The Volokh Conspiracy

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

The past two days, I have blogged (here and here) about Glossip v. Oklahoma, a death penalty case that the Supreme Court will hear next Wednesday. I explained in my two earlier posts how Glossip and Oklahoma (through Attorney General Gertner Drummond) have concocted a phantom Brady violation where none exists. Simply put, Glossip's prosecutors never withheld evidence. In this third and last post in the series, I discuss how courts should respond to confessions of "error" by prosecutors in possibly politically motivated circumstances. The Glossip case is a cautionary tale suggesting that courts should not blindly accept such confessions but rather should independently review the underlying record to determine the truth.

The Glossip case revolves around Glossip's claim that prosecutors' notes reveal evidence withheld from the defense team concerning a prosecution witness (Justin Sneed). The State of Oklahoma, through Attorney General Gertner Drummond, has confessed "error" and agrees with Glossip's claim.

My amicus brief for the family of Barry Van Treese, the murder victim, responds to these claims. In my first post, I explained that Glossip and General Drummond misinterpret the prosecutors' notes and fail to provide the Supreme Court with important context about the notes' meaning. In my second post, I discussed Glossip's and Drummond's failure to address these concerns in their reply briefs. Today, I review the issue of what weight the Supreme Court should give to General Drummond confession of "error" in resolving the case. As with my two earlier posts, today's post draws on and summarizes my more detailed amicus brief and its incorporated appendix.

The issue of what weight to give to a confession of error is important in Glossip. Ultimately, lacking anything meaningful in the text of the prosecutors' notes, the parties' joint argument for overturning Glossip's conviction rests on Attorney General Drummond's confession of error. But the Supreme Court should give that confession no weight.

First, General Drummond is not confessing his own error. Instead, he "confessing" (if that is the right term) that the experienced local prosecutors suppressed evidence. But General Drummond can no more validly opine that the prosecutors agreed to hide evidence than he could that they conspired to rob a liquor store. Without supporting evidence, his unfounded opinion is entitled to little weight.

Second, it is not really clear that General Drummond is offering his own opinion. He has essentially outsourced the project of evaluating a potential error. Drumond released the prosecutors' notes to Rex Duncan, his lifelong friend and political supporter, as part of a purported "independent" investigation. Then, Duncan borrowed from a report from an anti-death penalty law firm (Reed Smith) and use it to draft a report with unsupported conclusions about what the notes meant. Next, General Drummond accepted those conclusions about the notes and confessed "error." And then, armed with the confession of error, Glossip parroted these dubious "facts" to the lower courts and, ultimately, to the Supreme Court—cloaked in the claim that they represented the "considered judgment of the State officer chiefly responsible for enforcing Oklahoma's laws …."

This bizarre sequence cannot launder the fact that no credible evidence of prosecutorial misconduct exists. The so-called "independent" report of Rex Duncan is not reliable evidence. On the key points (e.g., what happened when prosecutors Smothermon and Ackley interviewed Sneed), Duncan has not carefully examined the prosecutor's notes. Indeed, Duncan's acclamatory tone reveals the true, political nature of his project. He writes in his report to Drummond that "[y]our decision to seek a stay of execution and more thoroughly examine this case may be the bravest leadership decision I've ever witnessed." Cert. Pet., App. 66a

From an order this Monday by Judge Kevin Castel (S.D.N.Y.) In Rusfeldt v. City of New York (just an excerpt of a long opinion):

Pastor Aden Rusfeldt brings claims arising from his interactions with and arrest by officers of the New York City Police Department ("NYPD") that occurred while he was holding up a large sign on a long pole reading "Fags and Whores Burn in Hell" at the June 27, 2021 PrideFest in Manhattan….

The First Amendment protects Rusfeldt's right to express his message and the Pride festivalgoers' right to express their hostility to his message. The expressive elements of Rusfeldt's hateful message and the festivalgoers' expressed antipathy to the message do not require law enforcement to turn a blind eye to the potential that the physical proximity of the two groups could lead to unlawful behavior. But the permissible means to mitigate the potential for escalation cannot be the removal of a person engaging in protected speech merely to appease others offended by his expressive activity. Provocations to immediate violence may change the calculus.

