1/3/1911: Justice Willis Van Devanter takes oath.
Today in Supreme Court History: January 3, 1911
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
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Requiring Registered Sex Offenders to Post Signs on Halloween Saying "No Candy or Treats at This Residence"
unconstitutionally compels speech, says the Eighth Circuit federal court of appeals.
Sanderson v. Hanaway, decided today by Eighth Circuit Judge Jane Kelly, joined by Judges James Loken and Ralph Erickson, struck down part of a Missouri law that provides,
Any person required to register as a sexual offender … shall be required on October thirty-first of each year to:
- Avoid all Halloween-related contact with children;
- Remain inside his or her residence between the hours of 5 p.m. and 10:30 p.m. unless required to be elsewhere for just cause, including but not limited to employment or medical emergencies;
- Post a sign at his or her residence stating, "No candy or treats at this residence";
- Leave all outside residential lighting off during the evening hours after 5 p.m.
From the court's opinion:
The First Amendment's protection "includes both the right to speak freely and the right to refrain from speaking at all." … The sign mandate … explicitly requires registrants to post a sign bearing a specific message…. [T]he sign mandate compels speech and, thus, is unconstitutional unless it can survive strict scrutiny….
The sign mandate will survive strict scrutiny only if it "furthers a compelling interest and is narrowly tailored to achieve that interest." The district court found that "Defendants have established a compelling interest in restricting certain conduct of sexual offenders on Halloween that satisfies the strict scrutiny standard." Neither party challenges that determination on appeal, and understandably so. We therefore move directly to the question of whether the statutory provision is narrowly tailored. In other words, is the sign mandate the least restrictive means of achieving the government's compelling interest
At trial, the State's witnesses offered several justifications for the sign mandate. Law enforcement officers testified that the signs were beneficial for enforcement purposes because the signs (1) allow them to "be able to ensure that there is compliancy," (2) make enforcement of the Halloween statute more efficient, and (3) provide an extra layer of protection for children.
"Our Constitutional Rights … Should Not Hinge on a Where's Waldo Quiz"
From Judge Kenneth Lee's concurrence in today's Baird v. Bonta, joined by Judge Lawrence Vandyke:
California insists that citizens in counties with populations fewer than 200,000 people can apply for an open-carry license. Yet California admits that it has no record of even one open-carry license being issued. How could this be? One potential reason is that California has misled its citizens about how to apply for an open-carry license.
California has issued a 17-page application with the heading, "STANDARD INITIAL AND RENEWAL APPLICATION FOR LICENSE TO CARRY A WEAPON CAPABLE OF BEING CONCEALED." The first paragraph of the form then says that the law "requires the Attorney General to issue a statewide standard application form for CCW [Concealed Carry Weapon] licenses." Throughout the application, it uses the word "concealed" or "CCW" 67 times. But the phrase "open carry" is not mentioned once.
Most Californians would reasonably think that this form is used only for a concealed carry weapon permit. But they would be mistaken. A person seeking an open-carry permit must fill out a document described as a "Weapon Capable of Being Concealed" / "CCW [Concealed Carry Weapon]" form. This would be like a city telling its citizens that they can obtain a building permit for a fence in their front yard but not advising them that they actually have to submit a demolition permit form.
Second Amendment Protects Right to Open Carry, Ninth Circuit Panel Holds (2-1)
If the decision doesn't go en banc, it may go to the Supreme Court, because the Second Circuit held the opposite (and there's thus a circuit split).
A short excerpt from today's very long opinion in Baird v. Bonta by Judge Lawrence VanDyke, joined by Judge Kenneth Lee:
This case arises out of Appellant Mark Baird's civil rights lawsuit against the Attorney General of California, Appellee Rob Bonta. Baird is a law-abiding citizen who wishes to openly carry a firearm in California, yet California has banned open carry in all counties with populations greater than 200,000. According to the most recent census, those counties are home to roughly 95% of the state's population. The 5% of California's population for whom open carry is not outright banned everywhere in the state are purportedly able to apply for a license that would allow them to exercise their constitutional right to open carry in just their county of residence, although their ability to secure even that license is, on the record before us, at best unclear….
