The Volokh Conspiracy

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

Today the Fifth Circuit denied my Crime Victims' Rights Act (CVRA) challenges to the Justice Department's 2021 deferred prosecution agreement (DPA) and 2025 non-prosecution agreement (NPA) with Boeing. VC readers will recall this case, as I have blogged about it many times over the years, including here, here, and here. In today's ruling, the Circuit said that the families' victims rights challenges to these agreements came too late to allow any remedy. But earlier, in 2023, the Circuit had said that the families' challenges were "premature." The fact that the families now will seemingly never receive any remedy is a cruel judicial bait-and-switch, revealing how much work remains to be done to create truly enforcable crime victims' rights in the criminal justice system.

Here's the case in a nutshell: In and around 2016 to 2019, Boeing lied to the FAA about the safety of its new 737 MAX aircraft. When two MAX aircraft crashed in late 2018 and then again in early 2019, the Justice Department investigated. And, in 2021, the Department charged Boeing with criminal conspiracy to defraud the FAA through its lies. But the Department immediately entered into a DPA in the Northern District of Texas to resolve the criminal case.

In subsequent litigation, the families proved that the 346 passengers and crew on board the two doomed 737 MAX flights were "crime victims" under the CVRA—they had been directly and proximately harmed by Boeing lies. If Boeing had revealed the safety issues surrounding the MAX to the FAA, the result would have been training of pilots that would have prevented the two crashes. This makes Boeing's conspiracy crime the "deadliest corporate crime in U.S. history," as Judge Reed O'Connor in the Northern District of Texas later described it.

In their litigation, the victims' families challenged the sweetheart DPA, which allowed Boeing to avoid a criminal conviction in exchange for payment of penalties and compensation to the families, along with Boeing's promises to improve safety in its manufacturing processes. The families explained--and proved--that the Justice Department had concealed the DPA from the victims' families, violating the CVRA which required the Justice Department to confer with the prosecutors. In October 2022, Judge O'Connor concluded that the Justice Department had violated the families' CVRA rights connected to the DPA by failing to confer. But later, in January 2023, Judge O'Connor ruled, quite reluctantly, that he was powerless to provide the victims' families with any remedy.

In February 2023, I filed a petition with the Fifth Circuit asking it to overturn Judge O'Connor's ruling that he could not award any remedy for the CVRA violation. After oral argument, in December 2023, the Fifth Circuit ruled that any relief was "premature" because it was confident that the district court would uphold the families' CVRA "rights at every stage of the court's criminal proceedings." In re Ryan, 88 F.4th 614, 627 (5th Cir. 2023). Accordingly, the Fifth Circuit denied the petition to allow proceedings to continue in the district court.

Less than a month later, the DPA's three-year term was set to expire on January 7, 2024. But two days before that expiration, on January 5, 2024, a mid-cabin door plug on Alaska Airlines Flight 1282 suddenly detached from a Boeing 737 MAX, exposing Boeing's failure to follow its DPA safety obligations. In light of these and numerous other dangerous failures by Boeing, in May 2024, the Justice Department determined that Boeing had breached its obligations under various DPA provisions. Further negotiations between the Justice Department and Boeing produced a proposed guilty plea arrangement between Boeing and the Justice Department—and objections to the plea from the victims' families. And in December 2024, the district court rejected the proposed guilty plea. The district held that, for various reasons, the agreement was not in the public interest.

In the most recent proceedings, the Justice Department moved to dismiss its earlier-filed charge against Boeing in favor of resolution through a non-prosecution agreement (NPA). The Department and Boeing entered into a binding NPA, and then afterwards the Department moved to dismiss the pending charged under Rule 48(a) of the Federal Rules of Criminal Procedure.

I filed objections for the families to the dismissal motion, arguing that it was (finally) time to award a remedy for the Department's CVRA violations all the way back in 2021, when it entered into the DPA and concealled what it was doing from the victims' families. And I also argued that the Department had failed to properly confer about its new NPA.