When police officers learned that objects and liquids had been thrown by members of the crowd of Pride festivalgoers in the direction of Rusfeldt, they stepped into action. They could have ordered the crowd dispersed or arrested an offender, if the person was observed and could be identified and apprehended. Police officers selected a different response, at first standing in between Rusfeldt's group and the crowd and then moving metal barriers into place between the two groups, which did not impair the ability of Rusfeldt or the festivalgoers to deliver their messages.

Law enforcement also had concerns that Rusfeldt was on the sidewalk with a long pole holding his message aloft, potentially blocking the sidewalk and presenting a hazard to others. Police officers told Rusfeldt to move—or, as defendants now characterize it, ordered him to disperse. Rusfeldt was ultimately arrested. The "Complaint/Information" for the violation of at least one of New York's disorderly conduct provisions (N.Y. Penal Law § 240.20(7)), which was affirmed by the officer on the date of the arrest, noted that Rusfeldt was "in possession of a large metal pole. Defendant was asked to relinquish the pole and refused to do so." The charges were later dismissed without any court appearance.

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10/3/1990: Justice David Souter takes the oath.

Getting closer to October 8, when the Supreme Court will hear oral argument in Garland v. VanDerStok, I'd like to address whether ATF's 2022 Final Rule drastically expanding the meaning of the statutory term "firearm" implicates the Second Amendment. By redefining "firearm" to include unfinished materials, information, jigs, and tools, the supply has dried up for persons freely to obtain what they need to construct self-made firearms. Indeed, that is the purpose of the rule.

No one disputes that the right to keep and bear arms entails the right to acquire them, which presupposes that firearms must be made. As explained in my previous post, the Federal Firearms Act of 1938 was the first federal law to require those engaged in the business of manufacturing firearms to obtain licenses. To date, the Gun Control Act (GCA), passed in 1968, provides no restrictions on a person acquiring materials and making his or her own firearm.

ATF's commentary to the Final Rule argues that it does not violate the Second Amendment, because "the GCA and this rule do not prohibit individuals from assembling or otherwise making their own firearms from parts for personal use," nor do they "prohibit[] law-abiding citizens from completing, assembling, or transferring firearms without a license" as long as they are not "engaged in the business." Yet the rule does prevent individuals from "making their own firearms from parts" by purporting to extend the statutory definition of "firearm" to raw material and previously-unrestricted parts that may no longer be bought and sold except through federal firearm licensees.

The Supreme Court in District of Columbia v. Heller did not "cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms." ATF's regulations are not "laws" and have no basis in the laws passed by Congress, which enacted the exclusive definition of "firearm." The Final Rule impedes the making and acquisition of firearms by imposing new, onerous restrictions, costs, and potential criminal jeopardy.

The commentary quotes the above words from Heller, but those words do not justify the policy argument in the next sentence: "PMFs [privately made firearms], like commercially produced firearms, must be able to be traced through the records of licensees when the PMFs are involved in crimes." First, as covered in my last post, that a firearm was traced does not indicate that it was used in a crime. Second, a firearm "must be able to be traced" only when, as the GCA provides, it comes from a licensed manufacturer or importer, is distributed by a licensed dealer, and is required to be marked with a serial number. ATF's contention regarding the need for tracing is not a legal argument, but is purely a policy argument which can only be addressed by Congress.
In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 17 (2022), the Supreme Court held: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation."

Before looking for possible historical regulations, consider the Court's longstanding interpretative guide, expressed long ago in Ex parte Bain (1887), that "in the construction of the language of the Constitution . . . we are to place ourselves as nearly as possible in the condition of the men who framed that instrument. Undoubtedly, the framers … had for a long time been absorbed in considering the arbitrary encroachments of the Crown on the liberty of the subject…."

I've documented countless such encroachments in The Founders' Second Amendment, but especially pertinent here is the 1777 plan by British Colonial Undersecretary William Knox: "The Militia Laws should be repealed and none suffered to be re-enacted, & the Arms of all the People should be taken away, . . . nor should any Foundery or manufactuary of Arms, Gunpowder, or Warlike Stores, be ever suffered in America…." And consider this letter from Thomas Jefferson in 1793, two years after ratification of the Second Amendment: "Our citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them."

Extensive documentation of this aspect of our history is set forth by Joseph Greenlee in "The American Tradition of Self-Made Arms," 54 St. Mary's L.J. 35 (2023). He distilled a good part of this research for VanDerStok in the amicus brief of the National Rifle Association.