We agree with Baird that California's ban on open carry in counties with a population greater than 200,000 fails under Bruen, and we reverse the district court's grant of summary judgment on this issue. With respect to Baird's as-applied and facial challenges to California's licensing requirements in counties with populations of less than 200,000, we conclude that Baird waived his as-applied challenge by not contesting the district court's dismissal in his opening brief and that Baird's facial challenge fails on the merits on the record of this case….
For most of American history, open carry has been the default manner of lawful carry for firearms. It remains the norm across the country—more than thirty states generally allow open carry to this day, including states with significant urban populations. Indeed, several of our Nation's largest cities and states recently returned to unlicensed open carry by explicitly authorizing it. For example, Texas reauthorized open carry without a license in 2021. Kansas likewise transitioned back to allowing open carry without a permit in 2015. And other states that placed restrictions on open carry in recent decades have also removed those burdens.
Similarly, for the first 162 years of its history open carry was a largely unremarkable part of daily life in California. From 1850, when California first became a state, until the Mulford Act of 1967, public carry of firearms in California (open or concealed) was entirely unregulated….
Suit Alleging Retaliatory Police Mislabeling as Repeat Violent Offender Can Go Forward
Plaintiff claims his actual offenses were a curfew violation during 2020 protests and spitting on FBI agent.
From Haro v. Bryant, decided today by Judge J.P. Boulee (N.D. Ga.):
On June 4, 2020, Plaintiff was allegedly protesting police brutality and the use of excessive force when the Atlanta Police Department ("APD") arrested him for a curfew violation. During the arrest, Plaintiff spit on a Federal Bureau of Investigation ("FBI") officer, and as a result, he was additionally charged with battery on a police officer.
Approximately ten weeks later, in August 2020, Defendant—the former chief of the APD—created a joint task force with the FBI, the United States Attorney's Office for the Northern District of Georgia and others named "Operation Phoenix." Operation Phoenix was established to address the rise in violent crime in Atlanta during the COVID-19 pandemic.
On October 29, 2020, Defendant and the City of Atlanta co-hosted a press conference and contemporaneously co-published a press release to announce Operation Phoenix, identify its early results and arrests and explain the dramatic effect those arrests had on reducing violence crime. The press release, which was distributed to those at the press conference and widely republished, was headlined, "FBI Announces Results of Operation Phoenix." The press release stated, in material part, as follows:
FBI Special Agent in Charge Chris Hacker, Interim Atlanta Police Chief Rodney Bryant, and U.S. Attorney Byung J. "Bjay" Pak announce that twelve of Atlanta's most violent offenders are being charged as a result of Operation Phoenix, a sustained and coordinated law enforcement initiative to fight violent crime in the City of Atlanta.
The press release went on to state that:
Operation Phoenix began on August 18, 2020 in an effort to identify, investigate, and prosecute those individuals deemed the most dangerous to the citizens of this city. Federal law enforcement agencies worked in conjunction with local and state law enforcement officials to identify offenders.
Notably, the press release identified Plaintiff as one of the twelve violent individuals arrested as part of Operation Phoenix. Plaintiff's photo was also included in the press release.
Defendant, along with representatives from the other agencies involved in Operation Phoenix, spoke at the press conference, which lasted approximately twenty-five minutes. Defendant explained at the press conference that those arrested in conjunction with Operation Phoenix "were repeat violent offenders." Defendant further noted, among other things, that "[t]here was some nexus with them and violence, and we deemed them to be responsible for some of the most violent crimes in the City of Atlanta. This included guns, gang affiliations, gun trafficking, and so on."
Plaintiff contends that he is neither a violent criminal nor associated with any gang. Consequently, Plaintiff asserts that Defendant defamed him by implying in the press release and press conference that he is one of the most dangerous violent criminals in Atlanta….
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Flashing blue lights, veteran housing, and DEI trainings.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Papers, please. IJ Senior Attorney Anya Bidwell comments on the lack of accountability for federal police over at The New Republic, in Radley Balko's piece about the Trump Administration's immigration enforcement blitz.
New on the Short Circuit podcast: Find out what it's like to litigate for people behind bars—including when they overcome qualified immunity.
- For weeks, staff at a secure, state-run Norwich, N.Y. facility for people with severe disabilities ignore man's increasingly worrisome signs of heart disease, as well as his mother's pleas to take him to a hospital. Per an expert, his death felt like drowning. Facility: Ah, but he was admitted voluntarily, so we didn't have a constitutional duty of care to him. Second Circuit: Grant of qualified immunity reversed. To trial this must go.
