Short Circuit: A Roundup of Recent Federal Court Decisions

Butter or spray; liars and bad cops; and SecretAgentRandyBeans.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New IJ cert petition: Friends, if you criticize a city official and then his allies maliciously scour the law books for a crime to charge you with, and then take additional, irregular steps to ensure you are thrown in jail, that right there is a First Amendment violation. Or at least it ought to be. There's a circuit split on just what evidence you need to make out a retaliatory arrest claim, and in the Fifth Circuit evidence that no one has ever been charged with the crime in question for doing what you did doesn't suffice. Click here to learn more.

• Back around 2005, the U.S. Postal Service started allowing people to buy custom-designed stamps from third-party vendors. The results were predictably hilarious. But when artist Anatol Zukerman sought to print copies of a drawing of Uncle Sam being strangled by a snake labeled "Citizens United" and configured as a dollar sign, the USPS rejected his design, even while accepting others with obvious political content. He sued and the D.C. Circuit held that the program violates the First Amendment. But must the USPS now allow the stamps? D.C. Circuit: No. The USPS ended the program and we're not going to issue an injunction ordering them to print the stamps. Mr. Zukerman must content himself with declaratory relief.
• So, E. Jean Carroll sued Donald Trump, alleging he defamed her when he responded to her accusation that he'd sexually assaulted and raped her in the mid-1990s. Then the United States sought to substitute itself for Trump under the Westfall Act, saying that he'd been acting within the scope of his duties when he made the statements. And then the district court said, "No way." And then the Second Circuit said, "Well, maybe, but it mainly depends on District of Columbia scope-of-employment doctrine." So then the Second Circuit certified to the D.C. Court of Appeals the question whether Trump's statements would've been within the scope of his employment under D.C. law. And then the D.C. Court of Appeals accepted the certification, but instead of actually answering the certified question it last week said, "Here are some general thoughts on the state of respondeat superior law in our jurisdiction. Hope this helps." And then today the Second Circuit said, "Thanks. Yeah, it might help. But you know whose problem that is? That's the district court's problem, that's who (who's set to preside over the Carroll-Trump trial starting this coming Tuesday)."
• The Federal Tort Claims Act allows suits against the federal gov't for assault or battery claims if the perpetrator was a "law enforcement officer." That includes any federal official "empowered by law to execute searches." Although TSA agents seem to do pretty much nothing but "execute searches," the feds insist they're not law enforcement agents and so the U.S. can't be sued if TSA agents assault travelers. Fourth Circuit (agreeing with the Third and Eighth Circuits): TSA better search for another defense, because this one won't fly.
• Two intellectually disabled brothers are wrongly convicted of raping and murdering an 11-year-old girl and spend nearly 31 years in prison. They file various lawsuits to get pardons and compensation (in one case securing a $75 mil jury verdict, which was largely upheld by the Fourth Circuit last month.) But then they find themselves as defendants again—this time in a suit filed by one of their former law firms, which says they owe it money. District court: But wait, the N.C. Bar's disciplinary commission previously found that the firm's lead partner misled the brothers and did other unethical things. (Did we mention that the bar suspended his law license for five years too?) So the law firm loses its suit based on a combination of preclusion and unclean hands. Fourth Circuit: Seriously. Affirmed. (NB: If the underlying wrongful-conviction case piques your interest, here's a podcast about the trial by the brothers' lawyers. (No, not those lawyers; different, good lawyers.))
• Harahan, La. police captain is written up for numerous infractions including conduct unbecoming, and the district attorney places the captain on the "Giglio list" of liars and bad cops, an averred death knell for his career. District court: The captain's claim can go forward because he has an interest in working his occupation and being on the list jeopardizes that. Fifth Circuit: Working an occupation? How is that a liberty?
