Short Circuit: A Roundup of Recent Federal Court Decisions

E-mail notice, verified gang members, and Younger abstention.

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

Does the Fourth Amendment permit the search and seizure without probable cause of two compliant children, handcuffed and at gunpoint, even after the children have identified themselves to the seizing officer and been independently identified by their parents? Next Friday, January 21st, the Supreme Court will consider whether to take up that question in the case of Pollreis v. Marzolf. Click here to read IJ's cert petition. And click here to read a very fine amicus brief on the common law of arrest from the DKT Liberty Project.

New on the Short Circuit podcast: A smelly traffic stop and the Oregon Supreme Court rejects the automobile exception to the Fourth Amendment's warrant requirement.

• Young El Salvadoran man is arrested in East Boston on suspicion of being a member of MS-13, despite having no prior arrests or ever having been observed participating in any gang activity. He applies for asylum, but the immigration judge rules against him based on information from the gov't's Gang Assessment Database, which describes man as a "verified" member of MS-13. The evidence? Mostly the fact that he lived in East Boston and hung out with other young El Salvadorans. First Circuit (en banc): That's not enough. He gets a new hearing. Dissent: Well we think he's a great big liar.
• Does Rhode Island violate the constitutional rights of schoolchildren throughout the state by failing to provide them with enough civics education to be responsible citizens? No, says the First Circuit. But did the First Circuit violate your editor's constitutional rights by referring to the Privileges or Immunities Clause of the Fourteenth Amendment as the Privileges and Immunities Clause? That question remains unresolved.
• The NLRB goes after New Jersey salon owner for unfair labor practices. She settles, and as part of that settlement is required to text a remedial notice to her employees. Salon owner: Okay, I emailed the notice. NLRB: EMAIL?! The settlement is void! Third Circuit: Settle down, guys. The employees got the notice, and that's all anyone really cares about.
• Millersville, Pa. college student gets a black eye from her boyfriend (who doesn't attend the school) in her dorm room. The RA calls campus police, who escort him off campus (but do nothing further), and the RA files a report with admins (who do nothing). The student's roommate tells her mother about the situation, and the mother calls the school's police, counseling dep't, and admins (who do nothing). A few months later, he kills her in her dorm room after a frat party. Third Circuit: And a jury should consider the girl's parents' claim that the school's failures violated Title IX.
• Fifth Circuit when ordinary litigants relegate arguments to footnotes: "Arguments subordinated in a footnote are 'insufficiently addressed in the body of the brief,' and thus are waived." Fifth Circuit when gov't defendants relegate Younger abstention to a footnote and raise the issue on appeal only when invited to do so at oral argument by the court sitting en banc: WILDCARD—"We conclude that the Younger issue has not been waived." So a limited remand is in order for the district court to consider Younger in the first instance. Also, our precedent on abstention, which would appear to cut dispositively against the gov't? That's "not binding" on remand; "we give the district court authority on remand to reach the result it considers appropriate even if it is inconsistent with any of this court's precedent." Dissent: Or we could, y'know, not make the gov't's arguments for it. (We at IJ have said much the same thing, with much the same success (so far).)
• After Newport, Tenn. officer body-slammed him to the ground (and county officials refused to turn over evidence revealing the officer's identity), man files suit against "John Does." More than a year after the incident, he amends the complaint to name the guilty officer. Does Tennessee's one-year statute of limitations time-bar his claims? Sixth Circuit: Sure does. The clock started running the moment of injury, amendments to name new defendants don't relate back to the original filing date, and we can't review the district court's decision not to toll the SOL cuz it wasn't raised on appeal.
• A class of prisoners sue Illinois prison officials for failing to provide constitutionally adequate mental health care and get a detailed settlement. But the state fails to live up to the agreement in all kinds of ways. So it's back to court to enforce the agreement, which the district court does. Seventh Circuit: Well, actually, under the Prison Litigation Reform Act they can only enforce the settlement if violating it is itself an Eighth Amendment violation, and although things still look kinda bad, the state's done a few things to comply. Dissent: It only did that stuff at the last minute. Let the district court do its thing.
• A jury finds then-17-year-old guilty of robbing a pharmacy but acquits him of fatally shooting a confederate in the back after the robbery. But wait! At sentencing, the district judge determines that the teen more likely than not committed the murder and enhances his sentence accordingly. Seventh Circuit: Just as the Supreme Court intended. But maybe there is some interest above in reconsidering?
• Allegation: Chinese Ph.D. student at UCLA, months away from graduation, breaks off his engagement when he discovers his fiancée has been cheating on him. She later shows up at his office pounding on door and demanding return of some property (he asks for the return of the engagement ring, which she informs him she threw into the ocean). When she won't let him leave his office, he pushes past her. She files a Title IX complaint alleging that she is a student (she isn't) and that he broke her rib (he didn't). He's suspended for two years, a punishment the board of regents ultimately reverses, but not before he loses his student visa. He sues, alleging the university discriminated against him because of his sex. Ninth Circuit: Certainly a plausible enough inference for this case to go forward.
• Allegation: To fund campaign to make Denver sheriff an elected rather than an appointed position, police union representing Denver sheriff's deputies seeks to automatically deduct a "special assessment" from its members' paychecks. But the sheriff refuses to deduct the funds! A violation of the First Amendment? Tenth Circuit: Denver's city charter doesn't give the sheriff any authority over payroll deductions, so it doesn't matter whether or not he caused the funds not to be deducted.