Following oral argument, in November 2025, Judge O'Connor granted the Justice Department's dismissal motion. In his order, Judge O'Connor essentially agreed with many of the factual objections that I have made for the families who lost loved ones because of Boeing's crime. Indeed, he even stated that the NPA was not consistent with the public interest. But, reluctantly, Judge O'Connor granted the Department's motion to dismiss the charge, concluding that he lacked a legal basis for blocking the Department's ill-conceived non-prosecution plan.

In December, I filed two CVRA petitions for review with the Fifth Circuit. The first petition challenged Judge O'Connor's failure to award any remedy for the violation of the families' CVRA rights when the DPA was negotiated and consumated. The second petition challenged Judge O'Connor's decision to approve dismissal of the charge against Boeing based on the new NPA.

Today, the Fifth Circuit rejected both of my petitions in a ten-page per curiam order. Read More

A short excerpt from Justice Jackson's long solo dissent today in Chiles v. Salazar, where she argued that the Colorado ban on conversion therapy for minors was constitutional:

The conclusion that a State can regulate the provision of medical care even if, in so doing, it incidentally restricts the speech of some providers, fully comports with the First Amendment's animating principles. These principles include the well-settled notion that context matters when evaluating First Amendment challenges to state regulation. The context that frames today's debate is the kind of speech that is at issue here—what I am calling (as shorthand) "professional medical speech." …

[A.] [P]rofessional medical speech occurs when a medical professional speaks to a client (1) in the context of the professional-patient relationship; (2) on matters within the provider's professional expertise as defined by the medical community; (3) for the purpose of providing medical care.

First, professional medical speech is speech uttered within the bounds of the professional-patient relationship. That relationship imposes certain duties and restrictions on the medical professional. For example, medical providers are bound by the twin duties of beneficence (the obligation to act for the benefit of the patient) and nonmaleficence (the obligation not to harm the patient).

Second, professional medical speech is speech within the healthcare provider's area of expertise as a member of the medical community. Within the professional-patient relationship, the professional has knowledge that the patient does not have, including knowledge of which medical treatments are appropriate and how to administer them. The patient comes to the provider to access that expertise, which is informed by—and constrained by—what the medical community knows.

Finally, and most importantly, professional medical speech is made for the purpose of providing the patient with medical care. This speech is a tool employed to treat patients. In this sense, professional medical speech facilitates the professional's goal of providing the patient with the treatment, procedure, or healthcare that is within her expertise and that forms the basis of the professional-patient relationship.

Free Speech

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On the eve of the birthright citizenship case, it is useful to think back to last year. The Trump Administration could have rushed the merits to the Supreme Court, but instead only sought certiorari in the nationwide injunction issue. And to win that case, the executive branch sacrificed its own power. The Solicitor General said it would bind itself to the decisions of the Supreme Court. No decision, not Marbury, not Cooper v. Aaron, ever stipulated that point. Now a coordinate branch of government surrendered. And to what end? Was CASA such an important case that justified that unilateral disarmament?

I think the answer is no. In the year since CASA, there have been a never-ending spate of universal vacaturs against the executive branch. District Courts have certified classes on the fly. And the Supreme Court has shown no interest in clamping down this practice. And if, as expected, the Supreme Court strikes down the birthright citizenship order, all of this litigation will have been for naught. The executive branch is weaker because of this order. What was gained?

On the other side, the doomsday predictions from CASA simply have not come to fruition. Richard Re brings the receipts:

First, the CASA dissenters repeatedly suggested that relief would be practically unavailable, at least for many affected individuals, if universal relief were disallowed. . . . As it happened, the EO was swiftly enjoined and so has yet to go into effect. Moreover, that outcome was not only foreseeable but foreseen by at least some justices and commentators. . . .

Second, the CASA dissenters, especially Justice Kagan at oral argument, worried that the merits of the birthright citizenship EO would never reach the Supreme Court. . . . To some degree, this second worry was parasitic on the first one, for a lack of SCOTUS review might not be a problem if the relevant executive action were still expeditiously enjoined via class action. At any rate, the oral argument resulted in a promise from the SG that he would in fact seek certiorari on the merits, and that is of course what happened. . . .

