worked at Gibson Dunn in Dallas. So here you have a very conservative judge asking questions of a very conservative lawyer.

Jump ahead to the 9:00 minute mark.

I have taken the liberty of transcribing the exchange:

Justice Adam Tanenbaum: Counselor: Your brief for your approach to the text is someways resembles Justice Gorsuch’s approach in Bostock. Just looking at the text, and ignoring the context in which the statute was enacted. You start by focusing in particular on [the meaning of] “enterprise” and what was going on in 1977. Can you explain, is your position more like Justice Gorsuch in Bostock or Justice Alito in dissent?

Deputy Solicitor General Jason Muehlhoff: It is certainly not Justice Gorsuch your honor. It is more along the lines of what Justice Alito and Justice Kavanaugh had in dissent, and understanding the provisions as they are naturally read. . . . I think it’s safe to say this is how Justices Kavanaugh and Alito would approach it.

Justice Tanenbaum wasn’t done. About ten minutes later, at the 20:30 mark, he returned to Bostock.

Justice Tanenbaum: That’s why I asked, going back to my Bostock question, it seems like you are pushing this with blinders on. You’re just looking at the words themselves in a definition and ignoring the context of the entire statute and what the statute is. RICO is a very particular type of crime and it was well known at the time in the 1970s what was going on and what the federal government and the Florida government was trying to get at. You are focusing on the definition of “enterprise” and look we can go after one individual, unrelated to anyone else that is trying to embark on some sort of criminal endeavor, it is just him. . . .

Muehlhoff: This Court has said time and time again that broad purposes of statement must yield to the clear text….

Justice Tanenbaum: That’s what Gorsuch said too.

Muehlhoff: I think Justice Gorsuch was wildly incorrect, but that was because of the specific text of the statute.

This is a stunning exchange, not because of the briefing from the Florida Supreme Court, but because of how poorly Bostock has been received. I don’t know if there is any decision in recent Supreme Court history that has aged worse than Bostock. As a matter of substance, the Court has walked back the ruling in Mahmoud and Mirabelli, and will walk it back further in Chiles and the Title IX cases. As a matter of doctrine, not a single conservative would hold up Bostock as the proper way of doing textualism. The pirate flag of textualism barely flutters.

At his point, Bostock has become a laughingstock, so much so that a conservative judge asks a conservative litigant to disavow a Supreme Court precedent on how to read statutes. Of course, that ruling is not binding on the Florida Supreme Court. It is a fun academic question whether the Supreme Court can even set a precedent of how to engage in originalism or textualism. (Tara Grove suggests that the Court lacks the power to impose any methodology.) But I couldn’t help but chuckle at this exchange to see how Bostock fares in the real world.

The post The First Question From The Florida Supreme Court's Newest Member: "Is your position more like Justice Gorsuch in <i>Bostock</i> or Justice Alito in dissent?" appeared first on Reason.com.

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For the backstory on the Zizians, see Investigations Into 6 Killings Look to a Fringe Group Known as the Zizians (N.Y. Times, Remy Tumin & Kate Christobek), which notes, among other things, that “The group’s goals aren’t completely clear but online writings about their beliefs touch upon veganism, artificial intelligence and gender identity.

From U.S. v. LaSota, decided today by Judge James Bredar (D. Md.); LaSota is Ziz, the Zizians’ apparent leader:

Pending before the Court is Defendant Jack LaSota’s Motion to Dismiss Count One of the Indictment. {The Indictment names Defendant as “Jack LaSota” and the Government uses male pronouns to refer to LaSota in its briefing. However, LaSota states that her name is “Ziz LaSota” and that she is a transgender woman who uses female pronouns. The Court refers to Defendant as “Jack LaSota” here to match the Indictment but will use female pronouns to refer to her, in accordance with her preference.} …

According to the Indictment, LaSota was a fugitive from justice, and while knowing that she was a fugitive from justice, she possessed multiple firearms as well as ammunition. Specifically, she is alleged to have possessed a scoped .50 caliber rifle, a 9×19mm handgun, approximately 420 rounds of .50 caliber ammunition, and approximately 54 rounds of 9×19mm ammunition.

In their briefing, the parties provide several additional background facts. They explain that LaSota was previously charged in state criminal proceedings in California and Pennsylvania. In these cases, LaSota was charged with one felony and multiple misdemeanors. LaSota claims that all of the alleged criminal conduct was nonviolent. The Government explains that LaSota missed court hearings in both cases, so in both of them, bench warrants were issued for her arrest.

Then, in February 2025, LaSota was found with the above-described firearms and ammunition, and she was arrested by Maryland local police. A federal grand jury then charged LaSota with being a fugitive from justice in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(2). LaSota’s Motion to Dismiss argues that § 922(g)(2) is unconstitutional under the Second Amendment, both on its face and as applied to her case….