During colonial times, Greenlee shows, acquisition of firearms by importation and local manufacture was essential for food and protection. Gunsmiths in towns and on the frontier made and repaired guns, often obtaining intricate parts like locks and barrels from other sources. The trade was carried out by individual craftsmen. The outbreak of the War for Independence brought a high demand for muskets from the States and the Continental Congress. This cottage industry produced over a fourth of the long arms used by American troops during the war. Even children helped assemble cartridges.

James Whisker, a prominent historian of early gunmaking, writes in The Gunsmith's Trade (1992): "Gun crafting was one of several ways Americans expressed their unrestrained democratic impulses at the time of the adoption of the Bill of Rights.… The climate of opinion was clearly such that it would have supported a broad distribution of this right to the people…."

Private gunmakers in the United States have developed many of the most significant innovations in firearm technology. They include the forgotten makers of Pennsylvania rifles, Samuel Colt and his revolvers, the developers of Winchester lever action rifles, John Moses Browning and his countless innovations, and John Garand, inventor of the M1 Garand battle rifle that gave American GIs an edge in World War II. Countless Americans, in bygone times and today, fashion, make, assemble, customize, and repair their own firearms. As long as they were not engaged in the business of manufacturing firearms, Congress has never regulated private gunmakers.

ATF's Final Rule aims to prohibit the free acquisition of items that are not firearms by redefining them as firearms. The government's brief brushes off any Second Amendment consequences – saying "the Rule's interpretation of the Act is entirely consistent with the Second Amendment" – without even attempting to show, as Bruen requires, that the Final Rule "is consistent with the Nation's historical tradition of firearm regulation." While this has not been litigated as a Second Amendment case, the rule of constitutional doubt should discourage an expansive reading of the GCA.

The amici brief of the Gun Violence Prevention Groups steps in to provide a Bruen analysis, relying on a Student Note "Gunmaking at the Founding" forthcoming in Stanford Law Review. However, part VI of the NRA brief, relying on that same source, refutes it point by point. The following seven categories (in quotation marks) are claimed to constitute a "historical tradition of firearm regulation," but for the following reasons given in the NRA brief, they do no such thing:

The "standard setting" laws established what arms could be used in militia service or sold to governments for militia use.
The "inspection" laws required militiamen to prove to militia officers that they possessed the mandated militia arms.
The "licensing" law was a 1642 Connecticut law requiring a license for any "Smith" to "doe any work for" hostile American Indians or for any person to "trade any Instrument or matter made of iron or steele" to them.
The "labor" laws simply refer to the legal relationship between masters and apprentices.
The "impressment" laws were generally wartime measures that required gunsmiths to prioritize military arms.
The "restrictions on dangerous persons" include prohibitions on providing firearms to allegedly dangerous persons and restrictions on repairing firearms for American Indians.
The "gunpowder-making" regulations did not apply to firearms and instead targeted gunpowder storage and sales.

The Gun Violence Prevention Groups' brief also cites "the longstanding practice of marking weapons—a precursor to modern-day serialization." But the marking requirements applied only to public arms owned or used by the States. As historian Whisker relates, "a gunsmith could choose to mark his guns, or not mark them, in any way he chose." During the Revolution, many gunsmiths refrained from marking their firearms so that, in case the British won, those firearms could not be traced back to their makers.

As the Republic grew, some manufacturers voluntarily inscribed their firearms with serial numbers and others did not. It was not until 1958 that licensed manufacturers were required to engrave serial numbers on firearms, excluding shotguns and .22 caliber rifles. Only in 1968 did Congress require licensees to serialize all "firearms" as it defined them. To date, it remains lawful under the Gun Control Act to make your own gun without restriction.

Finally, it is worth recalling that, in passing the Firearm Owners' Protection Act of 1986, Congress found that "the rights of citizens … to keep and bear arms under the second amendment to the United States Constitution … require[d] additional legislation to correct existing firearms statutes" and reaffirmed its intent not to "place any undue or unnecessary Federal restrictions or burdens" on firearm owners or "to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes." It admonished that the Attorney General may prescribe "only such rules and regulations as are necessary to carry out the provisions of this chapter." The Final Rule simply disregards these statutory "rules of engagement" and writes off the Second Amendment as if it is a "second class right."