In CASA, the dissenters raised concerns that were unusually immediate and specific. Perhaps they left enough wiggle room for plausible deniability. But to the extent that the dissenters made testable claims, those claims have not been borne out. The dissenters' doomsaying, in other words, can be viewed as both falsifiable and falsified. One might remember this example when considering other assertions in dissenting opinions.

CASA was so important last year. This year, it barely matters. Yet another instance where it is difficult to know in the moment what Supreme Court rulings will have any resonance in the longterm.

I give a lot of thought to timing on the Supreme Court. Internal deliberations are usually a black box, unless there are some leaks. All we know for sure is when a case is argued and when it is decided.

Today, the Court decided Chiles v. Salazar. This case was argued six months ago on October 7. The vote was 8-1. Justice Gorsuch wrote the majority opinion, which was about twenty-pages long. Justice Kagan wrote a short concurrence, joined by Justice Sotomayor, that was about four pages long. Justice Jackson wrote a solo dissent that spanned more than thirty pages.

Why did this case take six months? It seems pretty clear the majority opinion coalesced fairly early on. There is not much daylight between the majority and the concurrence. I have to imagine that Justice Gorsuch circulated his majority opinion fairly quickly. There are no footnotes suggesting attempts to modify or water-down the majority opinion.

What we don't know is how Justice Jackson affected the process. The majority opinion offers a few citations to Jackson's dissent, but there is no lengthy back-and-forth. I don't think there was much engagement here at all. Indeed, it is telling that Justice Kagan felt compelled to respond to Justice Jackson in a footnote.

This opinion also makes me think about Callais, which was argued on October 15. I doubt that case will be 8-1. But it may take around the same time, if not longer.

For those who care about such things, Justice Alito is the only Justice who has not yet written a majority opinion from October.

From Justice Kagan's concurrence, joined by Justice Sotomayor, in today's Chiles v. Salazar:

[A.] The Court today decides that the Colorado law challenged here, as applied to talk therapy, conflicts with core First Amendment principles because it regulates speech based on viewpoint. I agree. I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.

As the Court states, governments must "nearly always" abstain from adopting viewpoint-based restrictions. Those laws represent a particularly "egregious form" of content-based regulation, implicating First Amendment concerns to the highest possible degree. A law drawing a line based on the "ideology" of the speaker—disadvantaging one view and advantaging another—skews the marketplace of ideas our society depends on to discover truth. And such a law suggests an impermissible motive—that the government is regulating speech because of its own "hostility" toward the targeted messages. If the First Amendment prohibits anything, it is the "official suppression of ideas." …

Consider a hypothetical law that is the mirror image of Colorado's. Instead of barring talk therapy designed to change a minor's sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way. Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.

[B.] It would, however, be less so if the law under review was content based but viewpoint neutral. Such content-based laws, as the Court explains, trigger strict scrutiny "[a]s a general rule." But our precedents respecting those laws recognize complexity and nuance. We apply our most demanding standard when there is any "realistic possibility that official suppression of ideas is afoot"—when, that is, a (merely) content-based law may reasonably be thought to pose the dangers that viewpoint-based laws always do. But when that is not the case—when a law, though based on content, raises no real concern that the government is censoring disfavored ideas—then we have not infrequently "relax[ed] our guard." …

Medical care typically involves speech, so the regulation of medical care (which is, of course, pervasive) may involve speech restrictions. And those restrictions will generally refer to the speech's content. But laws of that kind may not pose the risk of censorship—of "official suppression of ideas"—that appropriately triggers our most rigorous review. And that means the "difference between viewpoint-based and viewpoint-neutral content discrimination" in the health-care context could prove "decisive." Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers' expression because, as the Court holds, Colorado's is not one.

