Short Circuit: A Roundup of Recent Federal Court Decisions

Open fields, tight handcuffs, and mass shootings.

|The Volokh Conspiracy |

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

Next month, the U.S. Supreme Court will consider whether parents of an unarmed, unthreatening Mexican teen who was shot dead from across the border can sue the federal agent who killed their son. The Fifth Circuit ruled that they cannot. Click here to read an IJ amicus brief urging the Supreme Court to reverse. "Had Sergio Hernandez been killed by a federal agent in the 19th century, his parents could have brought a damages claim for the deprivation of their son's constitutional rights," says Anya Bidwell, who co-authored the brief. "The Supreme Court's current jurisprudence that essentially eliminates the ability of individuals to sue federal agents for constitutional rights is simply inconsistent with this proud history."

  • Though facing charges in federal court for false statements and witness tampering, political consultant for Donald Trump's 2016 presidential campaign persists in airing inflammatory comments about the judge, the investigation, and potential witnesses. And we will not disturb the district court's increasingly strict restraints on his Twittering, Instant-Telegrams, and Facebookery, says the D.C. Circuit.
  • Allegation: NYPD officer yanks compliant, unthreatening quinquagenarian arrestee out of her cell, tells her "don't make me hurt you." Frightened, she declines to tell the officer that he put on her handcuffs too tightly, which ultimately results in permanent, debilitating nerve damage. (All charges against the arrestee are later dropped.) Excessive force? Second Circuit: Yes, but qualified immunity. It was not clearly established that an arrestee who shows clear signs of distress but does not verbally inform an officer that handcuffs are too tight is being excessively forced. (Henceforth, it is clearly established, however.)
  • After protests at abortion clinics, Pittsburgh officials adopt an ordinance creating a 15-foot "buffer zone" outside the entrance of any health care facility, in which no one may "congregate, patrol, picket or demonstrate." A First Amendment violation? Third Circuit: Not if we interpret "congregate, patrol, picket or demonstrate" super-duper narrowly, so that it excludes the plaintiffs' peaceful sidewalk counseling.
  • Louisiana abortion clinic and two of its doctors bring a "cumulative-effects challenge" to the state's abortion laws, arguing that, collectively, they pose an undue burden even if individual rules by themselves do not. Fifth Circuit: Maybe you can do that, but in quantifying the cumulative effects, you only get to count provisions that you would have standing to challenge individually.
  • Victoria County, Tex. district attorney rescinds job offer to prosecutor applicant after another man lodges a complaint suggesting he's a "flicking lunatic." The man also files a state bar grievance accusing the applicant of posting on a white nationalist forum and issuing murder threats. The applicant sues the man for defamation and other torts, seeking a cool $100 mil in state court. The man invokes diversity jurisdiction, removes the case to federal court, and seeks to dismiss the claims under Texas' anti-SLAPP statute. Fifth Circuit: Alas, as we decided two months ago, the state anti-SLAPP statute doesn't apply in federal diversity cases.
  • In 1999, Killeen, Tex. teenagers carjack husband and wife at gunpoint, keep the couple in the trunk for hours while they empty the couple's bank account and try to pawn her wedding ring. From the trunk, the couple sings Gospel songs and invites the teens to church, but one of the teens shoots them both in the head, killing the husband but not the wife. She burns alive when they torch the car. Fifth Circuit: A 35-year sentence for one of the teens, who left before the murders, for aiding and abetting the carjacking is not unconstitutionally excessive. (The two teens who committed the murders have been sentenced to death and are awaiting execution. Two others were sentenced to 15 years.)
  • Who is telling the truth about what happened when police arrested a Chicago resident for being a felon in possession? The police, who claim they calmly approached and asked whether the man had a gun, eliciting an immediate confession? Or the felon, who claims the cops ran up to him with guns drawn and patted him down before asking whether he had a gun? Seventh Circuit: We may never know, because the police allowed video of the encounter to be destroyed, but we think it was reasonable for the trial court to believe the police.
  • When the feds place someone on the No Fly List (which bars the person from traveling in, to, or from U.S. airspace), must they provide an adversarial hearing where the person can challenge the allegations and evidence against them? Ninth Circuit: Maybe other plaintiffs can. But after reviewing the classified evidence that these plaintiffs (four U.S. citizens) had ties to terrorist organizations, we think the value of a live hearing is outweighed by national security interests.
  • Affordable Care Act regulations require health insurance to provide free contraception. But some religions view contraception as sinful. So can the Trump administration exempt religious employers from having to pay (via insurance) for employee birth control? Ninth Circuit: Not in 13 plaintiff states. Injunction affirmed. Dissent: There's already a nationwide injunction about this from outside the circuit. So what are we doing here?
  • In which a legal secretary gestures from counsel table to instruct a witness not to answer. Tenth Circuit: Bad move.
  • Sixth-grade girl commits suicide, and Polk County, Fla. deputies suspect her estranged best friend of having harassed her. They enter the friend's home without a warrant and arrest her for stalking. The charge is dismissed. The friend sues the arresting officer. And her claims were rightly dismissed, holds the Eleventh Circuit: The officer had probable cause to arrest, and a jury reasonably found that he entered the friend's home with her father's consent.
  • Allegation: Wildlife officers mount surveillance camera in the middle of plaintiff's hunting and fishing property, which is accessible only by crossing two other private landowners' properties and trespassing onto plaintiff's property. A Fourth Amendment violation? W.D. Tenn: "Plaintiff simply had no reasonable expectation of privacy in his open field property."
  • "If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them." So writes Judge Ho of the Fifth Circuit, dissenting from denial of en banc review of a decision denying qualified immunity to Kaufman County, Tex. but granting it to officers who fatally shot a man under circumstances that remain unclear.

Across the nation, municipal governments are reaping major fines and fees revenue from minor traffic and other code violations. This is taxation by citation, and, according to a new IJ study, cities—and their residents—may pay a price for it. The report, titled The Price of Taxation by Citation, explores the phenomenon and its effects via case studies of three Georgia cities that generated double-digit shares of their revenues through code enforcement. Among other things, the report finds taxation by citation may violate citizens' rights and—not entirely surprisingly—people don't love being treated like ATMs: In all three cities, recent ticket recipients reported lower levels of trust in city government than nonrecipients. In short, what cities may gain in revenue, they may lose in community trust and cooperation. Read the report.

NEXT: No Likes for Facebook’s Tedious Sci-Fi Drama Limetown

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  1. “We may never know, because the police allowed video of the encounter to be destroyed, but we think it was reasonable for the trial court to believe the police.”