• Man wrongfully convicted of Houston murders and put on death row is released but denied compensation. He then files a Section 1983 lawsuit against, among others, a detective who "discovered" exculpatory evidence while cleaning his garage. (The case is featured on Episode 8 of this Netflix special.) But wait! The Texas Supreme Court then orders the state to compensate him, and he gets $980k. Fifth Circuit: Which, per the state high court, bars his Section 1983 suit. Case dismissed.
• Hammond, La. police officer who also works on a DEA task force is convicted of stealing money and property from arrestees and sentenced to over two years in prison. But wait! One of the jurors failed to disclose that he knew the officer's wife: They went to a high school dance together and kept in touch on social media. Fifth Circuit: Possibly this calls for a new trial.
• Man arrested for stealing Fruit Roll-Ups is thrown in Shelby County, Ky. jail, where a guard recognizes him; he's the guard's "wife's ex." The guard asks the man's cellmates to "take care of" him, and over the course of several hours they beat him to a pulp. A jury awards the man $2 mil against the guard. Sixth Circuit (unpublished): And that's all he's entitled to; though he wasn't taken to a hospital and the jail's medical staff missed several injuries (including traumatic brain injury and facial fractures), no one else is liable. [Ed.: Criminal liability-wise, the guard got a mere slap on the wrist in state court, but then the FBI picked up the case.]
• Twenty-year-old Ohio man runs an online chat room for the "75th Spartans," where he urges others to help him create a militia group and revolt against tyranny. The group is infiltrated by FBI informants, and the man is eventually arrested and convicted of attempted kidnapping based on a scheme to lure a police officer to a secluded area and rough him up to gain notoriety and new members. Sixth Circuit: Well, his inchoate scheme turned on the as-yet unsecured participation of a 14-year-old with the screenname "SecretAgentRandyBeans," and all of the overt acts were shepherded along by the FBI. So it's tough to say he wasn't just playing make-believe. Conviction overturned. Dissent: The jury thought he was serious enough about his plans to convict him, which should be good enough for us.
• Seventh Circuit: Just because you use a fake identity to rent an apartment doesn't mean the landlord can give the police free rein over your place; police still have to show you don't have a reasonable expectation of privacy in it. Oh, and they can't use facts they learn after a search to justify it.
• California man sues Amazon on behalf of a class of drivers for a delivery program known as Amazon Flex. He alleges that Amazon monitored and wiretapped their conversations when they communicated during off hours in closed Facebook groups. Amazon: You accepted our terms of service, and under the 2019 version of our arbitration clause, even the issue of arbitrability is subject to arbitration. No federal court for you. Ninth Circuit: You've provided no proof this guy ever received the 2019 version, so, applying the 2016 version he actually agreed to, we hold this dispute is not subject to arbitration.
• In 1893, the Supreme Court deemed the tomato a vegetable. And in 2023, the Ninth Circuit answered another food question for the ages: Is "I Can't Believe It's Not Butter! Spray" a spray or a butter? Dissent: "I am not ready to declare as a legal proposition that a 'squirt' is a 'spray.'"
• The federal Energy Policy and Conservation Act prohibits state or local regulation concerning the energy efficiency or energy use of many natural gas appliances used in commercial restaurants. "No problem!" say officials in Berkeley, Calif., "We'll just ban the installation of natural gas piping into those buildings." An association of chagrined restaurateurs sues, alleging the ban is preempted by federal law. Ninth Circuit: And it is! The city is prohibited from prescribing a "quantity of energy" to be used by these products, even if that quantity is "zero."
• If you're still playing federal contractor vaccine mandate bingo at home, the Ninth Circuit says put markers on Major Questions Doctrine (it does not apply), Presidential authority under the Procurement Act (the President has it), nondelegation doctrine (don't party like it's 1935), and federalism (yeah, that doesn't stop the mandate either).
• And in en banc news, the Sixth Circuit will not reconsider its decision sending to trial Lewis County, Ky. jailers whose inaction in obtaining medical treatment for a detainee led to his dying on the way to the hospital. Readler, J., statement respecting denial of rehearing en banc: The "original sin" here was the Supreme Court's 1976 decision "to divine constitutional rights for inmates who have been harmed in prison." They should seek remedies under state law.