Here's more from her opinion dealing with a similar question in Reed v. Town of Gilbert (2015), which she cites in her opinion in Chiles:

Free Speech

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Justice Gorsuch's opinion for a nearly unanimous Court today in Chiles v. Salazar (only Justice Jackson dissented) struck down Colorado's ban on conversion therapy for minors. The Court held that the ban regulated speech and not just conduct, because it covered pure "talk therapy" and not just physical conduct such as electric shock therapy or administering drugs:

[A] law regulating the content of speech cannot avoid searching First Amendment review just because it mostly regulates non-expressive conduct. Take a classic illustration: Cohen v. California (1971). There, the State of California charged Paul Cohen with "maliciously and willfully disturb[ing] the peace." Often, of course, a person disturbs the peace through conduct alone (say, by brawling at a city council meeting). But that is not always true. And in Mr. Cohen's case, California charged him for disturbing the peace because he wore a jacket bearing the words "'Fuck the Draft'" in the corridor of a municipal courthouse. As applied to him, the Court recognized, the law implicated core First Amendment concerns because the only "'conduct'" he engaged in was the speech he displayed. And, we held, California could not constitutionally punish him because of the "content" of his message.

We repeated the point in Holder v. Humanitarian Law Project (2010). That case involved a federal law banning the provision of "'material support'" to certain foreign terrorist organizations. Much as California had in Cohen, the federal government in Holder argued that the law did not trigger strict scrutiny because it addressed "conduct, not speech." We disagreed. True, we acknowledged, the law often might regulate conduct. But, we observed, in the case before us the government threatened to prosecute lawyers, doctors, and others for providing spoken training and expert advice (such as "'how to use humanitarian and international law to peacefully resolve disputes'") to certain groups. And that application of the law, we held, sought to "regulat[e] speech on the basis of its content" and thus demanded strict-scrutiny review…..

As a talk therapist, all Ms. Chiles does is speak with clients; she does not prescribe medication, use medical devices, or employ any physical methods…. Colorado seeks to regulate the content of Ms. Chiles's speech. When it comes to issues of human sexuality, some of her clients "are content with" their sexual identity and orientation and want help only "with social issues [or] family relationships." But other clients seek her counsel on how to "reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] bod[ies]." And in those cases, Colorado regulates how Ms. Chiles may respond. Under its law, she may not speak in any way that attempts to change a client's "sexual orientation or gender identity"—including a client's "behaviors or gender expressions"—or in any way that seeks to "eliminate or reduce" a client's "sexual or romantic attraction or feelings toward individuals of the same sex."

Free Speech

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From Justice Gorsuch's opinion for a nearly unanimous Court today in Chiles v. Salazar (only Justice Jackson dissented):

In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in "conversion therapy" with minors…. Colorado's ban on conversion therapy reaches [to cover speech], forbidding "any practice or treatment … that attempts … to change an individual's sexual orientation or gender identity." The law forbids as well any "effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex."

At the same time, the law explicitly allows counselors to engage in "practices" that provide "[a]cceptance, support, and understanding for the facilitation of an individual's … identity exploration and development." Likewise, the law allows counselors to provide "[a]ssistance to a person undergoing gender transition." …

The Court held that the law was an unconstitutional viewpoint-based restriction on the counselors' speech, and in the process held that there's no general First Amendment exception for professional-client speech:

Free Speech

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My new book chapter, "The Right to Use Private Property" is now available on SSRN. It was recently published in Rethinking the Law of Private Property, (Jan Laitos, ed., Edward Elgar, 2025). Contributors to the volume include big-name property rights scholars Richard Epstein (on possible legal challenges to resurgent rent control statutes) and Vicki Been (who contributed an important chapter on how property rights arguments can be used both for and against zoning reform).

Here is the abstract for my chapter:

The right to use is a central element of property rights. But it is an under-analyzed aspect of the right to private property protected by the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" whenever it takes "private property" for public use. Modern Supreme Court jurisprudence wrongly provides only modest protection for the right to use. This chapter makes the case for a strong right to use under the Takings Clause.

Part I outlines the importance of the right to use property in the real world. For most types of property, that right is an essential element of the "bundle of sticks" possessed by the owner, often even the most important element. That point applies to both property in land, and personal property. Part II makes the originalist case for a strong right to use under the Takings Clause. William Blackstone—a major influence on early American conceptions of property law and on the leading American Founders—regarded the right to use as a central element of property rights. The same was true of leading court decisions and legal theorists around the time when the Takings Clause and the rest of the Bill of Rights became "incorporated" against state and local governments in 1868. Part II also gives a brief overview of the "police power" exception to Takings Clause liability and its relevance to the right to use. That exception would deny compensation in cases where the use restricted poses a significant threat to public health or safety. But it does not do so in other situations, including the vast majority of exclusionary zoning restrictions on housing construction.