    So, spoliation doesn’t apply to the police? No, wait, of course it doesn’t….

    1. Here’s what happened with the video:

      Immediately after Holly’s arrest, Detective Peter Scatena and Officers Byrne and Caulfield reviewed a video from the only nearby camera that captured what transpired. Detective Scatena then called Carlos Mackie, an analyst with the Chicago Housing Authority, to request a copy of the video. When Mackie did not answer, Detective Scatena left a voicemail (consistent with CPD protocol). What Detective Scatena did not know was that Mackie was on military leave and out of the office for an extended period. He never heard back from Mackie, followed up on the voicemail, or sought the video some other way. And because CHA cameras automatically rewrite footage after 15 to 30 days, the video taken near Holly’s arrest was eventually overwritten and thus no longer available.

      That’s not typically what “spoliation” means.

      1. And yet if a company failed to preserve evidence and tried to use that same excuse, it most definitely would be called spoliation.

        1. If you can find some authority holding that party’s failure to collect evidence is spoliation, I’d be fascinated to read it.

      2. It really should be established that in any case where police had CUSTODY of video evidence, and it is somehow unavailable at trial, the presumption must be that the police version of events is a lie. That said, this seems to be a case of the police viewing evidence but never having custody.

        1. “It really should be established that in any case where police had CUSTODY of video evidence, and it is somehow unavailable at trial, the presumption must be that the police version of events is a lie. ”

          When you have to ascribe an outcome to either malice or incompetence, incompetence is nearly always correct. Show some actual evidence of malice if you want to convince somebody of malice, no matter how “convenient” the mistake is.

          1. I’n not assuming malice. I’m establishing incentives for proper handling of evidence.

      3. No, I’m sorry, that WOULD fall under “spoliation” in the private sector. It absolutely would.

        1. “that WOULD fall under ‘spoliation’ in the private sector.”

          In what possible way?

        2. Can you give me an example of a case so holding?

  2. A foreign citizen on foreign territory has no US “constitutional rights” so he should not be able to sue.

    1. The tort occurred within the US, so the US has jurisdiction, and thus the Constitution applies. In their wisdom, the Founders didn’t limit the protections of the Constitution to only citizens.

      So his parents should be able to sue.

      1. “shot dead from across the border”

        He was in Mexico. So his parents, who should have kept him away from the border in the first place, shouldn’t get US taxpayer dollars.

        1. So let me get this straight, Bob. If you are visiting, say El Paso, Texas, and you get shot in the back by a Mexican federale on the other side of the Rio Grande in Ciudad Juarez who just decided to do some target practice or something, you would say that your next of kin shouldn’t be able to sue the federale and that it was your fault for being near the border.

          I mean, do you set out every day to convince people that you are an even bigger racist douchebag than we already think you are? You apparently really want to make sure nothing gets in the way of the power of federal officers to murder innocent Mexicans.

          If you had been up there on that tower with the Ralph Fiennes character in Schindler’s List, I have no doubt you would have shot Jews with him.

          1. No arguments, just insults.

            1. Actually, there’s an argument in there. (My question as to whether the same rule applies to a similar situation that happened to you was an argument.)

              But your position is deserving of insult. You are advocating the simple murder of Mexicans who have the temerity to be in a place they have every right to be in.

              1. Try using 3rd grade level language.

                That seems to help Bob understand.

              2. He was literally playing a game involving repeatedly crossing the border and then running back, in the middle of a violent riot on the border.

                Ideally he wouldn’t have been shot. Ideally I wouldn’t get mugged if I walked my white ass down a dark alleyway in Detroit flashing $100 bills, and stumbled across a fight between the police and the Crips.

                We’re not “advocating” his murder, we’re advocating that his parents show even a tiny, tiny increment of awareness of their contribution to what happened. He shouldn’t have been shot because he shouldn’t have been there.

                1. There was no violent riot, Brett.

                  There was a group of smugglers some distance away throwing rocks.

                  The kid was standing sixty feet away. He and his friend were clearly playing, and not trying to enter the US. They would run up and touch a barbed wire fence that was at the US side of the culvert.

                  For a libertarian you are oddly supportive of government agents shooting foreigners, at least Hispanic foreigners.

                  1. “There was no violent riot, Brett.

                    There was a group of smugglers some distance away throwing rocks.”

                    You contradict yourself in the space of two sentences, and can’t even see it.

                  2. For a libertarian you are oddly supportive of government agents shooting foreigners, at least Hispanic foreigners.

                    Since when has Brett ever been a libertarian?

                    1. Since I founded a college chapter of the LP back in 1978, and was an activist in the party until the mid 90’s.

                      Did you miss the part where I said that ideally he wouldn’t have been shot? Maybe you missed the part where I said, “Am I happy that it wasn’t reviewed by the courts? No, not really. ”

                      I think what we have here is an unfortunate accident. But I think the parents are avoiding acknowledging the extent to which they’re responsible for the accident. That kid never should have been playing border chicken at a violent riot. If he hadn’t been, he wouldn’t have been shot.

                2. “Ideally he wouldn’t have been shot. ”

                  Similarly, ideally, you wouldn’t be such an anti-social, stale-thinking bigot.

                  But then you wouldn’t be part of the Volokh Conspiracy’s target audience.

                  Life is complex.

          2. If you had been up there on that tower with the Ralph Fiennes character in Schindler’s List, I have no doubt you would have shot Jews with him.

            Tolerant and inclusive progressive alert!

            1. Yeah, harsh language for the guy arguing against treating foreigners like human beings.

            2. That’s unfair. I think Bob would not have murdered the Jews unless they were touching a fence or otherwise going where they were not supposed to.

              Or unless they were walking around.

              Or unless they were breathing.

        2. Why shouldn’t US officials be held accountable in US courts regardless where their actions occur or where the results of the actions are?

          Are you saying US officials have immunity once their actions/results are outside the US border?

          If so, then I guess you’ll agree another country’s officials can kill US citizens here with immunity too.

          1. Following the links, and reading the documents, I find that his conduct was reviewed, and it was concluded that he did nothing wrong to be held accountable for.

            Am I happy that it wasn’t reviewed by the courts? No, not really. OTOH, the account above kind of elides the context, doesn’t it? Which was a violent riot on the border, with people throwing stones at the border agents.

            Throwing stones isn’t a harmless activity, you can kill people doing that. So, it actually was a context that permitted lethal response. Ok, it happened to, probably, the wrong person. That happens.

            My chief reaction is, what kind of parents let their kid play in the middle of a violent riot? Were they participating in the riot at the time?