Victory! North Carolina's Opportunity Scholarship Program provides scholarships of up to $4,200 for low-income families to send their children to one of over 500 participating private schools, and we're happy to report that a constitutional challenge to the program was just voluntarily dismissed. The dismissal comes on the heels of a state appeals court ruling that the challenge was a broad, facial attack on the program instead of a more narrow, as-applied challenge, which as good as doomed the lawsuit because the program had already withstood an earlier facial challenge. "I'm so happy we can continue to use OSP funds to give Nariah the education she needs to be her best self," said IJ client Janet Nunn (pictured with her granddaughter, Nariah). "This scholarship has allowed Nariah to excel and blossom into a confident, smart young woman, who understands the value of hard work." Click here to learn more.

Comments

[hoppy025]

“Two intellectually disabled brothers are wrongly convicted of raping and murdering an 11-year-old girl and spend nearly 31 years in prison. They file various lawsuits to get pardons and compensation (in one case securing a $75 mil jury verdict, which was largely upheld by the Fourth Circuit last month.) But then they find themselves as defendants again—this time in a suit filed by one of their former law firms, which says they owe it money. District court: But wait, the N.C. Bar’s disciplinary commission previously found that the firm’s lead partner misled the brothers and did other unethical things. (Did we mention that the bar suspended his law license for five years too?) So the law firm loses its suit based on a combination of preclusion and unclean hands. Fourth Circuit: Seriously. Affirmed. (NB: If the underlying wrongful-conviction case piques your interest, here’s a podcast about the trial by the brothers’ lawyers. (No, not those lawyers; different, good lawyers.))”

One brother had an IQ of 51 and one of 49. If this isn’t an argument for sterilizing low IQ women, I don’t know what is.

[Zarniwoop]

I have no idea why they are intellectually disabled. Is it genetic? Or maybe they were exposed lead pipes as kids, and this supports an argument that stronger environmental regs should be implemented.

Seriously, “cops abuse intellectually disabled people” seems like evidence that … cops should be held to higher standards. It’s the cops that are the problem here, not the intellectually disabled people.

Tangent: how do you feel about aborting a fetus that has trisomy 21, and will be born with severe intellectual disabilities? If the brothers in question do have Down Syndrome or something similar, are you in favor of sterilizing the mother (who could still have normal kids) but not aborting an affected fetus? How consistent are your “conservative” beliefs here?

[hoppy025]

Given their race, it’s more likely it’s genetic than anything else.

I agree cops shouldn’t be abusing anyone, including disabled people. But we’d be better off if these types of people weren’t born in the first place.

I’m supportive of an abortion ban for healthy, intelligent mothers, but I support mandatory abortion for defective ones.

[Dr. Ed 2]

And how about tenth trimester abortions?

[hoppy025]

Not tenth trimester, but I am supportive of humanely euthanizing infants when a panel of conservative experts deems that they will be a burden to society.

[Zarniwoop]

Ah, eugenics lives on in the disaffected white male “conservative”. Nice to know.

[hoppy025]

Eugenics means “well born.” Why is that a bad thing?

[Dr. Ed 2]

And why was the Holocaust a bad thing?

The mere fact that I have to ask that is scary….

[hoppy025]

Sorry, but you don’t get to argue that any eugenics is immediately like the Holocaust.

[Dr. Ed 2]

What do you think CAUSED the Holocaust?

[SMP0328]

Oh yeah, no way that would be abused.

[hoppy025]

If liberals were in charge, it would be. If conservatives are, it would not be.

[Dr. Ed 2]

And Hoppy, that is EXACTLY how the Holocaust started — it started with doing that to the retarded…

[BravoCharlieDelta]

Imagine how wonderful the world would be if it wasn’t full of retards?

No Niges, no Sacastr0s, no DaveNeiroponts, no Ilya Somlins, no Rev. Kirklands, no trannies or homos, no AOCs or Bernie Sanders, in fact, no Democrat voters at all (no real ones that is, plenty of fake ones and dead ones though).

[Rev. Arthur L. Kirkland]

A few of the Volokh Conspirators thank you for saying what they lack the courage to say.