Some of the analysis in this chapter builds on my earlier article, "The Constitutional Case Against Exclusionary Zoning" (Coauthored with Josh Braver). The idea that the right to use is central to property rights may seem very obvious. Indeed, my defense of it is one of my many projects defending intuitively obvious conclusions against academics, judges, and others who deny them. But the right to use has been widely undervalued by property scholars, and by the Supreme Court's Takings Clause precedents, both of which all too often give it short shrift.

A few days ago, I was privileged to be a speaker in Seattle University School of Law's "Dean's Luminaries in Law" series. I was interviewed by Seattle law school Dean Tony Varona and Professor Andrew Siegel. We covered a wide range of topics, including my article "Immigration is Not Invasion," other issues related to immigration, my involvement in the tariff case, political ignorance, the major questions doctrine, and more. Here is the video:

3/31/1962: Justice Charles Whittaker resigns.

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On Saturday evening, the Texas Review of Law & Politics awarded its 2026 Jurist of the Year award to Judge Kacsmaryk. The latest bobblehead has a perfectly coifed head of hair, far different from the mop atop the 2024 winner.

Today, the Texas A&M Journal of Law Civil Governance published a very timely conversation between Judge Kacsmaryk and the 2023 Jurist of the Year, Judge James C. Ho. It is titled, "What Does It Mean To Be A Christian On The Bench?" I would encourage you to read the entire dialogue, but I'll highlight a few parts here.

First, Judge Kacsmaryk had this to say about textualism in Bostock:

Most famously or infamously, the Bostock case produced three separate "textualist" readings of a statute enacted in 1964 and a sexual dimorphism as old as Genesis.4 Justice Gorsuch focused on Text, finding a "but-for causation" requirement because of "because of." Justice Alito marshaled volumes and volumes of History. Justice Kavanaugh invoked longstanding Tradition rooted in Separation of Powers. But these Titans of Textualism could not harmonize Text, History, and Tradition to agree on workable Title VII definitions of "sex" or "because." Reading these opinions, I discerned that Text, History, and Tradition should yield an agreed "ordinary public meaning" if jurists have a shared teleological end: truth. I hear Pilate's retort: "What is truth?"5 Here, I mean the truth the Textualist Trinity should yield: the "ordinary public meaning" of the words at the time of their enactment, as uttered and understood by the relevant writers and ratifiers—consistent with compositionality6 and against any absurdity.7 . . . This is where the faithful Christian should have a Textualist advantage: we believe there is such a thing as objective, external, knowable Truth.

Second, Judge Kacsmaryk explained how he had to be recruited to become a federal judge.

H: Listening to you discuss judicial philosophy and interpretive theory, I think many people would be surprised to learn that you never sought to be a federal judge. You had to be recruited.

K: In fact, if memory serves, you were the first person to ask if I might relocate to the Amarillo Division to fill the vacancy there. As I recall, I said I was interested in returning to the Department of Justice but had zero interest in the judiciary. You said that's exactly what you liked about the idea—that it wasn't something I ever sought.

H: Matthew 20 reminds us that "whoever wants to become great among you must be your servant . . . just as the Son of Man did not come to be served, but to serve." That's the same ethos that we should find in our judges as well. People who will use power, not to serve themselves, but to serve others. People who are willing to be a judge—but not desperate to be a judge. People whose goal isn't to get onto a bench, but to get into heaven.

Third, Judge Ho opined on what it means to be a federal judge. It is not as glamorous as people might suspect.

Because if you do this job right, it's actually not a fun job. If you're doing it because you want stature and respect and prestige—you want to be praised by the right people and invited to the right parties—then you're going to be distracted. Instead of following the law, you're going to focus on reaching the outcomes that the popular people want you to reach. And we've all seen how that turns out.