Attention law school-bound undergrads: Come work at IJ this summer! The Arthur D. Hellman Fellowship in Public Interest Law is an unparalleled opportunity to gain exposure to the inner workings of a leading national public interest law firm before entering law school. The fellowship offers a $6,000 stipend for the 10-week program, and generally runs from early June through early August. The program is named after Arthur D. Hellman, Professor Emeritus at the University of Pittsburgh School of Law and one of the nation's leading academic authorities on the federal courts as well as an expert and author on the First Amendment. Apply here.

Comments

[jimc5499]

As I've asked before, why are colleges and universities allowed to have their own Police Departments? If the woman with the black eye had gone to the Police in the municipality there the College was located, would they have jurisdiction? Since the hiring and firing of College police is handled by the College's Administration, their job is more to enforce the rules and policies of the College instead of the law.

[Sarcastr0]

EV in a recent comment:

Well, say that someone accuses a bank employee of theft. I assume the bank will investigate this, and will decide whether to fire the person -- even if the prosecutor decides not to prosecute it. And I assume we'd say that's fine, because the bank isn't actually throwing anyone in jail (even though it may be very bad for the person's career if the bank does fire him).

Would you agree? If so, why would the analysis be different for universities, students, and sexual assault? (I discuss this in more detail here.)

To be sure, it may well be that the university's procedures should provide various protections for accused students. I just don't think that the "judge, jury, and prosecutor for a criminal case" quite works here.

[TwelveInchPianist]

But this is a different issue. Nobody is arguing that banks should have their own police departments who can choose not to arrest criminals for crimes committed in the bank.

[MatthewSlyfield]

And then not report the alleged crime to the real police.

[Rossami]

Actually, no. When a corporate entity like a university has an actual Police Department (rather than just a security department), they may be hired by the university but they hold commissions in the state police and their job is explicitly to enforce the law. While they are paid by the corporate entity, they are legally and ethically accountable to ... Well, it varies but usually to the county sheriff or equivalent.

Yes, this creates a tension between the department and the entity paying for them. And yes, there are executives who will try to lean on the police to make favorable judgement calls in some cases. That is wrong but no more wrong that the same attempts to bias police by local politicians and city bureaucrats.

[MiloMinderbinder]

I think it depends on the college and the force. At Georgia Tech we had real police officers.

GTPD officers are authorized by state law (O.C.G.A. 20-3-72) to make arrests for crimes committed upon any property under the jurisdiction of the Board of Regents of the University System of Georgia and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the Board of Regents.

[BillyG]

At Virginia Tech, we also had real police officers assigned to the campus.

When you've got over 25,000 18-22 year olds together, it takes a different approach than dealing with the general population. You're going to run into different problems. Having a group specializing in the campus area helps.

[MonitorsMost]

I read the Pollreis petition and I will admit that my priors got ahead of me. I was sure the plaintiffs were going to be black based on how the cop treated them.

[Bob from Ohio]

In other circuit news.

https://www.ajc.com/news/georgia-news/judge-pryor-cleared-of-allegations-involving-hiring-of-controversial-clerk/X3JAHI2TQBCUBMTQ5MDHO56FU4/

[Noscitur a sociis]

For the click-shy:

You may recall that some posters on this site spent quite a bit of time criticizing William Pryor, a judge on the Eleventh Circuit, for offering a clerkship to Crystal Clanton, who was accused of sending a text message that said "I HATE BLACK PEOPLE. Like fuck them all . . . I hate blacks. End of story." when she was (by my math) about 20.

Well, a formal complaint was initiated against Judge Pryor out of this incident. And the Second Circuit Judicial Council just approved Chief Judge Debra Livingston's dismissal, in which she concluded:

The complaint is dismissed. There is no reasonably disputed issue to be resolved in this matter because, as set forth herein, the record lacks any evidence supporting the allegation that the Judges engaged in misconduct. See Rule 11(c)(1)(D) (providing for dismissal of complaint “based on allegations lacking sufficient evidence to raise an inference that misconduct has occurred”).

At the start, both Judges state that they were aware of the allegations contained in media reports before they interviewed the candidate. At the same time, they state that they were also in possession of information that the allegations were false—that the anonymous sources relied on in the media accounts were not trustworthy. Both Judges explain that during the hiring process and since that time, they have spoken with numerous people with knowledge of the candidate

and the allegations, and they have been repeatedly informed that the allegations of racist text messages and remarks are not true. One of these people held a leadership role at the nonprofit organization. That individual stated, based on first-hand knowledge, that the candidate treated everyone with kindness, respect, and fairness while at the organization and that the media accounts are not accurate. The individual explained that the organization had determined that the source of the allegations against the candidate was a group of former employees. One of these employees was fired after the organization learned that this person had created fake text messages to be used against co-workers, to make it appear that those co-workers had engaged in misconduct when they had not.

https://www.ca2.uscourts.gov/decisions/isysquery/3c0d82ee-c8a5-49fb-969b-4b5045c771cf/2/doc/21-90142-jm%2C%2021-90143-jm.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3c0d82ee-c8a5-49fb-969b-4b5045c771cf/2/hilite/

Being honorable sorts, I'm sure the posters I have in mind will swiftly identify themselves and retract their accusations.

[LawTalkingGuy]

See my response to Bob.

