The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Some Lessons from a Washington Post Graphic on Police Shootings

Deaths from police shootings are too common but still rare, the majority of victims are white, and the Post wants to push a simple narrative about a complicated subject.


It's no secret to readers of the Volokh Conspiracy, nor to readers of our host site, that the American criminal justice is in dire need of reform. Police are generally unaccountable for misbehavior (which, among other things allows a small number of sociopaths to consistently engage in excessive force), militarization of local police forces creates opportunities for excessive use of force, no-knock raids create all sorts of problems leading to all sorts of abuses, the drug war has been a disaster for civil liberties, coercive tactics by prosecutors lead the innocent to plead guilty to "lesser charges" to avoid total ruin, and so on. Even in the absence of racism, these problems would fall more heavily on the poor and those living on the margins of society, a population that is disproportionately African American. The presence of racism makes matters worse for them.

All that said, we rely on the media to inform us about these issues, but instead we get a preconceived narrative, as illustrated by the graphic from the Washington Post, below. I take it that readers are supposed to look at this graphic, be outraged at the disparities, and then draw whatever conclusions may follow.

But, assuming these statistics are correct, we can in fact parse them in ways that make us think more deeply about what they mean and why they are presented this way.

First, note that over a five year period, 1,262 Blacks, 887 Hispanics, and 2412 Whites were shot to death by police. In aggregate, that's a lot of people, and we should hope (and perhaps demand) that cops can be trained to use non-lethal force more often in many situations in which they feel threatened. Police in other countries seem to manage it. On the other hand, I've heard a great deal of rhetoric over the past week to the effect that police officers are basically just looking for black men to hunt down, and that there is a decent chance that any encounter between the police and a black man will result in the black man's death. That is simply not borne out by the data (even if we note that some smaller number of deaths from police violence are not from shootings). Looking just at deadly shootings, black men get arrested two million times or so each year.  Many millions more times, police have other adversarial encounters with black men, such as traffic stops, or confrontations that don't lead to arrest. A tiny percentage of those encounters lead to deadly shootings, and in some fraction of those, the police use of force was justified by the threat faced by the officer. So the odds of an unjustified deadly shooting of a black man in a confrontation with police in any given instance is tiny.

Don't get me wrong. EVERY SINGLE unjustified police shooting is a horrible crime, which not only may steal the victim's life but tears at the fabric of society. But the notion that police are generally trigger happy and shooting to death anyone in sight, especially if he is black? The data don't support even a moderate version of that rhetoric.

I'm also not arguing that there is not a serious problem with routine excessive use of force by some police officers and perhaps some entire departments. But the data suggest that "police brutality" rarely takes the form of shooting to kill, and is much more likely to be "routine," non-deadly force.

Second, the number of whites shot and killed by police is surprisingly high, at least if one has assimilated the rhetoric out there. African Americans are getting shot disproportionately often compared to whites on a per capita basis, but if you look at arrest data, you see that African Americans are arrested for violent crime much more often per capita than whites. This creates more opportunities for confrontations between violent criminals and the police, and undoubtedly explains at least some of the disparity.

Even if there were no disparity once arrest rates were taken into account, that would not necessarily be evidence that racism does not cause fatal shootings. Just for example, African American deaths may be concentrated in big cities, where the police have better equipment and are better trained than in small rural sheriff's departments. Better training and equipment should lead to fewer shootings. African Americans may also be less confrontational with police as they are more likely to expect to be subject to violence if they don't cooperate, which should also lead to fewer shootings.

Regardless, what the data show is that to the extent the police are using excessive force in shootings, they are doing so against whites (and Hispanics) as well, so even if it's more of a problem for African Americans, it's not solely a problem for African Americans. Eliminating racism, in short, would still leave the U.S. with far more deaths from police shootings than seems reasonable.

Third (and this is what struck me the most), the Post could hardly be more transparent about the narrative it's trying to push. The graphic shows that blacks are shot to death by police more than Hispanics who are shot more than Whites who are shot much more often than… "other". Other is about 49 million people, which would include about 21 million Asian Americans, who likely have an even lower rate of being shot to death by police than the full "other" category. But if you are trying to frame the narrative as an uncomplicated "cops shoot people of color more than whites" you can't actually break out "Asians" because that undermines the narrative and means you have to dig a bit beyond the simple formula.

This reminds me of Justice Sotomayer's dissent in the BAMN case, in which she provided statistics purporting to show that affirmative action was needed to ensure educational attainment for "racial minorities," but she excluded Asian Americans (who can at least in some sense be considered a "racial minority") but included Hispanics, who can be of any race (and about half of whom consider themselves to be white). It's understandable if a story wants to highlight black-white differences, for obvious historical reasons. But whenever you see someone include Hispanics as a "minority" category, but exclude Asians, you know there is a political or ideological agenda behind it.

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  1. you know there is a political or ideological agenda behind it.

    Your posts here are entirely predictable. Why? Because every single one of them cherry pick data to support your political or ideological agenda.

    1. OK, smart guy, show what he cherry picked here.

  2. The News Media Are Consistently Intentionally Deceptive: Part 8749717 of an Infinite Series

    Thankfully, no one really trusts them anymore. Even their own partisan comrades know they’re not getting straight facts.

  3. S9me will no doubt argue that the statistics are skewed by disproportinate enforcement. The one statistic that cannot be readily skewed is murder, pretty much every dead body is accounted for.
    Around half of the murders in the US are of African Americans at least 80% of the perpetrators are also African American. That inevitably leads to the conclusion that in some portions of some African American communities murder is far more common than in other communities. Like many here I know many mostly professional African Americans and they are no more likely to commit any crime than I am. The solution to that puzzle is a serious issue.

    1. It’s a serious problem for the racists who like to claim racism, that’s for sure. I wonder how many of the murders are from the War on Drugs. Racism and classism could account for some of the murder rate, indirectly, if the War on Drugs is enforced unevenly. Suppose cops ignore drugs in affluent areas more than in poor areas; that would skew results. But no one wants to admit that the War on Drugs is bad policy, let alone might be racist.

      My hunch is that the War on Drugs is classist at least, which ends up being racist in current society because blacks are more likely urban and poor than whites. But I don’t know this.

      On the one hand, those statistics would be interesting. But on the other hand, the only way to really stop racism is to stop introducing race into so many things. Affirmative is a prime example; it forces people into blunt racial categories, and encourages corruption like Lizzie claiming to be Native American. On the whole, I’d rather the government simply dropped all racial categories, statistics, laws, everything. But that’s not likely. Too many politicians get elected by being offended.

      1. While I don’t doubt racisim exists and there are institutional effects of historic racism I do wonder whether racisim as reported in many instances would be assevere if factor such as income (which would I think increase African incidence), age of the mother (which may go either way) , education ( which I think would favor African Americans).
        In general I think most statiscs skim race without looking deeper.

        The rare more poor white people than poor African Americans.

        1. Racism exists and its a fundamental and perhaps an inalienable part of human nature. When you look at the face of modern Progressivism you’re not looking at a last gasp stand against racism but its ultimate triumph.

  4. Most people live more or less in a fantasy world constructed by the media. In this world people can switch their sexes by wishing on a magic star and rather than the simplest explanation that certain races may commit more crimes for whatever reason, anything that runs counter to equalist dogma is the result of a global conspiracy.

    For example I’ve yet to see anything indicating the George Floyd incident had any racial element at all other than the officer was ‘white’ and the perp was black but everybody is running around acting as if its obviously and indisputably so.

    WAPOO and that graphic are but one pane in the delusion. It takes a relatively rare presence of mind to see the illusion for what it is. Many ‘smart’ people of high technical skill are especially vulnerable and even the weavers often doublethink themselves into believing it as well as they knowingly create false or misleading information.

    1. The view from your cornhole isn’t representative of reality.

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Free Trade

Does Global Trade Policy Discriminate Against Low-Carbon Industries?

A new study finds that trade policies around the world effectively subsidize high-carbon industries.


Some environmentalists would like to use trade policy to discourage environmentally harmful production, such as by imposing tariffs based upon the carbon intensity of goods. The assumption seems to be that existing trade rules are environmentally "neutral." But what if that assumption is wrong?

A new study by economist Joseph Shapiro of the University of California at Berkeley, "The Environmental Bias of Trade Policy," suggests that existing trade policy is actually biased against low-carbon production. If he's correct, merely making trade policies more "neutral" would have environmental benefits and reduce greenhouse gas emissions.

Here's the abstract:

This paper documents a new fact, then analyzes its causes and consequences: in most countries, import tariffs and non-tariff barriers are substantially lower on dirty than on clean industries, where an industry's "dirtiness" is defined as its carbon dioxide (CO2) emissions per dollar of output. This difference in trade policy creates a global implicit subsidy to CO2 emissions in internationally traded goods and so contributes to climate change. This global implicit subsidy to CO2 emissions totals several hundred billion dollars annually. The greater protection of downstream industries, which are relatively clean, substantially accounts for this pattern. The downstream pattern can be explained by theories where industries lobby for low tariffs on their inputs but final consumers are poorly organized. A quantitative general equilibrium model suggests that if countries applied similar trade policies to clean and dirty goods, global CO2 emissions would decrease and global real income would change little.

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  1. From 2001-2008 America had a dysfunctional economy due to an energy crisis. So our natural gas production plateaued at the same time global oil production plateaued which produced malinvestment and led to the 2008 Financial Meltdown. So during that period many of the elite believed China would end up manufacturing most things because America and the West weren’t willing to poison their citizens with coal pollution and displace millions with hydro dams. (although inexplicably the EU decided to poison its citizens with diesel pollution)

    Of course we know fracking was proven economical in 2009 which made North America much more attractive to manufacturers (and provided the engine to get America out of the Great Recession). So fracking will provide the “bridge“ to more renewables which means nobody should care about carbon emissions because technology will inevitably solve the problem.

  2. Trade policy can discriminate against whatever industry for whatever reason. Discriminating against some trade and in favor of other trade is what trade policy is.

    Unless climate change is a religious belief — which it resembles in many respects — so what if is discriminated against?

  3. Not only that, it discriminates against industries in civilized societies with pollution controls.

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More on Corona and the Constitution

I spoke with ReasonTV and the Little Rock Federalist Society Chapter. I am happy to speak to other groups as well!


Tonight, I spoke with the Little Rock, Arkansas chapter about Corona and the Constitution. I addressed the Supreme Court's recent decision involving the California church.

I also chatted with ReasonTV about some broader issues.

I travel a lot, but have not been on a plane since March. During the spring semester, I had to cancel about 20 speaking engagements due to the Coronavirus. Slowly, but surely, groups have started to schedule events by Zoom. This development is healthy. I worry that campus organizations will be severely constrained in their ability to hold events in the fall. There will not be enough space, and people will not want to pack into a room to watch a guest speaker. Also, the traditional model of serving food at events (buffet style!) is no longer permissible.

Zoom is a helpful replacement during these tough times. If your group is interested in hosting me for a talk on Zoom and the Constitution, please let me know. I already received an invitation from one student chapter in D.C., and am happy to help out.


Virtual Conference on Covid-19 & the Law

Next week the Federalist Society is hosting an online conference on the legal issues raised by the pandemic.


On June 11 & 12, the Federalist Society for Law & Public Policy Studies will be hosting a virtual conference on "Covid-19 & the Law." The various panels, each of which will be presented as a stand-alone webinar, cover a range of topics, including federalism, civil liberties, executive powers, public vs. private decisionmaking, and the 2020 elections. There is a keynote speech by Ajit Pai, Chairman of the Federal Communications Commission. Speakers include Ian Ayres, Susan Dudley, Nadine Strossen, Daniel Farber, Cass Sunstein, Jack Goldsmith, Mila Versteeg, and our own Eugene Volokh, among others. (I'll be speaking as well.) Registration information is here.

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"When There's an Unarmed Person Coming at Them with a Knife or Something, You Shoot Them in the Leg"

Advice from Vice-President Biden.


From Yahoo News (David Knowles):

"Instead of standing there and teaching a cop, when there's an unarmed person coming at them with a knife or something, you shoot them in the leg instead of in the heart is a very different thing. There's a lot of different things that could change," Biden said in a meeting with community leaders at Bethel AME Church in Wilmington, Del.

I don't fault Biden much for the "unarmed person coming at them with a knife" slip—that happens in oral remarks—but I think his broader advice doesn't make sense. Most studies suggest that most police officers, even with substantial training, miss with 50-75% of their shots; here, for instance, is the RAND report on the NYPD:

As has been reported nationally, police officers often miss their targets (Morrison,
2006, p. 332). The NYPD reports hit-rate statistics both for officers involved in
a gunfight and for officers who shoot at subjects who do not return fire. Between
1998 and 2006, the average hit rate was 18 percent for gunfights. Between 1998
and 2006, the average hit rate in situations in which fire was not returned was
30 percent. In 2006, the hit rate against subjects who did not return fire was 27

The LAPD reported a hit rate of 48% in 2016, 38% in 2015, 34% in 2014, 20% in 2013, and 27% in 2012; I suspect that the 48% is at least as much random variation as real improvement. Politifact reports similarly low numbers from other studies (with a couple of highly questionable 1991 100%s in San Antonio and San Francisco, and an outlier 56% in 1970s L.A.).

And this isn't surprising; most police officers have never fired a gun in a combat situation. When someone is charging at you with any weapon, and the adrenaline is pumping, you're not going to be a cool sniper-level shooter, especially if this has never happened to you before. Going to the range will only do so much to improve your performance in such situations.

Now imagine what would happen if police officers shifted from how they're trained to shoot—for the center of mass in the torso, where if you miss your specific target you still have a good chance of hitting some part of the attacker's body—to shooting at the leg. Not going to turn out well, I think; fewer hits on the attacker, more dead police officers, and probably more bullets hitting bystanders, where there are bystanders present.

Police officers shouldn't shoot at all at people who aren't really posing a serious threat to them or to others. But if they reasonably fear death or serious injury—and a "person coming at them with a knife" would surely qualify—they should shoot in the way that's most likely to hit and stop their attacker. And that's in the torso, not the leg.

Obligatory citation: Vice-President Biden's previous gun advice.

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  1. Biden is an idiot…Demented perhaps, but an idiot. He has no business offering self-defense advice (all the advice he has offered is not only WRONG, but dangerous to all around) and due to his apparent dementia has no business running for public office.

    Oh, and by the way: The lack of accuracy most police show when shooting at center of mass, a target 12 or more inches in diameter is a GOOD reason to not expect them to shoot at a leg, a target perhaps 4″ across. A miss there will kill people beyond the target.

    1. Remember, this is the idiot who called for people to, when faced with a home intruder, walk outside with a shotgun and fire two blasts in the air.

      1. He also advocated shooting your double-barreled shotgun THROUGH THE DOOR…Shooting without verifying your target.

        That will cause Amazon delivery costs to spike…

        1. No, Amazon is mostly using contact-free delivery these days. Domino’s is another story altogether.

    2. That’s just Biden being Biden, in a long history of Biden being Biden…

    3. Do we really need cops trained to follow the principle of “one shot, one kill”? I agree that wasting ammo wastes taxpayer’s money but wasting ammo is still better than wasting the taxpayers themselves.

      1. Do we really need cops trained to follow the principle of “one shot, one kill”?

        Who said anything about “one shot, one kill”?

      2. Supposedly, they are trained like that….

        We need to up their game.

      3. “Do we really need cops trained to follow the principle of “one shot, one kill”?”

        No, but what they are doing now is basically spray and pray shooting which has a high probability of injuring bystanders.

      4. Better accuracy would not only save bullets, but also prison and medical costs. Weighed against the tax contributions of their victims…what do you mean “cold-blooded”?

    4. I was going to say exactly that – he’s an idiot. Absolutely nobody trains to shoot-to-wound. That’s a good way end up dead. And you’re more likely to take innocent bystanders with you. Unless you’ve got sniper training and a stable platform, the only responsible aim point is center-mass.

      Compounding the problem, let’s assume that you get lucky and actually do hit your attacker in the leg. There are two possible outcomes. First and most likely, you’ve caused a flesh wound in an extremity. Painful but it’s not going to stop the attacker. Second and more serious, you hit the thigh bone or femoral artery. That will definitely stop your attacker – but he’s also going to bleed out in seconds to minutes. Unless you have a tourniquet ready in your other hand (and the presence of mind to use it), he’ll be just as dead as if you’d shot him in the heart.

  2. Rule #1 for anyone shooting a gun at a person – shoot to kill. If you aren’t ready to kill them, you shouldn’t be shooting at them.

    1. Bad advice and one that you won’t hear from any competent instructor. You shoot to stop the action that requires you to shoot in the first place. Most often, that is best done by a shot to the center mass of the individual. Not always. But you shoot to stop, not to kill. If the person dies as a result of your stopping his action, so be it. But it was never your intent.

      1. You know, when I shoot someone in the middle of the chest with a copper jacketed hollow point, I expect them to die.

        Unless my ammo is defective. Then I will shoot them again.

  3. Bidementia.

    1. Biden knows what he’s talking about. His son is a great Hunter. And hunters know how to use guns and sometimes even daddy’s influence.

      1. Is Hunter the stripper-banging coke head or the good one?

        1. He’s the stripper-banging coke head AND the good one

  4. This is dead wrong and could easily get you killed.

  5. Mace or pepper spray could work. It also would probably be easier to use up close if most knife attacks occur up close.

    1. The only mace that might work properly here to avoid a knife attack is the large steel rod with a spiked ball on the end.

      1. Bruce Lee had a lot of success with the nunchuks. But training cops to use a medieval mace, double edged sword or a battleaxe is an interesting idea. We could remodel our police force to look like the knights who say “Ni!”.

        1. Or take a new school approach to that idea and arm the cops with aluminum softball bats.

    2. I sell Mace and pepper spray professionally. No, they don’t work as you think they should.

      1. A taser should work, right? I mean, unless they through the knife at you.

      2. “Most knife attacks occur at close range…”???

        Fuck it, I don’t want something that will work, “if only I can get him to get his knife stuck in my torso!” I’ll take that ranged deterrent any time. I suppose it’s possible that someone might have been running at me to sell me magazine subscriptions, and forgot they had a knife in their hands. Possible.

        But I’m still shootin’.

  6. If it’s worth shooting, it’s worth killing. That “shoot the gun out of their hand” crap is for the movies. Cops aren’t Delta Force. The only cops who train to shoot accurately, under pressure, on a consistent basis is Full-Time SWAT (not the half-ass, small-two, additional duty SWAT fools.) The problem with “part time” SWAT (or boys with toys)… is boys like to play with their toys. So you get “no knock” warrants for things that don’t need it. That = dead people and dead/injured cops.

  7. Yeah because we all know guns work just like in the movies. Yank out your six shooter and wing the bad guy. Easy right? Why didn’t police trainers think of that years ago? Biden is really a luminary here and we should be grateful if he will serve as our Dear Leader.

    This backs up my theory that those who seek to regulate guns have no idea how they even work.

    1. Just winged ’em is a medical diagnosis that only happens in Hollywood…

      And a ‘flesh wound’ can still kill you.

  8. “Not going to turn out well, I think; fewer hits on the attacker, more dead police officers, and probably more bullets hitting bystanders, where there are bystanders present.”

    My God… can you imagine if the number of police gunned down went from dozens per year to several more dozens?

    Let’s make it simpler. Why would a beat cop need a gun at all? You don’t have to train them to shoot at a leg if they don’t have a gun to shoot in the first place.

    1. Oh good, let’s disarm the cops, while letting your average criminal have a nice semiautomatic pistol. Whatever could go wrong.

    2. You don’t have to train them to shoot at a leg if they don’t have a gun to shoot in the first place.

      Did that actually sound good in your head before you typed it?

  9. In Europe police are trained to shoot to wound

    Yeah, I agree with the rest of the thread that this doesn’t make sense with what I’ve been taught about real life use of guns.

    1. The article suggests they are trained to shoot center mass.

      1. US cops are currently being trained to empty their mags as quickly as possible. They aren’t aiming for center mass, with that kind of shooting, you aren’t aiming at all, spray and pray.

        1. With “hit rates” hovering below 30%, shooting half the magazine *away from* the target probably increases the chance of a lucky hit.

    2. “In Europe police are trained to shoot to wound”

      Did you intend to post some other link? That one says:

      “The official policy says firearms officers “shoot to incapacitate”. They are trained to target the centre of the chest as the quickest way to “neutralise” a suspect, even though it is highly likely that this will kill.

      The idea that officers will shoot to wound is dismissed because it is felt that it places the public and officers in too much danger.”

    3. It literally says the opposite.

      “They are trained to target the centre of the chest as the quickest way to “neutralise” a suspect, even though it is highly likely that this will kill.

      The idea that officers will shoot to wound is dismissed because it is felt that it places the public and officers in too much danger.”

    4. The problem here is the term “shoot to kill”, which is misleading at best in that it confuses goals with the possible consequences of the means employed to achieve that goal. The goal of any responsible use of deadly force for defense is not to kill, but to neutralize the threat in the fastest and most reliable manner. It just so happens that the most effective uses of deadly force to achieve that goal have a high probability of also causing the death of that threat.

      If that were not the case, and the purpose of shooting was to “kill” then lethal force training would teach that if the threat has been neutralized but the assailant still alive, you should continue shooting until he/she/it is no longer consuming oxygen. But no reputable training program does so.

      Oh…and the other problem is Sarcastr0 not bothering to read for comprehension before posting something.

      1. Goal is to neutralize the threat – exactly.

        You’d be surprised how a knife-wielding assailant can take a couple of bullets and keep going.

        1. Does that depend on whether you’re in a horror show or a cop procedural?

    5. No, they are not:

      “The official policy says firearms officers “shoot to incapacitate”. They are trained to target the centre of the chest as the quickest way to “neutralise” a suspect, even though it is highly likely that this will kill.”

  10. Biden was referring to the special case of a man without any arms, I.e. unarmed, coming at you with the knife between his teeth.

    In which case, you should shoot at his legs.

    1. He’s holding the knife between his toes. Shoot for the toes, in order “disarm” him.

    2. If the attacker attacking a police officer holds the knife between his teeth, the cop should call medical services to lock him up into a loonie bin. Let’s face it, holding knife between teeth while assaulting a police officer is probably not the smartest thing to do and there are serious questions about the mental health of anyone who would engage in such conduct.

    3. One of the leading and most respected firearms trainers teaches that when someone is coming at you with a contact weapon the best shot is to the pelvic bone. (This presupposes a firearm of sufficient caliber to break the bone). A center-mass shot may allow the person to live long enough to close the distance and still kill you with his weapon. However, if you break the pelvis, his mobility is then compromised and you can step back without fear of him being able to reach you. Takes lots of training and practice to achieve that level of coolness and shooting ability, though.

      1. A center-mass shot may allow the person to live long enough to close the distance and still kill you with his weapon…

        This of course also depends on the caliber of the weapon… A Desert Eagle .50 caliber round in the chest, well…

      2. The movie notion of an attacker taking a bullett and keep advancing, is just that, a movie notion. Unless you are hanging out in places full of hyped up druggies, most all people will stop while overwhelming pain overtakes them. As the post establishes, 50% hit accuracy is above average. Hence the “center mass” standard. Largest target rich environment.

  11. Many years ago I did prison ministry for the federal BOP and at a state prison. Chaplains along with medical personnel – but strangely not psychologists – were exempt from being assigned to the guard towers.

    However, the rule was that in an escape situation, armed guards were to “shoot to wound.” Granted, this was shooting with a rifle – usually – from a fixed position. Therefore, the idea of “shoot to wound” is not COMPLETELY unknown to some segments of law enforcement.

    1. Well, in an escape situation, the inmate is likely running away from the guard, and the the neutralize the threat by shooting at the center of mass is not justified, as there is no threat. But if the inmate turns toward a guard, then there may be a threat.

    2. So guards, secure from personal danger, shooting an escaping convict in the back. Riiiight.

  12. Sounds to me like maybe these cops shouldn’t be walking around with guns. The goal of any government policy surely has to be to keep the number of violent deaths to a minimum. And given the statistics in the OP, that requires either taking the guns away from the large majority of LEOs, or spending a lot more time and money teaching them how to use their weapons.