            1. reading the documents, I find that his conduct was reviewed, and it was concluded that he did nothing wrong to be held accountable for.

              Read more carefully.

              With regard to the federal homicide statutes, the team of prosecutors and agents concluded that there is insufficient evidence to pursue prosecution of the CBP agent for a federal homicide offense.

              “insufficient evidence” does not mean innocence.

            2. ” with people throwing stones at the border agents. ”

              According to Bob, the border agents’ parents shouldn’t have let them get close enough to the border to be hit by stones thrown from the Mexican side.

            3. Brett…you will never get a direct answer to: My chief reaction is, what kind of parents let their kid play in the middle of a violent riot? Were they participating in the riot at the time?

              I will answer you. A bad parent, and it is moot.

        3. ” who should have kept him away from the border in the first place”

          lolwut? Why should Mexican parents keep their children away from the border? Are they not free to move about their own country as they see fit?

      2. No, that’s not the law or the basis. As Roe v. Wade acknowledged, fetuses traditionally could sue for injuries to them at common law and still could in many states as of the time it was decided. Similarly, the Constitution explicitly confers Jurisdiction over cases and controversies involving “citizens of other states.” Roe v. Wade held that standing to sue isn’t evidence that the constitution confers due process or other general constitutional rights on fetuses,

        Similarly, standing to sue (if Congress so wishes) isn’t evidence the constitution confers due process or other general rights on extraterritorial aliens.

    2. It’s been well understood that when a crime is started in one jurisdiction and carried over into another jurisdiction BOTH jurisdictions have jurisdiction. Where the ultimate injury occurs is not all that matters.

      1. Criminal jurisdiction is not the same as a Constutional right.

        1. Show me where it says only citizens having constitutional rights for acts that occur on US soil

          1. It did not occur on US soil, he was in Mexico, no US rights attached to him.

            1. Is soil the limiting principle or citizenship?

              Is there a due process claim if the person shot was actually a citizen? What about a permanent US resident?

              What if US officials acting on government authority decided to kill a US permanent resident while he was in another country? No due process claim?

            2. The act occurred on US soil, hence my post before about multiple jurisdictions having jurisdiction.

              Your claim that only location of injury matters is neither in the Constitution nor in accordance with common law rules of jurisdiction.

            3. A US government employee performed on action not permitted to government employee. The action was done on US soil, even if the damage was not, and it’s besides the point anyway since the laws governing aren’t limited to US soil.

            4. “It did not occur on US soil”

              If you’re claiming that a US federal agent crossed over into Mexico to shoot a Mexican citizen, therefore the family isn’t entitled to any relief, I’m going to laugh at you.

        2. By their text, our rights are negative rights (Shall make no law) and are not limited in their application.

          Under what argument do you argue otherwise?

  3. Here’s more on Judge Ho, another one of those wondrous Trump appointees.

    1. “He previously worked at the Department of Justice, where he authored a memo that defended the legality of torture. Ho then clerked for Supreme Court Justice Clarence Thomas and worked as chief counsel to Republican Sen. John Cornyn of Texas. He also served as Texas solicitor general and later volunteered with First Liberty, a law firm that … defend religious freedom”

      Sounds great.

      [Quote edited to remove Slate’s unsupported editorial comment.]

      1. Do you support is argument in this case? A blanket prohibition on liability for police officers?

        1. “Do you support is argument in this case? ”

          Haven’t read it, don’t care, its a dissent in a denial of an en banc review, not worth reading.

          Would not matter as to his general fitness even if I disagreed with it. Even Clarence Thomas the Great has occasionally made bad arguments.

    2. seems like a good judge. Who do you expect to convince here with sanctimonious, smarmy Slate writers?

      1. OK Max.

        if you like his decisions and support of torture, and claim that police officers should be exempt from misconduct suits then I’m sure he does seem like a good judge to you.

        That’s your error, not mine.

        1. “Police officers should be exempt from misconduct suits” I havent read dissent so Im not sure if this is the position he is advocating. If it is then Id disagree.

          But even in that case, a Judge staking out a few bizarre legal positions isnt sufficient to tarnish their whole career and philosophy.

          Justices Ginsburg and Sotomayor, for example, dont seem to think the commerce clause poses any discernible limits on congressional actions. Nevertheless I generally think they are good Justices and fine legal minds.

          In re torture the constitutionality is debatable and their may be very narrow circumstances where its justified.

          1. You seem cranky, Max H. Losing the culture war to better people getting you down?

          2. “In re torture the constitutionality is debatable”

            Only to someone who stopped reading after 7 amendments.

    3. It must really bother you that POTUS Trump is getting his judicial nominees through.

      There are ~180 Appellate Court judges. POTUS Trump will have appointed roughly 1/3rd (he stands at 43 now, with 8 more in the pipeline) of them by January 2021. This is the most since FDR. There are ~860 District Court judges. POTUS Trump will have appointed north of 20% of them by January 2021. The impact of this will be felt long beyond POTUS Trump’s departure from the Oval Office. For this alone, POTUS Trump will have had a very consequential presidency.

      I know, I know…Orange Man Bad. Bet that really pisses you off, bernard.

  4. “plaintiffs’ peaceful sidewalk counseling”

    I accept the First Amendment holding of that case, because yes, people who don’t block ingress and egress have free speech rights on public sidewalks.

    But…

    What is referred to as “peaceful sidewalk counseling” is neither peaceful or counseling. This description goes 1 for 3- its on a sidewalk.

    Counseling is a voluntary relationship between a therapist or advisor and a patient or client. Spewing pro-life propaganda at a person who has decided to make a medical appointment (which may or not be for an abortion) is not “counseling”. There is no consent, no role as a therapist, and no professional advice going on here.

    Nor is it “peaceful”. “Peaceful” would be if our “counselors” set up a table in front of the clinic with a sign that says “talk to me if you would like to hear about other options”. No. These self-righteous, self-important, religiously intolerant ghouls accost people who they assume are having an abortion and try to interfere in the most personal decisions through that time honored tactic of yelling at strangers. It’s not “peaceful” at all.

    1. “ghouls”

      Said by someone who supports the murder of unborn children.

      “self-righteous, self-important, religiously intolerant ”

      Physician, heal thyself.

      1. In the same thread in which you support the murder of innocent Mexicans.

        1. It doesn’t matter if he’s innocent. He can sue in a Mexican court. He can’t sue in a U.S. court.

          1. How is he supposed to get an enforceable judgment against a US government officer in a Mexican court?

            1. Foreign judgments can be enforced in the US.

              US taxpayers should not pay for it. He was in a foreign country, US constitutional rights just don’t apply no matter how many Nazi ad hominems you use.