- Allegation: In 2020, college student reports that she was pulled over and sexually assaulted at night by someone in an unmarked vehicle with flashing blue lights. She leaves her phone at the Washington County, Va. sheriff's station while officers take her to the scene and soon thereafter receives threatening text messages telling her to recant or else. Officers review traffic footage of the wrong day and time and lie to her, saying they saw her car but not the assailants' in the video (in fact, they saw neither). They accuse her of sending the text messages to herself. Fearing that a legitimate cop is the assailant, she recants. She's charged with making a false report (and subjected to intense public vitriol). After her acquittal, she sues the officers. District court: She recanted, so. Fourth Circuit: Case undismissed. Read More
The Jealous Mistress, vol. 1
From vol. 1, number 2 of The Jealous Mistress, a periodical briefly published starting in 1925 by the Colorado Bar Association.
The reference, of course, is to the phrase "the law is a jealous mistress," which is sometimes credited to Justice Joseph Story, in his speech at his inauguration as Dane Professor of Law at Harvard in 1829:
Presence of Probable Cause Precludes Claim That Immigration Arrest Was Retaliation for First-Amendment-Protected Speech
So concludes a federal district in Louisiana, disagreeing with a Ninth Circuit panel.
From Judge Terry Doughty (W.D. La.) Tuesday in Lozano v. Ladwig:
Petitioner is a Mexican national, who lives in Knoxville, Tennessee. Twenty-two years ago, while a minor, Petitioner and his family entered the United States on a B-1 visa. They, however, overstayed their visas. In 2011, the Department of Homeland Security ("DHS") issued Petitioner a Notice to Appear, charging him removable for overstaying his visa. In 2013, an Immigration Judge administratively closed Petitioner's removal proceedings after finding Petitioner eligible for Deferred Action for Childhood Arrivals ("DACA"). His DACA status has since lapsed.
In 2024, Petitioner was charged in Tennessee state court for drug-related charges [and apparently convicted for possession of methamphetamine -EV]. On October 14, 2025, DHS issued a Warrant for Arrest of Alien against Petitioner. The next day, U.S. Immigrations and Customs Enforcement ("ICE") arrested Petitioner at a Tennessee state courthouse when Petitioner went there for a probation-related drug test.
Plaintiff sought habeas corpus, and a temporary restraining order against continued detention, arguing "that the government arrested him in retaliation for publicly criticizing the Trump administration's immigration policies." But the court rejected this claim:
Parental Custody Rights, Homeschooling, Religiosity, Views on "LGBTQ+ Community," and More
Reed v. Reed, an appeal decided Wednesday by the Pennsylvania Superior Court (Judge Mary Jane Bowes, joined by Judges Mary Murray and Jill Beck), involved a paternal grandfather seeking shared legal custody and partial physical custody of two children (N.R. and M.R., ages 8 and 10 as of the time of the appellate decision). Many states allow grandparents shared custody in some situations, especially when their child (the grandchildren's parent) is dead, as was the case here. But, to oversimplify to some extent, they generally require some showing of failings on the part of the other parent.
In this case, the trial court did indeed rule for the grandfather, but the appellate court disagreed. An excerpt from the trial court's opinion (other portions of the trial court's opinion are discussed by the appellate opinion, so I haven't excerpted them here, but you can see a lot more here):
At the custody hearing on March 3, 2025, [Mother] testified that her friend Joanna, who is a member of the "Biker Church" in Boyertown, P[ennsylvania], traveled "in spirit" to [Paternal Grandfather]'s home in California, where she saw [Paternal Grandfather] and his wife talk about [Paternal Grandfather] reporting [Mother] to OCY.