The parties … debate whether fugitives are among “the people” protected by the Second Amendment. As the Government notes, the Fourth Circuit has held that felons are not among “the people” because they are not “law-abiding.” But in several recent cases, the Fourth Circuit has declined to address whether certain other categories of people—felony indictees and domestic violence misdemeanants—are included in “the people.” The Court is attracted to the Government’s argument that fugitives are most akin to felons and are thus not included among “the people” because neither group is “law-abiding.” But given the disagreements on how to define “the people” both at the Fourth Circuit and between the Circuits,and considering that resolution of this specific question is not strictly necessary in order for the Court to rule on the instant Motion, the Court declines to rule on this issue today. Instead, the Court will decide the facial challenge at Bruen step two because it certainly fails at that step….

To determine whether § 922(g)(2) “is consistent with the principles that underpin our regulatory tradition,” the Court must “ascertain whether [§ 922(g)(2)] is ‘relevantly similar’ to laws that our tradition is understood to permit.” …

The Fourth Circuit has held multiple times “that our historical tradition of gun regulation allows ‘status-based restrictions to disqualify categories of persons from possessing firearms.'” That is because early state legislatures “could prohibit gun ownership by groups of persons that the legislature deemed ‘potentially violent or dangerous.'” Thus, Congress can now “legislate using proxies for dangerousness.” For instance, in Hunt, the Fourth Circuit upheld Congress’ ability to impose a lifetime ban on felons possessing firearms. And in Jackson, the Fourth Circuit concluded that “although ‘felony indictment’ is a less effective proxy for dangerousness than ‘felony conviction,’ § 922(n)’s temporary and partial disarmament burdens Second Amendment rights far less severely than does § 922(g)(1)’s lifetime ban.” …

Jackson‘s rationale applies to § 922(g)(2). Fugitives are more dangerous than felony indictees because they have ordinarily been charged with a crime and fled from prosecution. But like felony indictees, they are only temporarily disarmed. Thus, fugitive status is a valid proxy for dangerousness (the “why”) and § 922(g)(2) permissibly requires temporary disarmament (the “how”). Accordingly, LaSota’s facial challenge fails on this basis as well….

The Court now turns to the as-applied challenge. LaSota argues that she only fled from prosecutions for “non-violent offenses, comprised largely of misdemeanors.” Thus, in her view, § 922(g)(2) is unconstitutional as applied to her because she is not a fugitive from prosecution for “serious crimes.” But that is ultimately irrelevant because, as the Fourth Circuit held for § 922(g)(1) (which prohibits felons from possessing firearms), this Court holds that as-applied challenges to § 922(g)(2) are categorically barred.

When Congress passed the Gun Control Act in 1968, it made a categorical judgment that all “fugitives from justice” were dangerous enough to be disarmed. And critically, that included fugitives from prosecutions for misdemeanors and nonviolent crimes…. Just as legislatures 250 years ago determined, for instance, that all non-oath-takers were too dangerous to possess firearms, Congress has now determined that all fugitives from justice—whether they are fleeing felonies, misdemeanors, violent crimes, or nonviolent crimes—are too dangerous to possess firearms.

To be sure, LaSota rejects the notion that someone fleeing prosecution for misdemeanors and nonviolent crimes could be dangerous. But the power to make that determination is entrusted to Congress, not to LaSota and not to this Court. As the Hunt court explained, “the power to determine the content of the criminal law is serious business. But legislatures have always had that power, and it is subject to few constitutional restraints.”

Here, Congress exercised that power to classify all fugitives from justice as dangerous enough to be disarmed. That statute is “relevantly similar” to the numerous Founding-era laws that categorically disarmed “dangerous persons.” And that is precisely the “historical analogue” that Bruen and Rahimi require for a statute to withstand scrutiny under the Second Amendment. Therefore, the Court concludes that “there is no requirement for an individualized determination of dangerousness as to each person” accused of being a fugitive from justice in possession of a firearm under § 922(g)(2).

Jared Beim represents the federal government.

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From CAIR-Foundation, Inc. v. DeSantis, decided yesterday by Judge Mark Walker (N.D. Fla.); the analysis seems correct to me:

The question before this Court is whether the Governor can, in a non-emergency situation, unilaterally designate one of the largest Muslim civil rights groups in America as a “terrorist organization” and withhold government benefits from anyone providing material support or resources to the group. This Court finds he cannot…. The Governor’s decree coerces third parties, under threat of losing government benefits, to disassociate from the Council on American-Islamic Relations (“CAIR”), thereby closing avenues of expression and suppressing CAIR’s protected speech….