    1. I’m not sure that martinned is enough of a subject-matter expert on either firearms, force-on-force training, or close quarters combat to be giving advice about what the large majority of LEOs should be or should not be doing with self defense tools.

  13. The idea that adrenaline charged prison guards are going to be shooting at running inmates in a chaotic situation with such precision that they can pick and choose between “wounding” vs “killing” shots could only come from someone who has either never fired a gun, or at least has never fired it at anything more animated than a fixed paper target.

  14. In all the discussion in this thread, there is not one point that has not been discussed and analyzed by self defense experts. This is because questions like this have a absolutely huge literature. These questions have been discussed literally to death. Any further discussion would be beating a dead horse, that had been shot in the leg and died of its injuries. Therefore, I will not be adding anything further to the question of shooting to wound or aiming for the leg. But one would think that a responsible Presidential candidate, who was aware of his disproportionate influence, would be careful to consult the literature, before shooting off his big mouth. Obviously, Biden did not do that.

    1. Do you think Trump consults anything other than his ego before opening his mouth?

  15. Biden says he saw Clint Eastwood shot the gun out of the bad guys hand in a movie, why can’t cops just do that??

  16. Poor Joe, an unarmed person with a knife is a person armed with a knife. Shooting someone in an arm or leg is hard to do and may not stop the attacker. Why do cops shoot people more than once? Training, in part. The first round may not stop anyone. When I was shot in the stomach I didn’t know it for about 7-10 minutes; that is when pain was first noticed. The citation reads, in part, “even though wounded Lt. Hxxxxxx continued to direct his men and returned fire …..” I had no idea that I had been hit, at first. Whenever I read a story about a cop emptying his magazine I usually attribute it to the fact that the person shot probably has not learned the nature and extent of his injuries, so he continues to function. Cops need better less than lethal tools; so do teachers. Blinding light like a laser dazzaler needs to be deployed; and maybe considered for crowd control as well.

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Free Speech

California Congressman Ro Khanna Calls for "Fairness Doctrine for the Internet"

Also for the FCC to police supposed "blatant falsity."


From Today's Politico Morning Tech:

Silicon Valley congressman weighs in on Silicon Valley CEO: "The decisions of speech on the internet should not be left to billionaire tech leaders, no matter what their intentions," Silicon Valley Rep. Ro Khanna said Monday, referring to Zuckerberg's decision to leave Trump's inflammatory social media posts alone. "We need a fairness doctrine for the internet in the 21st century. The FCC should make sure that aggrieved parties have the right to reply and that blatant falsity is not protected."

Not clear exactly what he's proposing, and how the Fairness Doctrine (which required broadcasters to carry responses to political views that they had broadcast) would interact with the quite different topic of bans on what the FCC views as "blatant falsity." But it's interesting to see politicians on the Left as well as the Right faulting the editorial choices of "billionaire tech leaders," and calling for more FCC regulation of social media platforms' behavior.

At least in theory, President Trump's attempt to rein in "billionaire tech leaders" through his Executive Order (with the FCC's help) would pressure platforms to restrict speech less, while Rep. Khanna's call for the FCC to suppress "blatant falsity" would involve the government restricting speech more. But I'm skeptical that either proposal would help free speech or public debate in practice: You can see more about the President's approach in my posts last week about the Order, see especially this one, as well as this post about the statutory background and this post about the political costs of a true viewpoint-neutrality rule (which would also apply to a true "fairness doctrine" rule). The final version of the order was slightly different from the one about which I was writing, but I think my analysis in those posts remains sound.

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  1. Funny how Zuckerberg went from Obama’s tech darling to a Republican propaganda outlet in the minds of liberals because he opposed heavy handed content moderation policies.

    1. That’s how it goes. You hear the story of the liberal African American Female politician who just decided to thank Trump?

      Democrats threw her out on her rear end.

    2. Well, “even heavier handed” content moderation, anyway. FB can be pretty heavy handed at times as it is.

      1. If you want some perspective, visit Reddit

    3. Zuckerberg has a relationship with Trump through Kushner. So Trump signs executive orders to help the Kushners’ Obamacare health insurance company and Kushner uses his relationship with Zuckerberg to help Trump…why do you think Obamacare is stronger than ever after Trump said he would repeal it???

  2. I don’t understand why everyone is freaking out about the tech platforms. Everything is fine the way it is. Alternative communication channels are just a click away.

    1. Probably because they act as a major source of information transfer and can shape the social conversation and elections.

      There are reports that simply by biasing Google results, Google can shift election results by 2% either way. If they chose to.

      1. And the creators earned that power honestly.

        1. LOL…of course they did.

          But I wasn’t aware that Google’s corporate board was worth 10 million voters. That shows me.

          1. 10 million weak minded voters who would just as easily be bought with TV ads

            1. It is a shame that racist Republicans are trying to suppress voter turnout! American is a democracy and everyone deserves the right to vote.

            2. Ah yes. “weak-minded voters.”

              Good thing their voters are worth exactly as much as a “strong-minded” voter. Whatever that is.

              1. A week minded voter see a political ad and immediately changes his/her vote because they liked the production value.

                1. Why does such a voter have a seven-day period on his mind?

          2. It’s hard to understand your complaint without also knowing what you are proposing. Would it be legislation that does… what exactly? Breaks up Google to address your size concern? Unbias their “biasing” results, whatever you mean by that? How would you police that? The Government Ministry of Bias?

            1. Daily national referendums.

            2. Sorry, would you like a more complete response here. Sure.

              Google is not (to my knowledge) currently biasing search results for political gain. Now, if they did do so, in a major and significant way, they would be using their monopolistic power for advantage in a different market. This would require the company to be broken up substantially.

              1. If Google must not abuse its monopolistic power in order to not be broken up, then what’s the problem to begin with?

              2. Google isn’t a monopoly. There is no evidence that Google has monopoly power. And Google’s decision to bias its results wouldn’t be an antitrust issue unless it was an attempt to increase price above marginal cost.

                What the fuck are you talking about re: “different market”?

        2. My bank came by it’s money honestly, that doesn’t mean that once they’ve got all those deposits, they should resort to embezzling the money.

          Feeding users rigged search results is the search engine equivalent of embezzlement; The point of earning people’s trust should be something more than just gaining a chance to abuse it.

          1. Well if you think Google has breached the terms of your agreement with them, and you’ve suffered damages, go sue them and get some of that cool cash. I’m sure you can at least scare them into returning all the money you paid to use their search engine.

          2. You are intent, personally, on taking control of a product you don’t own? I would say you are the fraudster.

          3. When did the search results first get rigged? When Google became successful?

    2. We can’t have ignorant people listening to “alternative facts”. The science is clear. Global warming is real. Vaccines work. Transgender people exist.

      1. So should transgender women not worry about coronavirus because it impacts men harder??

    3. Rightwingers are tired of getting dunked on much more disproportionately and its difficult to recreate multihundreds of billions of dollar tech platforms built up through years through massive inflows of private and public support due to inertia and other factors. We might as well throw you out of civilization and say ‘create a city yourself’. I mean when the shoes on the other foot, libs aren’t even willing to build their own cake shops.

      And even when they try activists and the tech platforms like to sabotage such efforts by doing things like getting financial institutions and payment processors and hosts to kick them to the curb and DDOSing them constantly, which being smaller they are more vulnerable to. So imagine that after you were tossed out of civilization we rode out and attacked your supply caravan and knocked over the log house you were building while wagging our finger at you saying ‘lol whats the matter? I guess you don’t have what it takes like we do!’

      Leftwingers want even more control over the platforms and can’t stand even the tiniest bit of dissent as squashed as it may be. So they have a cow of the entire platform isn’t screaming extreme left.

      1. Right wingers aren’t discriminated against on tech platforms. and Politico verified your statements as “False”.

      2. “Rightwingers are tired of getting dunked on much more disproportionately and its difficult to recreate multihundreds of billions of dollar tech platforms…”

        And so you, a rightwinger, are proposing you solve the market problem that apparently plagues rightwing viewpoints, with central planning and government regulation.

        Of course your entire complaint is based on a false premise. There already are non-censoring places for people to share their viewpoints. 4chan won’t ban conservative views. You can go to Minds for a no-censorship Facebook. Mastodon and are zero-censorship Twitter-like platforms. Gab will take your far-right views, without censoring them.

        The problem is not the invented lack of alternatives. In the 21st century there are no serious financial or other barriers to entry to creation of social platforms. Twitter’s initial series of funding was around $125K. What you’re really complaining about is that people who share your views don’t have the market clout to kill established social platforms, but the people you disagree with politically apparently do. That’s hardly surprising in this field, since interest in social platforms varies by demographic. It’s no surprise that (young people) Twitter is more aggressive about policing conservative views than (young and old people) Facebook.

        1. Oh I’d prefer an truly minimally regulated environment. But while we’re trapped in society that increasingly favors one side in the law itself, persecuting cake shops and enforcing quotas and mandatory classes about how wonderful the LKDFLDLFLJGF lobby is and subsidizes their propaganda with hundreds upon billions of grants and funding to unions and indoctrination centers with de facto mandatory attendance (universities and public ‘education’) on top of the monopolies they dominate, built in the media, cultural institutions, tech, and virtually every other major sector of society, it helps to take what you can get.

          1. Yes, you would prefer a less regulated market if the people being regulated agreed with you politically. But since they don’t, you’ll take regulation where you can get it.

            It is apparent to me that you don’t have children.

  3. Not surprising after the Facebook employee walkout.

    Zuck gets props here for supporting free speech, and not bending to the “restrict speech we don’t like” crowd.

    1. Is Twitter or Alphabet (Google + YouTube) the most evil social media company?

  4. Maybe that decision should not be left to “billionaire tech leaders” but it sure as hell should not be given to government bureaucrats instead.

  5. At least in theory, President Trump’s attempt to rein in “billionaire tech leaders” through his Executive Order (with the FCC’s help) would pressure platforms to restrict speech less

    I’m not following why Trump’s EO would pressure platforms to restrict speech less?

    1. Did you by any chance actually read it?

      It expressly has to do with platform censorship.

  6. It’s always interesting to see how a ‘Ted Cruz libertarian’ approaches expression issues.

  7. What we need is for Twitter, Facebook, and Google to bifurcate into liberal and conservative versions. There’s Twitter-R, Twitter-L, Facebook-R, Facebook-L, and Google-R, Google-L. That’s where this is headed.

    1. With Facebook and Twitter people can create their own echo chambers. So there is a reason Trump promoted his digital media guy to campaign manager for the 2020 campaign. So between Rush Limbaugh and Fox News and Facebook people can immerse themselves in an echo chamber of their own making.

  8. Tribalism is the real issue—the most “informed” Trump voters are the least informed voters by choice. No amount of fact checking or blogs like Vox or unbiased journalism is going to change the minds of the Trump voter because they will not turn against their tribe and they don’t want the tribe to exile them. The good news—America has more Democrats but they need to be energized…and Trump has energized Democrats to vote!

  9. You know, that’s a good point, the Internet *isn’t* fair, Congress should do something as soon as possible, maintaining social distancing of course, unless they’re protesting against the law I suppose, because a virus can’t spread during a mostly-peaceful protest, according to the best scientific authorities.

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Free Speech

President Trump Calls for Flag-Burning Bans


CNN reports (and you can hear the remarks at 43:15 of this audio):

President Donald Trump said Monday that he'd support laws criminalizing flag burning, saying in a call with governors that it's time for the Supreme Court to take up the issue again as nationwide protests have intensified over the death of George Floyd…. In Atlanta, protesters burned an American flag in front of CNN headquarters and photographers have captured images of flag burnings in Los Angeles and Washington state in recent days.

Trump, who as a candidate in 2016 proposed jail time or loss of citizenship for burning the American flag, called the act a "disgrace" on Monday and pledged support for an "anti-flag burning" statute.

"We have a different court and I think that it's time that we review that again. Because when I see flags being burned—they wanted to crawl up flag poles in Washington and try and burn flags but we stopped them," the President told governors, according to audio of the call obtained by CNN. "They're weren't able to do it. They would've done it if we didn't stop them. I think it's time to relook at that issue, hopefully the Supreme Court will accept that…. If you wanted to try to pass a very powerful flag burning statute again—anti-flag burning, I hope you'll do it because we'll back you 100% all the way. Okay? I hope some of you do it."

As I discussed in detail in a 2009 law review article, Anglo-American law has treated symbolic expression, pictorial expression, and verbal expression analogously since before the Revolution. That notion was well embedded in American law by the time of Texas v. Johnson and U.S. v. Eichman, which held that the government can't target flagburning for punishment; same for the notion that speech can't be restricted just because it expresses an offensive or anti-American viewpoint.

I therefore think the Court was quite right in those cases, and I strongly doubt that the Court today would reach any different result: If anything, the principle that the government can't ban speech based on its viewpoint has gotten even more support from the Court since then. See, e.g., Matal v. Tam (2017), which unanimously struck down a law that didn't even criminalize speech, but simply denied certain kinds of trademark protection based on the viewpoint that the trademark expressed. Nor are President Trump's Supreme Court appointees (Justices Gorsuch and Kavanaugh), I think, especially likely to vote to uphold it.

I doubt then, that any of the governors to whom President Trump was speaking would indeed encourage their friends in the legislature to reenact flagburning bans. (Indeed, I expect the President's proposal, like many proposals made by all sorts of politicians, wasn't genuinely aimed at trying to change the law here.) But if such a ban was reenacted, I'm quite confident it will get struck down, and I don't think that any briefing that the Justice Department would provide in support would change that.

[* * *]

Since we're talking about symbolic expression, I thought I'd pass along some colorful examples of symbolic expression during the Framing era (though my argument rests on much more specific legal sources):

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  1. Lots of angst and scorn here in the commentariat when a city council somewhere passes some dimwitted unconstitutional law. “Progressives want to destroy the constitution, they are un-American etc.” I’m sure Trump’s suggestions here will elicit similar outrage, since it’s all about the principle, it couldn’t have been bad faith partisanship.

    1. It’s posturing, just like everyone else in life. Get a grip.

      1. Yeah, that was kind of my point. And apparently “everyone else in life” doesn’t include Prof. Volokh, who calls out all unconstitutional actions regardless of the source.

      2. I agree with Mr. Jwpvsig, Jr. that President Trump is full of shit and should not be taken seriously by anybody.

  2. Does this mean it is legal to burn Trump in effigy, after desecrating the body in various symbolic ways?

    1. That is legal.

  3. Time to start burning some flags.

  4. How about only burn Chinese made American flags so everyone is happy??

    1. I would burn an American made American flag but I can’t find one. Any suggestions?

      1. Make one, Betsey.

      2. If there really are no American made American flags I suggest you start making them and advertise them on Fox News as “My American Flag” made from the finest American cotton that helps you become the best American that you can be! And then after you become a millionaire have the biggest ever flag burning with the profits from selling American made American flags.

  5. Professor Volokh : “But if such a ban was reenacted, I’m quite confident it will get struck down, and I don’t think that any briefing that the Justice Department would provide in support would change that”

    But ya know Barr would make a spectacle of himself in the attempt. When it comes to whoring, he’s more obvious than your basic streetwalker wearing a thick slathering of makeup, lycra miniskirt, push-up brassiere & towering heels……

    1. You have some really disturbing fantasies.

      1. It’s doesn’t require any imagination at all to see Barr as a whore.

  6. As much as I support Trump in toto, he does go off on hairbrained tangents sometimes.

    Being a First Amendment absolutist, I have no issue with people burning flags, as long as they are not using them to set fires. It is political protest speech, and is protected.

    1. And so long as it’s their own flag. Basically, you should, legally, be entitled to burn a flag anywhere you can burn anything else, under exactly the same conditions and restrictions, no more, no less.

      Yes, Trump may be, operationally, the most libertarian President in living memory, but that’s more a commentary on how unlibertarian Presidents tend to be, it’s not praise of Trump.

      1. I can’t comprehend how you can reach this conclusion. He’s probably the least libertarian president since FDR. What metric are you using to call him “the most libertarian President”? He’s big spending, insisted on preserving most components of Obamacare, he’s signed more in short-term stimulus than any president in history, he’s anti free trade, his instincts are always authoritarian (see above).

        What libertarian policies has he espoused? Tax relief? Which President in your lifetime hasn’t promised tax relief?

        1. Lots of his signature accomplishments are anti libertarian. The border wall (and immigration approaches generally), trade war with China, opposition to legalization of marijuana (and continued enforcement of it in states that have legalized it), travel bans. I guess he tried to shut down government but that was so he could secure more spending for the border wall. He speaks fondly of authoritarians with no libertarian bent. Where is this coming from?

        2. Actually he didn’t just preserve Obamacare he strengthened it. Why you ask?? Because the Kushner family is heavily invested in the ACA Exchange subsidies. All of Trump’s executive orders concerning Obamacare have all “mysteriously” made Oscar Health more competitive in the Obamacare market…what a coincidence!

  7. How about we just burn flag burners?

    1. Or how about we burn people who suggest burning flag burners?

      I support your thoughtful, well-reasoned, argument, and its logical extension(s).

    2. Flight-ER-Doc: ???

      santamonica811: Anything he can do, you can do meta.

  8. Trump may be, operationally, the most libertarian President in living memory,

    My monitor may be salvageable, but you definitely owe me a new keyboard.

    1. He’s the youngest, too.

  9. Penn and Teller already proved how patriotic burning the flag can be.

  10. “I therefore think the Court was quite right in those cases, and I strongly doubt that the Court today would reach any different result:”

    Those cases were a 5-4 non-ideological split. Since the, the court has upheld bans on pro-drug speech and Confederate flags on license plates. Both candidates in 2016 were supporters of bans on flag burning.

    Hopefully the court will do the right thing, but it’s far from clear that they will.

    1. What’s the “pro-drug speech” case? I ask because your reference to license plates suggests you’re mistaken about what the OP is talking about, or just trying to mislead.

    2. TwelveInchPainist: It seems pretty clear that the Court would not uphold bans on pro-drug speech by ordinary citizens, or bans on Confederate flags in your back window or on your bumper sticker. Say what you will about Morse v. Frederick and Walker v. Sons of Confederate Veterans (and I’ve criticized both decisions), but they were expressly and closely tied to the government’s role as K-12 educator disciplining students (Morse) and the government’s role as proprietor deciding what it prints on license plates (Walker). Neither of the cases offer any support at all for bans imposed by the government as sovereign, threatening ordinary citizens with prison for what they do with their own flags — nor do they suggest that the Justices in the majority in either of those cases would uphold such bans.

  11. Orange Jackass says something dumb. Film at 11:00.

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Audio of Federalist Society Teleforum on Whether Enterprises Closed by Coronavirus Shutdown Orders are Entitled to Compensation under the Takings Clause of the Fifth Amendment

I debated Prof. F.E. Guerra-Pujol. Prominent takings lawyer Robert Thomas moderated.



On May 15, the Federalist Society held a teleforum on the question of whether businesses and other entities shuttered by coronavirus shutdown orders are entitled to compensation under the Takings Clause of the Fifth Amendment. I debated Prof. F.E. (Enrique) Guerra-Pujol of the University of Central Florida College of Business. Prominent takings lawyer Robert Thomas moderated. Audio of the event is now available here.

In my view, most such shutdowns do not qualify as takings. In April, the Pennsylvania Supreme Court rejected a takings challenge to that state's shutdown order on largely the same grounds as I outlined in my earlier post on the subject. Prof. Guerra-Pujol argues otherwise.

During the teleforum, I think Guerra-Pujol backed off somewhat from his more sweeping earlier claims, such as the argument that compensation for shuttered businesses is required by the Supreme Court's 2005 decision in Kelo v. City of New London, a ruling not normally seen as a source of strong protection for property rights. I previously criticized that argument here.

I continue to believe that most coronavirus shutdowns do not qualify as takings, though there may be some unusual exceptions to that generalization (I note some in the teleforum).

I do think that at least some shuttered enterprises are entitled to compensation as a moral matter, even if the Constitution doesn't require it. But I am pessimistic that we can ever effectively compensate more than a small fraction of the losses caused by the shutdowns. Our best hope is to minimize the damage by "reopening" as fast as safely possible, and taking steps—including by allowing "challenge trials"—to accelerate the development of a vaccine.


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  1. “Our best hope is to minimize the damage by “reopening” as fast as safely possible, and taking steps”

    No, they should fully re-open now. The danger was never enough to justify the shutdowns.

    1. Pandemic management tips from the clinger side of the aisle — where science, reason, credentials, expertise, and education are disdained — are always a treat.

    2. Does it give you pause that not just most of America, but the entire world seems to disagree with your assessment?

      1. And by “the rest of the world” I presume you’re not including those currently praising and encouraging people who are gathering in large groups to protest.

  2. The legal analysis is easy: the amount at stake is so high that the government is not willing to pay.

    Therefore there is no taking.

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Right of Access

Interesting Public Access Decision as to the R. Kelly / Drea Kelly Divorce Case

"The mere fact a person may suffer embarrassment or damage to his reputation as a result of allegations in a pleading does not justify sealing the court file."


From In re Marriage of Kelly & Kelly, decided Friday by the Appellate Court of Illinois, and written by Justice Mathias Delort, joined by Justices Thomas Hoffman and Mary Rochford (nonprecedential):

[A Chicago public radio station operator and the Chicago Tribune Co.] filed a joint motion to intervene in divorce proceedings between petitioner-appellee Robert Kelly and respondent-appellee Andrea Kelly. They sought access to documents contained in a sealed court file….

In June 2013, the circuit court entered an agreed order directing that the entire court file be sealed, finding that both parties were entertainment celebrities and there was a "serious likelihood of the media culling through the record for the purpose of revealing painful, potentially scandalous, details."

In 2019, WBEZ and the Tribune filed a joint motion to intervene and for access to the sealed court files in Robert's divorce case…. [As to some documents, the trial court reasoned that,] … "… There is specific sensitive information in there that involves the children in this case; the relationship that the children have [with] one or both of their parents. It involves a doctor-child relationship with information about one or more of the children. That would not be made public.

"And I find that in regards to all of these different paragraphs that I mentioned for both of these two documents, that revealing the information would be very detrimental to the best interest of the child and, therefore, raises a higher value and overcomes the presumption."

[But as to other documents, the court largely] allowed public access "to the entire court file, including the redacted documents and noting the sealed documents" beginning on August 13, 2019. Exhibit A to the court's order, which was an extensive spreadsheet, directed the circuit clerk to redact the following parts of the March 2014 motion: "the entirety of Count II [entitled 'Modify Visitation'], including paragraphs 26-37 and A-D." The court stated that, as to the sealed material, the best interests of the parties' children outweighed the public's right of access.

The clerk of the circuit court of Cook County did not precisely follow the court's sealing and redaction order. The clerk placed material in the public file that the court had ordered to be sealed. WBEZ discovered this error when it reviewed the public file….

[When the judge was informed that WBEZ had gotten the documents and was going to write about them,] the judge … stated that her "redaction/seal order is very specific" and that she did not expect "anyone, including the Clerk's office or WBEZ," to violate it[, and later added] …:

"Let me reiterate—I do not expect ANYONE or ANY ENTITY to violate my court order, which was distributed to all parties including intervenors, both electronically and handed in printed format to their attorney. WBEZ has been well aware of my restrictions on documents, as they were part of the Intervenors who received my court order." …

[At a later hearing, t]he court stated that there was "no doubt" that public access and the First Amendment were a "priority," but that, "in regards to domestic relations cases, there's also no doubt that there are certain situations that can overcome or that are even more important, one of which is the best interest of the children that would lead to some sort of redaction or sealing." The court further noted that it had opened "virtually the entire file" to the public, but that it ordered a substantial portion of the March 2014 motion to be redacted "based on my decision and my opinion that it was in the best interest of the minor child that that portion of that document be redacted and remain redacted." …

The Appellate Court concluded that the documents should not have been sealed, given the right of public access recognized by Illinois statute and First Amendment precedents:

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  1. This in particular …

    both parties were entertainment celebrities and there was a “serious likelihood of the media culling through the record for the purpose of revealing painful, potentially scandalous, details.”

    got my attention.
    I realize this is the court’s wording, but I doubt they did it over the protestations of the parties. Celebrities live by publicity, almost by definition (“A celebrity is someone who is famous for being famous”). It is really annoying when celebrities think they get to abuse the legal system to control their publicity. Live by the sword of public opinion, die by the same. If they don’t like the publicity, they should find some other career.