[LawTalkingGuy]

Why didn’t Pryor say this as soon as he was asked about this:

“There have been media reports that I hired a law clerk with a history of making racist remarks. I was aware of those reports when I interviewed her and I conducted my own investigation. This investigation revealed that the allegations in the New Yorker article were part of a smear campaign by disgruntled employees of her former employer. Ms Clanton did not speak on the allegations of the New Yorker when they first came out due to being bound by an NDA. I have no doubt in my mind that she does not harbor any racist or bigoted views. I have talked with many upstanding people who know her and they all had nothing but good things to say.

I want to assure my colleagues on the bench, members of the bar, the litigants before me, and the public at large that this court and the federal judiciary will not tolerate invidious racism and has the highest standards for our employees. I believe Ms Clanton meets or exceeds those standards and will make an excellent clerk.”

End of story. No serious complaints. No questions. No appearance of impropriety or smug dismissal of the public.

While he may not be tolerant of racism (thankfully), he’s still a poor public servant and did a disservice to everyone, including Ms Clanton, himself, and his court, by not nipping this in the bud earlier.

The cult of judicial secrecy and confidence really needs to be broken. Of all the public servants federal judges are the least open and the least accountable. That needs to change.

[David Nieporent]

Can I just say that the whole NDA thing seems a bit weird? Why would TPUSA have required her to sign something saying that she couldn't defend herself? Especially if the truth was that she did nothing wrong and that she was the victim of a disgruntled ex-coworker?

[LawTalkingGuy]

That is odd. It also seems like something that might have been worth breaking if a major news outlet is going to publish an article about how you’re a huge racist.

[LawTalkingGuy]

I am glad he didn’t hire a racist and he investigated. Assuming TPUSA were being truthful of course. I assume their statements were under oath and they had no reason to lie. But as Eric Segall notes it’ll be interesting to see Jane Mayer’s take on the fake text theory.

But this comment from Pryor is straight up disingenuous bullshit:

“ The complaint against me alleges, without any evidence, that I either failed to investigate this scurrilous accusation or that I knowingly hired someone who had engaged in racist behavior. It saddens me that any member of Congress would make such an unfounded accusation against a federal judge or smear the reputation of an innocent law student.””

The evidence was there was a completely un-rebutted report of her racism that she demurred on when asked. The fake text story was not raised. Clanton literally asked not to be judged for the things The complaint against me alleges, without any evidence, that I either failed to investigate this scurrilous accusation or that I knowingly hired someone who had engaged in racist behavior. It saddens me that any member of Congress would make such an unfounded accusation against a federal judge or smear the reputation of an innocent law student.” she’s said. She did not claim there was an NDA. This being out there of course people are going to wonder if 1) Pryor even bothered to Google her or 2) he simply didn’t care.

And the only reason there was a judicial complaint was because Pryor sat on this for MONTHS until Congress got wind of it. If he had any sense (or simply
less arrogance) he would have explained this immediately, but he thought he was too good to be accountable to the public. Him being all offended now about his integrity being smeared when he could have simply released a statement saying it was wrong was ridiculous.

So I’m sorry this happened to Clanton. I only had what was reported and how she responded to it at the time. The “fake text” theory was belied by her own responses and not in the record.

But I am not sorry for calling attention to it, and the arrogant way Pryor handled it from the beginning of was atrocious. Also I was completely right that there would be a complaint, or would be investigated, and it would be taken seriously, as it should have been. He, contra Bob, have to explain himself.

[LawTalkingGuy]

Ah crap some editing got mixed up. There’s a whole line of text between “ Clanton literally asked not to be judged for the things….she said”

[David Nieporent]

Yeah. If she didn't do it, she didn't do it, but for some inexplicable reason she didn't originally say that. She gave evasive comments like "This doesn't sound like the sort of thing I'd do" and "I don't recall doing that." (Those are paraphrases, because I'm too lazy to go back and get the exact quotes.)

[LawTalkingGuy]

And as I said repeatedly, this was more about Pryor’s complete silence to me. Hell she could have actually said it and he could have been like: She said something racist and awful as a teenager, but she’s grown into a mature and thoughtful person and deeply and sincerely regrets that statement and the sentiments that led to it.

Instead he waits for months until a complaint is filed, the second circuit has to investigate, and then he complains about being smeared. Nothing prevents judges from communicating to the public about things they legitimately have concerns about.

[ducksalad]

Is it possible this was like BHO taking his time to release his birth certificate (which, BTW, I think was a good decision both strategically and ethically)?

If people are making asinine, false allegations, and you know you'll be completely vindicated in the end.....why not let 'em stew a bit and dig themselves in deeper?

[LawTalkingGuy]

“why not let 'em stew a bit and dig themselves in deeper?”

Who is they? Lawyers, litigants, fellow judges and members of the public who apparently have to wonder if the Chief Judge of a federal circuit can’t 1) get his employees or 2) actually tolerates blatant racism?

People shouldn’t have to wonder if they’re going to be appearing before the judge with the racist clerk.

The only one who dug himself into a hole was Pryor (and Maze) who had to face an actual ethics complaint, that other judges had to spend time investigating. He was forced to account for it in an awkward way that could have been completely avoided by being upfront about the situation when asked by the press initially.

[Michael P]

The "them" are people like you who act as though accusations of racist behavior are proof of racist behavior. People who had already dug enormous ethical pits for themselves.