Judge Ho has written about how judge, like umpires, fear getting booed. But to be precise, the fear is that judges will be booed by legal elites on the left. The fear does not run the other way. Conservative judges historically have had nothing to fear from being booed by conservatives. Well, that was the case. I made waves years ago by calling out conservative judges. To this day, I continue to pay the price. But more recently, President Trump has turned up the heat. Many of his attacks cross the lines, but as always, there is a kernel of truth in his barbs.

Fourth, Judge Ho reveals that he initially declined Ted Cruz's invitation to become Solicitor General:

K: You served at the Justice Department Office of Legal Counsel and the Senate Judiciary Committee before heading to the private sector. When Senator Cruz suggested that you take over as Texas Solicitor General, you actually declined at first.

H: I've known Senator Cruz for over 25 years, and as far as I can recall, it's the only time he was ever really angry with me. Allyson and I were still new to Dallas. We were just starting our careers here. We also wanted to start our family. That was the whole point of leaving D.C. and moving back to Texas. So I told him that I was profoundly humbled that he would think of me, but that I couldn't do it. But he and others kept at it, and they eventually convinced me to change my answer. As you say, public service is in both of our DNA.

Fifth, Judge Ho discusses how he and his wife, Allyson Ho, balance their careers:

K: Well, you and Allyson have dealt with death threats too, I know. You and Allyson also had some unique considerations that I didn't face in deciding whether to take the bench.

I'm talking about the fact that you were both active Fifth Circuit practitioners before you joined the court. How did you think and pray through that decision?

H: Allyson and I have both been so very blessed in our lives, and that includes practices and careers that we really enjoyed. And by 2017, we were both really starting to hit our stride. So yes, like you, I wasn't planning to pursue the bench. Instead, we were focused on helping the Senators identify others to fill various vacancies—including you, of course! So when I got the call from the Senator's chief counsel asking me if I would consider it, I was very surprised. Allyson and I discussed how it might work, with both of us as Fifth Circuit practitioners. And it's actually not as hard as you might think. As a judge, I have to recuse, not just on every case that Allyson is on, but on every case anyone at her firm is on, whether she's involved or not. The recusal applies to the whole firm. And it's a big firm. But that's okay. Because at any given sitting, there are multiple Fifth Circuit panels. So it's not a big deal for the firm to be recused on any panel I'm ever on. There are other Fifth Circuit panels. The firm isn't recused from our court altogether.

K: So how did it work when President Trump named you to his Supreme Court list in 2020?

H: From a recusal standpoint? Well, there was no vacancy at the time. The President wasn't actually nominating anyone. He was just putting out a list. But if you're asking purely hypothetically about recusal, there are multiple Fifth Circuit panels, but there's only one Supreme Court. I can't imagine that Allyson's firm would want to be categorically recused from the highest court in the land. Or any other major firm with a significant appellate practice, for that matter. To have to tell every client that, if you hire them, they can only seek cert from an eight-member Court? That would effectively end her career and her practice—one she's worked so hard, for decades, to build. I brought this up when folks called me about the list in 2020. I didn't want to deceive anyone. But I was told it wasn't a problem. There was no vacancy. The only question was whether I was willing to be included on a list.

I don't think people quite appreciate what it would mean for the Ho family if Judge Ho were elevated to the Supreme Court. I have written many times that Judge Ho is not auditioning for the Supreme Court. No one believes me, because the audition trap is inescapable. But he is bearing his heart out and speaking truth as a husband. Listen to what the man has to say.

You should read the entire dialogue.

From today's decision by Judge Roy Dalton (M.D. Fla.) in U.S. v. Ramirez Reyes:

In this arson case brought under 18 U.S.C. § 844(i), Ramirez was charged with maliciously damaging Inter&Co Stadium by throwing two flares during an Orlando City soccer match. The flares landed in the "Supporters Terrace" section of the stadium, where they burned for sixty seconds before going out. The flares caused discoloration of the aluminum bleachers and minor deterioration of the concrete floor. A four-year-old girl, E.Z., also sustained a superficial burn when one of the flares burned a hole in her jacket; medics at the stadium gave her an ice pack, and she recovered after applying burn gel at home for a few days.