When asked by this Court whether Joanna had any history of mental health treatment or criminal background, [Mother] replied, "Nope." [Mother] further testified that her children and God are ranked equally in terms of importance in her life, however, [Paternal Grandfather]'s counsel offered into evidence a video from [Mother]'s YouTube channel, where [Mother] stated that God comes before her children. When asked by [Paternal Grandfather]'s counsel whether she receives cues from God regarding her children, [Mother] indicated that she is "led to do certain things based on [her] faith with God." When asked by [Paternal Grandfather]'s counsel whether [Mother] is guided by voices or instructions, she simply stated, "Not necessarily. Kind of like you will get an instinct to do something, or your gut feeling about doing something." Notably, [Mother] testified that she has never had any sort of mental health diagnosis and is not willing to be examined as she does not "feel it's necessary" and has "no concerns at all for [her] mental health." …
The trial court granted Grandfather shared legal custody, which required a finding that substantial risk of parental neglect was proved by the statutorily required clear and convincing evidence; the appellate court disagreed. An excerpt from the long appellate opinion:
ChatGPT-Generated Poster of Supreme Court Justices Since 1900
My prompt: "Please create a poster showing all the Supreme Court Justices who have served since 1900, in chronological order, with the name and term of service for each one underneath the Justice's picture." The result:
Today in Supreme Court History: January 2, 1923
1/2/1923: Justice Pierce Butler takes oath.
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ChatGPT-Generated Poster of U.S. Presidents
My prompt: "Please produce a poster with the images of all the U.S. presidents, in chronological order, with their names and years in office." The result:
I wrote the particular prompt and ran it myself, but I got the idea from this Redit post.
January 11, the Russo-Ukrainian War Will Be as Long as World War II Was for Russia
Thanks to my father Vladimir for pointing this out.
["The Fourth Year in a Row," sometimes called "Four Years," by the great Russian poet-singer Bulat Okudzhava, who had himself fought in the war.]
I'm reckoning World War II from Russia's perspective, beginning with the Nazi invasion on June 22, 1941 (as it happens, the Nazis bombed Kiev on that first day of the war) and ending with the Russian V-E Day, May 9, 1945. Naturally others, whether Americans, Poles, or Chinese, will give you different lengths. I'm also reckoning the Russo-Ukrainian war from the February 24, 2022 full-scale invasion; one could also go back to 2014, the date of the Russian actions in the Donbass and the Russian invasion and annexation of Crimea.
Of course, the Russo-Ukrainian War is vastly smaller in scale than World War II. Just as one data point, for all the pointless loss of life in this war (estimated by some at 250K-375K for the Russians and 80K-150K for the Ukrainians), those deaths are about 2% of the estimated 20M-27M aggregate Soviet (mostly Russian and Ukrainian) deaths as a result of War II. Still, the length is itself an important dimension, so I thought I'd note it.
Today in Supreme Court History: January 1, 1863
1/1/1863: Emancipation Proclamation issued.
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First Amendment Right to Film on Public University Campuses (at Least on Open Quads)
From Chief Judge Sarah Morrison (S.D. Ohio) yesterday in Peace v. Carter:
On the morning of April 25, 2024, protestors against Israel's actions in Gaza and OSU's involvement with Israel gathered at the South Oval (a space on OSU's campus in front of the student union) and set up camping equipment. At approximately 9:30 a.m., OSU police ordered that all camping equipment be removed from the South Oval and the protesters complied. Subsequently, OSU Police Division Deputy Chiefs Eric Whiteside and Dennis Jeffrey determined that the protest violated OSU's University Space Rules ("USR") because it was a continuation of an event that had improper tents. Later that evening, another group of protestors attempted to construct encampments on the South Oval….
Mr. Peace graduated from OSU in 2021. He arrived at the South Oval at approximately 9:57 a.m. on April 25, 2024, and joined with protestors who were expressing their criticism of OSU and Israel in a peaceful and nondisruptive manner. By the time he arrived, protesters had already begun to tear down the encampment; they finished within a few minutes of his arrival.
Within ten minutes of Mr. Peace's arrival, OSU police officers, including Deputy Chief Whiteside, approached the protesters with whom Mr. Peace was standing. While Mr. Peace filmed, Deputy Chief Whiteside told them that the University had determined that their protest was a continuation of an event that had violated the USR by having tents and that the protestors needed to disperse. At no point did Deputy Chief Whiteside tell them to leave the OSU campus or the South Oval. The protestors dispersed and people not involved in the protest continued to use the South Oval as normal.
Mr. Peace walked approximately 150 feet to the south of the original encampment site where he began filming an "arrest squad" of OSU officers under the command of Lt. Alan Horujko. Around 10:17 a.m., while Mr. Peace was filming, Lt. Horujko directed two members of the arrest squad to arrest Mr. Peace for criminal trespassing.