              1. What’s your authority for the claim that a foreign judgment, against a US officer with Westfall Act immunity, will be enforced in the United States?

                1. He didn’t say it would. He said the person could try to get it enforced in the U.S. Or he could try to get U.S. assets seized in Mexico. That’s what Americans have to do all over the world when we’re harmed by people in foreign countries (or by agents of foreign countries). We don’t get to sue in their courts, and there’s no reason we should accord others those protections in our courts.

          2. ” He can sue in a Mexican court. He can’t sue in a U.S. court.”

            He can’t sue anywhere, in as much as he’s dead, which tends to limit voluntary actions of all kinds, not limited to filing papers with the clerk of the court’s office.

        2. And to make a more substantive comment- the worst thing about the abortion debate, and this is true on both sides, is that nobody wants to admit its a debate. In other words, you don’t get to call your opponents a bunch of mass murderers, because there is a respectable intellectual position, held by more people than hold your position, that abortion is not murder and that fetal rights are outweighed by women’s rights.

          The reason that pro-life protesters are ghouls is because they don’t respect that the women who are making choices they disapprove of disagree with them. And particularly, because they don’t accept the notion that people who don’t believe in their religious beliefs aren’t required to agree with them about the supposed immorality of abortion.

          Now I am not ruling off pro-life advocacy here. The March for Life is entirely consistent with democratic debate in a free society. So are pro-life lawyers arguing for the courts to limit or overturn Roe.

          But sidewalk counseling isn’t that. It’s just being a dickwad toward strangers, ordinary people who did not volunteer for a political debate and whose medical decisions are none of your business.

          1. “you don’t get to call your opponents a bunch of mass murderers”

            Sure I can. It doesn’t matter if it is held by more people. Morality is not a majority vote.

            Nor do I agree it is “respectable”.

            1. Bob, I don’t like that the US government fights various overseas wars in which we kill foreigners. I have the same sort of moral objection you claim to have with respect to abortion.

              Nonetheless, I don’t have the right to go over to military facilities and try to convince members of the military not to follow orders and kill foreigners. I can certainly protest, go to a march in Washington D.C., or whatever. But the belief that a government policy permits murder is not a Hall Pass to impose your views on people who don’t agree with you.

              The fact of the matter is that pro-life movement, despite its moral dudgeon, includes a whole bunch of people who are evil- and if the God they believed in actually existed and was actually just, they would be punished for it. In a pluralistic society, it would be wrong for me to break up conservative Christian religious meetings just because I think they teach hatred of gay people, and it is wrong to accost women on sidewalks just because you don’t agree with the choices they have made in their personal life or the course of medical treatment they sought out.

              This is about the ego of pro-lifers, not their commitment to life. It’s about the self-righteous belief that you can force everyone who disagrees with you to bend to your will, rather than participating in democracy like the rest of them.

              1. “whole bunch of people who are evil”

                Better than the entirety of the pro-abortion movement.

                1. The entirety of the pro-choice movement cares about women’s rights and gender equality, Bob.

                  Abortion is a clash of values. I understand why pro-lifers value fetal life. I do. I can definitely argue, for instance, that restrictions on late term abortions of fetuses that may be viable outside the womb are justified. (Interestingly, Roe expressly recognizes the state interest in protecting fetal life.)

                  But too many pro-lifers pretend that the reasons why people support abortion rights are not compelling. And the reasons they do this are not really reflective of good character traits. Dismissing women’s rights is not something an enlightened person does. Nor is assuming that women should be punished with pregnancy and/or babies because they have sex, or that it’s no big deal when a woman is forced out of school or the workplace because of a pregnancy.

                  And, of course, imposing religious beliefs on people who reject your God is truly one of the most evil things that humans do.

                  I’m not asking you to become pro-choice. But I am asking you to understand that people who disagree with you about a hotly debated issue are not evil and are not murderers. They are people who think there are weighty competing interests.

                  1. What evidence is there that the pro choice side cares about gender equality? Has there ever been a significant movement to allow prospective fathers to abort their unwanted children?

                    Carrying an embryo to term is a short term constraint on liberty, while child support is a much longer constraint on liberty (and I would argue, a larger one too, as the 18 year costs of child support are higher than the cost of a surrogate mother to carry a child to term).

                    Also curious why you brought religion into this, I didn’t see that anyone else argued that their god condemned abortion, but you seem to assume that the only reason to oppose abortion is a religious one (apologies if I missed the context, I’ve already taken my meds for the night, which is by best excuse for missing it).

                    Libertarians tend to split on this topic, since a woman effectively contracts with an embryo to carry it to term by engaging in unprotected intercourse, yielding her otherwise inviolable right to evict trespassers in her body (this line of reasoning necessarily means abortions in cases of rape or failed birth control are ok), just like a man contracts with a fetus to support them through childhood under the same circumstances.

                    1. “a woman effectively contracts with an embryo to carry it to term by engaging in unprotected intercourse”

                      Minors can’t contract, so there can be no legal penalty for breaking this “contract”.

                    2. Minors can’t contract, so there can be no legal penalty for breaking this “contract”.

                      That is both wrong as a descriptive matter and a misunderstanding of what you are responding to.

                2. ” the entirety of the pro-abortion movement.”

                  The entirety of the pro-abortion movement is approximately 0 people.

                  You can try that argument again when you find some people supporting laws for mandatory abortions for people who don’t want them.

                  1. Well, another person who doesn’t really believe in human diversity chimes in.

              2. “I don’t have the right to go over to military facilities and try to convince members of the military not to follow orders and kill foreigners.”
                Maybe not, but you certainly have the right to yell “baby killers” at men in uniform if you see them in a public place. Do you seriously claim that the law is otherwise? Why do you think we are so stupid that we would believe that?

                1. “Maybe not, but you certainly have the right to yell “baby killers” at men in uniform if you see them in a public place. Do you seriously claim that the law is otherwise?”

                  Accusing people of crimes they haven’t committed is defamation per se.

                  1. James Pollock’s legal analysis is shoddy per se.

              3. You do, in fact, have the right to go to military facilities and try to convince servicemen to reject their oaths.

                What you don’t have is the right to enter those facilities to make that case, just as abortion proponents are free to interdict women about to enter a “crisis pregnancy center” or an abortion opponent can do the opposite in front of an abortion clinic.

            2. “you don’t get to call your opponents a bunch of mass murderers”

              Sure I can.

              Moral objections to murder from the guy who was arguing that after WWII the US should have nuked the Soviet Union because “that’ll teach ’em.”