The other Volokh Conspirators will continue to stand mute, pretending their blog has not become a flaming shitstorm.

[hoppy025]

Godwin’s Law.

[Zarniwoop]

I’m supportive of an abortion ban for healthy, intelligent mothers, but I support mandatory abortion for defective ones.

You do realize that the right-wing driven abortion bans preclude abortions of Trisomy 21 fetuses, right?

And that Trisomy 21 is not about the intelligence of the mother, but an unlucky genetic draw of the sperm+egg, right?

My (now-ex) wife and I aborted a fetus that was incompatible with life, due to Trisomy 21 that caused non-development of a functional heart. It sucked; we wanted that pregnancy. But it had nothing to do with our parental intelligence.

And the “oh noes all abortion bad, where’s my fainting couch?” folks would make that illegal. It is currently illegal where we live (WI) to abort a fetus incompatible with life with severe Trisomy 21, because a law passed in 1849 says so.

So maybe think about nuance for a hot minute.

[hoppy025]

Yes. I don’t support those bans. There’s no reason a college educated white woman in her 20s should be allowed to abort a baby that will likely be a benefit to the world. But defective ones should be aborted mandatorily.

[Zarniwoop]

There’s no reason a college educated white woman in her 20s should be allowed to abort a baby

Uh-huhn. And should a college educated black woman in her 20s be allowed to abort a fetus?

[Dr. Ed 2]

I think there is an issue with using “college educated” as a criteria for women of any race. I saw too many stupid women (of all races) graduate to have any respect for this as a criteria — I remember one girl at Mount Holyoke College that I don’t think I *ever* saw sober. (She had enough political connections to avoid OUI arrests — but the woman *was* driving a 3 ton SUV on a routine basis…)

I can think of a *lot* of women without college degrees whom I would rather see reproducing, and who would make better mothers.

[Sarcastr0]

I think there is an issue with using “college educated” as a criteria for women of any race.

Well, Ed’s not reproducing anytime soon, so there is that.

[Dr. Ed 2]

Hopefully not, but…. 🙂

[Frank Drackman]

Umm, Dr. Ed, we all have our “Spank Banks” but social mores say you usually don’t share them in Pubic (unless you’re out with your Bros, and then it’s game on Bee-Otches!)
I know, the Mary Ann/Ginger’s been done to death, but here’s my top 5, circa 1977

1: Barbara Feldon AKA “Agent 99” from “Get Smart”
2: Susan St. James “McMillan & Wife”
3: Susan Dey “Partridge Family”
4: Raquel Welch “Fantastic Voyage”
5: Sharon Tate “Valley of the Dolls”

Frank

[Rev. Arthur L. Kirkland]

This blog has become something to behold.

And exactly one would expect from a bunch of disaffected, antisocial, faux libertarian Federalist Societeers.

[Dr. Ed 2]

Agent 99 and Jeanie from “I dream of Jeanie”, along with Princess Leilih of the FIRST Star Wars.

Perhaps also Lindsey Wagner as the Bionic Woman — I’ve always respected strong women, and when you’re 12 years old, you don’t ask the critical questions like what catching something that weighs several tons would do to your non-bionic bone structure, ie spine…

[Frank Drackman]

Jeanie, my bad!
never saw the Princess Lay-uh attraction
Lindsey Wagner, yes, I think thats when one of my Mom’s “Shows” was on (Remember when most famiblies only had one TV, usually Black & White, and one Phone??)
Would love to sentence any current criminals to
“You must serve 2 years in 1973!!!!”

Heck, I lived during 1973 and hated it..

“OK, had a Boyscout campout I had to go to, October 1973, in the Black Hills (Very few Blacks in the Black Hills)
but, hey, we’d be home by 2pm Sunday, so I could watch the game, Game 2 of the 73′ Series (Pulling for the Mets, because my Mom liked the A’s)
Of course, some bullshit “Storm” bla bla bla, end up getting home at 6pm, long after the game was over , no ESPN back then, so had to content myself with few seconds of replays on the local news…

Frank

[Nige]

‘I think there is an issue’

There are many, many issues around this skin-crawling freakish fucking comment thread, but I’m glad you found one to fit right in there.