Stephen Halbrook is a Senior Fellow with the Independent Institute. His latest books are America's Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? He is also author of The Founders' Second Amendment, Securing Civil Rights, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France. He has written over 30 law review articles and has testified in Congressional hearings on firearm law bills. He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, National Association of Criminal Defense Lawyers, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. In D.C. v. Heller, he filed an amici curiae brief on behalf of a majority of members of Congress.

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From today's decision by Judge John Mendez (E.D. Cal.) in Kohls v. Bonta:

Plaintiff Christopher Kohls (aka "Mr. Reagan") is an individual who creates digital content about political figures. His videos contain demonstrably false information that include sounds or visuals that are significantly edited or digitally generated using artificial intelligence …. Plaintiff's videos are considered by him to be parody or satire. In response to videos posted by Plaintiff parodying presidential candidate Kamala Harris and other AI generated "deepfakes," the California legislature enacted AB 2839. AB 2839, according to Plaintiff, would allow any political candidate, election official, the Secretary of State, and everyone who sees his AI-generated videos to sue him for damages and injunctive relief during an election period which runs 120 days before an election to 60 days after an election….

AB 2839 does not pass constitutional scrutiny because the law does not use the least restrictive means available for advancing the State's interest here. As Plaintiffs persuasively argue, counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them. "'Especially as to political speech, counter speech is the tried and true buffer and elixir,' not speech restriction." …

The court began by concluding that AB 2839 doesn't fall within the existing defamation exception to First Amendment protection, and isn't subject to any other doctrine that categorically lowers protection for false statements in election campaigns:

Free Speech Artificial Intelligence

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Florida appellate courts have published many opinions in recent years (correct ones, I think) reminding trial courts of the limits on anti-harassment/stalking/cyberstalking restraining orders. Whether that is a mark of the soundness of the Florida appellate courts, of the frequency of errors by Florida lower courts, something else, or a mix of these, I can't say. But here's a recent example, from Hoover v. Peak, decided in August by Judge Thomas Winokur joined by Chief Judge Timothy Osterhaus and Judge Joseph Lewis, Jr.:

On Independence Day, 2023, Hoover aimed a Roman candle firework at several children present in his neighborhood. Peak's daughter, C.P., was one of those children. C.P. had her back turned to Hoover when the firework went off, and she suffered a minor injury to her thigh.

Peak reported the incident to the Department of Children and Families, which led to Hoover's arrest for child abuse. Hoover was also arrested for a separate domestic incident with his now estranged wife Mandelin Hoover. The court granted Mandelin Hoover a domestic violence injunction against Hoover with a no-contact provision.

Then, in August 2023, Hoover and his ex-wife—not Mandelin Hoover—attended their daughter's ninth-grade orientation at Crestview High School. C.P. was also a ninth-grader at Crestview High School. Thus, Peak, her husband, C.P., and Mandelin Hoover (Peak's purported best friend) also attended the orientation. While at the orientation, Peak and Hoover crossed paths on four occasions. Peak believed that Hoover understood his criminal case for child abuse due to the fireworks incident to also include a no-contact order as to C.P. In fact, no such provision existed.

Peak sought out the school police deputy to inform him that Hoover was on the premises and that he should be removed. At the same time, Hoover turned into the same hallway but after seeing Peak's family, he walked away. Based on the four encounters at orientation, Peak filed the underlying petition for an injunction for stalking against Hoover….

The trial court held "that Peak satisfied her burden of showing that a reasonable person would have been placed in substantial emotional distress by Hoover's actions," and granted a harassment restraining order against Hoover, but the court of appeals reversed:

Harassment Law & Government

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Yesterday's opinion by Judge Peter Messitte (D. Md.) in Univ. of Md. Students for Justice in Palestine v. Bd. of Regents held (generally quite correctly, I think) that the University's revoking the SJP's reservation of space for a demonstration violated the First Amendment, because it was an attempt to suppress SJP's viewpoint. An excerpt of the facts:

SJP [at first was given a reservation, in August, for an event that it] described … as an interfaith vigil to be held on the University's College Park campus on October 7, intended to mourn lives lost in Israel's purported "genocide" in Gaza. In revoking the approval, the University also banned all student-organized events on the College Park campus on that day, as well as such events throughout the University system statewide….