            3. “Sure I can.”

              I’m pretty sure that defamation is still a tort, and that accusing people of committing a crime they didn’t commit is still defamation.

          2. The reason that pro-life protesters are ghouls is because they don’t respect that the women who are making choices they disapprove of disagree with them. And particularly, because they don’t accept the notion that people who don’t believe in their religious beliefs aren’t required to agree with them about the supposed immorality of abortion.

            Abolitionists did not respect that the people who were making choices that the abolitionists disapproved of disagreed with them. Did that make them “ghouls”?

            Were abolitionists required to accept the notion that slaveholders weren’t required to agree with them?

    2. So what? There are often protesters yelling things on the street, some of which injure your feelings. (Or at least, there are often protesters yelling things on the streets of NYC, some of which would injure my feelings if people yelling things on the street were capable of affecting me emotionally.) As long as they don’t physically impede you, you have to suck it up. That’s the price of urban living in a free society.

    3. You having two wrong definitions is the problem. It’s “peaceful” in that it isn’t disturbing the peace and “counseling” in that they are giving their opinions on a prospective action. No requirement of being pacific or in a counselor-patient relationship, which are both different definitions than they are using.

    4. I believe abortion should be broadly legal, but I fell I have to bring you up short here;

      “These self-righteous, self-important, religiously intolerant ghouls ”

      Anti-Abortion protesters believe that abortion is child-murder. I think they are wrong, but I don’t think I can prove it, and have never heard or read an argument that I thought was conclusive (either way). Given that they believe that abortion is murder, just how ‘tolerant’ are they supposed to be?

      And please don’t resort to the ‘They only want to control women’s bodies’ argument. That’s a dodge. It may be true, but neither you nor I know what they think. We know what they have said they think.

      1. They don’t believe that it’s child murder, despite their arguments. Because they don’t want to treat the mother like a murderer.

        They sincerely believe abortion is gravely immoral, but they don’t believe it’s murder. It’s just good branding and helps their outrage engines.

        1. “Because they don’t want to treat the mother like a murderer.”

          Speaking as a pro-lifer, we absolutely do want to treat the mother like a murderer. But we don’t want millions to die just to feel righteous about our consistency, so we moderate our opinions in the political debate, to improve our chances of winning the argument and saving lives.

          But if we win the political argument, and the courts eventually permit our winning that to matter, (Because outside of a few extremely left-wing states, we DO win the political argument.) at some point a woman who contracts with a hit man to have her child murdered will, properly, be treated as a murderer.

          1. So they are lying when they say they don’t want to treat women who have abortions as murderers.

            1. They’re not lying. They don’t want to treat women who have abortions as murderers… yet.

          2. Oof, this comment did no favors for the Pro Life movement.

            we moderate our opinions in the political debate
            Except for the opinion about abortion being murder, which you don’t moderate.

            And by moderate, you mean lie about.

            1. Ok, since you seem utterly determined to paint abortion opponents as evil rather than wrong, let me ask you this;

              If you KNEW that a government approved service was killing hundreds of thousands of children, what line would you NOT cross to put a stop to it? Keep in mind; you aren’t primarily interested in scoring political points, and while you may consider those adults involved to be murderers, it is MUCH less important to punish them than it is to save the children.

              Would you lie, cheat, steal, scream in peoples’ faces? And if not, how do you look at yourself in the mirror?

              1. “If you KNEW that a government approved service was killing hundreds of thousands of children, what line would you NOT cross to put a stop to it?”

                The problem with this hypothetical falls when what you KNOW turns out to not be true.
                When you just KNOW that children are being abused in the basement of a pizza restaurant, and other people keep trying to tell you that the pizza restaurant in question doesn’t even HAVE a basement, shouldn’t you feel foolish over all the fuss you made trying to “protect the children”?

              2. I did not paint them as evil. I know this, because I did not say they are evil.

                Brett’s comment contains some unfortunate implications, but not ones I agree with. Similarly, your post which would seem to argue for killing abortion doctors and bombing clinics, isn’t actually outlining the beliefs of the movement.

                I think they believe abortion is very bad, and causes a death, and ‘abortion is murder’ captures their feelings, but not their actual thinking.

                1. No, it captures both our feelings, AND our actual thinking.

                  Suppose, hypothetically, there was an ongoing genocide in a neighboring country. Millions being slaughtered every year, year after year after year. And suppose it really looked like the only even vaguely plausible route to end it involved an amnesty for all concerned. All those murderers, killers with death tolls that make Dahlmer look like a saint, would have to go free, to stop it.

                  Would you sign on to the amnesty? Or is rejecting it more important to you than saving lives going forward?

                  That’s how we view the situation. God can handle the vengeance end of things in his own time, our job is stopping the genocide, and if the perpetrators of it must go free to stop it, so be it.

                  1. You are not the be-all-end-all of the movement. I’ve talked to plenty of people who don’t agree with your take.

                    The idea that everyone is lying in order to get to a viable political place is made ridiculous by the constant use of the ‘abortion is murder’ rhetoric.

            2. Brett is so influential in the national abortion debate that his opinion can impact the entire Pro Life movement?
              Wow, we’ve got some real celebrities here.

              Of course, there may be some confusion in this thread over the term “murder”. Legal abortions can’t be murder, because they are currently lawful. They are, however, undisputably homicides – the killing of a human being.

              If the Pro Life movement succeeded in getting abortion banned or severely restricted, then those newly unlawful killings would be murders. And the mother and doctor that committed them should be treated as murderers – same as anyone else that commits an unlawful killing.

              1. “They are, however, undisputably homicides – the killing of a human being.”

                Don’t overstate your position.
                They are the killing of a potential human being.
                They are human cells… but so are melanomas.

                1. The science of biology defines a fetus as a living member of the species. Are you denying science?

                  Remember: You are currently nothing by cells. Are you saying that something that is just human cells can be killed without legal consequence?
                  Personally, I’d think that’s shortsighted and literally self-defeating, but hey…

                  1. Personhood is not a science question. Those on either side that claim science is on their side are attempting to rationalize their morality, which is never a good road to go down.

                    It’s the original ‘facts don’t care about your feelings’ flavor.

                    1. I never said anything about “personhood”. I described a living human.
                      That’s basic science.

                      You trying to shift it to “personhood” is the attempt to change to subject.

                    2. Semantics. The question is about rights, and thus personhood.

                      Stop abusing science.

                    3. Stop denying science and changing the subject.

                      You want there to be legalized killing of humans.
                      That’s fine – I do, too. There are all sorts of circumstances where that is appropriate. Self-defense, war, government executions… or abortion.