[BravoCharlieDelta]

You must mean college degreed, not college educated.

black women get diplomas no matter what.

[Frank Drackman]

usually some variation of “the Black Experience in Amurica” (Come here in chains, pick cotton, get freed, put back in chains, repeat) with a “Minor in Social Work”
Seems there always the ones fucking up my rental car reservation….

[hoppy025]

Pretty much. I’m using college educated as a proxy for IQ, but I concede that it probably isn’t a good measure these days.

[hoppy025]

All 8 of them?

[Dr. Ed 2]

Fetal alcohol syndrome comes to immediate mind — a mother’s drinking can very much harm her child’s brain. (I have often wondered about her smoking as well.)

There is a *lot* of this in rural Maine, and now there are children being born who are actually addicted to opiates.

It’s chemical damage to the developing brain — it’s the same reason why the *mother’s* exposure to lead is an issue (it comes out of her bones during the pregnancy) — and this has nothing to do with genetics.

Social Workers advocate locking her up in a cage so she can’t drink or do drugs during her pregnancy. I have issues with that, but it is an issue….

[Zarniwoop]

Man arrested for stealing Fruit Roll-Ups is thrown in Shelby County, Ky. jail, where a guard recognizes him; he’s the guard’s “wife’s ex.” The guard asks the man’s cellmates to “take care of” him, and over the course of several hours they beat him to a pulp. A jury awards the man $2 mil against the guard.

Hm, the guard (Deputy Jailer Carey) got 48 months, the inmate who administered the beating (Hopper) got 120 months. From the DOJ press release:

A former Shelby County Deputy Jailer, William Anthony Carey, 31, was sentenced … to serve 48 months in federal prison for violating the civil rights of an inmate in his custody.

and

Hopper also pleaded guilty in January 2020 to aiding and abetting a person acting under color of law in willfully depriving an inmate of his right to be free from unreasonable force. Hopper was sentenced on July 15, 2020, receiving 120 months in federal prison….

I know there are multiple factors that go into determining the guideline range for a sentence (guard’s 1st offense, and the inmate is a repeat offender, for example), but there’s a part of my brain that thinks those numbers should be reversed.

[Dr. Ed 2]

I was wondering why medical malpractice laws didn’t apply here.

Legally, there is an expected standard of care, be it for a prisoner or a lawyer who’s just wrapped his BMW around a tree.

And 48 months for a prison guard might well be like 120 months for anyone else. BOP isn’t known for competence — remember Whitey Bulger — and it’ll come out he was a guard.

[Zarniwoop]

I was wondering why medical malpractice laws didn’t apply here.

“Medical malpractice” for who? Imma assume the prison guard (Carey) is not an M.D. And neither is the inmate (Hopper) who did the beating.

Please elucidate WTactualF you are talking about.

[Dr. Ed 2]

“and the jail’s medical staff missed several injuries (including traumatic brain injury and facial fractures)”[emphasis added]

I presume that said medical staff have medical licenses and hence the various torts of medical malpractice could be brought against them personally.

IANAA but I presume (hope, pray) that a licensed medical professional is held to the same professional standard of care when employed by a jail that the person would be held if employed by a hospital or the local WalMart.

I mean, like, look at the problem of MD plates — people deliberately crashing into the MD’s vehicle so as to get a malpractice claim for the MD’s standard of care at a MVA in which he was involved….

[MatthewSlyfield]

Medical malpractice for the jail’s medical staff.

And that’s all he’s entitled to; though he wasn’t taken to a hospital and the jail’s medical staff missed several injuries (including traumatic brain injury and facial fractures), no one else is liable.