[LawTalkingGuy]

Accusations need addressed. He failed to address them until forced. But seeing your comment below, you’re a ridiculous birther so I no longer need to take anything you say seriously. Good day.

[Michael P]

How very LBJ "I know it’s not true, but let’s make the sonofabitch deny it"-esque of you.

[David Nieporent]

Nobody knew it wasn't true, except Clanton and she never denied it.

[Squirrelloid]

Ridiculous accusations don't need to be addressed. You're just Streisanding the accusation.

When some crank says something ridiculous about science, do scientists need to rebut nonsense? Of course not. When the challenger presents actual evidence in support of their theories, then a rebuttal is warranted, but just bald claims demand no response.

The same should apply everywhere in life. You want to be taken seriously, provide sufficient evidence to make your claim stand on its own first. An accusation is not enough.

[LawTalkingGuy]

There was an article where she didn’t deny it when confronted with it and hedged about it being true by asking not to be judged. That’s enough evidence for people to have legitimate concerns that the judge should have addressed.

[Brett Bellmore]

Could you point us to that article?

[David Nieporent]

And as I said repeatedly, this was more about Pryor’s complete silence to me. Hell she could have actually said it and he could have been like: She said something racist and awful as a teenager, but she’s grown into a mature and thoughtful person and deeply and sincerely regrets that statement and the sentiments that led to it.

Nah. This wasn't something that was (allegedly) said in the distant past, perhaps at a time when those sorts of statements would've raised fewer eyebrows. If she said those things, she did so ~5 years ago, and "she's grown" and "she regrets it" is insufficient. I don't think someone should be permanently unemployable because of sins of the past, but federal clerkship is not the place to start one's redemption. Both because she wouldn't have earned it and because the stakes in that job are too high.

[LawTalkingGuy]

Fair enough.

[Michael P]

I suppose that someone who was never seriously intoxicated, whether by alcohol or prescription drugs or fatigue or anything else, might be able to fairly say (without further investigation) "I never wrote that" rather than "I don't recall writing that".

[LawTalkingGuy]

I’ve been drunk plenty of times, I have also been on some serious pain meds after an accident. Never texted out how much i hate an entire race…I mean if I did, I’d notice when I sobered up.

[David Nieporent]

We went over this when it came up here at the VC months ago. Being drunk lowers inhibitions. It can lead one to say things that one would be too cautious or shy or the like to say if one were sober. But it does not cause one to say racist things that one does not in fact believe.

If one said it, drunk or sober, it's because one believed it. So, yeah, if she were a virulent racist but one who is ordinarily self-controlled enough not to say it, maybe she thought that she could've said it while drunk. But if she knew that she was not racist and did not think those things, then she could in fact have said "I never said that," rather than "I don't recall saying that."

[Brett Bellmore]

If she didn't have a sound grasp of epistemology, or had low standards for giving precise answers, sure. While an educated and philosophically aware person would understand the difference between categorically stating that you didn't do something, and stating that you have every reason to believe you didn't do it.

[Michael P]

I suppose someone who wants to defend previous bad faith by imputingb the worst possible reason for someone else's denial, by assuming actual racism, assuming a very specific set of beliefs about human behavior, assuming a very specific set of beliefs about answering questions of fact, AND ignoring the plain implication of how the clerk answered, might answer that way.

The rest of us would take the fact that the investigation found the original accusation to be wrong as evidence that the clerk's answers were merely precise, without using pretzel logic to find her guilty regardless of the facts.

[LawTalkingGuy]

She’s not guilty. This is and always was mostly about Pryor and how he handled it. His complaint about there being “no evidence” is simply false. There was the article in 2017 and her non-denial, which includes a request to not be judged, when confronted with the texts.

Fast forward to 2021 and Pryor hires this clerk and is SILENT when people have questions because the only thing they know about her is the article. Did he know about this? If so was it true and did he hire her anyway?

Then it comes out that he did in fact vet her and conduct and investigation. But we only found out the results of it, including the smear campaign and the NDA, after he was forced to when it drew the attention of the House Judiciary committee who filed an ethics complaint. A complaint that, it turns out, was actually seriously investigated and not simply dismissed. So the judicial branch actually had a good reason to look into this.

But Pryor is moaning about being baselessly accused….when that’s simply not true. The public knew what they knew at the time he hired her and he decided to conceal his investigation from the public for months. We couldn’t know about his investigation or the smear campaign or the NDA, the things that would make the accusations baseless, because he didn’t tell anyone!

He didn’t recognize that despite being a federal judge, he Is still a public servant and he might owe the public some answers quickly when confronted with certain questions that would obviously raise questions about the integrity of his chambers.

[Brett Bellmore]

So, your complaint is that he didn't republicize the original smear?

[Michael P]

Yes, the complaint is that a judge didn't punish someone for being the subject of a false accusation. The reason for the complaint is that scumbags are part of cancel culture.

[LawTalkingGuy]

No it’s not. This simply isn’t true. You can look at all my comments on this from the beginning and it’s the same theme: a federal judge has an obligation to his court, to the members of the bar, to the litigants before him, and the public at large to assure them that his chambers vet their employees and don’t condone bigotry. He chose not to view it that way until forced to by the judicial conference.

He simply had to explain himself when this first came up but he was too arrogant to do that. He might not be tolerant of open racism, but he’s still a poor public servant, and ironically, a poor judge of the situation.