No emergency response was requested, the match was not paused, and no one evacuated the stadium. After throwing the flares, Ramirez removed his hat and jacket, went back to his seat, and put the hat and jacket back on before exiting the stadium.

At trial, Ramirez moved for a judgment of acquittal ("JOA"), which the Court denied, and the jury then found Ramirez guilty of damaging the stadium and injuring E.Z. Ramirez now renews his JOA motion, seeks a new trial, and objects to the mandatory minimum sentence—seven years—as cruel and unusual under the Eighth Amendment. The Government opposes. The Court concludes that the Government's evidence was insufficient to prove that Ramirez had the requisite malicious intent….

Criminal Law

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From Bagnell v. Sig Sauer, Inc., decided today by Judge Victor Bolden (D. Conn.):

Mr. Bagnell, an attorney, has allegedly represented clients against Sig Sauer in cases involving the P320 pistol since June 2017…. On or about March 7, 2025, Sig Sauer allegedly published a statement titled "The Truth About the P320" (the "Statement") on its Instagram, Facebook, and public website. The Statement is allegedly as follows:

The P320 CANNOT, under any circumstances, discharge without a trigger pull – that is a fact. The allegations against the P320 are nothing more than individuals seeking to profit or avoid personal responsibility.

Recently, anti-gun groups, members of the mainstream media, trial attorneys, and other uninformed and agenda-driven parties have launched attacks on one of SIG SAUER's most trusted, most tested, and most popular products – the P320 pistol. In all cases, these individuals have an ulterior motive behind their baseless allegations that the P320 can fire without a trigger pull; they have no evidence, no data and no empirical testing to support any of their claims. They instead choose to misrepresent clear, negligent discharges as a "design problem."

In the decade since its introduction, the P320 has undergone the most rigorous testing and evaluation of any firearm, by military and law enforcement agencies around the world. It consistently delivers a proven record of performance and reliability through state-of-the-art engineering, and documented quality control at every stage of its production. Claims that unintended discharges are anything more than negligent handling and/or manufactured lies to support an anti-gun, anti-SIG agenda are false. Furthermore, lawsuits claiming that the P320 is capable of firing without the trigger being pulled have been dismissed in courtrooms around the country. In addition, multiple plaintiffs' so-called experts have conceded, it is not possible for the P320 to discharge unless the trigger is fully actuated.

The rhetoric is high, and we can no longer stay silent while lawsuits run their course, and clickbait farming, engagement hacking grifters continue their campaign to highjack the truth for profit. Enough is enough.

Free Speech Libel

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From today's decision by Judge Jon Tigar (N.D. Cal.) in Roe v. City of S.F.:

Plaintiffs are residents and businesses that live and operate in the Tenderloin neighborhood in San Francisco. {Plaintiffs seek to enjoin the City from "directly or indirectly supplying fentanyl or methamphetamine-related drug paraphernalia to any individuals, groups, organization, or entities within the Tenderloin neighborhood and … from allowing City-funded contractors to furnish such paraphernalia to any individuals, groups, organizations, or entities in the Tenderloin." Plaintiffs contend that the City's "affirmative conduct" regarding harm reduction and housing attract drug addicts to the Tenderloin and that "violent, gang-affiliated drug dealers also converged on the neighborhood." Plaintiffs rest their request for preliminary injunction on their claims for private nuisance and public nuisance.} … Plaintiffs [also] allege claims for: (1) violation of the ADA; (2) violation of the Rehabilitation Act; (3) violation of California's Disabled Persons Act ("DPA"); … and [4] state-created danger under the Due Process Clause ….