    Public courts ultimately depend on the public honoring their actions, and it is arrogant beyond belief to expect the public to honor secret judgments just because they are famous for being famous.

  2. It also annoys me when people want secrecy because their children might be embarrassed. Should criminal cases be secret because their children might be embarrassed for the world to know their parents are criminals? Should criminals not be punished because their family might lose income, however ill-gotten? How far can we extend this before people are no longer embarrassed?

    Everything that we do has the potential to embarrass others. It would be one silent world if no one else were allowed to ever be embarrassed.

    1. While I agree that children being embarrassed by their parents is not a good justification, being embarrassed in their own right might be.

      Consider, for example, a divorce decree that, in analyzing the relative payments, has to openly discuss a child’s medical condition. The child’s diagnosis is an objective fact and it’s disclosure would do nothing except embarrass the child. Yet the public has little need to know the child’s medical diagnosis to validate the court’s handling of the divorce. It seems to me that information should still be protected.

      1. Or even if it isn’t that specific to the child’s medical conditions…. what if mom is accusing dad of sexually abusing his daughter? It is not at all uncommon for these sorts of accusations to fly back and forth in family court. Why should all of little 12 year old Sally’s schoolmates be reading about how her mom says her dad has been having sex with her? Whether true or false, certainly no good can come of that.

        And what of mom and dad? Dad levels some spurious allegations at mom in the heat of an ugly divorce where mom was unfaithful… Does Sally really need to deal with what the other moms are saying about her mom?

        I’m not sure what the “public good” of making some of that dreck public is.

  3. I tend to agree that the presumption for open court documents can be overcome, on public policy grounds.

    If people think that bringing their problems to court for resolution will be against their interests, they’re going to use other mechanisms. since only the state courts can issue divorces, you’ll wind up with people looking to be widowed rather than divorced.

    1. Or just not married. I doubt very many people will be so desperate to end a marriage, and so afraid of the embarrassment of a divorce, that they will prefer the embarrassment of a homicide trial.

    2. Can you offer a single example of a mariticide (attempted or completed) that you think was plausibly motivated by a desire to avoid creating divorce records they are open to public inspection?

      I’m dubious about the public policy utility of this sort of murderer’s veto generally, but it seems especially inapt when the prospect of actual murder is so remote.

  4. Professor Volokh,
    You post so many of these cases about sealing records. Cases that seem so obvious.

    Aren’t law students instructed on what is proper to seal?

    1. I bet his are 🙂 Others not so much.

    2. No, law students are not generally instructed on what is proper to seal.

      1. I agree with Noscitur; I know of no law school class that generally discusses such matters — my civ pro class certainly didn’t when I was a student, and I don’t have time to cover them in my own First Amendment Law class. Doubtless someone discusses them somewhere, but I suspect pretty rarely.

        What’s more, litigants can often get away with a good deal more sealing than the law authorizes, especially if one or more parties wants sealing but none of the others opposes it. In theory, the judge should consider the public’s interest, and reject even unopposed sealing motions if they aren’t legally sound. But while many judges do that, my sense is that some don’t scrutinize such unopposed motions that closely. And while media outlets that learn about the matter can get the documents unsealed (which is what happened here), that costs them time, money, and effort. Even legally weak sealing attempts thus end up often succeeding, at least temporarily.

  5. Voyeurs seeking access to people’s bedrooms is probably the quintessential example of why the public’s right to know is not unlimited.

    The Constitution’s framers explicitly limited the right to public trials to criminal trials only. I am not impressed by the argument that other constitutional provisions cover civil trials. If trials already have to be public, why was it necessary to mention it in the 6th Amendment? We do not normally construe the constitution in a way that renders entire provisions surplusage.

    And so far as a common law right to public trials is concerned, well, the common law also creates exceptions to that right. Messy divorce cases is one of those traditional exceptions.

    1. Can you provide some authority to support that last proposition? It’s not consistent with my understanding of the tradition involved, but I’m far from an expert in this area.

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Quick Thoughts on the California Church-Closure Case

How much work does doctrine do?


Last weekend, the Supreme Court rejected a California church's application for a temporary injunction against enforcement of a state public-health order limiting attendance at houses of worship (South Bay United Pentecostal Church v. Newsom). The order, a response to the COVID-19 epidemic, restricts gatherings at houses of worship to 25% of building capacity or a maximum of 100 persons. The South Bay United Pentecostal Church in Chula Vista claimed that the order violates the Free Exercise Clause.

The Court decided the case in a matter of days, which shows that the Justices can really get their act together when necessary. The vote was 5-4, with Chief Justice Roberts joining the progressive wing of the Court in denying the church's application. There is no opinion for the Court, but the Chief wrote a short concurrence that probably reflects the views of the majority. Justice Kavanaugh filed a dissent for himself, Justice Thomas, and Justice Gorsuch.

One shouldn't make too much of quick decisions on interlocutory motions. The combined opinions in South Bay United Pentecostal Church are only six pages long. Still, a couple of things stand out. First, the essential difference between the Chief and Justice Kavanaugh is this: the Chief was willing to defer to California's judgment on what sort of gatherings pose "comparable" public-health risks and Justice Kavanaugh was not. Under Employment Division v. Smith (1990)—a case neither the Chief nor Justice Kavanaugh thought necessary to cite—a state does not violate the Free Exercise Clause where it enacts a neutral and generally applicable law that incidentally burdens the practice of religion. If a state targets religion for disfavored treatment, by contrast, a balancing test applies. In that situation, the state must show that it has a compelling interest that outweighs the burden imposed on religion, and that it has chosen the least-restrictive means of achieving that interest.

He didn't use the phrase, but Chief Justice Roberts concluded that California's order was neutral and general, applying equally to worship services and "comparable secular gatherings." In addition to churches, the restrictions applied to "lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time." True, California had treated other activities more leniently, including "grocery stores, banks, and laundromats." But these activities were "dissimilar" to worship services, in that they did not allow people "to congregate in large groups [or] remain in close proximity for extended periods." Particularly in a public-health emergency, he wrote, judges should not second-guess the determinations of politically accountable officials.

By contrast, Justice Kavanaugh believed that the California order did discriminate against religion by treating "comparable secular businesses" more leniently. For Justice Kavanaugh, the relevant basis for comparison was not the nature of the activity, but the ability of participants to follow rules about social distancing and hygiene. The church was willing to abide by the same rules as grocery stores and the like, he noted. So why had the state decided to restrict the church but not the others? Unlike the Chief, Justice Kavanaugh did not give state authorities the benefit of the doubt. The authorities had "substantial room to draw lines, especially in an emergency," he conceded. But California had gone too far.

For both the Chief and Justice Kanavaugh, then, the case came down to judgments about which activities are "comparable" and about how much deference to give elected officials during a public-health emergency. For what it's worth, I think the Chief had the better of the argument. But the point I'd like to focus on is this: both the Chief and Justice Kavanaugh made these judgments quickly on the basis of broad principles and common-sense assumptions. I have already noted how neither of them even referred to Smith, the controlling case in this area. No doubt, the need to decide this interlocutory application speedily precluded a more thorough legal analysis. But these opinions make one wonder whether the doctrinal superstructure of free exercise clause jurisprudence, which students, professors, and lawyers pore over with great care, has all that much importance, in the end. Perhaps free exercise cases always come down to quick, intuitive judgments—however judges explain their decisions after the fact.

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  1. I’m not going to give the Gang of Four points for using common sense, that’s not what’s going on here. But I agree that court decisions that are rational and easy to apply in other circumstances are greatly preferred to decisions that entirely result from some doctrinal superstructure that denies justice to those without bargaining power.

    1. My interpretation of your comment is that doctrinal superstructures are ok so long as they do not “den[y] justice” to a specific set of people “without bargaining power”. Do you have a case in mind where a doctrinal superstructure was invoked to deny justice to a group of people with no bargaining power? What do you mean by “justice” and “bargaining power”?

  2. I am not so certain that CJ Roberts had the better argumaent. How does he distinguish between churches/synagogues and mass transit or airplanes? Enclosed spaces for prolonged periods of time with plenty of exhalation.

    1. He wasn’t asked to decide that. The structure he used is a difference common in Building Codes, Fire Codes and Zoning Ordinances.

      Perhaps if a case were brought regarding airplanes ( which have highly circulated air and HEPA filters) or buses the answer would be different. But buses and airplanes are more like each other than they are like churches or supermarkets.

      1. Buses have HEPA filters?
        None of the ones I ever drove did…

        1. No all modern airliners do.

    2. Are airplanes governed by state law? Casinos was the big one I’ve seen, but I think they’re governed by Indian law in California. Perhaps an argument could be made for buses as the closest (I’ve also heard an argument for laundromats since people don’t typically leave their clothes there), but I think it would have to be fleshed out more. Obviously, the number of people infection can spread to on a bus is relatively small. I would guess that the average time spent in a bus is smaller as well.

      1. Who said bus? I said mass transit. Think: NYC subway. Not unusual to ride 45-60 minutes in a subway. Large crowds. Close together. Enclosed space for a lengthy period of time.

        You tell me….which is the higher risk. Tell you what, I’ve done the NYC commute. My synagogue is a hell of a lot safer (not including High Holidays).

        1. Yeah, but there’s another thing going on here which the Court dare not say but which is nonetheless true.

          Which is, despite all the things said by religious groups, in person religious services really aren’t essential in the way that subway service is.

          The reason courts dare not say that is because they have boxed themselves into a corner on regulating sincerity claims or the content of religious beliefs. But seriously, many, many believers go without in person group religious services for periods of time. Soldiers in combat, maximum security prison inmates, astronauts, and just people who don’t have the time to go to church due to their secular obligations. Few religious people truly believe that God is going to punish anyone just because they aren’t attending an in person group religious service periodically.

          There’s a huge amount of special pleading going on here, special pleading that I will concede is perhaps countenanced by the First Amendment’s religious clauses, but special pleading nonetheless. As a matter of public policy, a church isn’t much different than a yoga studio and has no relationship whatsoever to basic transportation infrastructure, the food service industry, or other truly essential matters.

          1. The reason courts dare not say that is because they have boxed themselves into a corner on regulating sincerity claims or the content of religious beliefs. — I don’t know enough about this to say one way or the other. But would love to hear/read more.

            Not so sure I agree with the last point, though. I think that is the nub of the issue.

          2. “Which is, despite all the things said by religious groups, in person religious services really aren’t essential in the way that subway service is.”

            Really? At least 70% of the US population lives without any subway service within 10 miles of their home. I’d argue less than 10% of the US population uses a subway at least once a week. That doesn’t seem very essential at all.

            On the other hand, religious services are so essential, they were literally the first thing the states added onto the Constitution. You know what’s helpful about them? It’s a social gathering of people that teaches community, peace and charity, while providing an emotional and spiritual outlook for the stress of every day life.

            Turns out if you decide to shut down the economy, lay off more than 15% of the population, and lockdown a bunch of the little things that make life worth living, having a support organization like religion would be really useful. Turns out, if its NOT available, people emotions and stress might just bottle up, until a spark hits, then they go a little crazy…

            1. On the other hand, religious services are so essential, they were literally the first thing the states added onto the Constitution.

              That isn’t because they are essential.

              Pornography is protected by the First Amendment too. Is it essential?

              We protect religion because of various notions of a pluralistic society, NOT because it is essential. Indeed, if everyone in the country converted to atheism tomorrow, it probably wouldn’t harm the country or its people one bit.

              I agree that, as I said, the Constitution allows for some special pleading on behalf of religion. But we should recognize it for the special pleading that it is.

              In terms of actually being essential, as I said, gathering in one place for religious services is no more essential than doing so for yoga or transcendental meditation or a swinger’s party or any number of other things. It’s not anything like basic public transportation.

              1. This is because religion is essential. Nearly every major society throughout history has had religion. Those rare cases where religion has attempted to be eliminated typically result in the fall of the society (IE, the USSR). Religion plays a crucial role in the spiritual and mental well being of the population.

                Pornography, by contrast, is a very small subsection of free speech, and has numerous limitations on it. It notably was not referred to by name in the Bill of Rights, and was more of an after thought that got thrown in with the First Amendment.

                We protect religion for a variety of reasons, including its importance to society at large. Gathering in one place for it has been a critical aspect of it, across multiple different types of religions across several centuries of history.

                “Public Transportation” (a larger category than just “subways”) is not essential. The United States existed without any real public transportation and did fine. It has advantages, but is not essential or required. Many people rarely take public transportation, and some never do.

                1. This is because religion is essential. Nearly every major society throughout history has had religion.

                  Nearly every society in history has had pornography, and nearly every society in history has had superstitions.

                  That doesn’t make it essential.

                  It notably was not referred to by name in the Bill of Rights

                  So what? The Ninth Amendment makes crystal clear that enumeration isn’t the end-all and be-all of whether something is a right.

                  “Public Transportation” (a larger category than just “subways”) is not essential. The United States existed without any real public transportation and did fine.

                  Not big cities. Back in the day, it might have been hackney carriages, but there were always forms of public transportation.

                  At any rate, “essential” includes the concept of “not tied to a 18th Century economy”.

                  1. 1. When every successful society seems to have it, and those that get rid of it seem to fail, that’s a sign that it’s “essential”.

                    2. A hackney carriage is not “public transportation”. It is a private rental.

                    1. Every successful society was based around farming until it wasn’t. The notion Afghanistan would be worse without religion is absurd. Obviously human nature has a tendency to create a religion like it creates a spoken language.

                    2. Farming is essential to every successful society.

                      And it still is….

                    3. Today we have millions FEWER farmers than we had in 1900. If I informed Thomas Jefferson of this fact he would probably believe we ended up a failed state.

    3. How does he distinguish between churches/synagogues and mass transit or airplanes?

      California distinguished them as only the latter being essential (even though they likely both have a high risk), and the plaintiffs did not challenge that distinction. Had they done so, we would probably be back to the same gut-feel analysis and how much deference do you give the state?

      1. Josh R, I think I would feel differently about all of this if there was a date certain that an Executive Order like this (public health emergency) would be reviewed and then renewed (or rejected) by the Legislature. Right now, we have a situation where these Executive Orders are just open-ended, no objective criteria, no date certain for review or termination. That is not workable, nor should it be.

        The Legislature should put a brake on Executive power, and say: Hey, after 30 days, we the Legislature will review and then decide to renew it. Right now, Legislatures are standing on the sidelines when they should be representing our interests. That is a problem.

        They never did raise the issue you wrote about a week ago….why weren’t Churches/synagogues classified for phase 2 instead of phase 3? That was a great question that went unanswered (this time).

        1. California addressed why religious services belong in Phase 3 in their brief in this case

          the State had consistently assigned “all large public gatherings, including religious services” to Stage Three. E.R. 87. In the view of state public-health officials, large public gatherings pose a heightened risk of spread because attendees are “stationary in close quarters for extended periods of time.” Id. Moreover, at religious services, “congregants are often speaking aloud and singing, which increases the danger that infected individuals will project respiratory droplets that contain the virus,” “thereby infect[ing] others.”

          1. Hey, thanks for passing that section along!

            Interesting how mass transit was left out of that mix. I mean, the physical characteristics are virtually the same. Let’s see if I can re-state that section to make my point.

            <Riding mass transit poses a heightened risk of spread because riders are “stationary in close quarters for extended periods of time.” Id. Moreover, on mass transit, “riders are often speaking aloud and laughing on their phone, which increases the danger that infected individuals will project respiratory droplets that contain the virus,” “thereby infect[ing] others.”

            Hard for me to see the difference here. BUT, it is a close call.

            I just wish there was a bright line. I miss praying in a minyan is shul.

            1. Mass transit is in Phase 1 because it was deemed an essential activity, and essential activities were permitted regardless of the risk (while keeping them as safe as possible).

  3. So you can prey but not pray — it’s OK to protest but not worship.
    Amazing how credible threats of violence shape public policy.

    1. Babylon Bee has something to say about that…

    2. Many religions would take issue that a building is required to worship.

      (and no one has taken away anyone’s right to worship)

      1. Unless you think congregating in a particular place at a particular time with particular people is necessary for at least a subset of your worship, which applies to a fair number of people.

      2. And half the time religious stuff comes up here, they point out the decision that the government cannot second-guess the validity of religious beliefs, even if logically in contradiction to the relevant religion’s official doctrine.

  4. Roberts giving so much deference to government officials show what a hack he is. Those officials have been wrong on pretty much everything they’ve said and done and almost every one of them has allowed their cronies exceptions to the rules they claim are important for everyone to follow.

    1. Enjoy your final six months of judicial activism, clingers.

      1. Yes, we will especially enjoy putting two more circuit court judges on the bench, and roughly 60-70 more district court judges as well.

        1. Wait a sec! I thought in a presidential election year, the Senate was supposed to wait and give the people their say.

          1. Nothing vacant on SCOTUS, is there?

  5. “But he answered and said, It is written, Man shall not live by bread alone, but by every word that proceedeth out of the mouth of God.
    – Matthew 4:4”

    I don’t think CJ Roberts had the better part of that argument.

    1. It turns out the US is not a theocracy, so the relevant document to consult is the Constitution not the Bible.

      1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,

        A two-for : Free exercise and peaceably assemble.

        1. Is that from Ephesians?

        2. Hmm, I wonder if the Chief Justice made reference to this first amendment thing in his concurrence? Oh, look, he did:

          “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. ”

          He even goes on to explain why he thinks so (as summarized by Professor Movsesian). Maybe it would helpful to actually address that argument rather than assuming that the Chief Justice doesn’t have at least a passing familiarity with the text of the Constitution.

      2. Yeah, only a theocracy would allow people to attend church!

        1. If SCOTUS decided constitutional questions on the basis of Matthew 4:4, we would be in a theocracy.

  6. I agree that the haste with which this petition was processed make it unsuitable for precedential citation. I think that with further briefing and oral argument, the Chief Justice’s logic would whither.

    California allowed schools and laundromats to open in phase 2 with social distancing. Both of these directly correlate with large gatherings in single open spaces.

    BTW, not all churches gather in a single large room. There has been a trend among evangelicals for small groups-groups of 10 or less, families, etc. to pray and worship.

    As has been pointed out in other circuits, I guess church attenders can be trusted to socially distance themselves in schools and while they do laundry, but for some reason they can’t be trusted to socially distance themselves at church.

    1. Schools are more like the places Roberts cited, laundromats not so much. Both however tend to have smaller gatherings that a typical church service. I’ve never seen a laundromat with even a hundred people in it.

      1. Besides that, there are public health reasons for why we’d want people washing their clothes and sheets. I have yet to see a study demonstrating that prayer or congregating in a church frustrates the transmission of disease.

        1. I have yet to see a study demonstrating that prayer or congregating in a church frustrates the transmission of disease.

          What, STDs don’t count?

    2. “California allowed schools and laundromats to open in phase 2 with social distancing. Both of these directly correlate with large gatherings in single open spaces.”

      That’s not the relevant legal question; there is no “does this correlate (whatever the fuck you mean by that) with something else?” test. But even if it were, you’re not right about the correlation.

      Laundromats is an asinine comparison, so set that aside. Schools aren’t comparable, either, since there are overriding policy reasons why we would need schools open but not churches, and why schools represent less risk to the public generally. Children go to schools and are at virtually no risk of being killed by COVID. Old people go to church, and are at the highest risk of dying from COVID. Schools are open 5 days a week and help promote essential workers by freeing them up from childcare, to go do essential services. Churches aren’t like that.

    3. I tend to agree that schools look a lot more like churches than, e.g., grocery stores or banks. Having said that, I’m actually struggling to find information on what is and is not allowed in Phase 2. I see several news article saying that schools are allowed to reopen, but that doesn’t seem to be reflected on any of the official California sites, there doesn’t seem to be any evidence that schools actually have reopened and the only articles that talk about any plans to actually reopen schools put the date well into the future, e.g.:

      So while it might be hard to justify reopening schools but not churches, that doesn’t actually seem to be happening as far as I can tell.

  7. I agree with the Supreme Court’s actions, because limiting attendance at places of worship is a common good. It should not only be in certain churches, but all places of worship. Now is the right condition for worship at home and activities at home.

  8. SCOTUS made the right call. To rule otherwise would open the door to religious people demanding to be exempt from any health regulations that they don’t like. They already have an “employment law free zone”, don’t give them a “public health free zone”. To make such a sweeping change on quick and poorly developed case would have been a mistake.

    1. Like Hallal and Kosher butchers?

      1. It is my understanding and expectation that Kosher and Hallal do follow USDA guidelines are the plants are inspected.

        1. That is only partially correct. Hallal and Kosher have guidelines specifically written for them in the USDA code. They do not necessarily follow the general guidelines, but their own special guidelines.

          1. Anyone can lobby the government and they are free to have religious motives when lobbying civil authorities to implement civil regulations…it’s why December 25th is a federal holiday.

  9. It seems to me that Smith wouldn’t apply anyway as these regulations are do not “incidentally” burden the practice of religion. They are direct regulations imposed on the practicing of religion which prevents worshipers from engaging in other protected activity, speech and association.

    I’m not sure why a church would want to challenge this as keeping its congregates (who skew old) safe would seem to be a fairly important thing. But push comes to shove, it’s still their right to practice.

    1. “Incidentally” in Smith doesn’t mean “only a little bit.” It means that the purpose of the law wasn’t to burden religion.

      1. And when you have a specific regulation telling churches how they can congregate, the purpose of the law is to burden the religion. The reasons you want to burden them in this instance may no arise from animus, but the purpose of the rules are to burden.

        1. “And when you have a specific regulation telling churches how they can congregate…”

          That’s not what happened here. There is a Stage 3 that applies generally to “Higher Risk Workplaces” that includes in-person religious services, among others.

          1. My favorite regulation was when they said restaurants could serve food, but you couldn’t hand out communion at Mass…

            They reversed themselves real fast on that one.

            1. They goodness, because heaven forbid states make decisions without first clearing them with the American Ayatollahs.

              1. You really don’t see a problem there, do you?

      2. This isn’t an incidental burden, it’s specific. The regulation doesn’t say, “all buildings have to limit occupancy to 25% of capacity.” It says, in effect, “restaurant buildings must limit occupancy to 50%, church buildings have to limit occupancy to 25%.”

        1. We’ve seen this argument before that once Newsom explicitly mentioned churches, the order was not neutral. I don’t think that argument makes sense.

          If instead, Newsom listed a set of neutral characteristics that allow services to be placed in Phase 2 versus Phase 3, without applying those characteristics to religious services, it would be left to judges to apply the order to religious services. I find it unpersuasive that Free Exercise neutrality requires that judges, rather than the elected branches, apply neutral characteristics to religious services.

          1. The argument that doesn’t make sense isn’t the one being made here. It’s not that Newsom mentioned churches–it’s that he specifically applied different rules to them.

            If he said these are the characteristics for each type of restrictions and gave examples, including churches, I that would be neutral. But saying churches had a 25% limit, and no other businesses had that same limit, is clearly not neutral.

            I could be wrong about the facts, of course. If churches are just one type of business among many that face a 25% limit, then I’d agree the order is neutral. Do you know if that’s the case?

            1. I believe that all but one of the places with a greater-than 25% limit are in Phase 2. Churches were given preferential treatment over gyms, nail salons and movie theaters, all of which are in Phase 3 and remain closed. The one Phase 3 place that is not subject to the 25% limit is hair salons. Perhaps Newsom needs to explain that distinction, but I suspect he can. And as Roberts said,

              The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

  10. The events of the last week have rendered this case moot.

    All that a church has to do is to declare itself a protest. Then all normal rules are suspended.

    1. Yeah, those protestors are being treated super well and hands off.

      1. As long as they don’t burn down their own church in protest, they should be fine.

        Fire set at historic St. John’s church during protests of George Floyd’s death

  11. I agree that both opinions answered the question about the comparability of church services with other activities based on general assumptions, intuition, and predispositions.

    I believe this was a mistake. A reasonable approach would have been to say we’re not certain of the facts and one side or the other gets the benefit of evidentiary presumption until a trial occurs and the facts come in. The justices might disagree on which side should get the benefit of the presumption, but at least that would be a genuinely legal question and not a resolution of an important fact dispute based on extra-judicial personal opinions.