[Brett Bellmore]

Looking around on the internet, I see various sites taking this occasion to assume the original accusation was true, which was predictable enough to justify his not talking about it until being forced to.

[LawTalkingGuy]

No one knew it was a smear because he hid the evidence it was! And the smear WAS getting republicized because he hired her and was silent. He did her a disservice imo by keeping silent when asked about this months ago. So for months he let this drag on, got himself dragged before the judicial conference, and now has the gall to complain about people questioning his integrity. Ridiculous.

[Michael P]

Were you remotely this animated in 2008 about the Constitution's requirement that the president be a natural born citizen? There was always better evidence that Barack Obama was born in Kenya (his agent said so!) than that this clerk wrote the text in question.

[LawTalkingGuy]

You’re not a serious person and are apparently a ridiculous conspiracy theorist to boot. Good day.

[Michael P]

None of the above. But if you don't like how Judge Pryor responded to the accusation here, you must really have disliked how then-Senator Obama responded to the accusation in 2008.

Let us run down the points of similarity:
- A false accusation was made.
- The target of the accusation denied it.
- Clarifying information was available but not released as promptly as possible.
- The public had an interest in knowing the truth of the accusation.

The major point of difference:
- Appeals courts are available to remedy error or bias by a single judge. Do-over primary elections are not available if one votes for a candidate who is ultimately ineligible.

So if you think that Judge Pryor should have released details of the investigation sooner here, consistency dictates that you think it was even more important for Barack Obama to release his birth certificate early in 2008.

[LawTalkingGuy]

I said good day.

[Rev. Arthur L. Kirkland]

It has not been established that the accusation was false.

[David Nieporent]

The target of the accusation denied it.

Once again: she did no such thing.

Here's what denying it looks like: "I did not say that. If you have something that makes it look I did, it's a forgery."

[David Nieporent]

- Clarifying information was available but not released as promptly as possible.

No; this isn't true. Obama's birth certificate was released in June 2008, the same time he won the Democratic nomination.

[Brett Bellmore]

Nah, actually he didn't do that until 2011. Dragged it out for about three years, and completely unnecessarily.

And I don't recall even one of those idiots who claimed "He can't do that, it's not legal!" showing the least bit of embarrassment when he actually "did that" when he finally got bored with keeping the controversy going.

[David Nieporent]

Nah, actually he didn't do that until 2011.

No, he did it in 2008 (check the date on the post). Then bad faith racists said, "Hey, we're going to move the goalposts and demand a different document that Hawaii law doesn't even provide for release of." (Well, some of them did. Others of them — many who showed up in the comments at the old VC, and others of whom showed up in Washington trying to overthrow the government in January 2021 — invented fake legal theories for why he wasn't eligible even though he was born here.)

[David Nieporent]

So, your complaint is that he didn't republicize the original smear?

No. Nobody asked him to "republicize" it. He was expressly asked about it. All he had to say was, "We were aware of those accusations; we looked into them and we concluded they were untrue."

[David Nieporent]

I suppose that someone who was never seriously intoxicated, whether by alcohol or prescription drugs or fatigue or anything else, might be able to fairly say (without further investigation) "I never wrote that" rather than "I don't recall writing that".

Hey, Michael, have you ever killed a police officer?

Are you going to say, "I don't remember doing that. It doesn't sound like something I'd do"?

Or are you going to say, "No"?

[Michael P]

Hey LawTalkingGuy, if you want to see an actually unserious person who posts unhinged theories, I give you Nieporent.

And a tip for the unhinged: Officials tend to investigate deaths of police officers much more than texts to small groups of people. The analogy is not sound.

[benji]

The logic went completely over your head.

[Michael P]

The short but true answer: To the best of my knowledge, I have never killed a police officer.

The long explanation: At a previous job, I wrote software for a system to detect land mines and IEDs. I wrote a lot of the software that did the heavy lifting: both data acquisition and the implementation of algorithms for detecting things. This system was used in Afghanistan. At the US government's direction, the system was tuned to balance between a minimum probability of detecting a target and a maximum false alarm rate. We tested the system very thoroughly (among other verification methods) to be confident that it would work reliably, within those parameters, and faithfully implemented the detection algorithm. But might I have introduced an error that escaped to actual use, causing someone to be killed? Yes. And might that person have been a police officer? Yes. I never heard of anyone dying while using the system or because it missed an IED, but I doubt that would have been advertised, so I cannot exclude the possibility.

[Brett Bellmore]

She gave evasive comments like "This doesn't sound like the sort of thing I'd do" and "I don't recall doing that."

Sounds to me like just the way a pedantic academic who is aware that she doesn't have perfect recall of every second of her life would answer such a question. [It's not the sort of thing I'd think I'd do, and I don't recall doing it, but I suppose theoretically I could have been in some sort of fugue state at the time, and they do claim to have objective evidence, which would clearly trump subjective memory. I can't honestly categorically deny it happened, no logical paradox would be involved. Alright then, what can I honestly say?] "This doesn't sound like the sort of thing I'd do" and "I don't recall doing that."

[LawTalkingGuy]

She also asked not to be judged. Which kind of lends a whole lot of credence to the possibility that they were real.

[Rev. Arthur L. Kirkland]

The evidence suggests she is a racist who provided evasive responses when caught, then was issued a pass by fellow Republicans.