On December 8, 2025, Governor Desantis signed Executive Order 25-244 titled “Protecting Floridians from Radical Islamic Terrorist Organizations” (the “EO”). The EO designates CAIR as a terrorist organization and prevents CAIR or “any person known to have provided material support or resources” to CAIR “from receiving any contract, employment, funds, or other benefit or privilege” from executive or cabinet agencies or from any county or municipality of the state….

Where a government uses the “threat of invoking legal sanctions and other means of coercion … to achieve the suppression” of disfavored speech, it functionally creates “a system of prior administrative restraints” that bears “a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan (1963). A government official “cannot do indirectly what [he] is barred from doing directly: … coerce a private party to punish or suppress disfavored speech on [his] behalf.” Nat’l Rifle Ass’n v. Vullo (2024). The present case bears all the hallmarks of unconstitutional coercion that the Supreme Court identified in Bantam Books and Vullo….

Defendant’s EO threatens those who platform, collaborate with, or otherwise provide support to Plaintiff. The “vice of the system” here is the same one the Supreme Court proscribed in Bantam Books. There, threats and coercion subjected the distribution of publications “to a system of prior administrative restraints” untethered from any procedural safeguards. [A state commission had threatened bookstores with prosecution if they continued to distribute certain books that the commission had found “objectionable.” -EV] By imposing the specter of punishment on intermediary book distributors, the state “directly and designedly stopped the circulation of publications in many parts of” the state. This case is no different.

{As evidence of the coercive nature of Defendant’s EO, Plaintiff points to a Florida-based production company that withdrew from a proposed podcast agreement to launch Plaintiff’s civil rights podcast, citing its concerns about the EO, and notes that the company would reconsider its withdrawal from the agreement in the event the EO was found to be unlawful.} Much like the distributors in Bantam Books, the production company is an intermediary intending to platform Plaintiff’s speech. By threatening the production company—indeed, by broadly threatening anyone who wishes to do business in Florida—Defendant stifles Plaintiff’s speech. This violates the First Amendment…

Defendant resorts to proclamations that “Florida is entitled to attempt to stamp out terror,” and that he “made an informed judgment about terrorist organizations and how to best protect the citizens of Florida.” But without explaining why this matters to overcome the “heavy presumption against [the EO’s] constitutional validity,” such statements are mere ipse dixit.

This Court need not determine whether intermediate scrutiny or strict scrutiny applies in this case because, under either standard, Defendant fails to point to any evidence justifying his indirect censorship of Plaintiff’s speech. Instead, assuming some form of heightened scrutiny applies, Defendant merely pays lip service to heightened review in declaring, in conclusory fashion, that “[t]he EO’s denial of government benefits to entities that materially support designated terrorist organizations is the least restrictive means of achieving,” Defendant’s “compelling interest” in “protection of public health and safety.” But Defendant offers no evidence to show how cutting off benefits to third parties who engage with Plaintiff in any way furthers an interest in protecting public health and safety….

Defendant relies heavily on Holder v. Humanitarian Law Project (2010), to suggest this Court must defer to Defendant’s unilateral decision to name Plaintiff a “terrorist organization.” But Defendant is wrong to suggest that his independent decision to call Plaintiff a “terrorist organization” in an Executive Order is entitled to the same deference afforded to the United States Secretary of State’s designation in Holder. Defendant cites no precedent to support his contention that he has absolute authority to name any individual or entity a terrorist or terrorist organization and direct others to withhold any government benefit from them based on his unilateral decision to designate them as such.

Holder offers no help here either, as the authority to designate a foreign terrorist organization under federal law is subject to procedural safeguards that are absent from Defendant’s decision to name Plaintiff a terrorist organization. Here, Defendant essentially insists on a presumption of regularity as to his designation without the process that accompanies such a designation under federal law.

In short, Defendant has unilaterally declared via executive order that Plaintiff is a terrorist organization, with no substantive explanation of his authority to do so, no legislative involvement, and no mechanism for judicial review. Further, even if this Court looked beyond these glaring distinctions, the Court in Holder explicitly “[did] not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations,” such as Plaintiff….

Bantam Books and Vullo involved allegations of the government threatening prosecution or civil enforcement: Bantam Books involved a threat to bookstores that sold certain books, and Vullo involved alleged threats to financial intermediaries that continued to do business with the NRA. But the threat of withdrawal of government contracts and other benefits based on the viewpoint of the recipient—or of people whom the recipient supports—is likewise presumptively unconstitutional. See, e.g., Speiser v. Randall (1958); Board of County Comm’rs v. Umbehr (1996).

For a similar attempt from a left-wing government entity targeting the NRA and companies that do business with it—though there just requiring disclosure of support by would-be local contractors rather than categorically prohibiting such support by would-be contractors—see this 2019 post and the decision by Judge Stephen Wilson (C.D. Cal.) in NRA v. City of Los Angeles.

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