    I am inclined to think that the state gets the benefit of the doubt in an emergency. This would lead to something close to Justice Roberts’ opinion, but minus the opinion on whether church services actually are comparable or not, leaving that and the ultimate outcome of the case for fact-based resolution.

    1. Sometimes, when the justices are highly split on the facts, this might be a signal that they don’t actually know them. Especially in an early-stage context like a preliminary injunction, this might be a signal that things are less obvious than they might appear and more caution is warranted.

Please to post comments


Are People Allowed to Use Deadly Force to Defend Property?

It depends, whether as to looting or other threats to property.


I touched on this briefly in my looting/shooting post, but I thought I'd elaborate a bit more (especially since the commenters seemed to be interested in both the legal and moral aspects of this question). Note that this is, as usual, not specific legal advice, but just a general layout of how various American courts deal with the matter; many of the rules, as you'll see, vary sharply among states, and often turn on specific factual details. (I say "you" below for clarity and convenience—I hope none of you has to actually do any of this.)

[1.] In all states, you can use deadly force to defend yourself against death, serious bodily injury (which can include broken bones and perhaps even lost teeth), rape, or kidnapping, so long as (a) your fear is reasonable and (b) the danger is imminent (requirements that also apply to the doctrines I discuss below). For instance, you should be able to use deadly force against someone who is trying to burn down your home, since that threatens you with death or serious bodily harm. You should be able to do the same against someone who is trying to burn down your business, though with possible limitations involving the duty to retreat in the minority of states that recognize such a duty.

But in nearly all states, you can't generally use deadly force merely to defend your property. (Texas appears to be an exception, allowing use of deadly force when there's no other way to protect or recapture property even in situations involving simple theft or criminal mischief, though only at night,  Tex. Penal Code § 9.42; see, e.g., McFadden v. State (Tex. Ct. App. 2018).) That's where we get the conventional formulation that you can't use deadly force just to defend property.

[2.] This conventional formulation, though, omits an important limitation: In basically all states, you can use nondeadly force to defend your property—and if the thief or vandal responds by threatening you with death or great bodily harm, you can then protect yourself with deadly force. So in practice, you can use deadly force to protect property after all, if you're willing to use nondeadly force first and expose yourself to increased risk.

And in some states, you don't even need to expose yourself to such increased risk, if you reasonably fear at the outset that nondeadly protection of property would be too dangerous. In those states, to quote the Model Penal Code formulation (which some have adopted), deadly force can be used if

the person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either:

[a] has employed or threatened deadly force against or in the presence of the actor; or

[b] the use of [nondeadly] force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily injury.

Note the requirement, in at least this version, of felonious theft or property destruction.

[3.] And that's just for garden-variety theft and property damage. When the theft or vandalism is aggravated in certain ways, many states allow for still more deadly force.

[A.] In about half the states you can use deadly force against robbery, which generally includes any theft from the person that uses modest force or a threat: "Even a purse snatching can constitute a robbery if the victim simply resists the effort to wrest the purse away." Some robbery of course does also create a reasonable fear of death or serious bodily injury, but in these states such a fear is not required.

[B.] In some states, there is a rebuttable presumption that you reasonably fear death or great bodily harm—and may thus use deadly force—if the target is (to quote the Iowa statute),

Unlawfully entering by force or stealth the dwelling, place of business or employment, or occupied vehicle of the person using force, or has unlawfully entered by force or stealth and remains within the dwelling, place of business or employment, or occupied vehicle of the person using force.

This is just a presumption, but to rebut it the prosecution would generally have to prove beyond a reasonable doubt that you didn't actually reasonably fear death or great bodily harm in such a situation.

[C.] [UPDATE 6/2/20 11:14 am; added this subsection:] And in some states, it is categorically permissible to use deadly force against burglary—often defined as entering a building illegally with the intent to commit a crime (including theft) there—or against arson, even when you have no reasonable fear of death or serious bodily injury to yourself. For instance, here is one of the New York criminal jury instructions, which generally summarize several relevant New York statutes (brackets in the following text are in the original, and indicate text that is included if the facts of the case fit it):

Under our law, a person in possession or control of [or licensed or privileged to be in] a dwelling [or an occupied building], who reasonably believes that another individual is committing or attempting to commit a burglary of such dwelling [or occupied building], may use deadly physical force upon that individual when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary….

A person commits BURGLARY when that person knowingly enters or remains unlawfully in a dwelling [or occupied building] with the intent to commit a crime therein.

Note that building includes "any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein," and there's also a similar instruction as to deadly force to prevent arson, which is not limited to burning of occupied buildings.

[* * *]

This, of course, is just the tip of the iceberg: There are various limitation to these rules (e.g., if you're actually the initial aggressor, or if you know there's a good-faith dispute about the ownership of the property), and I'll note again that the rules and their interpretation can vary sharply from state to state. But this is the big picture, which I think helps show the complexity of this area of the law.

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  1. Since people keep telling me about the importance of Judeo-Christian values, it might be worth remembering this one:

    Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man will sue thee at the law, and take away thy coat, let him have thy cloak also. And whosoever shall compel thee to go a mile, go with him twain. Give to him that asketh thee, and from him that would borrow of thee turn not thou away. Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you;

    1. You would kill someone, possibly sending them to hell for all eternity, because of a material possession? Not very Christian of you.

      Of course, by that standard, liberal Christians are going to hell, too. Jesus said to help your neighbor, not to pull out a weapon and force your neighbor to help your other neighbor. “Give to Ceasar what is Ceasar’s, and to God what is God’s” is to let you live in such a place with government mandates, but does not authorize you to create such.

      1. “Give to Ceasar what is Ceasar’s, and to God what is God’s” is to let you live in such a place with government mandates, but does not authorize you to create such.

        Neato theology. Hardly the only possible interpretation, however.

      2. Nice platitude, but property sustains life. It is how people feed and shelter their family – at least for those who work (as opposed to those who live off welfare etc). So it’s a bit more complicated than,“Its just property. Because sometimes, indeed in many cases, property is not replaceable and the loss dramatically impacts the life of the owner and family.

        But, by all means, feel free to empty out your house and place the goods on the sidewalk, and leave the keys in your car for others to free take. After all, it just stuff, right?

        1. dramatically impacts the life != death.

          That’s my equation. It is also that of the law. A law that spontaneously grew in many jurisdictions.

          Is your equation different?

          1. Actually I do. I think people have a right to more than survive, they have a right to thrive. They have a right to be/feel safe, and provide a safe place for their families. Moreover a property loss may, and or the psychological damage of feeling vulnerable, well start a downward spiral that leads to a loss of family, job, and even a delayed death. So yes, my equation is a lot different than yours.

            1. What the crap is that reasoning? Some hypothetical eggshell victim means it’s okay to kill thieves?

              1. “Some hypothetical eggshell victim”

                If you’ve known anyone who has come home to find their house broken into, the loss of security can actually be emotionally devastating.

              2. I am in favor of broad rights to kill thieves when it involves a person in their home or in a confined space.

      3. This argument is basically a tempest in a teapot that is seldom even applicable in the real world. In so far as I know, no crystal ball that will instantly discern criminal intent has been invented, thus, since criminals who steal and damage property often harm people in the process, it is prudent to simply presume desire, or at least willingness, to do physical harm to person on the part of any criminal, perpetrator. Ergo deadly force is used against a perpetrator based on the quite reasonable belief that they pose a threat to physical safety regardless of their apparent primary goal. If that belief is inaccurate, too bad, the only reason conflict exists in the first place is because of the perpetrator’s actions, thus they should logically bear the responsibility for all consequences of those actions including those resulting from misunderstanding of their intentions. If one is not willing to bear that responsibility, then one should refrain from committing criminal acts.

      4. I am not the judge or jury, God is, if God sends him to hell it is because or himself, same with me, if I go to hell it is because of me. But Jesus says all people fall short of the glory of God, only through belief in him do you enter Heaven. It is not all about what you do or don’t do, it is about what you believe. You strive to be better because you are a Christian, you are not perfect because you are a Christian. Your scenario tries as always to set a false trap.

    2. Luke 22:36 And He said to them, “But now, he that hath a purse, let him take it, and likewise his scrip: and he that hath no sword, let him sell his garment and buy one.” Jesus, discharging his followers.

      1. Which is advice to the twelve apostles, who were specifically commissioned to spread the word, and was not given to the general public.

        1. So, what’s your advice to say, your Korean shopkeeper, an apostle of capitalism?

        2. Isn’t it the general opinion that all Christians are now “commissioned to spread the word” though?

          1. Have your own way. Now, let’s discuss the Korean shopkeeper who owns religious book store.

        3. There is no logical basis whatsoever to believe that the advice to the “general public” would have been any different.

    3. A small point, martinned.

      Turning the other cheek is not a Jewish value. Specifically, at least as I was taught, it is wrong to tolerate an injustice, even if you yourself are the victim.

      1. Apparently, the “smite” on the right cheek here refers to personal slights, insults and offenses.

      2. In my experience, people who talk the loudest about Judeo-Christian values tend to be a little careless about the “Judeo” part of that. (Although they tend to be plenty willing to quote the Old Testament just like, predictably, Dr. Ed did above.)

        1. The more correct terminology is actually “Hebrew Bible”, instead of “Old Testament”

          1. If you’re Hebrew, that is. Otherwise, to Christians, it is the Older of the two testaments, which means it is the Old Testament.

          2. The most correct terminology is the Tanakh, assuming you’re speaking specifically of the Jewish religious text. (Or, if it comes from the pentateuch, the Torah).

            It is perfectly correct to refer to it as the Old Testament when speaking of Christian belief.

            (In fact, these things aren’t really identical. The Christian ‘canonical’ Old Testament is based on the Greek Septuagint, while the Tanakh is primarily in Hebrew with a little Aramaic. The differences are not inconsequential, and modern Christian re-translations from the Hebrew can’t change the scriptural environment Christianity developed in, and which materially affected the writing of the new testament).

    4. I have a family member who was in an abusive relationship. She stayed in that role in the relationship because she too had been taught to “turn the other cheek”. The lightbulb finally went on for her when her therapist asked “How many cheeks do you have?”

      “An eye for an eye” leads to a nation of the blind but a lack of any consequences inevitably leads to abuse.

    5. I love it when non-Christians interpret scripture. Jesus spoke to a liturgical community–that is, a community that shared values and faith. Similarly, the letters of Paul are addressed to a community of faith, and the admonitions address how one member of the community treats another. I am admonished to turn the other cheek to a fellow Christian, on the assumption that we share more than just common physical space.

      Christian ethics encompass Just War doctrine and radical pacifism. The debate is robust about whether a Christian may use deadly force to protect even his life or the life of others.

      Your facile regurgitation of scripture is inapt.

      1. That might explain why the Bible is the most stolen book.

      2. Jesus spoke to a liturgical community–that is, a community that shared values and faith.

        I don’t understand this. Is it even accurate to speak of Jesus’ audience at the time being “Christians?” Wouldn’t it have been made up of Jews of varying opinions, some Romans, other people who lived in the area and held different beliefs?

        By definition, you don’t share beliefs with those you are trying to win over.

        1. Jesus spoke to the Jews. They were his community, and he spoke in the context of Jewish law and to people who saw themselves as bound by the law. He was not trying to win people over in the sense of changing faith traditions. He was challenging their understanding of the law and what it means to fulfill the law. He made outrageous statements in that context.
          After his death and resurrection, his followers (Jews) changed their faith behavior in response to their experience with him and the Easter event. They didn’t think of themselves as starting a new faith tradition. The inclusion of gentiles hastened the perception of a new faith tradition developing. There was quite a bit of back and forth about that, it seems. (Read between the lines in Paul’s letters and Acts.) In the early days, the Jewish portion of the community tried to incorporate Jewish dietary laws and circumcision into the developing doctrine. Paul resisted this on Christological grounds and soteriological ground.
          What you are pointing to is that is was an organic, gradual development.
          The Christian debate over pacifism goes back to Jesus’ words (and Paul’s).

          1. He was not trying to win people over in the sense of changing faith traditions. He was challenging their understanding of the law and what it means to fulfill the law. He made outrageous statements in that context.

            Well, maybe he wasn’t challenging monotheism, but he was certainly, by your description, trying to “win people over” to his perhaps radical interpretation of the law.

            As for Paul, I hope it’s not too cynical of me to suggest that telling potential converts that circumcision and dietary laws could be ignored helped his recruiting efforts.

        2. I find the process fascinating. A teacher/leader in a faith interprets the faith’s tenets in a new way. He says some things that are not controversial. He says some things that are outrageous and seen as blasphemous. Adherents of that tradition divide, as people will, and argue. Nothing really new about that.
          The leader/teacher is executed (nothing new about that, I suppose). Then, his followers experience an event they cannot explain and begin to review his words and actions in a new way. Slowly a new faith tradition is formed. What in retrospect seems like a clear process at the time must have been ambiguous and fractal. People asking themselves what the heck is going on. What do we believe? What do we do? What does this mean?
          It is easy for non-believers to mock people of faith. But faith questions are integral to human development and flourishing.

      3. “Jesus spoke to a liturgical community–that is, a community that shared values and faith.”

        No he didn’t.

        1. Well, yes he did. He spoke to his fellow Jews. He didn’t speak to the gentiles. He spoke in the temple and he spoke as a rabbi. He and his audience shared the Law and a faith tradition. So, yes, actually, it was a liturgical community.

          1. There are many instances in the New Testament where directives are given specifically concerning the behavior of Christians toward other Christians. Look for the phrase “one another.”

            This isn’t one of those. On the contrary it applies to “whosoever,” and then later, to your enemies.

            1. This nesting is annoying. I don’t think you can make a blanket statement about this passage. He refers to being sued at law. That wasn’t gentile court. That was in the context of Jewish law. And he wasn’t speaking to people who regularly were interacting in a legal way with anyone other than their own community.

              No Christian would say that we are only called to behave in a Christian way toward other Christians. And we have to remember that within a faith community, there are mutual obligations. If each of is called to turn the other cheek, we are equally called not to slap one another in the first place.

              This does lead to a healthy and vociferous discussion of pacifism and the individual Christian’s obligations toward others. My ethics prof in div school was Stanley Hauerwas. He was one of the thought leaders, so to speak, about our duty always to be pacifists, even in the face of great evil such as the Holocaust. I think reasonable people can disagree here; it was very hard for the class to swallow that we should let genocide occur.

              At any rate, my point to Martinned is that these are complicated questions not easily answered by facile quotes of scripture out of context.

              1. 1. I have no idea what religion if any Martinned practices. How do you know s/he’s “non-Christian?”

                2. Even assuming s/he’s “non-Christian,” is it your contention s/he’s saying anything that hasn’t been said countless times by countless incontrovertible Christians?

    6. Nice passage. Do you believe in this, Martinned?

    7. And if you take that literally, you’re a moron.

  2. The single best deterent against committing crime is the fear of immediate retribution. The fear of getting shot is one of the best crime prevention methods.

    1. If you ignore all the dead people, it sure is!

      1. So, what do you Sarcastro, if someone breaks into your house and starts taking all your stuff?

        1. If I think I can take them, I’d stop them.

          If not, I’d call the police.

          I don;t think it’s a weird thing to say that I’m not going to kill someone over my iPad.

          1. And how do you stop them?

            1. He tolerates them into submission.

            2. …Do you think I’m against force? I’m against killing; there’s quite a separation between those two things.

              1. So you would use physical force to stop and hold them for, say stealing your ipad from your home?

                1. Sounds a lot like kiddnapping. Just saying. /Sarc/

                  1. It’s OK… Sarcy decided that he couldn’t really defend himself here.

          2. The problem is if someone breaks into your house you have no way of knowing they just want to take your iPad and leave. What if they want to kill your dog? What if they want to rape your wife or daughter? What if they want to set fire to your house with you in it? What if they want to kill you just so you can’t ID them as the one who stole your iPad?

            I agree you should not be willing to kill over property, but I have no guarantee the person entering my home holds those same beliefs. Too many people end up dead just for being home when someone decides to rob them

            1. This is the point I was trying to make. These intellectual exercises about defense of “property” fail to take into account that practically speaking, most potential defenses of property also involve potential defenses of person and life.

              Maybe I’ve just seen too many videos in the last few days of persons attempting to defend their property using non-lethal means, and instead getting savagely beaten for their troubles.

            2. What if they want to kill your dog?

              Then they’re probably a cop, and while they would deserve to be shot, I wouldn’t advise it. They have a slightly lower tolerance for that than they do for their own killing of black people.

            3. Kevin,
              I think your point is why burglary is single out as allowing for deadly force far more generally than other types of theft. Someone breaking and entering in the night is certainly provoking a fear response that quite plausibly include fear of great bodily harm.

              1. I agree.

                All these scenarios assume that the victim is home when the theft/break-in occurs, which automatically creates a risk of physical harm. IOW, the arguments aren’t about theft at all, but about facing personal danger, which is a different matter entirely.

                But what if there is no such threat? What if you arrive home to see, for example, someone making off with your TV? Shoot them? Call the police?

                IMO killing someone to save your TV is abominable. No doubt Brett and others differ.

          3. “If I think I can take them, I’d stop them.

            If not, I’d call the police.”

            And if the police don’t come?

            …because they never will in time.

          4. The biggest problem with your logic, provided you are simply willing to let others take what belongs to you, is that the criminal perpetrator may well think you represent a threat to his taking your ipad regardless of whether you actually do. He may also simply not want a witness to the theft of your ipad and decide to eliminate you so you cannot act in that capacity. Your hesitation to act may well allow him the time he needs to affect your elimination.

          5. I’d call the police

            Hired violence is still violence.

        2. So, what do you Sarcastro, if someone breaks into your house and starts taking all your stuff?

          ‘Remember the Malheur National Wildlife Refuge!’

          So sayeth the clingers, clutching their Bibles in front of churches that don’t want them around.

          1. Somehow I doubt Sarcastro would use that particular rallying cry.

      2. Since I am positive you are aware that the vast majority of successful defensive use of firearms does NOT result in a dead body, I’m under-impressed.

        Further, if there’s a choice to be made between a dead body of an “innocent” (like residents in a home) and a dead body of an aggressor (like armed home invader, rapist, etc.), would you not admit that one result is preferable to the other?

        1. Susan, have you trained to use a gun? Because part of the training is that you don’t point a gun at someone you don’t plan to kill. A gun is deadly force, regardless of the outcome.

          And the law agrees.

          The choice you offer is a false one.

          1. I think her point is that use of deadly force does not always result in death, and the threat of deadly force even less so

          2. You’re wrong about that. The training adage is to “never point your firearm at anything you’re not willing to destroy,” not that you “plan to destroy”. Countless guns are pointed at things that are never shot, because situations are fluid.

            The point of the adage, though, is two fold. First, don’t point at anything that could ever accidentally be shot that you wouldn’t ever want shot (your leg, your TV, etc.) and second, don’t pull your gun out unless you are mentally capable of using it at what you point it at.

          3. Do not point at, or even display a deadly weapon to, someone you are not PREPARED to kill. If they move for you, you must shoot without hesitation, or they’ll likely take the weapon and shoot you without hesitation.

            But if they submit or run, then no need to shoot. That happens most often, which is Susan’s point.

          4. Wrong. In a defensive situation you do not point a gun at someone you are not WILLING to kill. Whether you actually pull the trigger may well depend entirely on the reaction of the person who the gun is pointed at. Guns project an obvious and clear threat of force as well as force itself. If the threat of force against a criminal perpetrator is adequate to terminate the threat said perpetrator poses, there is no reason to use the actual force and in fact doing so would probably no longer be justified.

      3. In many cases, no great loss.

        1. This kid of blithe dehumanization is present so often these days on the right.

          1. We must have picked it up from the communists. Omelets/eggs, single death/large numbers and statistics, you know.

          2. Simply the realization that on net many people, particularly criminal perpetrators, do more harm than good to society at large. Thus their elimination may well on net be a positive.

          3. And yet the left is responsible for the vast majority of the bodies.

            Democrat-majority cities, run by Democrat mayors, Democrat attorneys general, Democrat city councils, (and often Democrat governors and state legislatures) with police unions who support Democrat politicians have the highest rates of crime and police brutality.

            I have little sympathy for the chickens coming home to roost. I can only hope that the people start to see that their votes matter.

      4. that they become dead is not necessarily a bug

      5. All human life is not equally valuable. Dead burglars are hardly a large loss.

    2. “The single best deterent against committing crime is the fear of immediate retribution. The fear of getting shot is one of the best crime prevention methods.”

      Is that a roundabout way of advocating that someone should have shot Derek Chauvin before he could complete the crime of murdering Mr. Floyd?

      (You might have identified the one angle from which one might solicit sympathy for Mr. Floyd from a white, male, gun-happy, right-wing blog.)

      1. Attempting to instill the fear of immediate retribution on police engaging in brutality against the black community is literally the reason the Black Panthers were founded

      2. It would have worked, but it would have ended poorly for whoever did it.

        1. It may have worked, if the rest of the business of the Black Pathers wasn’t rape, robbery, defrauding the government of welfare dollars, and the Oakland drug trade.

          Bobby Seale on the destruction of the Black Panthers:

          1. Mad,
            I think Petti was referred to the immediate incident (ie, unrelated to the Black Panthers). I think Petti was saying was that, if someone had been heroic enough to shoot the officer who was slowly murdering Floyd, it would have (1) hopefully saved Floyd’s life, and (2) definitely and quickly resulted in that hero being shot 27 times by other police who would certainly have sprung into action to protect that thin blue line.

            1. Indeed, I believe that you are correct.

      3. I am absolutely sure that if I had been there and seen what Chauvin was doing to Floyd, I would have run as fast as I could and thrown a cross body block on him. No doubt in my mind about it.

        It was an execution, and I suspect Chauvin knew of Floyd’s criminal record and intended to harm him without due process.

      4. Is that a roundabout way of advocating that someone should have shot Derek Chauvin before he could complete the crime of murdering Mr. Floyd?

        I dunno. Maybe it is.
        Physical retaliation against the police and their property is far more justifiable than torching an Arby’s.

  3. In a civilized society, “Is a TV set really worth a man’s life.” is a question we want thieves to be worrying about, not owners of TV sets. The thieves’ fear for their own lives is part of what makes the society civilized.

    1. Nice the way Brett just kinda discards the life of the thief in his logic.

      What is it with this blog and a thirst for the death of others?

      1. Brett is minding his own business, allowing the world around him almost unlimited freedom to live their life their way. The ‘thief’ is the one showing up to place himself at risk. Not Brett.

        1. You are taking away Brett’s agency to absolve him of responsibility in killing someone.

          Brett’s the one escalating a threat to property into a threat to life.

          As noted above, the law pretty universally discards that notion.

          1. If somebody breaks into my house when I’m home, they’ve already escalated to a threat to life. And, as noted above, the law is quite open to that position.

            1. This is different than killing them over property. Think of an example where you come home from work, pulling into your driveway, and see the fellow in your house through the front window. Is it right to rush in and shoot him?

              1. Yes. Perhaps his family are home, hiding in a closet.

                Assume he has no family and calls the cops. What do they do, leave their guns behind?

                Nope, they threaten the burglar with death. Now you tell me, where do they, as third parties, get that moral authority to threaten death? Delegated from Brett, as a member of the public, and as the home owner who called them. But we cannot delegate what we do not have. Therefore those cops can only threaten death if Brett also could threaten death.

                1. Do you think the cops should shoot the guy in Brett’s house if he’s unarmed and doesn’t threaten them?

                2. Bingo! It used to be a standard principle of policing that the police were only doing full time what the public were themselves entitled to do.

                  The moment that changed was when we went from citizens to subjects.

                3. Look at you spinning of specific scenarios to justify Brett’s general statement.

                  Should tell you something about what you’re defending, eh?

          2. As noted above, no, not “pretty universally”.

            1. in nearly all states, you can’t generally use deadly force merely to defend your property. (Texas appears to be an exception…

              So 49 out of 50. Pretty universally.

              1. Except for all the other illustrations you conviently left out because they contradict you.

                1. The Castle Doctrine is about life, not property.

                  1. The other other examples. You can’t keep leaving them out forever. They still exist, your pretend ignorance notwithstanding.

      2. No, I’m saying that the thief is devaluing the thief’s life. If they don’t value their own life, who am I to dispute that?