Until a reliable investigation is conducted, reliable conclusions seem unavailable.

Bigotry is still a pillar of movement conservatism, however. Half-educated racists, superstitious gay-bashers, disaffected misogynists, selfish immigrant-haters, and race-targeting vote suppressors are the core of the Republican Party.

Carry on, clingers. Your betters will let you know how far and how long, as usual.

[LawTalkingGuy]

Unless Jane Mayer or someone else finds something different (she said she’d look into it) I’ll accept the Second Circuit’s conclusion as trustworthy because it was affirmed by the whole judicial council.

[Rev. Arthur L. Kirkland]

Have the evidence and the strength of the investigation been disclosed to the public? Was anyone questioned under oath and tested by cross-examination? I am open to persuasion by evidence and an adversarial testing of that evidence; I am disinclined to rely on a "just trust us" pronouncement from colleagues and fellow partisans.

[Commenter_XY]

LTG....Where I came out on this, ultimately. The federal judiciary is full of honest, decent people who have differing philosophies. There are roughly 700 federal district court judges, roughly 200 circuit court judges, and 9 SCOTUS justices. A thousand or so.

I choose to believe that all thousand of them have integrity, unless absolutely proven otherwise. That recent WSJ article where they looked at financial conflicts in cases before federal district court judges? I thought there were three (yes 3) instances of what I call 100% financially corrupt rulings (three out of thousands of cases). I don't think we have anything remotely resembling a corruption (or racial) issue in our judiciary. FWIW, I am glad the process worked as intended. An allegation was made, investigated, and found to be completely false.

I just hope that the exoneration gets as much publicity as the accusation. To me, that would be just.

[LawTalkingGuy]

Me too. It should bring renewed attention to Pryor and how other federal judges handle things that the public legitimately has questions about. There is a cult of judicial secrecy and an inflated belief that their integrity is so pure that they don’t need to comment on things people have questions about. Then they get mad when those questions don’t go away and there has to be an actual ethics investigation.

This to me was always about a judge leaving open very important questions about his tolerance for racism for months on end by not having the decency to simply be up front with people with legitimate questions.

It should have never gotten this far.

[Brett Bellmore]

This is somewhat like what I said to birthers way back when. They were assuming Obama was refusing to release his original birth certificate because it showed something damaging.

I told them to consider the possibility that he was just being contrary, because it didn't cost him anything.

[Rev. Arthur L. Kirkland]

She was permitted to keep her job, and Judge Pryor was excused from consequence, by partisan colleagues. Whether she is a racist and whether she wrote vile, racist statements are still open questions.

[Commenter_XY]

Bob from Ohio...Thanks for posting this. Because I have been following along on this topic when it was brought out more prominently by another VC Conspirator.

Thank God the process worked. The allegation was made, it was investigated and found to be false. More than anything, I am glad it is not a stain on the judiciary (not just Judge Pryor and the law clerk).

[Rev. Arthur L. Kirkland]

Found to be false in a partisan setting. Better Americans will await a reliable investigation before reaching reliable conclusions.

[Commenter_XY]

'Partisan setting'...The investigation was headed by a judge from the Second Circuit? Nah, that assertion does not really hold water, Arthur.

[Rev. Arthur L. Kirkland]

One Republican judge, relying on letters from other Republican judges, issues a pass to another Republican judge accused of improper conduct (and a derivative pass to a Republican clerk accused of racism).

Not all Republicans are racists, but every Republican appeases racism and racists (and other forms of bigotry, prominently including gay-bashing).

Reasoning, educated, informed Americans will await a reliable investigation before reaching conclusions with respect to this matter. Clingers, of course, will continue to cling . . .

[Rossami]

The Millersville case confuses me. Who would the parents be trying to sue if their daughter had suffered the same events while living in off-campus housing? What makes college students more deserving of protection than the same-aged townies in the apartments across the street?

[ducksalad]

Yes, good point. The parents might try to sue the city but would be unlikely to win.

On a side issue....there is only so much the cops can do in a case of an abused partner with emotional dependency. Even if the city cops or university cops (it doesn't matter which) had prosecuted the guy vigorously for the black eye, at some point he'd have made bail, presumably with orders not to go near the victim. But nevertheless the victim invites him back into the dorm room (or off-campus apartment), and a murder results. What more could the police have done?

[Michael P]

In that kind of situation, there would presumably not be authorities, and especially not authorities backed by the college, who interposed themselves -- rather than police -- as the proper recipients of complaints about kind of behavior imputed to the boyfriend.

I know that when I lived in an apartment, I didn't think I should call the landlord to deal with people blocking a driveway or having very loud music at 4 AM. I called the police instead.

[Jerry B.]

“…and we can't review the district court's decision not to toll the SOL cuz it wasn't raised on appeal.”

Apparently they did toll the SOL (shit outa luck) for this guy.

[Shamie Ervin iv]

"[H]e lived in East Boston and hung out with other young El Salvadorans."

Birds of a feather flocking together? Well, no. Not unless he hung out with other young Salvadlorans who were in MS13.

[David Nieporent]

Well, they were all Hispanic, and that's good enough to accuse them of being gang members. And then anyone who talks to them also becomes one.

[Davedave]

MS13 sounds like some kind of youth group, that must be it.