For years, UMCP students as well as outsiders have used UMCP's McKeldin Mall as a forum for free expression, one of only four venues that UMCP allows for students to host "Scheduled Expressive Activity." The Mall is a rectangular field, consisting of some nine acres, centrally located on the College Park campus…..

SJP indicates that it primarily planned to use their reservation of McKeldin Mall to hold a vigil commemorating the thousands of lives lost since what it characterizes as the initiation of Israel's current attack on Gaza. Over the course of the day, the group stated that it would also host several other activities, including teach-ins about Palestinian history, culture, and solidarity between Palestinians and other marginalized groups; tables highlighting Palestinian art and traditional crafts; a visual display of kites, a motif in Palestinian poetry; as well as a vigil and inter-faith prayers. The group indicated that it had invited several SJP members who have personally lost family members in Gaza to speak. {SJP expressly indicated that it expected 25 to 50 student attendees and expressly agreed to comply with all student-organization event guidelines and policies.} …

SJP says it chose October 7 specifically because October 7 marks the beginning of what it calls Israel's most recent "genocidal campaign" which, SJP claims, has resulted in the death of over 40,000 Palestinians in Gaza. Another recognized student organization, Jewish Voice for Peace at the University of Maryland …, has agreed to co-sponsor SJP's event….

In response to public opposition, the University of Maryland canceled the event and indeed ban all student-sponsored events on Oct. 7; here's how UMD College Park's president publicly explained the cancellation:

Free Speech Hate Speech

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In yesterday's post, I discussed Glossip v. Oklahoma—a case that the Supreme Court will hear next Wednesday about allegations that prosecutors withheld evidence in a death penalty trial. In that post, I reviewed my amicus brief for the murder victim's family, which contains extensive documentation proving that the prosecutors never withheld any evidence. In this second post, I discuss Glossip's and Oklahoma's (non)responses to the facts that I presented. The parties' failure to respond confirms that their Brady claim is concocted and that they are forcing the victim's family to endure frivolous litigation. Tomorrow, in my third and final post, I will explain why courts should be cautious before accepting an apparently politically motivated confession of "error" from a prosecutor.

In Glossip, the underlying question before the Supreme Court concerns whether state prosecutors withheld evidence from Glossip's defense team before his 2004 trial. In that trial, Glossip was found guilty of commissioning his friend, Justin Sneed, to murder Barry Van Treese. Glossip was sentenced to death. Now, nearly two decades later, Glossip argues that newly released notes from the prosecutors show that they withheld information about Sneed's lithium usage and treatment by a psychiatrist. And, curiously, Oklahoma Attorney General Gertner Drummond agrees. Drummond has joined Glossip in asking the Supreme Court to overturn the conviction and capital sentence.

As I reviewed yesterday, Glossip's and General Drummond's argument rests primarily on four handwritten words in prosecutor Smothermon's notes:

According to Glossip and General Drummond, these few words "confirm" Smothermon's knowledge of Sneed's treatment for a psychiatric condition by lithium by a "Dr. Trumpet" (later claimed to be a Dr. Trombka). But stepping back and reading the notes in context reveals a much different interpetation. Here are Smothermon's notes surrounding the four words in question:

In yesterday's post, I explained that looking at all of her notes reveals that Sneed was merely recounting what the defense team was questioning him about—not what the prosecutors had discovered. The defense team interview is reflected in the reference to "2x" (two interviews), including one by "women" that was "b4 [the] appeal" who were an "invest[igator]" and a person involved in the "appeal."

To the extent any question remains, the corresponding notes from the other prosecutor at the interview (Gary Ackley) show even more directly that Sneed was simply recounting a defense interview. The first line of Ackley's notes from the Sneed interview reads "W was visited by 2 women who said they rep[resented] Glossip - heavy—1 "inv" & 1 "Atty" Appellate?" Read for yourself:

As I pointed out yesterday, if the prosecutors' notes record what happened during a defense interview, obviously no Brady violation could exist. Because the prosecutors were simply recording what a state's witness recounted about questions asked of him by the defense team, the notes cannot contain information withheld from the defense.

In today's post, I review Glossip's and General Drummond's failure to respond to these facts. As with yesterday's post, today's post summarizes my amicus brief and also additional factual material contained in an appendix to my brief (linked here as a single document).