                      What you are trying to do is, as you admit, play semantic games to pretend otherwise. If you want it to be legal to kill humans when they are fetuses, then at least have the moral fortitude to admit it.

                      Undefinable and vague terms like “personhood” are no different than “ensouled” or other religious terms. They are a cowards way out of actually making an argument.

                    4. I’m not playing semantic games – you are.

                      This is a philosophical question. That’s not semantics, it’s the fundamental Constitutional and moral question. It’s the parlance not only in the Roe & progeny discussion, but other such discussions, from corporate personhood, to black personhood, etc.

                      I don’t think the Supreme Court are being cowards, I think they’re recognizing this isn’t a question where pointing out ‘human, + living’ solves the issue. You may insist that it does, but for you to claim it’s a solved scientific question, and then explain to me what my thinking is, isn’t about reason.

                    5. Calling it a “philosophical question” and therefore fine to use undefinable terms as laws is bullshit.
                      It is the exact same argument as those that claim abortion should be banned because fetuses have souls.

                      Laws that cannot be objective in any manner but try to splice objective limits into them are bullshit. Roe’s so-called logic there was bullshit; a desperate grab for an anchor upon which to hang a prejudged outcome. The same logic is not applied anywhere else, not even in abortion law – just for the purposes of that one limit.

                      Science at least has the advantage of being objective, observable, and repeatable.

                      Of course, you’ve now changed to topic from me responding to Pollock denying that a fetus was a living human – which is what you replied to.

              2. Thanks, Toranth.

                You confirm Brett’s point – that as soon as Roe is overturned women who have abortions will be prosecuted as murderers, if the “pro-life” movement has its way.

                1. It makes no point either way.
                  If the killing is unlawful, it is murder because it is defined that way.
                  If the killing is lawful, it is not murder because it is defined that way.

                  Trying to draw moral conclusions or predict the future from basic definitions like that is meaningless.

                  1. That’s not how the law works. It’s not some beast driven by semantics; we make it what we want.

          3. “Speaking as a pro-lifer, we absolutely do want to treat the mother like a murderer. But we don’t want millions to die just to feel righteous about our consistency, so we moderate our opinions in the political debate, to improve our chances of winning the argument and saving lives.”

            Too many of your cohort also oppose contraception, which would reduce the number of unwanted pregnancies, which would reduce the number of abortions. One need look no further than the efforts to defund Planned Parenthood, which would have the effect of increasing the number of abortions.

            1. Republicans tried to make over the counter contraceptive pills, like Plan B, legal in the US.
              It was the Democrats in the House that blocked it.

              There is a faction in the Republican party that try to block contraceptives, yes. There’s also a faction in the Democrats that blocks it… and not for moral reasons, but pure profit motive.

    5. You are being silly about the word “counseling,” which is not restricted to formal therapy by a licensed professional. I counseled my daughter not to quit soccer, and my neighbor on which housing contractor to use.

      And you are painting with too broad a brush with respect to the word “peaceful.” There are some anti-abortion protesters who go and scream at women as they walk down the sidewalk towards the clinic. There are others who are no more violent than a panhandler; they walk alongside the person and try to convince them to change their minds. (Not sure what about either one is “religiously intolerant,” though.)

  5. Louisiana abortion clinic and two of its doctors bring a “cumulative-effects challenge” to the state’s abortion laws, arguing that, collectively, they pose an undue burden even if individual rules by themselves do not. Fifth Circuit: Maybe you can do that, but in quantifying the cumulative effects, you only get to count provisions that you would have standing to challenge individually.

    So a person denied abortion access could sue, but not the doctor or clinic? But gun rights imply right to sell or it is meaningless. Wouldn’t a doctor denied that right to provide similarly have a claim against all?

  6. “When the feds place someone on the No Fly List (which bars the person from traveling in, to, or from U.S. airspace), must they provide an adversarial hearing where the person can challenge the allegations and evidence against them? Ninth Circuit: Maybe other plaintiffs can. But after reviewing the classified evidence that these plaintiffs (four U.S. citizens) had ties to terrorist organizations, we think the value of a live hearing is outweighed by national security interests.”

    Seriously?

  7. “Allegation: NYPD officer yanks compliant, unthreatening quinquagenarian arrestee out of her cell, tells her “don’t make me hurt you.” Frightened, she declines to tell the officer that he put on her handcuffs too tightly, which ultimately results in permanent, debilitating nerve damage. (All charges against the arrestee are later dropped.) Excessive force? Second Circuit: Yes, but qualified immunity. It was not clearly established that an arrestee who shows clear signs of distress but does not verbally inform an officer that handcuffs are too tight is being excessively forced. (Henceforth, it is clearly established, however.)”

    Ahh, yes, someone can scream in pain but if they don’t tell you they’re in pain, it’s not “clearly established.” Got it.

    1. Not only do I agree with you here, I’ll point out a further absurdity.

      It was not clearly established that an arrestee who shows clear signs of distress but does not verbally inform an officer that handcuffs are too tight is being excessively forced. (Henceforth, it is clearly established, however.)

      Who in their right mind thinks that police all over the country are getting the news that “an arrestee who shows clear signs of distress but does not verbally inform an officer that handcuffs are too tight is being excessively forced” and going, “Oh gee, now we know?”

      Anyone who didn’t have the brains to figure that out before isn’t going to understand it now. Which is (yet one more) fallacy in the whole QI discussion.

      1. This kind of crap is so absurd it makes me wonder whether the judges are daring the Supreme Court to do something about it.

      2. “Who in their right mind thinks that police all over the country are getting the news that “an arrestee who shows clear signs of distress but does not verbally inform an officer that handcuffs are too tight is being excessively forced” and going, “Oh gee, now we know?”

        Anyone who didn’t have the brains to figure that out before isn’t going to understand it now.”

        Cops get training. In some of that training, they’re taught what they can do, and what they can’t do. They’re also taught when they’re allowed to use judgment, and when they aren’t. When they aren’t, they really aren’t. (For example, some states have “must arrest” laws about domestic violence.)

        It takes some time to cycle all of the law officers through the training, but it’s an ongoing process. Now, back up. People who want to be cops, or at least think they do, can go earn a degree is criminal justice, which includes a whole bunch of these rules about when they’re allowed to proceed without a warrant, and when they’re expected to stop and wait for one, and what things trigger other Constitutional protections. So a would-be cop gets a bunch of this stuff chewed up and presented to them, ready to digest. When a new ruling comes down, it takes time to change habits, including habitual thinking.
        The Prosecutors put on training for law enforcement agencies they work with, explaining the changes that have arisien from court rulings, and the management of the agencies make sure all the people who serve under them get trained.
        Finally, there may or may not be a certifying agency that certifies officers for law-enforcement, and they will also be checking to make sure the officers it certifies are current on their court-ruling knowledge.