[Toranth]

That entire summary is misleading in pretty much every respect.
The entire basis of the asylum claim was that the guy faced persecution for being a Christian, because MS13 in the US had attacked him and demanded he give up his religion, and MS13 would kill him for his faith if he was sent back to El Salvador.
As proof, he claimed his religion would never allow him to associate in any way with gang members, and that they took this badly.

The immigration judge read the police reports that had witnesses (plus previous arrests) identify him as self-identifying as a gang member, hanging out with self-identified MS13 members, buying and doing drugs with self-identified MS13 members, wearing MS13 identifiers and carrying MS13 'traditional' weapons, and so on, then disagreed.
While none of that is proof that he was, in fact, a member of MS13, the immigration judge determined that it was good evidence that the guy's claim that his faith would 'never' let him associate with gang members to be bullshit, and thus deny the religious asylum claim.

The methodology of the "gang member database" is certainly suspect (to put it mildly), but it was not the reason for the denial of asylum, despite what the summary said.

[Rev. Arthur L. Kirkland]

The summaries published by the Volokh Conspiracy regularly turn out to be suspect -- not that there's anything wrong with that, in the context of a partisan, polemical blog that lacks editors, journalists, and journalism standards.

[David Nieporent]

Whoops. Failed to finish a sentence in there. Trying again:

The only thing you said that wasn't an outright lie was that he once was stopped for carrying a bike lock/chain, which may or may not be a weapon used by MS-13 (there was no real evidence of that), but is also a common household object possessed by many more non-MS-13 members.

[David Nieporent]

Sigh. And that somehow ended up in the wrong spot.

[David Nieporent]

The posts by Kirkland all turn out to be trollish lies.

[David Nieporent]

I don't know whether Toranth is lying here or just didn't bother to read the opinion.

The immigration judge read the police reports that had witnesses (plus previous arrests) identify him as self-identifying as a gang member,

False. Setting aside the multiple levels of hearsay in that, there were no reports of him self-identifying as a gang member, no previous arrests identifying him as a gang member, no hanging out with self-identified gang members, no buying drugs, (the only "doing drugs" being that he was smoking pot a couple of times), there was no wearing MS13 identifiers. The only thing you said that wasn't an outright lie was that he once was stopped for carrying a bike lock/chain, which may or may not be a weapon used by MS-13 (there was no real evidence of that), but

What actually happened, despite what Toranth claims, is that someone gets put in the gang database for some reason, legitimate or not. Then other people who are around that person get put into the gang database solely because they are around that person. Then other people who are around those people get put into the gang database solely because they are around those people. And so on, until pretty much any Hispanic person who has friends is called a gang member.

There was no evidence in the record that he associated with any gang members, let alone that he knowingly did so. He was not accused of any criminal activity. He was not accused of participating in any gang activity.

It's possible that a reasonable immigration judge could have rejected his claim for asylum, but the immigration judge did in fact rely almost entirely on the gang database. The other things the immigration judge cited were either (a) trivial, or (b) interpreted through the lens of the fact that he was a gang member based on his inclusion in the database.

[Toranth]

You obviously didn't bother to read the ruling or the dissent, because they clearly spell out that what I said is correct. Or maybe you just chose to lie about it.

As I said, the ruling revolved around a religious asylum claim. You can't lie about that, because it's written all over the case so plainly that even you can't deny it, and instead want to conceal it - just like the summary did.

The entire gang database consists of witness and police reports, rather than formal interviews or proper investigations. This methodology - especially the points system - is bad, but as the dissent points out hearsay evidence is permitted when the immigration judge is judging the honesty of the would-be refugee. And yes, go ahead and read up on the reports - he was seen repeatedly doing the sort of things that people that would 'never' associate with gang members do not do with gang members.
again, the 'scoring system' is problematic, if not downright silly.
But the only part of the case this database had a direct impact on was the original arrest before the deportation hearing. He could have been picked up for being an illegal immigrant, and we'd still arrive at this same end.

Your critique of the immigration judge is, more accurately, the version of the immigration judge that the ruling is criticizing rather than the one that actually exists. Despite your falsehoods, the immigration judge did not reject the asylum request because this guy was in the database as a gang member; he rejected a religious asylum claim because the guy's claims seemed dishonest, and the activities described in the gang member database rather than their mere presence supported that conclusion. His changing answers, or unsupported claims about danger and beatings, also support it.
The religious persecution claim - "that, if returned to El Salvador,
'he would be subject to torture by or with the acquiescence of a
government official'" - is pretty absurd to begin with, and his testimony to support it was pretty absurd. He went to church a few times over the years, but only in secret? His family owned a store that sold Bibles and church music? You expect anyone to believe that these things would get you killed in El Salvador?

Your claims about what immigration judge thought and concluded are in contradiction to his own words, and even the ruling that you like doesn't support your claims. Do you know this immigration judge? Are you a time-travelling telepath that after reading this went back in time to read the judges mind directly? Nah, you're just bullshitting and making up stuff again.

Oh yeah. Carrying a bike lock and chain is not uncommon for some people - but as he admitted under questioning, he did not own or use a bike. Tell me, how many people that do not own or ride bikes often carry bike locks on chains?

[David Nieporent]

The entire gang database consists of witness and police reports, rather than formal interviews or proper investigations. This methodology - especially the points system - is bad, but as the dissent points out hearsay evidence is permitted when the immigration judge is judging the honesty of the would-be refugee. And yes, go ahead and read up on the reports - he was seen repeatedly doing the sort of things that people that would 'never' associate with gang members do not do with gang members.