[Estragon]

You guys have no idea how high the bar is for prisoners to recover against jail staff for injuries. It is so far beyond medical malpractice. I worked on a bunch of these cases. We had an inmate in the jail in our county who had special diabetes shoes. Jail staff took them away. Inmate says if you take these shoes I’m going to get sores on my feet. He does. Eventually bone infection and one foot is nearly amputated. This did not rise to the level of extreme indifference (or however the standard was phrased, I can’t exactly remember) in my district, according to the federal judge. I’m not sure if there was an appeal, I quit soon afterwards; all they had me doing was prison litigation.

[Rev. Arthur L. Kirkland]

That is something the liberal-libertarian mainstream can address after we have run all of the “law and order” Republicans out of the justice system.

[MatthewSlyfield]

“You guys have no idea how high the bar is for prisoners to recover against jail staff for injuries.”
I understand perfectly how high that bar is currently. I just think it ought to be significantly lowered.

[David Nieporent]

extreme indifference

Deliberate indifference is the constitutional standard. There can still be ordinary state tort law remedies.

[Estragon]

Yes, thank you David. These were prisoners in federal custody— in the county detention center.

[bernard11]

Not sure Whitey’s case was an accident.

[Dr. Ed 2]

Actually, I think it was — were it intentional, they could have had a lot more plausible deniability.

Heck, *I* can think of a dozen more believable situations, and I’ve never even been in a prison, let alone been a BOP employee…

[Frank Drackman]

Because there’s not a “Doctor/Patient Relationship”, Because it’s not Medical Malpractice? What next? are you worried Guam might “Capsize” due to overpopulation?
There is an actual Afro-Amurican Congressman from ATL, who was concerned about that, of course after he was mildly ridiculed by even the Marxist Stream Media, said he was “Just Joking”

https://www.bing.com/videos/search?q=hank+johnson+guam&view=detail&mid=0229B1FCD4BB9CAD00C70229B1FCD4BB9CAD00C7&FORM=VIRE

Frank

[Dr. Ed 2]

If a MD treats a prisoner, there isn’t a doctor/patient relationship?

[Kazinski]

They are different charges that may account for it.

Also the guard almost certainly didn’t intend such a severe beating, he had to be shitting himself when he saw how badly the guy was beaten.

[Dr. Ed 2]

No, he only shit himself when he thought about the consequences of the injured — but not dead — prisoner.

My guess is that he was expecting the prisoner would be dead — and there is a good chance that nothing would have happened were this a fatality — the prison wouldn’t want to know, the coroner wouldn’t want to know and it would just be another derelict who died in the jail.

Remember that he was arrested for arrested for stealing Fruit Roll-Ups — that’s not a crime that an upper-middle class person is going to commit (unless intoxicated) and the fact he was actually in jail makes me think that there wasn’t anyone showing up demanding bail or anything.

Yes, sometimes there are exceptions — I once got a call from someone’s high school coach, I called someone else and there *were* consequences for a jail guard saying “that nigger doesn’t get breakfast” — but this was a complete surprise to the jail staff, and an outlier. And in fairness to the Sheriff, not something he approved of, I genuinely believe that.

Damn unions…

Now I’m making presumptions without evidence, but being in jail for stealing Fruit Roll-Ups makes me think low-income White male that no one would care about were he dead. The problem was that he wasn’t — and was able to tell the FBI *why* this all happened…

[Frank Drackman]

You have to remember “Corrections” Officers are peoples so fucked up, their only alternative is a job that requires them to spend 2,000 Hours a year in Jail.
Doesn’t attract the fastest swimmers in the Sperm Pool, if you get my drift, and if you don’t, you may have a “Career” waiting you in “Corrections”
Watch “Escape at Dannemora” sometime or just read the after action report
https://www.northcountrypublicradio.org/pdfs/DOCCSClintonReportFINAL_1.pdf

Frank

[Dr. Ed 2]

Ok, working in a jail versus working at WalMart — and the jail has a state pension…

[Archibald Tuttle]

I love IJ, and I donate to it. I like John Ross. But John, you are laying on the sarcasm so thick, that I need an interpreter to understand your writings in Short Circuit.

[Ed Grinberg]

I’m not sure I’d bother reading this weekly summary if it weren’t for the sarcasm. Please keep it up, Mr. Ross!