  8. That Judge Ho dissent was absolutely bonkers.

    “No member of this court has stared down a fleeing felon on the interstate or confronted a mentally disturbed teenager who is brandishing a loaded gun near his school. . . . [We have] no basis for sneering at cops on the beat from the safety of our chambers.”

    I’ll pretend that his reference to fleeing felons is a reference to the specific case and not an endorsement of the concept that police have a split second to decide whether to shoot someone fleeing from them generally, although I suspect that it not actually the case.

    But his position on “sneering at police from the comfort of chambers” is really a rejection of the concept of judging itself.

    Judges (and juries) routinely deliberate on the appropriateness of split-second decisions they have never made or never will make in all sorts of areas. We ask courts to determine:

    Whether a split second decision by a surgeon is malpractice.

    Whether a driver’s split second decision that resulted in an accident is negligence.

    I suspect Judge Ho would not give a second thought to the concept of judging these categorically, even if he might lean one way or the other. And he definitely would not say the court is not competent to determine the mens rea of an ordinary criminal defendant for a split second decision they made in an assault or homicide. He wouldn’t give that a second thought.

    It is ridiculous to single out this area for special deference because you’re safe in chambers and not on the beat, but not extend the logic to anything else that a judge would never face, no matter the timing.

    Are we going to here Judge Ho lament that judges are sneering from chambers at engineers and scientists in a lab in a products liability case?

    The very nature of judging is that we ask a detached person or persons to evaluate a situation with the full benefit of hindsight. While the lack of expertise or the nature of the situation being judged may call for deference to certain parties in a case, it does not require a judge to categorically deny competence. And to only do it for the police is ridiculous and an abdication of the job that society has asked him to do.

    1. “That Judge Ho dissent was absolutely bonkers.”

      Yes, but unremarkable from a “law and order” conservative.

      This is how you get stomped in the culture war. And deserve it. And are destined to have it continue.

      Carry on, clingers. But, for your own good, open wider.

    2. ““No member of this court has stared down a fleeing felon on the interstate or confronted a mentally disturbed teenager who is brandishing a loaded gun near his school. . . . [We have] no basis for sneering at cops on the beat from the safety of our chambers.””

      No member of that court has ever responded to a coding patient who needs a split-second decision about how to proceed, either. So much for malpractice law.

  9. Bullet six is horrific tragedy.
    Bullet five both deserve each other.

  10. “Plaintiff simply had no reasonable expectation of privacy – – – – – ”

    No need to qualify that by location, or anything else. The cops go where they will, take what they want, beat who they choose, and kill without recourse.

    Welcome to the revolution.

    1. Flip it around: would one reasonably expect that there could be a government-planted hidden camera out in the middle of one’s private property? I suppose we have to expect it now, but it is a preposterous state of affairs.

      1. ” would one reasonably expect that there could be a government-planted hidden camera out in the middle of one’s private property?”

        There could be one in the helicopter flying over one’s private property.

        But seriously, people who own land don’t own the wildlife passing across it. So choosing to use land for hunting wildlife implies agreeing to follow wildlife hunting law, including inspection of the kill(s).

    2. Not even cops in this case. I know border agents essentially have free roam within 25 miles of the border (and more if they “don’t realize they’re further”), so it’s not even new, sadly enough.

      1. 25? Last I heard it was 200. Did I miss a court ruling restricting it?

        1. The actual law from 1952 gives 25 miles. They gave themselves 200 miles.

          1. Eventually they’re going to realize that every international airport is a border zone, and that will fill in a lot of the interior parts of the country, at least east of the Mississippi River. International airports are more than 200 miles apart in the Great Plains.

  11. Across the nation, municipal governments are reaping major fines and fees revenue from minor traffic and other code violations. This is taxation by citation

    If you allow that government can only acquire money three ways — donation, taxation, and criminal penalty (we will ignore spoils of war and treaties for the moment) then all fees become taxes legally, which conceptually they are. Clearly court fees piled on crime are thus either criminal penalty or tax, and must be justified as such, so no weasel words can squeak through.

  12. “Next month, the U.S. Supreme Court will consider whether parents of an unarmed, unthreatening Mexican teen who was shot dead from across the border can sue the federal agent who killed their son.”

    Is this a direct challenge that seeks to reverse the doctrine of qualified immunity?

    1. “Is this a direct challenge that seeks to reverse the doctrine of qualified immunity?”

      No, wrong kind of immunity. The question there is whether they can sue the sovereign.

      1. No, it’s not. It’s very clear that they cannot sue the sovereign, which is why they sued the Border Patrol officer personally.

      2. No, it’s not. It’s very clear that they cannot sue the sovereign, which is why they sued the Border Patrol officer personally.

        If the plaintiffs win in the Supreme Court, they will still have to overcome the qualified immunity defense.

  13. The fundamental basis for Roe v. Wade was that the word “person” in the bill of rights in the constitution lacks “prenatal application.” In so holding, the Roe Court applied the same standard that it had used earlier, in Johnson v. Eisentrager, to hold that the Constitution lacks “Extraterritorial application.” In both cases, the Supreme Court looked through every use of the word “person” in the constitution and concluded that in no use was the word applied extraterritorially or prenatally, respective. It concluded, in each case, that the extraterritorial and the prenatal lack constitutional rights.

    The current lawsuit is a frontal assault on the Eisentrager-Roe doctrine, the basis of the Court’s repeated claims that its Fundamental abortion holding is rooted in, indeed compelled by, the constitution’s text neutrally construed, and not simply something the justices made up on their own. This is the basis of the claim that whatever adjustments should be made at the edges, Roe’s fundamental holding should not be reconsidered.

    constitutionally, under Roe, the death of an extraterritorial alien is no different from the death of a viable fetus, a tragedy but perhaps a sometimes bears dart one, something legislatures can forbid if they want, but the constitution itself simply does not.

    There is simply no way to square a claim that the Eisentrager decision, holding that the bill oof rights lacks ectraterritorial application, was fundamentally wrongly decided or has been superseded by more recent precedent, without the same argument having equal application to Roe and its progeny. Same doctrine, same argument, same consequences.