        As I remarked the other day, property IS life. People spend the finite hours and days of their lives acquiring it, it doesn’t just fall into their lives as they go about doing whatever they please. Who robs me of my property robs me of the time that went into obtaining it. Precious hours of my life that I will never have back.

        When you add up the man-hours destroyed by your average burglar, he’s a murderer several times over. The only reason you don’t recognize this is that he steals a few years here, a few years there, instead of a whole lifetime at once.

        He might as well be going around poisoning people, and taking years off their life expectancy.

        1. He might as well be going around poisoning people, and taking years off their life expectancy
          Would you make this exchange? Allow someone to poison you for your usual hourly rate? I suspect not.

          Your randian property is life philosophy is reductive, and not something America seems to subscribe to. Nor do it’s laws, so this is one philosophy you’ll have to keep to Internet message boards.

          The thief is not devaluing their life; you’re making an affirmative choice to kill. You don’t get to write yourself out of that equation.

          1. The thief gets a free pass on theft, on endangering himself and others, while the victim bears the entire burden for both parties being moral.

            1. Who says the thief gets a free pass? Are you the only arbiter of law and justice?

              1. Nope, but apparently you are.

                1. No, dude, I’m saying leave it to the law and justice people we hire for that.
                  You’re saying you yourself are the but for cause of the thief getting away.

                  See the difference?

                  A guilty person going free is not traditionally the worst outcome in American law, by the way.

                  1. “I’m saying leave it to the law and justice people we hire for that.”

                    Leaving it to the law and justice people sure worked out great for George Floyd, didn’t it?

        2. Thieves are slavers, in effect. Whether they hold a gun to my head and force me to work for them to steal the fruits of my labor, or whether they steal the fruits of my labor after the fact, makes no difference to the end result: they have forced me to work for them. They are slavers and deserve as much consideration.

          1. What about the guy who drives really slow in front of me when I need to get to work…He a slaver? He’s costing me money and time. Do I get to punch him?

            1. Is there a spare lane to pass, and is he pointing a gun at me to deter me from passing him? If there is no way to pass, then he hasn’t done anything to slow me down. If there is a way to pass, then I will pass.

              1. It’s a one lane road.

                Is he getting punched?

          2. Would you Brett’s proposed exchange? Allow someone to poison you for your usual hourly rate?

            If not, maybe you don’t really believe your dumb slavery point.

            1. I don’t think you are making much sense. Lots of words, but what does any of that have to do with what I said?

              1. Don’t dodge.

                If property is like life, then would you take some years off of your life in exchange for property?

                If theft is like slavery, would you sell yourself into slavery if the price was right?

                If not, your 9:44 am statement is BS to justify killing people.

                1. “If property is like life, then would you take some years off of your life in exchange for property?”

                  I not only would, I have – it’s called ‘working at a dangerous unpleasant job’ 🙂

                  The guys on fishing boats in the Gulf of Alaska aren’t on a pleasure cruise.

                  1. working at a dangerous unpleasant job’ is not slavery.

                    1. ?????

                      You asked “If property is like life, then would you take some years off of your life in exchange for property?”

                      People actually do that – in fact it is common.

                    2. To be fair to Sarcastr0, Absaroka, all you did was quote which of his inane questions you were responding to and then respond to it. That’s not nearly clear enough for someone with the challenges Sarcastr0 faces in life. How could he possibly be expected to know that you weren’t just trying to fake him out by quoting one question then answering the other?

        3. As I remarked the other day, property IS life.

          It was insane the other day, and it’s insane today.

          1. Please show your work.

            1. I did that in the other thread.

              Go look it up.

        4. “When you add up the man-hours destroyed by your average burglar, he’s a murderer several times over.”

          This is silly as a matter of math and disturbing as a matter of morality.

          Burglary and larceny are awful things, the people that do them deserve punishment. But people ‘lose’ stuff all the time, they still can do all the important things in life. To take a person’s life over that stuff is messed up.

          1. No, it’s quite accurate as a matter of math. Fences only return maybe 5-10% of the value of stolen property to the burglar, in order to make a living wage, a burglar has to cause hundreds of thousands of dollars of financial and property damage a year. Over their lives, they account for many average lifetimes’ earnings.

      3. I’m legit curious how many people here who are arguing for killing a thief have actually killed another human being. Is this abstraction and fantasy, or do they actually have experience with living with the repercussions (not legal, but psychological and moral) of taking a life. Plenty of soldiers are permanently haunted by killing someone who was actually tried to kill them, but, ho ho, some asshole tries to take my iPhone, I’m gonna blow that bastard’s skull apart, yuk yuk.

        1. Phony exercise. Our society is based on everyone following the rules. Voluntarily. Without 99% agreement to follow the societal rules, everyday life devolves into a daily battle for dominance over those I come into contact with. Think prison society. Truly survival of the fittest.
          You delegate your ability to kill those desiring to do us wrong to the armed police. You delegated you inalienable right to keep and bear arms to an organized police. You, through your delegation, have killed someone to protect property.

          “”We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.” George Orwell.

          1. “Our society is based on everyone following the rules.”

            Time to start putting clingers in jail for violating anti-bigotry laws?

            1. Your trolling has become mindless and tiresome
              More than 99% voluntarily follow social mores against bigotry. If that were not factual, these minor burning and looting escapades would never reach this level of discourse.

              1. That you can’t see bigotry — or don’t care about it — doesn’t mean it doesn’t exist.

                If you believe that racists constitute fewer than one in one hundred Americans, your perception of racism must be extraordinary.

                Carry on, clinger.

                1. If only facts existed in your delusions.

                  1. What are you saying? Of course bigotry exists! All you need to do is read RAK’s posts to see it on proud display.

        2. I agree that it must be difficult to live with the fact you’ve killed someone, and I have serious doubts about my ability to use deadly in the moment, even in a situation in which even Sarcastro would agree it would be appropriate.

          But those recognitions do not change the dispassionate analysis of when use of deadly force is justifiable. Such analysis must be done in the aggregate, and must abstract away individual human frailties like those mentioned above.

          1. Perhaps part of the ‘difficulty’ is a realization of the enormity of the stakes, and that’s an indicator of which way the scales should be tipped in the ‘dispassionate analysis?’

            “Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.”

      4. I think people are using shortcuts, not advocating wanton killing. If I am home (an older, single woman), and someone breaks into my home, how am I to determine if he would be happy if I just handed him my iPad? Maybe he also wants my laptop, jewelry, and TV. How do I know he doesn’t want to punch me in the face first so that he can more easily take my iPad?
        Well, I have data in the form of knowledge of past history. Home invasions where homeowners were beaten and shot in addition to theft. Not many where homeowners were just left alone.
        Ergo, I am going to use deadly force to protect myself on the reasonable assumption that otherwise, I will likely be harmed.

        1. Like others here, you are equating theft with a threat of personal violence. It is perfectly acceptable, IMO, to defend yourself against such threats.

          But the issue under discussion involves purely defense of property. Conflating the two really suggests that you don’t think killing is acceptable in response to what is purely a property crime.

          Let’s say you go to the parking lot to get your car only to see a car thief driving off in it. Would you consider it justified to shoot, quite possibly killing the thief?

          1. It’s hard to separate theft of property from threat of personal violence in any realistic scenario where you would have the capability of responding with deadly force (or not), because for the latter to be possible, both the thief and yourself must be present in the same place. For you to inflict violence on the thief, the thief must also be potentially able to inflict violence on you.

            In your highly artificial scenario where a thief is already driving off in your car, and you just happen to be arriving as they’re leaving. (1) Do you have a weapon on you? (2) That you can draw in time to use it reasonably? If both 1 and 2 are true, then the thief also has a weapon (your car), and can potentially use it against you.

            If he’s already driving off away from you down the road, #2 is definitely not true, even if #1 is. Handguns have short effective ranges and it would be grossly negligible if not wantonly indifferent to bystanders to fire it at the quickly receding thief. Irrespective of whether it’s moral to use deadly force in such an instance, of course you don’t fire at someone far away from you who is running away, because you are unlikely to hit, and can’t anticipate who or what is ‘behind’ your target that could get hit instead. That likely collateral damage is sufficient to render any such deployment of force immoral.

            (Also, generally speaking, people fleeing away from you are not a threat to you. You’re arguing against a strawman that no one, and certainly not LadyTheo, is arguing.)

      5. [yawn] When a criminal perpetrator unlawfully enters a residence or business, nobody knows his intentions, further his intentions may well change when someone is in a position to interfere with his original goal of stealing something. Therefore it is prudent and logical to simply presume that any perpetrator willing to unlawfully enter poses a threat to person and act accordingly. Further said criminal perpetrator and his or her actions are the sole reason a conflict arises and thus the perpetrator should bear all the consequences of that conflict. Laws should be crafted with the above in mind. If born victims, who spend their time agonizing over potential harm to those who intentionally victimize others, wish to allow themselves to be victimized by criminals at will they are free to disregard the above but others should not be required to.

      6. Nice the way Brett just kinda discards the life of the thief in his logic.

        It wasn’t a very valuable life.

  4. Better tried by 12 than carried by 6. I’ll take my chances and blow away the looter.

    1. You don’t trust your threat assessment ability?

      An unarmed looter seems hard to rationalize as a deadly threat, most of the time.

      1. “Most”. Nice of you to finally admit the thief has created a risk.

        1. EVERYTHING creates risk, alpha.

          1. Except when you deny that burglars create risk for themselves and others.

            1. Merely creating risk is not a crime worth death, without a lot more information.

              1. Great idea. Invite the home invader for a spot of tea and jam, and discuss his motivations and intentions while he’s invading your home. Potentially get lots of good info and intel that way.

      2. More people are murdered by fists and clubs, than guns.
        You’re going to have to recalibrate your use of the term ‘armed’

        1. “More people are murdered by fists and clubs, than guns.”

          The FBI disagrees. Your statement is true for rifles, but not guns in general.

          1. Iowantwo: Absaroka is right on this.

            1. I stand corrected Point stands. A thief not carrying a gun, does not nullify threat to life.

      3. Well Sarcastr0, I guess my threat assessment works like this…

        I have an uninvited intruder who has broken into my home for reasons unknown. But I am going to go out on a limb here and guess that s/he didn’t break in to my home in order to ask me for a piece of my awesome lokshen noodle kugel. Aforementioned intruder gets one shouted warning to leave the premises immediately or be shot.

        If they leave voluntarily, well alright then.

        If they do not leave voluntarily, they will involuntarily leave head first or feet first; macht nicht. And I will have nightmares for life.

        It is not ‘just property damage’ Sarcastr0. Those things that I spent a lifetime acquiring are the tangible expression of my time and labor. That means something. And no rioter or looter will take from me what I have earned; not without fierce and deadly resistance.

      4. How do I know he is unarmed? And unarmed does not mean harmless. If he weighs 195 lbs, and I weigh 108, then his body is a deadly weapon.
        I guess this requires a nuanced analysis, and this discussion is not that.

        1. It requires a mature, thoughtful group and not everyone present here meets those qualifications.

      5. Why take a chance? Most deadly force laws draw no distinction whatsoever between an armed and an unarmed perpetrator. Further in case you haven’t turned on a TV in the last week, the plural “looters” tends to be applicable far more often than the singular, and in plural they tend to form a violent mob. In my state as soon as one unlawfully and forcibly enters or attempts to unlawfully and forcibly enter, a home, workplace, vehicle or conveyance, it is presumed that the lawful occupant thereof is placed in reasonable fear of imminent death or serious bodily harm and thus has the right to use deadly force. Which brings me right back to my original question? Why take a chance?

        Criminals would be well advised to learn the deadly force and other laws of the jurisdiction where they plan to commit their crimes, fully understand and appreciate the risks that their criminal activities pose and act accordingly. If they do not care enough about their own lives and safety to do this it is not up to their victims to make up the deficit on their behalf.

  5. Private property rights is a cornerstone of our government structure. I agree with others here. Placing a value on human life MUST go both ways.
    Much like respect, valuing human life is reciprocal.

  6. Birdshot at the feet slows the intruder. In the pocket is the 00buck, should the intruder come with a petrol bomb.

    1. Judges have ruled such warning shots are attempted murder. You are forced to defend yourself exactly the same as if you used your weapon exactly the way it is meant to be used. Killing. Police,(those person you have hired to kill in your name) shot to kill for a reason.

      1. No, they shoot to STOP, which inherently becomes to kill.

    2. Legally and tactically a very bad idea. Legally if you have the luxury of firing warning shots at people’s feet you are not in any imminent danger and thus are not justified in firing a weapon, which is potentially lethal force, in the first place.

      Tactically this gives your assailant time to respond with their own weapon or simply over run you and beat you to death, and in this event it is very unlikely you will be able to load anything from your pocket in time to effectively respond. Fire center mass or do not fire at all.

  7. So, just to be clear, since this blog is all about religious freedom and defense of property …

    When a tyrannical and authoritarian ruler invades a church and forcibly evicts peaceful people using force, it should be completely appropriate for the people at the church to defense their religious freedom and property by killing that tyrannical ruler?

    Is that what I am to understand?

    Just checking for a friend.

    1. Yes. There are practical considerations too. But your friend was just asking about the root moral considerations, yes?

      1. This is a libertarian website. The type of place where people would rather let an asteroid destroy the earth than sacrifice any property rights.

        Since when did “practical considerations” ever come into the conversation?

        1. You don’t understand libterianism at all if you think that is an apt remark.

          1. No one who believes the Volokh Conspiracy devotes anything more than lip service to libertarianism (Prof. Somin excepted) understands libertarianism.

            1. Words mean just what I mean and not what anyone else means.

          2. “You don’t understand libterianism at all if you think that is an apt remark.”

            You haven’t read this website for very long if you can’t understand the point I made.

            Or, you know, you’re just dumb. Pick your poison.

    2. Agreed. But Communist China keeps all its people designed, for good reason.

    3. Absolutely.

      The obligation to defend our rights should not be outsourced to the same government that seeks to obstruct those rights.

  8. Deadly force is justified to prevent an imminent act of arson.

    1. Not as such — if you seem someone burning your unoccupied barn on your property, in most states you wouldn’t be able to immediately use deadly force (though it might escalate to that in some of the situations outlined in the post).

      1. Florida specifically defines “arson” as a forcible felony that would justify the use of deadly force. This makes sense to me, in that the danger created by burning an unoccupied building (to firefighters that have to try to save that building and other forests or structures or people in the vicinity threatened by the fire) certainly does create a risk of death or great bodily harm.

        1. Yes it does. This is true even of 2nd degree arson so the unlawful burning or attempted burning of any structure whether occupied or even in use or not will justify deadly force. A whole slew of other “forcible felonies” will as well. If one is committing any serious crimes in Florida there is an excellent chance one is justifying deadly force against oneself.

  9. As a potential victim, you simply need to ask the perp for a reasonable amount of time in which to draw a Venn Diagram of your options.

  10. Seems to me one reason for those presumptions is that many people (myself included) will very rarely be in a position to defend JUST property. If someone smashes my windows and tries to get into my house, my iPad is the least of my concerns. I would likely be severely traumatized by killing another human, but I’m guessing less traumatized than standing by watching a thief harm one of my children because I shrugged my shoulders and said, hey, it’s only property. But hey, everyone needs to make that calculation for themselves.

    1. The Castle Doctrine is part of self-defense, not property defense.

      1. Sarcastr0: You are right that the doctrine that there is no duty to retreat from the home before using lethal self-defense — even in the minority of states that generally recognize a duty to retreat — relates to defense of self.

        But I think Linus’s point is different: It’s that people can reasonably fear that people who are breaking into their homes will inflict death or serious bodily injury on people as well. And that doctrine is indeed recognized by the law in some states, see 3.B, and I expect the underlying principle will play out the same way even in many states that lack such a formal presumption.

        1. We are in accord on this one, Prof. Volokh.

          My point is that this threat to life seems to be the philosophy behind the Castle Doctrine, not some ability to kill to defend property.

          But to take a deadly defense of property, and always mix it with some threat to life, becomes an exception that swallows the rule.

          1. I spend a good amount of time on private property here in rural America. The owners are aware of my potential arrival, although, too often they have forgotten. Todays farmers have shops that get well into $six figures. While doors are closed, and usually unlocked, I never open the door and go inside, on the pretense of searching out the object of my appointment. Why? Because these citizens also have extensive firepower, and I know they defend their privacy jealously. If I want to keep my good name and reputation, at the least, and my life at the most, I respect privacy.

            That others don’t is their problem for them to work out with the owner.

          2. “But to take a deadly defense of property, and always mix it with some threat to life, becomes an exception that swallows the rule.”

            Unless you have a crystal ball that discerns criminal intent this is unavoidable. Even if you did, intent can change in a second. An intruder who’s original intent was to steal property may well intentionally harm any occupant who interferes with his original goal. Best for the law to simply assume the worst intent on the part of an intruder and thereby place maximum responsibility on the criminal perpetrator who’s actions create the entire conflict in the first place.

      2. You cannot effectively separate the two things in most situations. There is no way to accurately discern an intruder’s true intent in the vast majority of situations and even if there were, that intent can change in an instant. An intruder who’s intent is initially simply to steal property may well change his intent to harming or killing anyone who interferes with his original goal upon discovering his target dwelling is occupied. Thus a well written castle law simply presumes reasonable fear of imminent death or great/grave bodily harm on the part of any lawful occupant in any instance of unlawful entry, or at a bare minimum, unlawful forcible entry, thereby placing maximum responsibility for everything that happens as a result of an unprovoked criminal act where it belongs: On the perpetrator of said act. Afterall if not for the actions of the perpetrator, there would be no conflict in the first place.

    2. But hey, everyone needs to make that calculation for themselves.

      Many desire to strip away that basic human right.

  11. There is what the law says and then political reality.
    Listening to the racist Boston (Suffolk County) DA, I am reminded of Wolfe’s _Bonfire of the Vanities._

  12. Sarcastr0
    June.2.2020 at 9:20 am
    You are taking away Brett’s agency to absolve him of responsibility in killing someone.

    Brett’s the one escalating a threat to property into a threat to life.

    As noted above, the law pretty universally discards that notion

    Does the trespasser message Brett that he only comes in peace to make off with his extra stuff, no bodily harm intended? A person has broken into his home. Now it is Bretts responsibility to do an accurate threat assessment? Facts on the ground all point to the lawbeaker ignoring laws. Bretts assessment is he is in personal danger of losing his life. You argue, with no facts, he is wrong.
    The maddening part? Police arriving on the scene could shoot to kill and prosecutorial immunity invented by the judiciary indemnifies the cop, but not Brett.

    1. In states like mine the criminal’s intentions mean nothing. Unlawful forcible entry into a home or business automatically invokes a presumption of reasonable fear of imminent death or great bodily harm and justifies deadly force. This would absolutely apply to looters in both a residential AND a business setting. As soon as unlawful forcible entry is made or attempted they have justified deadly force. Under the law, their intentions are irrelevant.

  13. Many states, mine included, specifically allow for deadly force simply to prevent unlawful forcible entry into a home or workplace so long as the person using force is legally permitted to be there with only a few exceptions such as that the force may not be used against LEO or bail enforcement agent, none of which would apply to a looter. Further reasonable fear of death or great bodily harm is presumed simply based upon the act of illegal forcible entry or attempted unlawful forcible entry and the lawful user of the defensive force is immune from civil litigation. Looters may or may not intend only on damaging property, but in states with laws such as mine, it matters not. They justify deadly force and invoke a presumption that they intend to inflict death or great bodily harm simply by the act of illegally and forcibly entering or attempting to illegally or forcibly enter.

    Bottom line: Looters are taking their lives in their hands forcibly and illegally entering a home or even a business in many states including mine. If they are killed in a state like mine in the course of unlawfully forcing entry into a business, even in mass, legal recourse against the person who kills them is essentially non-existent. Killing 50 looters unlawfully entering would be no more legally actionable than killing one.

  14. Eugene Volokh has certainly started an interesting and provocative discussion with this blog post. But without really showing, as he tries to conclude, that the underlying principle of law is complex.

    Take for example the following assertion:

    “Some robbery of course does also create a reasonable fear of death or serious bodily injury, but in these states such a fear is not required.”

    But in its very definition, a robbery requires the use of force or threat against the person of another. It will thus naturally create fear in an ordinary person. Even a purse snatching will startle a person of ordinary fortitude and make them fearful.

    That fear is not a formal element required to justify deadly force in response is best conceptualized as an evidentiary issue. In some states, we are not going to require a potential defendant asserting self-defense to prove that they had fear in such a situation. The purpose is to protect a potential defendant, who was just robbed, from any worry that they will face the harassment of criminal proceedings, rather than the belief that a cold-blooded killing in order to retrieve a stolen purse is justified.

    As a society, we see people who are robbed as victims whose personal safety has been put at risk. That we don’t require a robbery victim to prove what we assume to be generally true doesn’t mean that we don’t think that they have experience fear. It means we aren’t going to require them to prove that in their particular circumstance what we believe to be true generally. We are not going to make a robbery-victim worry about potential prosecution when they are forced to make the split-second decision to use deadly force in the heat of the moment when another has put their personal safety at risk.

    That the crime here is robbery and not mere shop-lifting illustrates the principle nicely. Eugene Volokh makes much of the fact that fear isn’t formally required in every jurisdiction. But what he fails to say is that no jurisdiction allows the use of deadly force to stop a shoplifting. If the underlying principle was that you could kill people who threatened your property rather than your life, then it would logically be open season on shoplifters as well.

    Eugene cites Texas law as an exception regarding the permissibility of using deadly force “merely to defend your property.” But it is no exception to this principle. The requirement that the incident occurs at night relates to fears of personal safety. After all, property does not suddenly become more valuable at night than it does in the day. However, night is more dangerous to your physical safety, since darkness conceals danger.

    The underlying principle of law is that you may not use deadly force to protect mere property. The word life is always first in the phrase “life, liberty, or property.” This is also illustrated in the criminal law by the fact that the death penalty is and always will be considered a more serious penalty than a fine, no matter how large. We are never going to require the same extraordinary due process protections for the state to deprive a person of property as we do their life.

    Quibbling nuance aside, the underlying principle is actually quite simple. Deadly force is limited to situations where either life or serious bodily harm are thought to be serious possibilities.

    1. What do you think of Antifa being labelled a Terrorist organization? Surely isn’t not against the law to shoot a terrorist, right? Terrorists threaten life and series bodily harm no matter what they happen to be doing at the time.

      1. AFAIK under federal law only foreign organizations are designated as terrorist organizations. Technically there is no such thing as a domestic terrorist or domestic terrorist organization recognized or defined in federal law or the CFR. Acts that would fall under the umbrella of domestic terrorism are criminalized by federal criminal codes against the acts themselves.

        1. So if you go out on the street to see what all the commotion is about, and someone walks toward you draped in black, with a black helmet and shield with the antifa symbol on it, and it makes you fearful, you can’t shoot them just because his/her appearance made you fearful?

        2. No, this has been asserted, but isn’t actually true. The most that can be said is that the law distinguishes between foreign and domestic terrorism, not that it doesn’t recognize the latter.

          18 U.S. Code § 2331. Definitions

          1. The only reason I can think of to designate Antifa a terrorist organization is to justify a massacre, meant to frighten the rioters into staying home.

            1. Nothing as evil as massacre. Just benign surveillance. The govt needs warrants to survail US citizens, unless the state is running a counter intelligence investigation. The designation opens the door to all sorts of information gathering. Such as backward lookups into who individuals called, texted, messaged, or emailed, in thae last 6 months. Some politicians will scream bloody murder, claim 4th amendment rights, but the Trump campaign proves that ship has sailed. If you can survail a political campaign, and lots of people say you can, looking into looters seems pretty small beer.

  15. FWIW Florida Statutes 776.08 imcludes burglary and arson as forcible felonies, FS 776.013 permits deadly force to prevent imminent commission of forcible felony. So to the extent that arson and burglary are property crimes, use of deadly force. Is permitted.

  16. This is a good and useful article, correctly showing the necessary step of personal confrontation to protect property and how that can then escalate into deadly force to protect the person.

    For those attempting to make the argument that it is somehow immoral to protect property with deadly force, you must also do the following to be morally consistent, i.e. not a hypocrite.