[kotodama]

I guess you could describe Unilever’s preemption defense as “spray and pray”.

[SomeGuy 2]

From the Sixth Circuit prison beating case:

The inmates repeatedly struck Reece in the head and body. Reece lost consciousness a few times. To conceal Reece’s injuries and blood, the inmates took Reece into the shower and changed
him into a clean jumpsuit. They attempted to flush the bloody jumpsuit and towels down the toilet.

They seriously thought they could get not just towels but a freaking prison jumpsuit to flush? In addition to being extremely evil, the modal criminal is very stupid. Prison guard can enjoy his time behind bars and then probably never pay the judgment.

[Dr. Ed 2]

No, what I think they were thinking was that the jail would presume that this was yet another intentional attempt to flood the jail by plugging up the toilets — and that the resulting sewerage overflow would obscure the blood, which was what they really wanted to happen.

So the plumbers eventually pull out a sewerage-coated jumpsuit & towels — there wouldn’t be usable DNA left, and why would the jail (which didn’t want to anyway) associate it with the assault on Reece? Worst case, some inmate “confesses” to doing this with a random jumpsuit and does some time in the hole.

[Dr. Ed 2]

‘ E. Jean Carroll sued Donald Trump, alleging he defamed her when he responded to her accusation that he’d sexually assaulted and raped her in the mid-1990s”

When one gets beyond the morbid tabloid issues and the TDS, this has the potential of becoming a really dangerous precedent. EVERYONE accused of a crime will inevitably say that he/she/it didn’t do it, and the purported victim has the right of a civil suit for damages, more on that later.

But what this does is give her a “second bite of the apple” — a person proclaiming his/her/its innocence is now libel? What about accusing said person of a notorious crime — and (as I understand it) Trump can’t countersue her because reporting a crime is protected.

This is fair?

Forget TDS and think 100 years from now when Trump will be dead and buried — is this what you want the law to be???

And on a more practical basis, I’m thinking BLM here. There *were* crimes (e.g. arson) which did not result in a criminal conviction, there were a lot of politically involved persons in that movement. Can they be publicly accused of crimes and then sued for libel when they deny having committed said crimes?

How about nasty labor disputes? Can management accuse key union people of crimes and then sue them for libel when they deny having committed said crimes? Does anyone see where this could go?

And as to the civil suit for the tort of rape (or whatever) — there is a *reason* why statutes of limitations are due process issues — this was what, 30 years ago?

I don’t even know what state I was in on April 2, 1993 — how the hell am I supposed to be able to prove that I didn’t do something when I don’t even remember where I was?!?

Absent blind, stupid, luck — eg both a speeding ticket *and* a cop who is (a) still alive and (b) willing to testify he wrote it, and (c) can recognize me as the motorist he ticketed three decades ago — I am screwed. One thing that helped save the Duke Lacrosse boys was an ATM record — yes, there were ATMs back then, but neither I nor my bank still has those records, even if that bank still exists (it doesn’t).

I understand “believe the women” and I understand TDS, but folks — this is creating really dangerous precedents. Imagine a lawsuit against VP Harris for something unethical she may or may not have done with Willie Brown way back then. I am not a fan of hers (trust me) but damn it, there are concepts of basic fairness and how the hell could she possibly defend herself when I doubt *she* remembers even where she was on April 21, 1993….

[Kenneth Almquist]

The complaint accuses Trump of making a variety of false statements, including, yes, denying that he raped Carroll, but also that:
* Carroll invented the rape story to increase books sales.
* Carroll invented the rape story to carry out a political agenda.
* Carroll invented the rape story as part of a conspiracy with the Democratic Party.
* Carroll falsely accused other men of sexual assault.
* Carroll was paid money to invent the rape story.

In order for a statement to libel person X, it must be a statement about X. So if I deny committing a crime, that would not, generally speaking, be libelous because it’s a statement about myself and therefore doesn’t libel anyone else. Admittedly, there may be contexts in which my denying that I committed a crime would be a statement about someone else, but it’s hard to see any basis for your fear that if Carroll wins, anyone who denies committing a crime will be the target of a libel suit. If Carroll wins, it will be because Trump’s statements about Carroll, listed above, were found to be false and defamatory.