    1. And mark my words. If the Supreme Court decides to reverse Roe, it will use this case for so doing. It could easily retain the doctrine, and yet overturn a second element of Roe – that lack of applicability of the term “person” means that moral considerations are not a sufficiently important basis for legislatures to enact laws to protect. After all, few believe that foreigners are “really” just pieces of meat, or that applying words like “baby” or “child” when is mere sentimalization, or a mere religious doctrine affronting the Establishment Clause. Nor do people claim that the “real” reason people claim to have an interest in the lives of foreigners is because they hate Americans and want to deny them freedom of choice.

      Oh wait, there are people who do say that…

    2. “It concluded, in each case, that the extraterritorial and the prenatal lack constitutional rights.”

      No, they didn’t, because the fetus wasn’t suing anybody. Not being a party to the lawsuit, the fetus’ rights weren’t being explored. What was at issue was the STATE’S power to infringe the privacy rights of the mother, in order to protect its interests in the future citizen inside her. Roe took the side that the woman’s right was all that mattered, while Wade, an agent of the state, took the position that the state’s power to limit behavior was being used appropriately. Because the individual was a party, and the state was a party, their rights with regard to each other COULD be adjudicated.

      They found that the state DOES have power, but that the power the state has is subordinate to the woman’s right, if the fetus is not yet viable outside her body, but post viability, the state’s right supersedes the woman’s right. There’ve been cases since then to fine-tune the balance of these two rights.

      1. No, Roe v. Wade is extremely clear on this subject.

        “The appellant and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Anendment. In support of this, they outline at length and in detail the well known facts of fetal development. If the suggestion of personhood is established, the appellants case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

        Separate from the detailed discussion of the issue the Roe opinion undertook following this language, this explicit statement in the opinion, that the issue of whether fetuses possess 14th Amendment rights is so central to the case that Roe’s argument “collapses” if Texas’ position that they do prevailed, would seem to utterly contradict and preclude any claim that “the fetus’ rights weren’t being explored” in the decision.

        1. You’re ignoring the actual outcome of the case.

          If a fetus has no rights, then a fetus has no rights right up to the point where it stops being a fetus, ie, birth. But that’s not the position that Roe v. Wade ended with.

          A fetus has rights, and the state can act to protect those rights post-viability. Prior to that point the mother’s rights are superior.

          1. No, the Roe Court covered that point very clearly. A fetus has no personal rights right up to the moment it emerges from the womb. A state, however, has its own separate interests. Most of the Roe opinion was devoted to what those interests were. It said these interest increase with fetal development. A State always has a rational interest in fetal life, separate and apart from any personal fetal interest, as a matter of morals, and this interest becomes compelling at viability.

            The situation of a viable fetus is identical to that of this Mexican teenager. So long as he is an inch over the border, the Bill of Rights lacks extraterritorial application, just as it lacks prenatal application to a fetus a moment from birth, and neither have a constitutional right not to be killed.

            But just as a state can choose to protect a viable fetus based on other interests, including traditional conceptions of morality, those exact same traditional moral ideas let Congress protect Mexican teenagers from. Border patrol officers if Congress wishes. But just as the Constitution creates no obligation for a state to restrict late-term abortions if it doesn’t want to restrict them, and nothing in the constitution requires a state to stop an abortion done for any reason or no reason however close to birth, the Constitution similarly doesn’t impose any obligations on Congress to restrict border patrol agents’ use of extraterritorial aliens for target practice, for any reason or no reason, however close to the border.

            Same doctrine, same analysis, same result.

  14. Second Circuit: Yes, but qualified immunity. It was not clearly established that an arrestee who shows clear signs of distress but does not verbally inform an officer that handcuffs are too tight is being excessively forced. (Henceforth, it is clearly established, however.)

    Surprised no one commented on this one. Another example of where QI has gone off the rails.

  15. The judge in the Stone case invoked a local rule preventing “extrajudicial statements by parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial by an impartial jury” to silence the accused from talking about his own case publicly.

    I don’t think the Judge’s reasoning holds. The accused’s own actions can not interfere with his right to a fair trial because he can waive such a right. If he want to torpedo (or bolster) his own case, such actions would not impede his right to a fair trial.

    The court may have had some other authority for its gag order, but the one it claims doesn’t fit and should have been dismissed for that reason.

    1. Preventing someone from getting a fair trial doesn’t just mean they might be convicted unfairly, it also means they might get acquitted unfairly. I think the Court is properly acting if it acts to prevent this outcome.

  16. I hesitate to post this because it may be so inflammatory that the moderators may delete the post.

    Would it be unethical for an attorney or an amicus brief author to point out that if the foreign family is denied any remedy under the law, that a sniper rifle is their only recourse?

    There is supposed to be a legal remedy for every conflict. When that is not true, US citizens are bound to follow the law anyhow. We can’t say that about foreign nationals on foreign soil.

    1. ” if the foreign family is denied any remedy under the law, that a sniper rifle is their only recourse?”

      Sniper rifles are contraband in Mexico, so they don’t even have this recourse. They’d have to find a way to come into the US legally to exercise such an option.

    2. The euphemism is ‘self help.’

    3. Congress has a foreign policy interest in the matter that is independent of moral and other considerations that also apply in an abortion context. Not prohibiting harm to extraterritorial foreign nationals could harm US foreign policy interests.

      The issue is perhaps analogous to Oscar Wilde’s remark that sex in public could be prohibited independent of any moral considerations, because it could frighten the horses and thereby lead to public harm.

      Even if you take a strict view that legislating morality is not the government’s business so long as no person is harmed (with “person” limited to the constitutional definition of the term), it’s still a completely independent basis, and an important and often compelling one, for government action.

      They may be constitutionally no different from horses. But they are “horses” that can use guns and fight if frightened, which is definitely something appropriate for Congress to consider in deciding what laws to enact.

      1. That said, foreign policy is for Congress to decide. Congress is always free to value Americans’ liberty other other considerations. Since there’s no question of personal rights here, it’s no more the place of courts to judicially prohibit it than it is the place of courts to judicially prohibit late-term abortions where a state’s legislature has chosen not to do so.

        Perhaps Pete Buttigieg’s line of reasoning is appropriate, people can be trusted to do this Sort of thing in a careful and appropriate way, and their choices shouldn’t be second-guessed. Why can’t border patrol agents be trusted with a choice?

      2. But my question was more directed to the coming SCOTUS case. Might we expect to hear this “self help” point raised in oral arguments?

        Roberts seems to be highly sensitive to the reputation of the court. He might fear a record that seems to show that “self help” is the only recourse. If the party did use self help then said “SCOTUS pointed the way” in their defense, it would harm the reputation of the court.

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