    1) Do not call the police during or after the commission of the crime. The police carry guns, and if they come into confrontation with the robbers, it may end with bloodshed. To be morally consistent, you don’t want your property to be recovered with bloodshed.

    2) Do not file an insurance claim on the property that you lost, no matter how large, even your house. Most insurance companies have claims investigators who will refer actionable information to police for criminal prosecution. That may end with bloodshed (see 1 above).

    So before you sneer at others (usually people of modest means) protecting their property with deadly force, make sure that you have morally reconciled yourself to these two rules, and that you will suck it up and bear the loss.

  17. I think it is telling that in these forums people have advocated and justified street justice of all kinds. It sounds cool and edgy when you say things like “throw the cop in the general population and see what happens…” Just want to remind those who think this is OK to think very hard about what might be coming…

    1. I’m unsure of what point you are trying to establish. “throw the cop in general population” (incarceration) sounds like a very savage take on justice.
      But that is what lots of commenters here are requiring of me. To cede my rights of safety from thugs by turning the other cheek. Do not use deadly force for safety. Riots are survival of the fittest. Rioters have suspended societal rules. Can I defend my property against persons that have tossed aside any acceptance of personal property rights? Or have those rioters refusal to accept the rules of society open themselves up to the use of deadly force? My choices as a law abiding member of society surely outweigh the rioters that have chosen to break all the rules, and abuse all persons rights to freedom and property.

  18. “In all states, you can use deadly force to defend yourself against …rape…”

    Nowadays it’s hard to tell, but hopefully this applies to rape-rape and not, say, to a third party defending a seventeen year old from her twenty-one-year old boyfriend, or to someone who is consenting but has been drinking so you believe her consent doesn’t count, or to a situation where the man has told a woman that it’s his birthday.

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: June 2, 1952


6/2/1952: Youngstown Sheet & Tube Co. v. Sawyer decided.

The Legal Academy, Episode 3: Sarah Lawsky

The third installment of my new show about law professors.


There's a lot going on in the country right now.  But for law professors and others interested in legal academia who want a distraction, here's the third episode of my new show The Legal Academy.  The guest is Sarah Lawsky of Northwestern Pritzker School of Law.  Topics include Sarah's invaluable entry-level hiring report; the world of tax scholarship and how it's different from other fields (and how to evaluate tax scholars if you aren't one); lateral hiring and visits; and being an associate dean.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments


"Leave the Community Alone," from the Sheriff of Polk County (Florida)

"The people of Polk County like guns, they have guns."


From Fox-13 (Ken Suarez & Catherine Hawley):

Sheriff [Grady] Judd … said there's a difference between a protester and a rioter and rioting will not be accepted….

Judd said there were rumblings on social media that rioters planned to bring violence into the neighborhoods of Polk County.

"I would tell them, if you value your life, they probably shouldn't do that in Polk County. Because the people of Polk County like guns, they have guns, I encourage them to own guns, and they're going to be in their homes tonight with their guns loaded, and if you try to break into their homes to steal, to set fires, I'm highly recommending they blow you back out of the house with their guns. So, leave the community alone," Judd said.

Two observations:

[1.] Polk County is about 60% white, 25% Hispanic, and 15% black. My guess is that the Hispanic and black people of Polk County like guns and have guns about as much as white people (perhaps not precisely as much, but not that far off). Not wise to break into homes in any of the neighborhoods, it seems to me.

[2.] The sheriff's statement is likely more aimed as a threat to the criminals than as advice to law-abiding residents. But legally speaking, it seems to be consistent with Florida law, which allows the use of deadly force in such situations (emphasis added):

A person who is in a dwelling … in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use … [d]eadly force if he or she reasonably believes that using … such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony….

A person who unlawfully and by force enters or attempts to enter a person's dwelling … is presumed to be doing so with the intent to commit an unlawful act involving force or violence….

"Forcible felony" [includes] … burglary[ and] arson ….

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Is anyone advocating that people should break into homes? Is there a rash of home invasions happening somewhere?

    1. Yes, where I live, in the bay area. I’m not awake for fun

      1. We’ll make you a Trump voter yet.

        1. No

          1. Havn’t you put out your “THIS IS A GUN FREE HOME” sign yet? That will protect you, no doubt. You better hope it does because the cops are busy somewhere else. PS, “hope” ain’t much of a strategy.

  2. I encourage them to own guns, and they’re going to be in their homes tonight with their guns loaded, and if you try to break into their homes to steal, to set fires, I’m highly recommending they blow you back out of the house with their guns.

    As we know, the people of Polk County, encouraged by the Sheriff as they have been, will also be out on the street with their loaded guns—as eager there to take the Sheriff’s encouragement as at home. Perhaps the sheriff might have spared a moment—or maybe he did, and the omission belongs to Fox News—to tell the armed people of Polk County that taking their loaded guns to peaceful demonstrations outside their homes is unwise. And that showing guns to lawful demonstrators is not peaceable, but intimidating.

    If he did that, the Sheriff of Polk County might not have earned the blame for encouraging violence in a critically dangerous moment which the incident as described seems to show the Sheriff deserves. What to make of EV for presenting it this way is another question.

    1. I knew Lathrop would show up in a Lather!

      1. Kevin, thanks for that. Maybe I need a brand. “Lathrop’s Lathers” — probably do okay in a market test.

    2. Pity the poor rioters and looters, eh lathrop?

  3. Private citizens shooting at each other, and the Sheriff cheering them on. That definitely sounds like a healthy, well-organised society to me.

    1. No Martinned, this is much more likely to be a homeowner shooting some rioters ass for attempting to destroy what they took years to build. At least the Sheriff was kind enough to let the rioters know that Polk County won’t be easy pickings.

      That is why we have a second amendment. When the police fail, we have to fill in that gap.

      Legally, there is no duty to retreat. Stand your ground, and all of that.

      1. First, while it’s legal I still don’t like private property being defended with lethal force.
        Second, I’m not at all sure your ‘much more likely’ is actually so. America is full of wannabe vigilantes with more ammo than sense. How many on this comment thread have been unable to hide how they itch to kill a bad guy? And some here have a pretty…broad idea of bad guy.

        It’s legal, but it’s easy to see how fanning the flames of armed conflict like this spreads beyond defending the home.

        1. “America is full of wannabe vigilantes with more ammo than sense. How many on this comment thread have been unable to hide how they itch to kill a bad guy?”

          Dang, Sarcastro, you and I live in very different places, with very different circles of friends.

          1. We both hang out here, which is where I’m getting that sense from…

            Most of my friends get their urge to kill out with a little roll of the old d20.

            1. Well, it’s a free country and all, but my experience that internet comment sections aren’t usually an accurate cross section of the country at large.

              And I know lots and lots of real-life gun owners – enough that if ‘America is full of wannabe vigilantes with more ammo than sense’ you’d think I would have encountered one by now.

              (I should add, I suppose, I’m talking about legal owners here. When we lived on the wrong side of the tracks in the big city hearing gunfire was routine. But gang members aren’t exactly the type of people I hang out with, or representative of gun owners in general.)

              1. You know what? You’re probably right. I’m committing the fallacy of overgeneralizing based on Internet commenters.

                Always a hazard in this hobby.

                Good point. I continue to hold that encouraging gun-based defense of property will have bad outcomes, but I withdraw my concern about vigilante justice being likely.

                1. “…gun-based defense of property…”

                  From the OP: “…and if you try to break into their homes to steal, to set fires, …”. In general, when people are breaking into your occupied house, at that point you are defending people, not things. That’s true in general, and even more so in the case of riot. If the riot is bad enough they are breaking down your door, trying to escape out the back door with the toddlers and the missus is kind of jumping from the pan into the fire.

                  You would find it educational to take a defensive shooting class. I think you would find a bunch of people who really, really, really want to avoid fights. There are a couple of reasons for that:
                  1)it becomes really obvious that you may be Annie Freaking Oakley with a gun, but at the typical ranges of defensive shootings your meth head opponent might get lucky, and one lucky shot is all it takes to ruin your whole day.
                  2) In the movies, you point a gun at people and they do what you want. That’s not true in real life, as the Ahmaud Arbery shooting shows. That case is a primo example of why using guns is a last ditch back-to-the-wall no other option kind of thing.
                  3)Even if you are involved in the world’s most justifiable shooting, you have a good chance buying a nice car, if not a place at the lake, for your attorney. That’s a bad trade for the stereo the crackhead was prying out of your car.

                  This is all common knowledge among most gun owners. There are surely exceptions, and they are the ones who make headlines. But that’s precisely because the commonplace doesn’t get put in the headline. The gun owner who sees his car getting prowled, stays inside, and calls 911 doesn’t make the paper. And, for that matter, I know two people who told intruders who had broken into their houses to leave. In both cases the intruders agreed that was a wise choice. Arguably, that is the safest way to deal with that situation, for both the homeowner and for the burglar. Having the same discussion with bare hands or kitchen knives or whatever could lead to worse choices being made. Neither of those homeowners ran after the burglars blazing away or anything; once the guy left they called 911 with a good description. Neither of those made even the back page of the paper.

                  1. I don’t think the advice will be taken as limited as it’s text would indicate.

                    I’ve taken gun safety classes. I’ve shot rifles, shotguns, and black powder back in my boy scout days.
                    I don’t own a gun, but not because of any universal antipathy for guns in general.

        2. That’s the great part of libritarian philosophy. You don’t have to defend your property with lethal force. As long as you don’t take away other peoples right to defend their property, we can all get what we want.

        3. That’s cruel: calling the police “wannabe vigilantes with more ammo than sense.”

  4. I guess I’m wondering why we needed to know the racial makeup of the area given the sheriff didn’t mention race.

  5. Leftist: wear a mask

    Me: my body my choice

    Leftist: not when that choice harms another person

    Me: *huge smile*

    1. You: *picks up a Can’t Breathe sign and lights a building on fire*
      Leftist: Oh my mistake sir, go on and do whatever you wish!

    2. Seems like you confused person and property there, buddy.

      Also seems like you’re quite eager to kill someone, so long as you can get away with it…

  6. These riots have shown why the 2nd amendment is needed.

    Oh and after seeing the cops stand down as people loot and burn anyone who still says “you don’t need an AR-15 for anything” looks quite stupid. One of those sure would come in handy for a small business owner to use to defend their business from looters.

    1. I get it, Chest. You think only small business owners will deploy AR-15s en masse. Here’s your plan, adjusted for reality: Small business guy aims into crowd. To defend innocent target, demonstrator guy shoots small business guy. That makes everything better, right?

      Maybe not killing people to defend property would be better still.

      1. How about not trying to riot, loot and burn other people’s property. If you havn’t noticed, a lot of people are broke, out of work and hanging on by their fingernails. And then a group of looters show up to take or destroy that property because they want “free shit”. Thankfully in Texas you can use deadly force to protect property. And you can openly carry rifles and shotguns in your car or truck. So you want to “protest”, go for it. The first window that is broken, the first fire that is set and it’s no longer a “protest”. It is a RIOT and this weekend has shown without a doubt “why people need AR-15’s”, lots of magazines and ammo. Don’t want to get shot? Don’t get caught in a riot.

        1. So, FiftycalTX2, thousands lawfully protest, and one guy—who knows, maybe a provocateur—breaks a window. That lets the army shoot them all? Or, it lets you shoot as many as you want?

          That seems unwise. Immoral, too. I doubt that is what you really intend. I worry that you really would favor some way to prevent the protests, though. You don’t really hate the protests so much you would be willing to see innocents shot down to stop them, do you?

          1. What “army”? Where are the standing? One guy tosses a brick thru my window, he’s stopped being a “protestor” and become a rioter and hopes to graduate to being a looter. The problem is if you, not a rioter, are standing next to him, well, buckshot spreads. Try watching some of the “reality TV” of looters attacking store owners. The unarmed ones end up in the hospital if they are lucky. Now look at the armed property owners. If what you have is not worth defending, then don’t. But if you and your family will lose your house or your livelihood you have a duty to defend it.

    2. “These riots have shown why the 2nd amendment is needed.”

      Doesn’t the 2nd Amendment explicitly state it’s purpose as “A well regulated Militia, being necessary to the security of a free State?”

      1. No. You elide the statement of the actual right.

        A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

        No penumbra needed. It’s right there.

      2. Yes, it does.

        Right now, in many parts of the country, bands of thugs are putting the security of the free state in jeopardy. For reasons that are inexplicable (beyond the fact of his general incompetence), the president is unwilling to take action to stop it. Fortunately, the second amendment gives free citizens an alternative: they can take up their privately-owned arms and act together to protect themselves and their communities.

  7. THIS is why the riots are breaking out in Democrat controlled areas.

    Well, this, and all the oppression Democrats tend to commit, of course.

    1. Brett….The thinking is just bizzare. Oh, just let the poor rioters destroy everything you struggled and worked for…because ‘reasons’.

      Progressives fail to see a basic truth: If you tolerate the lawless behavior [rioting, looting], you will get more of it.

      Perhaps if their tony neighborhoods were a target for rioting and looting, their tune might change. After all, they’re insured. Should not be a problem to file a claim.

      1. If only there were ways to not tolerate breaking the law without killing lots of people…

        1. Sarcastr0….I am not interested in killing anyone. That said, I am armed for home protection. There is no way some dopey-assed looter is going to come into my home, and destroy everything I have spent my lifetime working without walking out with lead in his/her/its body; head first to the ambulance or feet first to the morgue wagon. How do I know my DW won’t be gang-raped? Not happening.

          Rioting is wrong. Looting is wrong. Breaking and entering into a private home is wrong. Now this sheriff basically put all those piukes on notice….don’t be coming here boys, cuz you’ll likely get blown away. I have no issue with it.

          Let’s see if the antifa fellas feel lucky in Polk Country.

          1. I’m curious. Let’s say you pull up in your driveway and you see an intoxicated man breaking into your shed where you keep your lawnmower and other landscaping stuff. Do you get to jump out of your car and shoot him?

            Let’s say you get home and he’s already broke in and vandalized your shed and is passed out in the yard, do you get to jump out of your car and shoot him?

            1. Queen, you ask a fair question; I shall answer.

              No, I call the police from my car. And I enter my home through the side entrance opposite the shed, and get my gun. Then wait for the cavalry. As long as s/he does not attempt to enter my home, no need to shoot her/his looting ass.

              Since the dumbass is passed out on my lawn, he isn’t going anywhere. Hopefully, the dumb SOB is going to have a miserable hangover, assuming it is alcohol. I call the cops and tell them to pick up the trash laying in my lawn.

      2. No, that’s not the thinking. Just to be clear, what I’m about to say does not represent my viewpoint; I have the same opinion of looters as everyone else here. But if you are going to talk about what the left is allegedly thinking, you need to be honest about what it is instead of just making stuff up and claiming it’s what the left is thinking.

        Here’s the actual theory: Minorities have spent the last century and a half making nice with racists and it has not worked. Police continue to murder unarmed black people with impunity, as demonstrated by the fact that these four didn’t even care that they were being recorded doing it. So it’s time to try something else. Maybe hitting them in the pocketbook by destroying their economy will at least get their attention.

        Now, disagree with that rationale if you like — I’m far from sold on it myself — but please offer an answer to this question: What do you propose minorities do instead to end violence and brutality by the police? Please offer something that they haven’t already been trying for the past 150 years without success.

        1. “Police continue to murder unarmed black people with impunity”

          You know, except for the whole trial and getting sent to prison thing for murder thing. Except for that.

          And then there’s the white people who are killed by police. Do they count for anything?

          1. Find me a white person who was killed by the police in which the fact that the person was white had anything to do with him getting killed. And yes, on rare occasion a police officer who kills someone actually does time for murder. Not often though.

            1. Do you think the officer that killed Floyd did so *because* he was black? I mean, I get that black people are disproportionately the victims of this, but I don’t get that the officer was racially motivated.

              1. I do think that. Obviously I can’t look inside the officer’s head to see what he was thinking at the time, so I don’t know it to a 100% certainty. But this particular officer had a long list of complaints that almost all involved interactions with black people. So I think he had the mindset that black people’s lives and rights just don’t matter.

              2. No, I think there was something going on between the cop and George Floyd. Too many things here don’t jibe, don’t quite fit.

                Personally, I think there was some unfinished business between Chauvin the murdering cop and Floyd. Those three other cops just stood there. Actually, one or two of them sauntered over, took a look, and walked away. That tells me there was something else at play here. NO WAY they just let a brother in blue just off somebody for kicks. And on video, for Christ’s sake.

                No, there was something more. It will come out. Maybe Floyd and Chauvin had a run-in at the club they worked. Maybe Floyd was banging Chauvin’s wife. Maybe Floyd owed money. Who knows. But I am pretty sure in time it will come out.

                1. Commenter_XY, assume you turn out to be right and there was earlier bad blood between the two of them. Let’s go a step further; let’s suppose some piece of evidence that comes out that conclusively proves that race had nothing to do with this particular incident.

                  The practical problem that remains is this: The level of racism and brutality toward minorities among the police is so high, that racism is the first thing a lot of people immediately and instinctively thought of, and there’s a reason for that. At some point, it’s almost immaterial if this specific act was racially motivated or not, because if this one wasn’t, there will still be a hundred others that were.

                  Suppose I’m a professional thief with a dozen burglary convictions. Suppose someone breaks into my neighbor’s house and steals a lot of his stuff, but this one time it wasn’t me. Just how much complaining do I have the right to do that I have such a bad reputation that I was the first person everyone immediately thought of? Maybe, just maybe, the person I should be blaming is me, for allowing my reputation to become so sullied that a lot of people automatically think the worst of me.

                  1. If you truly believe that racism is the Crux of the issue and you fervently plant your flag in that belief, you are part of the problem.

                    Even if you did happen to be right, the problem you present has no solution.

                    However, the problem of police brutality and the militarization of police has many solutions. Unfortunately, we never get to discuss those Solutions because we always end up having a conversation about race. A paragraph the first three or four times I was willing to go along thinking that it just happened to be that there were coincident interests at work.

                    Not anymore. Every single time this comes up, everything gets pushed sideways into a discussion about racism. And you know what gets done? Absolutely nothing. do you know why? Because once you’ve decided that the problem is racism, there is no solution. It is an intractable and insoluble problem. So everyone can just go home Angry.

                    So the question before you now is, are you going to be a part of the solution, or are you going to be a useful idiot?

                    1. I’m not really sure I should bother responding to someone who thinks I’m a useful idiot, but what you’re saying and what I’m saying are not mutually exclusive. It is possible to believe there are institutional racism problems that need to be addressed AND ALSO that part of the solution is to de-militarize the police, as well as doing away with qualified immunity, and ending the war on drugs.

                      It’s important to raise racism because it’s an institutional problem, not just for the police but for the entire criminal justice system. Though depriving the police of the tools they use to literally get away with murder would be nice.

              3. They are only disproportionately affected if your metric is percentage of population. This is a stupid metric that would only be relevant if the police were killing people randomly or if crime incidence reflected population numbers. Neither of which is true.

            2. 1. Do you think Floyd was killed “because” he was black?
              2. You realize, the police kill many more white people than black people, right?

              1. 1. See my response to Queen Amalthea above.
                2. Is that many more in terms of absolute numbers, or many more by percentage of the population? Given that whites outnumber blacks by something like 4:1, one would expect more whites than blacks to be killed by police. Once those numbers are adjusted for percentages of the general population, a different story emerges.
                3. Do you seriously think race had nothing to do with Floyd being killed?

                1. 1. “Almost all involved black people”?

                  Do you have evidence here? Does the evidence adjust for the situation? IE, if he shot a black person, but the black person had a gun in hand, that would still be a complaint potentially.

                  2. Should it be adjusted by general population, or by incarceration rate? What do you think the number difference is in the ratio?

                  3. I do not think he was killed because he was black.

                  1. FYI, I suggest you read the full criminal complaint. Full body cameras were going during the entire time. You may get manslaughter in the second degree out of it.


                    1. Eh, the leaked audio makes 3rd degree murder a slam dunk unless you think a union lawyer can successfully argue that the cop thought Floyd was able to fake not having a measurable pulse.

                  2. 1. and 2. I have not independently verified this, but I saw a news story that stated that almost all of the complaints against him were brought by black people. As far as the evidence adjusting for the situation, the numbers of black people being affected — actual deaths are the tip of the iceberg of police mistreatment of blacks, most of which does not, of course, actually result in someone dying — is so many standard deviations off what one would expect if racism weren’t the reason, that you just look at the numbers and ask what other conclusion is plausible. Sure, racism is not to blame *every* time a white officer kills a black civilian, but how many standard deviations do you need before you find the pattern persuasive?

                    3. I didn’t ask if you thought he was killed because he was black. I asked if you thought race had nothing to do with it, which is a separate question. Are you claiming that race is 0% of the reason he’s dead, or 20, or 50? Even if you can’t assign a percentage to it, just tell us, yes or no, if you think it had nothing to do with it?

                    As far as the criminal complaint and the likely outcome, I do not see how you put your knee on someone’s neck for 8 minutes without having a pretty good idea that death is a possibility. Especially when he’s no longer resisting (if he ever was resisting in the first place), and is pleading for his life. This looks like second degree murder to me. However, given how many cops walk away scot free, I’ll be happy with a second degree manslaughter conviction if that’s the best that can be done.

                    1. 1. ” I have not independently verified this, but I saw a news story that stated that almost all of the complaints against him were brought by black people”

                      a) Ah…an uncited “news” story.

                      b) how many standard deviations…

                      So, let’s throw some statistics then….

                      In 2018, 399 White people and 209 Black people were killed by police. “Ah hah, you say, it’s racism!”. And if looked at by proportion of population you might have a point. Whites make up 72% of the populations, African Americans 13%.

                      But that doesn’t account for the relative crime rate. If, for example, African Americans were committing armed crimes at a higher rate than Caucasians, you might expect a higher rate of police confrontation for African Americans than Caucasians. If there’s a higher rate of armed confrontation, there would be a higher rate of “death by cop”.

                      We can use a surrogate here for relative crime rate, the incarceration percentage by race. Here, we see White males make up 32% of the prison population and Black males make up 37% of the prison population. Based on these statistics, African Americans are under represented as a % of “death by cop.”

                      The truth in all of these is somewhere between these two. What happened here with Floyd was a tragedy. But was it any more a tragedy than what happened to Justine Damond?

                    2. You’re certainly welcome to cite a contrary source if you have one.

                      On your numbers, do blacks make up a disproportionate percentage of the prison population because they actually commit more crimes, or because the system itself is racist? And why are you so eager to rule racism out?

                      And by the way, you still haven’t answered my question about whether you think race had anything to do with the outcome in this case.

                    3. Krychek, the USCVS anonymously asks people if they have been the victim of a crime, and if so, details about it.
                      According to the many years of those surveys, victims report their perpetrator’s race (when known) to match pretty closely with arrest rates.

                      So, yes, there is significant evidence that American-born blacks commit crimes at a significantly higher rate than other races. By the same data, Asians commit crimes at a significantly lower rate.

                      “Your data might be wrong” is not an argument, by the way – it’s a trivially true statement. It applies equally to your claim that blacks are killed at a higher percentage than whites, or any other data-based claim.

                    4. Krychek_2,

                      Here’s a nice study that looks at police shootings and race. Turns out…it’s linked to the crime rate. And if anything, it shows an anti-white bias in people shot by police.


                      Perhaps it will change your mind here?

                    5. Armchair Lawyer, I will look at your link later tonight and respond to it; I have something I need to get out the door before 5.

                      Toranth, my argument is not that your data may be wrong. My argument is that your data, even if true, doesn’t show what you’re claiming it shows. I’ll elaborate later tonight, after I’ve looked at AL’s link.

                    6. OK, I’ve now read Armchair Lawyer’s link — twice, to be sure I didn’t miss anything the first time. It repeatedly says that there isn’t enough data to draw any firm conclusions. Some of its findings — for example, a white guy shot by police is more likely to deliberately be committing suicide by cop or to have mental health issues, and a black guy being shot by the police is more likely to be unarmed — tend to support my hypothesis that racism is a factor. But let’s look at the forest rather than the trees for a moment.