The issue wasn't that it's hearsay. One can believe every single word in the gang database, and it's still worthless. (Though one can't actually believe every word, since we know it falsely says he had been arrested before.) I'm not talking about the points system per se; I'm talking about the substance.

The claim that he was "seen repeatedly doing the sort of things that people that would 'never' associate with gang members do not do with gang members" is simply a lie. The opinion lists every entry in the database relating to him. He was seen… talking to people. Standing near people. Sitting near people. Smoking near people. Those are the entirety of the "things" he was "seen repeatedly doing."

And the claim that he was doing them "with gang members" is, of course, not based on anything at all. Sure, the reports called the people he was doing those things with "known gang members," but it also called him a known gang member, and we know that this was based on nothing more than who he was standing near, so there's no grounds for thinking those people were actually gang members either. (Let alone that he knew they were gang members.)

There's not one shred of evidence of any gang activity relating to him anywhere in the database. He was never arrested — despite what you claimed — not suspected of any crimes, not — despite what you claimed — seen with any sort of gang insignia or identifiers. He was not — despite what you claimed — selling drugs.

As I said, the ruling revolved around a religious asylum claim. You can't lie about that, because it's written all over the case so plainly that even you can't deny it, and instead want to conceal it - just like the summary did.

Why would I want to deny that? It's irrelevant to the point. One could conclude he's not entitled to asylum on religious persecution grounds. But this immigration judge concluded that he wasn't entitled to it because he couldn't actually be an evangelical christian because he was a gang member and/or hung out with gang members. And he based that primarily on the database.

Your claims about what immigration judge thought and concluded are in contradiction to his own words, and even the ruling that you like doesn't support your claims.

No; they're from his words (at least as quoted in this opinion; if you're telling me you have the transcript of the immigration hearing and it says something very different, I'm happy to review it and reconsider, if you send it to me).

You want to know how full of shit this immigration judge and the dissenter here was? The claim that the bike chain is a gang weapon is based on an utterly unsupported double hearsay claim that "MS-13 gang members commonly carry large metal chains with locks to be used [i]n gang related assaults." And they know how flimsy that is, so they try to support it by citing a newspaper report bolstering that. And the newspaper report (a) says only that "In September, after two cliques were involved in two murders in East Boston, one clique leader told his members to dress down and carry a bicycle chain with a lock for a weapon, instead of a gun or a knife"; and (b) is based solely on acting as a stenographer for the government; it's quoting an indictment, not doing independent reporting.

but as he admitted under questioning, he did not own or use a bike.

Once again, you're lying. He never said he did not "own" a bike. And only someone who has never taken a deposition or examined a witness in his life could read that exchange and think that he "admitted" that he never used a bike. What he said was that he never traveled anywhere [in Boston] except by train. Would a person think that riding a bike around the neighborhood was "traveling," after first being asked about a car? Maybe, maybe not. But no competent attorney would make that assumption.

[David Nieporent]

Whoops. Failed to finish a sentence in there. Trying again:

The only thing you said that wasn't an outright lie was that he once was stopped for carrying a bike lock/chain, which may or may not be a weapon used by MS-13 (there was no real evidence of that), but is also a common household object possessed by many more non-MS-13 members.

[Shamie Ervin iv]

That TN case about the statute of limitations running is unsound.

If indeed that is the law, the law is a ass.

Here in WNC a few lawyers have been goose-egged by the 1-year TN SOL. The statute in NC is 3 years.

[David Nieporent]

Well, as the court said, he inexplicably did not appeal the denial of the request to toll the SOL.

[MatthewSlyfield]

Should that really be discretionary on the part of the court?

[David Nieporent]

I don't understand what the "that" refers to in your question.

Should equitable tolling be discretionary? Well, yes; that's inherent in the concept of equity. Do I think the lower court abused its discretion in that case? Well, as a general notion, yes — but whenever one reads that a court made a bad decision, one needs to consider the possibility that the litigant didn't do a good job advocating it. But maybe the plaintiff did do a good job and the judge just screwed up; that's what appeals courts are for.

Should an appeals court have discretion to rule on an issue that wasn't appealed? No.

[ReaderY]

If I were a police department lawyer, based on the 6th Circuit opinion, I would propose not only removing all name tags and identification tags from police uniforms and whereever else they appear, but make it a firable offense for an on-duty police officer to identify him or her self to any civilian without a court order, under any circumstances.

Not to advise this would arguably be unethical. If would expose police officer to completely unnecessary and entirely preventable liability risk.

[tkamenick]

"Does the Fourth Amendment permit the search and seizure without probable cause of two compliant children, handcuffed and at gunpoint, even after the children have identified themselves to the seizing officer and been independently identified by their parents?"

I don't know, did the police have probable cause?

[tkamenick]

"And a jury should consider the girl's parents' claim that the school's failures violated Title IX."

What possible duty does a college have to "do something" about the behavior of a non-student? Why didn't she go to the real police?

When courts decide to consider arguments that aren't made or are made "insufficiently" (whatever test that actually is) is really inconsistent. Why even both having supposed "law" that determines whether they do or not? Just be honest about it and say you're considering it because you think it's dispositive or because you think it's not dispositive but important to consider for some reason.

"amendments to name new defendants don't relate back to the original filing date". Except it's not really a new defendant. It's the same person, now they just know their names.