The City argues that Plaintiffs have failed to establish standing because they have not shown that (1) the City's paraphernalia policies have increased drug use or other social ills in the Tenderloin or (2) that cessation of those policies would lead to a decrease. They also argue that the City has taken numerous "concrete steps" to abate drug use and maintain positive conditions in the Tenderloin since this case was filed. They note that Plaintiffs have failed to respond to the City's evidence that changes in its policies have actually improved conditions in the Tenderloin such that Plaintiffs are no longer at risk of the harms they cited in their motion. [City Filing] at 18 ("Photos of the area outside Plaintiffs' homes and businesses confirm the conditions alleged have abated to the extent they ever existed."). The City submit photographic evidence of these improvements, as well as testimony from some Plaintiffs conceding that conditions have improved such that they are no longer at risk of injury.

Thus, the City argues, Plaintiffs now base their request for injunction only on the theoretical possibility of future injury, which is insufficient. The City adds that "speculative fears" of future injuries are specifically not cognizable injuries for the purposes of private nuisance actions. The City also argues that Plaintiffs fail to establish the redressability element of standing as they cannot prove that enjoining the city from distributing drug-related supplies in the Tenderloin would resolve the drug usage, homelessness, and crime issues. Finally, the City argues that enjoining its policies could actually worsen conditions in the Tenderloin by forcing addicts to use shared or unsafe drug paraphernalia.

These arguments are both unrebutted and persuasive.

Drug Policy Torts

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From Bennett v. Brown, decided Friday by Judge Ellen Lipton Hollander (D. Md.):

The Bennetts, a married couple, own United, a federally licensed firearm business. The case is rooted in a civil enforcement action filed by defendants in the Circuit Court for Montgomery County, Maryland against plaintiffs and two other gun shops, accusing them of facilitating illegal firearm trafficking. See State v. Engage Armament LLC, C-15-CV-24-4781 ("Engage Case"). The allegations concerned, inter alia, plaintiffs' business transactions between 2020 and 2024 with an individual later convicted in federal court for "engaging in the business of dealing firearms without a license." On February 14, 2025, the Circuit Court for Montgomery County dismissed the Engage Case, with prejudice. {Defendants have appealed the dismissal, which is pending.} This suit followed on August 30, 2025….

In the proverbial "kitchen sink" approach, the Amended Complaint (ECF 35) contains nine counts. {The Amended Complaint is a quintessential example of shotgun pleading. Indeed, it seems as if counsel rifled through a hornbook and selected every conceivable claim. Such pleadings impose undue burdens on litigants and the judiciary.} Plaintiffs assert two claims pursuant to 42 U.S.C. § 1983: "Malicious Investigation and Litigation," in violation of plaintiffs' rights under the Fourth, Fifth, and Fourteenth Amendments to the Constitution (Count I), and "Conspiracy To Deny Constitutional Rights," in violation of the Second, Fourth, and Fourteenth Amendments to the Constitution (Count II). Count III asserts a claim of Defamation, based in part on the Press Release. Count IV alleges "Interference with Second Amendment Firearm Rights in Violation of PLCAA," i.e., the Protection of Lawful Commerce in Arms Act …. Count V is titled "Interference with Business Right and Contract." Count VI asserts "Violation of Maryland Declaration of Rights," i.e., "Due Process Violations and Abuse of Process" pursuant to Articles 2, 5, 24, and 26 of the Maryland Declaration of Rights. Count VII alleges "False Light Invasion of Privacy." In Count VIII, plaintiffs lodge a claim for "Federal Civil Rico Violations" ("RICO") …. Count IX asserts a claim for "Invasion of Privacy."

The Press Release was issued by Maryland Attorney General Anthony G. Brown on September 3, 2024, and joined by Schwalb and Everytown Law. It announced the initiation of the Engage Case. According to the Press Release, United and two other gun shops "ignored clear warning signs" that they were facilitating the illegal trafficking of firearms by selling firearms to "a straw purchaser." The Press Release also claimed that the gun shops played a "role in fueling gun violence across the region." Moreover, the Press Release asserts that the Engage Case constitutes a "'warning to other [gun] dealers who put public safety at risk to make a profit[.]'"

The Press Release was included as an exhibit to the Complaint, and was filed under seal. Plaintiffs also filed a motion to seal the Press Release, as well as a supporting memorandum….

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3/30/1875: U.S. v. Cruikshank argued.

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