                      Acknowleding, as I do, that the raw data standing alone indicates that proportionately, blacks are overrepresented in the criminal justice system, that does not answer the question of why. Some of it is the criminalization, or the imposing of more severe penalties, for things that are more likely to do. The most famous example of this is the sentencing disparities between crack and cocaine. Cocaine is the drug of choice for white yuppies, and the penalties for it were far less severe than the penalties for crack, the drug of choice for inner city blacks. You could get a sentence five times as severe for possessing the equivalent amount of crack than you would for cocaine. So *of course* there were more blacks serving longer sentences for drug crimes. How could it have been any other way?

                      The criminal justice system is full of such disparities. In practice, white juvenile delinquents get interventions; black juvenile delinquents get jail time and a criminal record that follows them for the rest of their lives. Statistical studies show that school resource officers are more likely to arrest black students for fights than they are white students, which again leads to arrest records that follow them for life. There’s no law that says they’re supposed to do that; that’s just the actual practice. So again, of course, blacks are overrepresented in prison. It would be a miracle if they weren’t.

                      So how does this apply to the George Floyd case? Did the officer say to himself that morning, “I think I’ll go find a nigger to kill today?” Probably not. But when he’s part of a systemically racist system, it’s bound to rub off. And until those systemic problems are addressed, things won’t get better. Though I do agree with others here who have said de-militarizing the police and abolishing qualified immunity would be a good start.

                    7. ” In practice, white juvenile delinquents get interventions; black juvenile delinquents get jail time and a criminal record that follows them for the rest of their lives. ”

                      True enough. Another example would be the rich and poor guys who get caught driving drunk – only one can afford a top flight lawyer etc.

                      That explains some of the disparity, but not all. Consider murders, for example. Some of the explanations for disparities don’t seem applicable there – the police investigate all murders, so it’s not like poor people getting more tail light tickets because the police spend more time in poor/high crime areas than rich/low crime ones. And if the evidence points to a premeditated murder, say, I doubt even a good lawyer can make it all just go away like might happen with a DUI. There will be an effect, to be sure, but it’s hard to imagine enough of one to explain the huge disparity in rates.

                      The most plausible explanation I have heard comes from a book called ‘Ghettoside’ by Jill Levy. She tagged along with the LAPD homicide squad for a couple of years. It’s worth reading the book; space won’t allow doing her thesis justice here, but the tl;dr is that it is a cultural thing. In the parts of town with high murder rates, it’s an ‘honor culture’ which dictates that all kinds of what most of us would consider minor affronts – hitting up your girlfriend perhaps – are considered to be mortal insults that must be avenged in blood. Another effect is that going to jail isn’t the unimaginable terror it might be for some suburban kid; not only is it common enough that it is almost a rite of passage, but that life in the ghetto can be dangerous and hardscrabble enough that prison is a step up. She has some theories on how that culture has evolved, with roots going back to Jim Crow.

                      But the problem is that cultural change isn’t something that can be imposed by government fiat. You can eliminate police unions and QI, but that’s not going to have much of a direct cultural effect.

                    8. So, you’re misreading the paper somewhat what you say “there’s no firm evidence,” as well as by quoting from the introductory material (which references other publications), rather than the data in the paper itself. Here’s the key section from the discussion.

                      “Concerns that White officers might disproportionately fatally shoot racial minorities can have powerful effects on police legitimacy (31). By using a comprehensive database of FOIS during 2015, officer race, sex, or experience did not predict the race of a person fatally shot beyond relationships explained by county demographics. On the other hand, race-specific violent crime strongly predicted the race of a civilian fatally shot by police, explaining over 40% of the variance in civilian race. These results bolster claims to take into account violent crime rates when examining fatal police shootings (20). We did not find evidence for anti-Black or anti-Hispanic disparity in police use of force across all shootings, and, if anything, found anti-White disparities when controlling for race-specific crime. While racial disparity did vary by type of shooting, no one type of shooting showed significant anti-Black or -Hispanic disparity. ”

                      As for why African Americans appear in higher numbers in crime statistics than Caucasians or other ethnic groups, on a proportional basis? Those reasons are unclear, and could be due to a confluence of income, social, and family characteristics. It’s undoubtedly true though. It cannot be just “racism”, given the large numbers of Black-Black violence which occur. From wikipedia…

                      “According to the US Department of Justice, African Americans accounted for 52.5% of all homicide offenders from 1980 to 2008, with Whites 45.3% and “Other” 2.2%. The offending rate for African Americans was almost 8 times higher than Whites, and the victim rate 6 times higher. Most homicides were intraracial, with 84% of White victims killed by Whites, and 93% of African American victims were killed by African Americans. In 2013, African Americans accounted for 52.2% of all murder arrests, with Whites 45.3% and Asians/Native Americans 2.5%. Of the above, 21.7% were Hispanic. Blacks account for the majority of gun homicide victims/arrestees in the US while Whites account for the vast majority of non-gun homicide victims/arrestees. Of the gun murder victims in the United States between 2007–2016, 57% were black, 40.6% white (including Hispanic), 1.35% Asian, 0.98% unknown race and 0.48% Native American.”

                      This isn’t just “racism.”

        2. “What do you propose minorities do instead to end violence and brutality by the police?”

          You want a serious suggestion?

          Stop voting for Democrats. Every place these riots have happened has government controlled by Democrats, and has for generations. If they’re subject to police brutality, it’s been at the hands of Democrats.

          So maybe they should kick the thugs out of power and elect some Republicans, instead.

          1. Brett, I was asking for a solution that might actually end brutality and violence by the police, but thanks for playing.

            1. The other solution is obvious as well, ban police unions and strip QI from cops. Oh, and fully end the Drug War.

              1. Absolutely.

                There are plenty of solutions. The end of qualified immunity. The end of no-knock raids. The end of knocking announce raids. The end of prosecutors protecting police. The end of forensics that is run by and for the police instead of as an independent source of Truth.

                Read Radley Balko’s the rise of the warrior Cop for a selection of good ideas on the topic.

    2. Brett’s comment here is awful, from the right-wing nonsense of ‘Democrat,’ to conflating the correlation of cities voting democratic with causation, to some bromide about oppression meaning Dems are asking for it.

      Police brutality isn’t really a Democratic issue, Brett. Stop being so smug about what’s going on; it’s pretty screwed up.

      1. “Police brutality isn’t really a Democratic issue, Brett.”

        Like hell it isn’t. Stop pretending that the brutality of police in cities Democrats have unchallenged control of, and have for generations, has nothing to do with Democrats!

        How the heck is it anybody else’s fault?

        1. Brett, your theory makes no sense (other than being consistent with your blame-the-Democrats-for-everything-including-the-common-cold approach). Urban Democrats rely on black votes to get re-elected. Why on earth would they encourage policy brutality against their own base?

          1. Parties often have competing constituencies. For example, big business types in the GOP want more immigration while the base wants less. Likewise, unions, particularly public sector unions, are as important to the Dems as the black vote. Moreover, the GOP base tends to support police/fire unions at the very least. When you add to the mix that the black vote is pretty much a given for the Dems, the practical effect of their police union support isn’t to encourage brutality, as much as disincentive effective accountability for misconduct when it does occur.

            Besides, it wasn’t that long ago that Dems, like Biden, where “lock ’em up” types to try to co-opt the “law and order” vote that went typically to republican candidates.

            1. Not buying it. These days, most police vote Republican and most blacks vote Democrat. If you’re an urban Democrat, seeking to take care of your base, choosing blacks over the police makes good electoral sense.

              1. Not buying it? Sure. But think of it like this…

                Does the Dem party treat blacks like a mistress, useful at voting time but then ignores them when it matters? Yes.

                Is the Dem party the party of unions, particularly public sector unions? Yes.

                If both of those are true, and they are, the result is a situation where Dems politicians try to work at simultaneously cross purposes. It’s not like this doesn’t happen in the GOP, or for that matter, in other countries, or even by accident. For example, more fuel efficient cars and mass transit, pushed by everyone, leads to not enough infrastructure money because fuel tax receipts are down.

    3. “THIS is why the riots are breaking out in Democrat controlled areas.”

      And not because the people aggrieved tend to live in ‘Democrat controlled areas?’

      Also, in the sense relevant here, how is, say, Atlanta a ‘Democrat controlled area?’

      1. They live in Democrat controlled areas. Who the hell do you think is aggrieving them, the folks who run things someplace else?

  8. “or to prevent the imminent commission of a forcible felony”
    If the Target next door is getting looted, you can stand outside the
    Target and shoot the looters?

    1. The statute refers to “dwelling” and also “who is in a dwelling”. Though I assume “dwelling” is explicitly defined, if not it would be interpreted as the person’s residence. This is essentially the “Castle Doctrine” as known in the common law. It mentions the absence of a “duty to retreat” but this was very-infrequently required when in your residence. “Stand Your Ground” laws, rightly or wrongly, have been criticized for application when one was not in his dwelling.

      Defending commercial property or your dwelling when not present – the trip gun cases come to mind – is another story. Though I’m not up to date on the former, I imagine it comes down to the question whether, when standing there inside the shop door armed w/ your AR-15, does the looter present a danger to your life or great bodily harm so as to justify deadly force? If he or she backs off or enters through a broken window at a distance from the owner, then you’ve got a more ticklish situation.

    2. When the Target is ignited, will your next-door house burn down? No firefighters are going to respond…

      1. Interesting point. This scenario hadn’t occurred to me.

        Seems like it might be construed as a defensive action if the homeowner saw someone w/ a gasoline can and match – assuming it wasn’t a gasoline can looted from the Target store …

  9. Request for future articles:

    There are at least five Polk Counties in the US. And even in the cases where only one county uses a particular name, not all of us have every county name memorized. Like we try to tell people to do with acronyms, would you please add the state after the first use of a county name in an article? Thanks in advance.

    1. Whoops, I thought I’d done that, but I guess I didn’t — just revised the post accordingly.

  10. Just to clarify a wrong premise from the OP; hispanics don’t like guns as much as whites. Below is an expert from PEW research. As much as Karl Rove tried/tries, Hispanics are not “natural conservatives” and the Anglo-sphere sense at least.


    An early 2014 Pew Research Center survey asked U.S. adults what is more important — protecting the right of Americans to own guns or controlling gun ownership (Pew Research Center, 2014d). Hispanic registered voters nationally say they prefer gun control over the rights of owners by a margin of 62%-to-36%, as do black registered voters by a margin of 71%-to-26%, according to the survey. By contrast, white registered voters choose gun owners’ rights over gun control by a margin of 59%-to-39%.

    Included in the roughly six-in-ten Hispanic registered voters who say they prefer gun control are 44% who say that most Americans should be able to own guns if certain limits are in place and 18% who say only law enforcement and security personnel should be able to own guns. Also included among the 36% of Hispanic registered voters who think protecting gun rights is a bigger priority are 27% who favor some restrictions on gun ownership and just 9% who favor no such restrictions.

    Looking across all Hispanics regardless of their voter registration status or eligibility,15 82% of foreign-born Hispanics think controlling gun ownership is more important than protecting gun ownership rights, compared with 59% of Hispanics born in the U.S. who say the same.

    A recent Pew Research Center analysis found that two-in-ten Hispanics say they have a gun, rifle or pistol in their home (Morin, 2014). This is similar to the share of blacks who say this (19%), but whites are twice as likely (41%) to say they have a gun in their home. According to a Pew Research analysis of crime rates in the U.S., 17% of gun homicide victims were Hispanic, proportionate to their 16% share of the U.S. population in 2010. By contrast, blacks make up 55% of gun homicide victims, but just 13% of the U.S. population, while whites make up 25% of victims and 65% of the population (Cohn et. al., 2013).

Please to post comments

Supreme Court

Participants in Defined-Benefit Retirement Plan Lack Standing to Sue Over Alleged Mismanagement

The Supreme Court shows a willingness to enforce limits on Article III standing.


Among the five opinions handed down today by the Supreme Court was Thole v. U.S. Bank, in which the Supreme Court concluded that participants in a defined-benefit retirement plan lacked Article III standing to sue the plan alleging it was mismanaged. As a consequence, the Court affirmed the dismissal of a putative class action by plan participants against U.S. Bank.

The case split the Court along traditional ideological lines, 5-4, as has often happened in cases concerning Article III standing and class action litigation. Justice Kavanaugh wrote for the Court. Justice Thomas concurred, joined by Gorsuch. Justice Sotomayor dissented, joined by the Court's three liberal justices.

Justice Kavanaugh explained why participants in a defined-benefit plan—as opposed to a defined-contribution plan—could not claim to have suffered a cognizable injury sufficient to confer standing.

Thole and Smith have received all of their monthly benefit payments so far, and the outcome of this suit would not affect their future benefit payments. If Thole and Smith were to lose this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny less. If Thole and Smith were to win this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny more. The plaintiffs therefore have no concrete stake in this lawsuit. To be sure, their attorneys have a stake in the lawsuit, but an "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim." . . . Because the plaintiffs themselves have no concrete stake in the lawsuit, they lack Article III standing.

As Justice Kavanaugh noted, although the plaintiffs could not allege any financial injury to themselves, they sought over $30 million in attorney's fees.

Justice Kavanaugh concluded his opinion:

Courts sometimes make standing law more complicated than it needs to be. There is no ERISA exception to Article III. And under ordinary Article III standing analysis, the plaintiffs lack Article III standing for a simple,  commonsense reason: They have received all of their vested pension benefits so far, and they are legally entitled to receive the same monthly payments for the rest of their lives. Winning or losing this suit would not change the plaintiffs' monthly pension benefits. The plaintiffs have no concrete stake in this dispute and therefore lack Article III standing. . . .

Justice Kavanaugh's opinion was quite brief: Eight pages. Justice Thomas authored a three-page concurrence, joined by Justice Gorsuch. Justice Sotomayor's dissent, on the other hand, was twenty-five pages long.

Justice Sotmayor's dissent began:

The Court holds that the Constitution prevents millions of pensioners from enforcing their rights to prudent and loyal management of their retirement trusts. Indeed, the
Court determines that pensioners may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This conclusion conflicts with common sense and longstanding precedent.

It concluded:

The Constitution, the common law, and the Court's cases confirm what common sense tells us: People may protect their pensions. "Courts," the majority surmises, "sometimes make standing law more complicated than it needs to be." Ante, at 8. Indeed. Only by overruling, ignoring, or misstating centuries of law could the Court hold that the Constitution requires beneficiaries to watch idly as their supposed fiduciaries misappropriate their pension funds. I respectfully dissent.

One reason this case is potentially significant is because it represents one of the more serious standing cases to reach the Court since the death of Justice Scalia, who was quite the standing hawk. The Court's refusal to find or expand an exception to Article III's injury requirement in ERISA or trust principles suggests that the Court still has five justices on the Court who would like to keep a tight leash on Article III. If so, it will be interesting to see how the Court handles the aggressive standing claims in the Texas ACA case, among other cases. After all, the plaintiffs in that case—like the plaintiffs here—suffer the same financial injury whether they win or lose: absolutely nothing.

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  1. Ignoring the Article III issues themselves, I think the majority of the Court just basically called the lawyers for the plaintiffs ambulance-chasing shysters.

  2. If the solvency of a plan is threatened due to mismanagement, then isn’t Kavanaugh’s assertion that

    If Thole and Smith were to lose this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny less.

    obviously wrong? Or am I missing something?

    1. Yes, it would seem that Kavanaugh has undertaken to predict the future, which is rarely a certain thing. If the bank were slapped hard against the side of their head now, might not the Ps future interests be more secure?

      1. Sotomayer and you two, and the plaintiffs, are also predicting the future: that things are going to fall apart at some undetermined time.

        1. The plaintiffs’ amici assert that defined-benefit plan participants have standing to sue if the plan’s mismanagement was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future benefits. The plaintiffs do not assert that theory of standing here, nor did their complaint allege that level of mismanagement. Pp. 2–8.

        2. Well, there’s predicting the future, and then there’s doing arithmetic. It’s quite possible to look at a pension plan’s assets and determine whether there is a significant risk that the plan will be unable to meet its obligations. There are actually people who make a living doing that sort of calculation.

          It does seem to me that if the plan gets to that point participants ought to have standing to sue. Should they really have to wait until they’re 75 years old and can’t pay the rent to bring a lawsuit that will take years to resolve?

          I don’t think so.

          In fact, the opinion at least suggests that the matter would be different under those circumstances.

          One last wrinkle remains. According to the plaintiffs’ amici, plan participants in a defined-benefit plan havestanding to sue if the mismanagement of the plan was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay theparticipants’ future pension benefits. Cf. Clapper v. Am-nesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013); Lee v. Veri-zon Communications, Inc., 837 F. 3d 523, 545–546 (CA52016); David v. Alphin, 704 F. 3d 327, 336–338 (CA4 2013). But the plaintiffs do not assert that theory of standing in this Court. In any event, the plaintiffs’ complaint did not plausibly and clearly claim that the alleged mismanagement of the plan substantially increased the risk that the plan and the employer would fail and be unable to pay the plaintiffs’ future pension benefits.

          So the discussion of standing seems to be about various legal issues about trusts and so on.

          1. The arithmetic you want to do is complicated by the company’s legal obligations to a defined benefit plan. If the plan gets to the point that the participants won’t get paid what they are owed, the law requires the employer to step in and add to the plan. As the paragraph you quoted points out, the only way the plan participants are at risk is if both the plan and the employer fail.

            This leads to a logic problem. The plaintiffs claim that the plan was underfunded to the employer’s benefit. Assume for the moment that it actually did threaten the plan’s ability to pay future benefits. If you force the employer to put more money in the plan now, that will presumably threaten the employer’s future financial stability instead. Either way, you’ve got one entity able to pay and the other not. The outcome of the lawsuit leads to no difference for the plaintiffs.

        3. “Sotomayer and you two, and the plaintiffs, are also predicting the future: that things are going to fall apart at some undetermined time.”

          Skipping over the fact that if plaintiffs are allowed to proceed, they will be required to show actual mismanagement in order to recover anything (presumably, they are seeking some kind of order to end the practices they consider to be mismanagement as well as enough legal fees to choke a justice.)

          It seems odd to find a lack of standing where there is an undisputed fiduciary duty in place.

          1. Part of the problem is that the actual plaintiffs would not recover anything. The company might have to add money to the plan but the plaintiffs wouldn’t actually get anything, but piece of mind only their lawyers would get paid.

            Also the company and the bank have to undertake periodic audits and make reports. Those reports should show whether the plan is underfunded or under-performing.

    2. Flaulus, you missed the Article III STBY doctrine. That long-established principle states that if a court wants to award a case to a preferred party without regard for the facts, then it can do so by saying, “Sucks To Be You,” to the disfavored party. The only requirement is that the court say that using fanciful circumlocution, and the court plainly met that requirement in this case.

  3. So who is supposed to look after the Ps interests, since the Court won’t let them do it for themselves? ERISA is somehow in the background (these were employee benefit plans?), so the Dept of Labor ought to be watching over them.

    If the day comes when there is insuffient money remaining to pay the full benefits owed, then the Ps can come back to sue then? Or it will be up to the Pension Benefit Guarantee Fund to pay out some greatly reduced benefit?

    (Is it clear that US Bank has seriously failed as a fiduciary? Bad investments? Would things be any different for the standing-less Ps if fraud could be pinned on the bank, or they’re SOL in any event?)

    1. Why not let’s let everybody sue for all possible potential may be might be events, just in case? After all, there might be a change of management in 20 years. There might be an earthquake or hurricane causing so much damage that the reinsurance markets collapse and investors, including their pension fund, dry up. There might be a war, an asteroid strike, or alien invasion.

      Let’s just go ahead and sue for all these potentialities right now while there’s still money left to suck out of the pension fund for attorney’s fees. Because you know it would be a damned shame if money were left to actually pay pensions before paying attorneys who want to fish around for any old excuse to pad their own pensions.

      1. Except that isn’t what is happening, is it?

        Look, you can defend this decision on the merits (regarding standing) or not, but don’t make …. shinola … up.

        The attorney’s fees wouldn’t come from the pension. The suit was against the fiduciaries (incl. U.S. Bank) of the pension, requesting that the fiduciaries repay the amounts lost into the pension, the attorney’s fees, and also requesting injunctive relief (replacement of the fiduciaries).

        That’s all reasonable, if you believe their theory of the case and that they have standing to sue.

        1. OK, we won’t rob the pension fund … we’ll rob the bank that funds the pension fund. We’ll make it perform worse so it has fewer resources to grow and be a healthier support for the pension fund. And we’ll do ll this without improving benefits for the pensioners, just so we can collect nice attorney fees for doing nothing.

          That makes much sense. Glad you clarified that for me.

          1. ” we’ll do ll this without improving benefits for the pensioners”

            Having fiduciaries who fulfill their fiduciary duties is a benefit. So would having courts that required fiduciaries to honor their duties, but you can’t have everything
            Somebody’s looking out for President Trump. We don’t want to establish any kind of principle that people affected by mismanagement of important things should have legal recourse.

          2. The entity doing the robbing was the bank. The suit sought to return the stolen loot to its rightful place.

            1. You assume the conclusion before the fact to justify the means.

              1. Or to be clearer, you assume there was a reduction in benefits, contrary to what I read, that if the plaintiff won, they would get no increase in benefits, and if the plaintiffs lost, they would get no reduction in benefits.

                If you have information to the contrary, please tell us.

                1. I’m not assuming there was a reduction in benefits paid out to the plaintiffs, I’m assuming that there was a reduction in the fund’s assets in the aggregate. The reason for that assumption is that’s what the plaintiffs alleged, and the case was decided on a motion to dismiss.

          3. “OK, we won’t rob the pension fund … we’ll rob the bank that funds the pension fund. We’ll make it perform worse so it has fewer resources to grow and be a healthier support for the pension fund. And we’ll do ll this without improving benefits for the pensioners, just so we can collect nice attorney fees for doing nothing.

            That makes much sense. Glad you clarified that for me.”

            Look, I don’t agree with the legal principle behind the lawsuit (as I wrote below) but this is some top-grade BS here.

            This is how lawsuits work. They want the wrongdoer to make them whole (in this case including attorney’s fees), and further, they want injunctive relief to prevent the wrongdoer from doing further wrong.

            Everything else you said you are making up from whole cloth.

  4. To reiterate the basic point that should seem obvious:

    I am a big fan of constitutionalized standing. I agree with Scalia’s approach, and in terms of actual practice, I think that strict enforcement of Article III requirements (along with Iqbal/Twombly) have been the two greatest things that conservative jurisprudence has done for this country in terms of making the law better.

    ….that said, I am constantly amazed at the cognitive dissonance on display in the comments section. Either you understand and appreciate standing, or you don’t. I can understand either approach. And yet, we get so many yahoos who are completely results-oriented; “Oh, I don’t like ambulance chasers suing, but when there is something I don’t like, who cares about standing? Let ’em sue!”

    1. ” I am constantly amazed at the cognitive dissonance on display in the comments section. Either you understand and appreciate standing, or you don’t.”

      How about the yahoos who can’t see any standing resulting from (if proven) violation of fiduciary duty? The only people who should be cheering this decision are people who owe fiduciary duties to others which they’d prefer not to honor, because those duties no longer have any meaning.

      1. If there is not cognizable threat to the participant’s benefits from the alleged mismanagement is it in fact a breach of fiduciary duty?

        1. If your financial manager screws up and breaches their fiduciary duty but in a way that actually winds up netting you more money, do you have standing to sue? No. Why would it be different if it had no effect on how much money you are getting?

  5. Congress explicitly granted beneficiaries the substantive right to sue for these sort of losses. Under any sane standing jurisprudence, that ought to be the end of the matter. Unfortunately, following Spokeo, we will see more courts becoming more aggressive in deciding for themselves what sort of substantive rights are worthy of vindication under article III.

    The good news is that state courts are not bound by the strictures of article III, and most have plenary jurisdiction to decide cases, including federal causes of action, without regard to a “concrete injury in fact”. Hopefully this proves to be a pyrrhic victory for self-dealing fiduciaries, and these suits simply migrate to state courts.

    1. Congress explicitly granted beneficiaries the substantive right to sue for these sort of losses. Under any sane standing jurisprudence, that ought to be the end of the matter.

      Can Congress give me the right to sue for these sorts of losses, even though I’m not a beneficiary of the plan, on the grounds that I’m offended by them? If not, you recognize that Congress can’t create Article III standing simply by fiat.