[Nige]

There are entire regions of peoples’ brains devoted to inventing what are essentially elaborate concern-trolling reasons why Trump should never be held accountable for anything.

[John F. Carr]

I think the scope of duties of a federal officer should be a question of federal law.

[kotodama]

Well that’s very special, isn’t it? Did you even read the opinion? Rhetorical question(s) of course, because if you had, you would have realized that the DC Court of Appeals didn’t purport to define the scope of duties of any federal officer according to local (DC) law. Indeed, the court expressly acknowledged that such questions are federal ones. But, determining whether someone acts within the scope of federal duties requires consulting local/state law. And yet, that still comports with federal law because the requirement is imposed by the FTCA.

[John F. Carr]

The powers that be got the message that swing voters think they are a bunch of ignorant authoritarian hypocrites and eased COVID regulations, but you can see they didn’t think they did anything wrong. They are still in court defending their actions, and winning in favorable forums like the Supreme Judicial Court of Massachusetts and the Ninth Circuit.

[Currentsitguy]

“I Can’t Believe It’s Not Butter!”?????

Actually I can’t believe we wasted taxpayer money on this ridiculous question.

On a side note, anyone who cannot actually not believe it’s not butter needs their head examined.

[Brett Bellmore]

I tried making a pie crust once with that crap. (Mom had bought it, it was the only thing on hand.) Turned out a fair imitation of linoleum.

[Frank Drackman]

Bo-Ring! so where’s the Nashville Shooter’s(I forget a Man “Transitioning” to a Woman?? Woman “Transitioning” to Man?? “Queer”??(I used to know what that meant, now not so sure, isn’t it just another name for “Fag”)
“Manifesto” I mean, they released the Una-bombers (not so crazy in parts) Anders Breiviks (actually has an earlier release date than Jerry Sandusky) must be something really bad in there for our Media/Law Enforcement “Bettors” to keep it under wraps….

Frank

[Kenneth Almquist]

And then the D.C. Court of Appeals accepted the certification, but instead of actually answering the certified question it last week said, “Here are some general thoughts on the state of respondeat superior law in our jurisdiction. Hope this helps.” And then today the Second Circuit said, “Thanks. Yeah, it might help. But you know whose problem that is? That’s the district court’s problem, that’s who (who’s set to preside over the Carroll-Trump trial starting this coming Tuesday).”

This summary isn’t quite right. It was the D.C. Court who said it was the district court’s problem, writing that, “whether the President of the United States was acting within the scope of his employment is a question for the factfinder.” The Second Circuit therefore remanded the case to the factfinder, “for further proceedings consistent with the detailed guidance provided by the D.C. Court of Appeals.”

[kotodama]

The original Second Circuit majority opinion was such a hot mess. Can Calabresi please just completely retire already.

[Dr. Ed 2]

“He alleges that Amazon monitored and wiretapped their conversations when they communicated during off hours in closed Facebook groups”

And that this was a violation of both state and Federal law.

Can violations of law actually be subjected to an arbitration agreement? If so, why couldn’t sexual assault and rape be subjected to such an agreement?

Full disclosure: I refuse to do business with Amazon because of how they treat their drivers.

[John F. Carr]

One of the great problems with the FAA is that it has been construed to allow non-waivable statutory rights to be decided by an arbitrator.

According to media reports, Congress plans to amend or recently amended the FAA to exempt some claims of sexual misconduct.

[David Nieporent]

According to media reports, Congress plans to amend or recently amended the FAA to exempt some claims of sexual misconduct.

Two years ago.

[David Nieporent]

Can violations of law actually be subjected to an arbitration agreement? If so, why couldn’t sexual assault and rape be subjected to such an agreement?

They can be, and are. (Though in 2021 Congress limited the enforceability of predispute arbitration agreements governing sexual harassment or assault.) The arbitration only applies to a civil claim, not criminal prosecution.