      Unfortunately, following Spokeo, we will see more courts becoming more aggressive in deciding for themselves what sort of substantive rights are worthy of vindication under article III.

      You can disagree with Spokeo, of course, but I don’t think it makes sense to criticize lower courts for doing what Spokeo tells them that they must do.

      1. I think Congress can create substantive rights, whose violation gives rise to an injury in fact for article III purposes. That is a traditional function of legislative bodies, and that was the general rule prior to Spokeo. If Congress determines that your offense is a cognizable injury and creates a cause of action, then yes, federal courts should be required to effectuate that law as written.

        My disagreement is with Spokeo (and other SCOTUS decisions like this one) more so than lower courts attempting to apply them. My point is that the Supreme Court is requiring lower federal courts to decide for themselves what substantive rights warrant vindication (substituting their own preferences for those of Congress), and that that’s a bad thing.

    2. But there are no losses.

      That was why this was so easy to decide.

    3. “the substantive right to sue for these sort of losses” You accidentally identified the problem with your argument. They didn’t suffer losses, because they have gotten and are getting all the money they are entitled to.

      1. The losses were to the pension fund as a whole – allegedly to the tune of $750 million – not to the individual beneficiaries. The law authorizes the beneficiaries to sue to recover the losses regardless of whether they are personally out any money.

        That they will (maybe) end up getting the money to which they are entitled, likely via collateral sources, doesn’t really solve the problem of their fiduciary misappropriating the money in the first place.

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Farewell to the "Bleeding Heart Libertarians" Blog

One of the internet's most prominent libertarian blogs ends its run. But many of the contributors will continue write elsewhere.


I am saddened to report that the Bleeding Heart Libertarians blog, one of the most important libertarian blogs on the internet is closing down, as of today. Matt Zwolinski, one of the regular contributors, announced the decision in this post:

Back in 2011, a group of academic philosophers started a blog called "Bleeding Heart Libertarians." The idea behind that blog was simple, but also somewhat vague in terms of its specifics: that you could be a libertarian who favored free markets and limited governments, and still care about the kind of things people on the left refer to as "social justice" – relieving poverty, racial and sexual equality, immigrant rights, LBGTQ rights, and so on. Hence, the slogan of the blog, "free markets and social justice…."

Reconciling free markets and social justice seemed like an especially worthwhile project to undertake in 2011. Academic political philosophy was largely dominated by followers of John Rawls, for whom a commitment to social justice (of a particular sort) was paramount. And libertarianism remained a fringe and unfamiliar view within the academy – for most academic philosophers, it was a view that was born and died in 1974 with the publication of Robert Nozick's Anarchy, State, and Utopia. But a critical mass of scholars were working out new ways of thinking about libertarian ideas; and many of us who were excited by the work of scholars like David Schmidtz, Gerald Gaus, and John Tomasi thought that there was a different style of libertarian thought beginning to crystallize. And we didn't only want to publicize that; we wanted to encourage it, to help build and develop the research program associated with it.

Moreover, if we sought to open mainstream Rawlsian political philosophy and theory to the influence of market-friendly classical liberalism, we also wanted to wanted to steer classical liberal scholarship toward taking egalitarian liberal ideas much more seriously than it often had….

Things have changed quite a bit in the last nine years, both in the realm of academic philosophy and that of real-world politics. Rawlsianism and its particular interpretation of social justice have receded in prominence. The variety of libertarian and classical liberal views within the academy has become better known, even by those who reject those views. And that variety is now a more firmly established fact among libertarian scholars and students themselves

I like to think that this blog, or at least the people who write for it, have played some role in at least the second of those two developments. We set out with the aim of articulating a new and distinct vision of libertarianism. And – while there are certainly a great number of important details of that vision that have yet to be worked out – I think we have succeeded. The project of establishing the intellectual space for bleeding-heart libertarian ideas has also more or less succeeded, giving way to the various different intellectual projects people are going to pursue in that space.

In other words, we've said what we needed to say.

I can understand Zwolinski's reasoning. But I wish he and his co-bloggers would reconsider.  The world needs the BHL blog today at least as much as it did back in 2011. The brand of liberalism that combines free markets with cosmopolitanism, rejection of ethnic nationalism, and concern for the poor and disadvantaged has never been more necessary than in this difficult time, when  liberty is besieged on both the right and left. Whatever may be the situation in the specialized arena of academic political philosophy, the forces of nationalism and socialism are gaining group in the broader intellectual and political world.

Fortunately, many of the BHL contributors will remain active in the public arena in other ways. Zwolinski lists some of the venues in which they will continue to write in his post linked above.

In the meantime, it's hard to deny that the BHL participants have had a big impact on political thought since they began the blog in 2011. While I am not a BHL-er as such, my own recent book  Free to Move: Foot Voting, Migration, and Political Freedom is very much in their tradition of combining free markets and cosmopolitanism. It is no accident that it is an outgrowth of an article I wrote for a volume edited by BHL-er Jacob Levy.

I have also been much influenced by the works of other BHL contributors, such as Jason Brennan's books on political ignorance, and the ethics of voting, and Fernando Teson's writings on democratic deliberation and international justice. Brennan's book In Defense of  Openness (coauthored with Bas van der Vossen) is one of the best political philosophy books on the morality of international trade and migration.

There are, of course, a number of issues on which I differ with some of the BHL contributors. But, even when we do disagree, I always learn much from what they have to say. Hopefully, they will continue to contribute to debates over politics and political theory elsewhere.

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  1. BHL was interesting for a while, but a lot like Reason itself, took a nosedive after the 2016 election. The writing got angrier and less interesting, even more full of virtue-signaling than it had been before. I think Jason Brennan was the only one who has been posting recently. The blog of its heyday will be missed, but the more recent incarnation will not. Rather than having said what it needed to say, it just fell prey to the what will inevitably kill off the Niskanen Center: you can only be the libertarian court jester of the progressive left for so long before it grows weary of your kooky antics and has you beheaded.

    1. BHL and Reason never changed. People who have become disillusioned with them never understood in the first place what libertarianism really means.

      1. No, they changed, especially BHL. After 2016, writers like Steve Horowitz went from fairly sane to unironically referring to Trump as “Cheeto Mussolini” and other names. Trump broke their little brains, and they weren’t able to maintain the objectivity needed to be a principled libertarian.

        1. It’s interesting that Trump and many of his supporters often claim he’s a significant ‘disrupter’ and ‘game changer’ and then react all ‘I can’t believe people are treating him differently!’

        2. Name-calling is a stylistic choice you may or may not find attractive, but it says nothing about their principles. A principled libertarian has no reason to defend Trump.

          Did you notice the link in the article to Horwitz’s 2011 critique of Ron Paul? The BHL folks have always opposed the Auburn style, collectivist pseudo-libertarian approach. I wonder what you see post-2016 that is inconsistent with this.

          1. “A principled libertarian has no reason to defend Trump.”
            What about Obama? Biden? Either of the Clintons? Libertarian heroes all, I am sure…

        3. I think such name-calling is often childish and more importantly distracting from the arguments people are making, but libertarians are of course not “objective” and don’t purport to be.

          If one isn’t vehemently criticizing Trump, one isn’t a principled libertarian.

  2. I’ve never quite fathomed combining individualism with social justice. Individualism by its very nature *does* provide social justice; and those who push social justice almost always want the government to provide some kind of favoritism to whatever group they think has been harmed before by government, prime examples being affirmative action racism to make up for Jim Crow racism, or throwing out freedom of association to make up for previous government homophobia. It is an oxymoron as ludicrous as democratic socialism.

    I’ve never looked at the blog. Maybe I am too pessimistic, and maybe their support is for society’s social justice, not the government-mandated variety. But I have never heard of social justice that didn’t demand government produce it where society didn’t.

    1. Individualism by its very nature *does* provide social justice
      This is begging the question. Some libertarians may disagree, no?

      affirmative action racism
      This is a pretty clunky non-argument.

      to make up for Jim Crow racism
      Hardly the only reason.

      throwing out freedom of association to make up for previous government homophobia
      And no one thinks that. Public accommodation law is not about restitution.

      This is just you delegitimizing anyone who disagrees with your narrow philosophy. Said philosophy being quite thin; mostly about strawmaning the libs.

      1. Affirmative action is racist by design.

        Whatever public accommodation law is “about”, it certainly abrogates freedom of association.

        Your word salad doesn’t do anything but make stuff up.

        1. “Affirmative action is racist by design.”

          Is giving money to the United Negro College Fund racist?

          Was it racist to give money to it in 1945?

          1. No and no. Personal choice is just that, personal choice. When the government mandates it, it becomes racism.

          2. You don’t really understand the differences between individuals, society, and government, do you? Your choices should be society’s choices, mandated by government, because you know better than everybody else.

    2. There’s lots of things that can be and are done in the name of ‘social justice’ that don’t involve government. Boycotts for example, or selective patronizing of businesses that one might think are advancing ‘social justice.’

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Dark Mirror – Interviewing Bart Gellman

Episode 318 of the Cyberlaw Podcast


This episode features an in-depth (and occasionally contentious) interview with Bart Gellman about his new book, Dark Mirror: Edward Snowden and the American Surveillance State, which can be found on his website and on Amazon. I'm tagged in the book as having been sharply critical of Gellman's Snowden stories, and I live up to the billing in this interview. He responds to my critique in good part. Gellman offers detailed insights into Edward Snowden's motives and relationships to foreign governments, as well as how journalism – and journalistic lawyering – is done in the Big Leagues.

Our news roundup focuses heavily on the Trump Administration's executive order on section 230 of the Communications Decency Act (Wall Street JournalWashington Post). I end up debating all three of my co-panelists – Nate Jones, Nick Weaver, and Evelyn Douek, rejoining us on a particularly good day, given her expertise. We agree to disagree on whether Silicon Valley applies its rules in a fashion that discriminates against conservatives. More interesting is the rough consensus that Silicon Valley's heavy influence over our speech is worth worrying about and that transparency is one of the better ways to discipline that influence. No one but me is willing to consider the possibility that the executive order represents a good step toward transparency.

Nate and I find much room to agree, though, on the tragicomedy emerging from the reauthorization of three relatively straightforward FISA provisions. Stay tuned for a House-Senate conference, plus heavy lobbying of the President.

Nick explains NSA's outing of Russian military hackers targeting mail relay software (CyberScoopNSA).

Nate and I cover the latest in US-China decoupling – the FCC and Justice Department enthusiasm for kicking Chinese telecom firms out of the country and, in a possible new front, heavy scrutiny being given to Chinese-built transformers.

Evelyn tells us that, as a visa holder, she's definitely hoping that the courts overturn US rules forcing visa applicants to disclose their social media handles. I predict that her hopes will be dashed.

Finally, Nick explains who needs a "quantum holographic catalyzer" to protect against 5G telecom emissions.  Quick answer: No one.  It's a fake cure for fake malady.

Listen to episode 318 now.

You can subscribe to The Cyberlaw Podcast using iTunesGoogle PlaySpotifyPocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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Justice Kavanaugh Uses the Term "Noncitizen" as Equivalent to the Statutory Term "Alien"

He included the same nomenclature in Barton v. Barr and Nasrallah v. Barr .


In April, Justice Kavanuagh wrote the majority opinion in Barton v. Barr. He included this footnote:

This opinion uses the term "noncitizen" as equivalent to the statutoryterm "alien." See 8 U. S. C. §1101(a)(3).

At the time, this footnote jumped out at me. I did not recall seeing another conservative Justice use this nomenclature.

Today, Justice Kavanaugh wrote the majority opinion in Nasrallah v. Barr. He included the same footnote:

This opinion uses the term "noncitizen" as equivalent to the statutoryterm "alien." See 8 U. S. C. §1101(a)(3).

There is some relevant history. In Moncrief v. Holder (2013), Justice Alito chastised Justice Sotomayor for using the term "noncitizen" rather than "alien."

"Alien" is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining "alien" to include "any person not a citizen or national of the United States") with §1101(a)(22) (defining "national of the United States"). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).

Justice Sotomayor first used the term "undocumented immigrant" in Mohawk Industries v. Carpenter. Though, she slipped during oral arguments in  Chamber of Commerce v. Whiting, She used the phrase "illegal alien," and quickly changed to "undocumented alien."

JUSTICE SOTOMAYOR: — just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don't disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?

Justice Kavanaugh also used the phrase "noncitizen" in his concurrence in Nielsen v. Preap. In contrast, Justice Thomas's concurrence, which was joined by Justice Gorsuch, used the statutory term "alien." Justice Alito still uses the term "alien" in Pereira v. Sessions.

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  1. As I understand it (correct me if I’m wrong, as if I had to specify that in *this* forum):

    -U. S. citizens are not aliens (though maybe they’re nationals since the greater includes the less?)

    -U. S. nationals are aliens, and they’re not all citizens (maybe someone can clarify this – does it mean for instance Samoans?)


    -aliens are neither citizens nor nationals

    1. Clark Kent is a U.S national, but Superman is an alien, despite all his talk of “truth, justice, and the American way.” Meanwhile, Lex Luthor is a natural-born citizen, Constitutionally-eligible to become President.

  2. If Justice Kavanaugh is trying to be PC, he should reflect that “noncitizen” will come to be as “problematic” from the PC perspective as “alien.”

    “Don’t say noncitizen, he’s a citizen of France/Zaire/India/etc!”

    “Who cares what country he’s a citizen of, he – I mean xe – is a citizen of the world!”

    1. “If Justice Kavanaugh is trying to be PC”
      One person’s ‘PC’ is another person’s ‘respectful.’

      Do you think he should refer to African-American persons as ‘Coloreds’ based on your logic?

      1. Is that a statutory term?

        1. Is your logic based on statutory terms? You stated: “he should reflect that “noncitizen” will come to be as “problematic” from the PC perspective as “alien.”

          This seems to suggest that the problem with using ‘noncitizen’ for ‘alien’ is that the former ‘will come to be as problematic from the PC perspective’ as the latter.

          Well, African-Americans used to be referred to as ‘colored people.’ Then they preferred ‘black.’ Then that became ‘problematic.’ So should we have stuck with ‘colored’ per your logic?

          1. Eddy can speak for himself, and frequently does….

            …but my reading of his point was that if Justice Kavanaugh was tryng to avoid the statutory term “alien” because he feels it might be regarded as non PC / disrespectful (take your pick) then it would be a forlorn effort, since whatever term he chose will become non PC / disresepectful fairly soon. Simply because it refers to the category formerly known as “alien.”

            So the “problem” is that trying to avoid the statutory term, so as to avoid possible offense, is pointless.

            Thus if a statute had referred to a five letter word beginning with n, then making a reference to “black” and later “colored” etc would be a forlornity. However hard Kavanaugh tries, Law Professors in California colleges will still be suspended for quoting from his judgements, because whatever term he uses will become offensive by the time it is read out in class. So he may as well use the statutory term, and gather the opprobrium by being offensive and right. Rather than use the wrong term, and gather opprobrium for being offensive and wrong.

            Still it’s gratifying to see that those who questioned the wisdom of going to the mattresses to help him beat the teenage rapist rap, on the basis that he had a conservative crust and a marshmallow center, don’t appear to be far off the mark.

            Those DC parties must be really something.

            1. So, you agree with the point, K (and others) should have stuck with ‘coloreds’ because if you changed to ‘blacks’ you were just bound to be dinged by those preferring ‘African-Americans,’ right?

              1. If “colored” was the term in the hypothetical statute.

                En passant, I’ll note that most of the dinging these days is done by “European-Americans” eager to take vicarious offense.

                1. This is a bad idea, and using coloreds has nothing to do with why.

                  Judicial opinions should be accessible and use modern language, not statutory language possibly from another era.

                  1. To use an old fashioned term, nonsense.

                    Nobody reads judicial opinions but lawyers, law students and very occasionally the odd journalist. If the actual words of the statute that is being analysed in the judgement are inaccessible to them, they should be in another line of work. Using modern euphemisms instead of the actual words of the statute can only lead to additional confusion. Also makes originalism a little hard to apply – perhaps that’s the point ?

                    Meanwhile, if you’re on, to use another old fashioned word, a crusade to make judgements more accessible, I suggest you have a go at the conventions for referring to the litigants.

                    The petitioner who opposes the application of the defendant for relief from the plaintiff’s appeal of the waiver of the respondent’s motion could just as well be called “Mr Smith” if that is who he is.

                    1. For the avoidance of doubt, there’s no objection at all to journalists or bloggers etc who are writing about a case using the modern tongue, if they think that’s what their audience wants.

                      It’s the judgement itself that ought to use the statutory terms – though again there’s no harm in explaining unfamiliar terms.
                      That Trumpy emoluments case is a good example – judgements do actualy need to say “emoluments” not a modern gloss like say “benefits”, but in analysing what “emoluments” means in the Constitution, the judgement can happily use modern language in the explanation.

                    2. “Nobody reads judicial opinions but lawyers, law students and very occasionally the odd journalist. ”

                      You realize where you’re writing this?

                    3. Yes. Your point ?

                2. This is a bad idea, and using coloreds has nothing to do with why.

                  Judicial opinions should be accessible and use modern language, not statutory language possibly from another era.

                3. FWIW, there are probably still some statutes out there that use “Negro”. And I would suspect that in a court decision regarding such statutes, the text of the decision would use more modern terminology, whether it be “black” or “African-American”.

          2. Just a point of information. “Black” is not problematic. At least not yet. It is one of two terms preferred by African Americans. While the detestable (and disliked) term “LatinX” has been foisted on Hispanics (or Latinos, if you like) via cultural imperialism by the academy, “black” has not yet been banished for these other people of color.

            1. APA style manual says it must be capitalized.

            2. “Black” is certainly to be preferred to the clunky “African American” which gets clunkier the moment you set foot outside the US.

              As clunky circumlocutions go, I much prefer “undocumented” since it can be given extended euphemistic outings in other contexts –

              undocumented drivers
              undocumented visitors
              undocumented babies
              undocumented Governors
              undocumented theatre goers
              undocumented doctors
              undocumented veterans
              undocumented police officers
              undocumented bankers
              undocumented graduates


        2. “Is that a statutory term?”

          It used to be.

      2. “One person’s ‘PC’ is another person’s ‘respectful.’”

        The word “person,” which you used, includes the sexist term “son.”

        By your logic, would lynching be OK?

        1. So you feel an anxiety or upset if someone offers it up that what people say could be offensive to others and that might be something people might want to not do. Got it.

          1. I’m kind of making fun of your “by your logic” logic.

            I wouldn’t, in a social interaction, say to a person from another country, “how’s it doing, alien?” That would not be nice.

            But a judge using a statutory term in an official opinion would be totally nice. There is a legal distinction between a U. S. citizen and an alien, under U. S. law.

            Just as I as an American am an “alien” or “stranger” or “foreigner” – under the laws of other countries.

            1. Why wouldn’t you use the term alien? The argument you put forward is that it’s problematic because the person offended by the term alien will just soon be offended by the term noncitizen.

              1. Anyone who doesn’t want a judge to use a statutory term in a judicial opinion is being silly. And Justice K is being silly if he’s giving in to that kind of thing. He of all people should know he won’t be able to appease the PC crowd.

                Again, I don’t agree with your “by your logic” logic.

                1. Can you state your disagreement? I’ve described how my logic runs, where does it go off the tracks in your opinion? Your principle behind your example seems to be ‘you shouldn’t use a term that one side urges you to because the alternative term offends them because they will just then be offended by the new term.’ Is that not it? If it is, then it certainly applies to my example as well.

                  1. “where does it go off the tracks in your opinion?”

                    It means “he” has to change something he doesn’t want to change, because other people also have value as human beings. This is an unacceptable result.

      3. African-American is offensive. I prefer ‘black.’

        1. “black” means “absence of color” There are no people who are non-reflective, so this description as applied to human beings is just silly. It’s okay,you’re not alone, classical physicists struggled with finding accurate adjectives to resolve the “black-body radiation” problem for decades.

  3. If you don’t like the statutory term, use the Constitutional term language* “citizens or subjects of foreign states.”

    *though not in the same order

    1. Same words as in the Constitution Art. III but different order

      1. Wait, I forgot about stateless persons.

        Oh, well…

        1. You’re sitting the corner talking to yourself again.

  4. At least it makes more sense than the nonsensical term ‘undocumented’

    1. I think the term ‘undocumented’ is supposed to suggest that there is nothing inherently and immutably ‘Other’ about the person, if they had the ‘right documents’ there would be no issue.

      I imagine it also was adopted to tweak what are seen as ostensible libertarians who’d otherwise be put off by a ‘papers please’ kind of approach to government dealing with people.

      1. It can suggest anything but the literal meaning makes it a nonsensical term to use for this case. illegals almost always have plenty of documents and the point of who can and can’t be allowed in is a lot more than that. You might as well call cats hairless dogs because they have no dog hair.

        1. There’s lots more than the literal meaning to language.

        2. The correct legal term should be “present without inspection and admission or parole” or PWIAP for short. Illegal suggests a criminal offense, which isn’t always the case. Additionally, the thing that is illegal would refer to the act of immigrating, not the status of the person itself, so it really should be illegal immigrator rather than illegal immigrant if we’re really concerned with terms.

      2. Would you object to the undocumented lessee of your basement? Or the undocumented driver/”owner” of your car?

        I guess that is mi casa- su casa taken to its logical end.

        1. “Would you object to the undocumented lessee of your basement?”

          You mean his 21 year-old unemployed son?

        2. I don’t think I’ve heard someone charged with driving someone else’s car as “illegal driver.” I’ve heard thief; I’ve heard unauthorized user – it all depends on the context and the charge, but this seems an odd semantic hill to suggest that people are being silly objecting to “illegal immigrant” while not objecting to terms nobody uses.

          Unauthorized immigrant would be an appropriate analogy, I’d imagine, and I also would imagine that people would have far fewer problems with the term being used.

    2. What’s “nonsensical” about the term “undocumented”? Either you have documents that assert your authority to be in the country, or you do not. Of course, some American citizens are “undocumented”, and some people who have entered unlawfully have all sorts of documents which incorrectly tend to establish authorization to be present.

      1. It looks like you’ve answered your own question.

        Undocumented immigrant (1) as a euphemism for alien present without lawful authority (2) is “nonsensical” since it (deliberately) conflates categories which are different – as you explain.

        (2) concerns whether you have lawful authority to be present, (1) concerns whether you have documents asserting that you have lawful authority.

        The euphemism, though meaningless is not purposeless. It is intended to suggest that what, for immigration purposes, distinguishes folk scooped up while sneaking across the Mexican border, from folk born in the US of A, is simply the lack of a paper formality, rather than actual lawful authority to be present.

        One might illustrate with Senator Blumenthal’s service in Vietnam. Certainly he lacks documentation in his service record of service in Vietnam, but it is not the lack of documentation which makes his service in Vietnam a tall tale.

  5. It’s more like a regime only including hairy dogs calling those without a government official determined notice of ‘hairiness’ ____’s.

  6. Using “alien” is, well, alienating. Whether Thomas or Alito are conscious of it or not.

  7. Isn’t “statutoryterm” supposed to be two words?
    Firefox agrees with me on this….

  8. What about all the more provocative terms for such people?

  9. An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an **alien**

    If the court is addressing the statutory effect of being an alien, I think it’s perfectly reasonable for the court to use the term “alien.”

    When Congress writes these terms into a statute it gives them meaning. “Noncitizen” is not present in the statute (8 U.S.C. 1101 specifically defines “alien”), and a judge using a non-statutory term is obfuscating the ruling.

    1. “When Congress writes these terms into a statute it gives them meaning. “Noncitizen” is not present in the statute (8 U.S.C. 1101 specifically defines “alien”), and a judge using a non-statutory term is obfuscating the ruling.”

      When the judge wrote the opinion, he defined the meaning of the term he chose to use. Or one of his clerks did. If you’re finding the meaning obfuscated, perhaps the problem is with your ability to read for meaning. There’s a reason they test for that ability specifically in the LSAT.

  10. Poor E.T. just wanted to go home. In that case, the government specifically attempted to intercede to keep him from leaving.

  11. What does Sotomayor use in regard to Indian law opinions? That’s another place where the statutory text and treaties (which use “Indian”) has some tension with the preferred nomenclature (native American).

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