Glossip and General Drummond contend that the four words in the notes mean that the prosecutors possessed information that they should have disclosed to the defense. My contrary interpretation prompts the obvious question of what do the prosecutors say their own notes mean. The authors' explanation of what their own handwriting means would seem to be at least relevant to the discussion. But, surprisingly, General Drummond has not even asked the prosecutors what their notes mean.

Here's the story of behind Drummond's remarkable lack of curiosity: Read More

10/2/1967: Justice Thurgood Marshall takes the oath.

UPDATE: I had originally said "general literature," and many readers interpreted that as including nonfiction. I've updated this to "general fiction"; I'll have a query for nonfiction next week.

Politics

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ATF declares that its Final Rule at issue before the Supreme Court in Garland v. VanDerStok "will enhance public safety by helping to ensure that more firearms may be traced by law enforcement to solve crime and arrest the perpetrators." Radically expanding the definition of "firearm" from what Congress enacted is allegedly justified by the policy argument that the agency will be able to "trace" more firearms. Whether that will solve more crimes is a big "if."

We're all familiar with the spiel. A criminal leaves his gun at a "crime scene" (how often does that happen?) but gets away, unidentified. Police find the gun and ask ATF to trace it. The gun is engraved with the manufacturer's name and serial number. ATF starts with the manufacturer and, using the records kept by federal licensees, traces the gun to its retail purchaser. And voilà, the criminal is identified and arrested.

But now the sky is falling. ATF insists that its Final Rule is the Ghost Buster for "ghost guns," a propaganda term used to describe privately-made firearms. Unless the kits from which hobbyists make their own guns are declared to be "firearms," their homemade guns won't be traceable. Criminals who lose their guns at "crime scenes" won't be caught.

After years of ATF exaggerating the usefulness of tracing, Congress enacted a law in 2013 requiring ATF to "make clear that trace data cannot be used to draw broad conclusions about firearms-related crime" by including in its releases of information the following language: "Law enforcement agencies may request firearms traces for any reason, and those reasons are not necessarily reported to the Federal Government. Not all firearms used in crime are traced and not all firearms traced are used in crime."

Consider the disconnect. ATF traces all firearms it encounters. A person is subject to a domestic violence restraining order and ATF learns that he has a very large gun collection. They raid his house, seize all 200 of his guns, and then trace them. That goes down as 200 "crime guns" seized at a "crime scene" that have nothing to do with his offense of mere possession while subject to the order.
As explained in my two previous posts (here and here), Congress defines a "firearm" as a weapon "which will or is designed to or may readily be converted to expel a projectile by the action of an explosive" or "the frame or receiver of any such weapon." ATF's Final Rule expands that definition to include partially-machined raw material, information, jigs, and tools that sufficiently-skilled persons may fabricate into a firearm. Whether ATF has such authority is the issue before the Court in VanDerStok.

One of the superior amici briefs filed in the case is that of the Citizens Committee for the Right to Keep and Bear Arms, authored by Dan Peterson and C. D. Michel. I'll cover some of the highlights in that brief and offer some additional material in the following remarks.

Only licensed manufacturers and importers who are "engaged in the business" are required by the Gun Control Act (GCA) to identify and serialize firearms. 18 U.S.C. § 923(i). Hobbyists are free lawfully to craft their own guns without these requirements. ATF claims that the resultant "ghost guns" cannot be traced, thus requiring the non-gun materials that hobbyists use to make guns be redefined as guns.

But the GCA, as amended by the Firearm Owners' Protection Act, sharply delineates licensees from private individuals. While ATF may inspect licensed dealer records "in the course of a bona fide criminal investigation," it is prohibited from establishing "any system of registration of firearms, firearms owners, or firearms transactions." 18 U.S.C. §§ 923(g) & 926(a).

Nevertheless, ATF has been on a crusade to trace all firearms that law enforcement encounters, and its attack on privately-made firearms is only the latest stage in this endeavor. The Final Rule, ATF urges, is necessary to address an "urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms commonly called 'ghost guns.'"

Let's test this claim with reality. New Jersey is one of the states that traces every firearm it encounters, to include the .22 rifle a widow abandons at a police station. Not exactly a crime scene.

In 2022, New Jersey criminalized the purchase of a parts kit not made by a licensed manufacturer with a serial number. ATF trace data for New Jersey that same year shows 5,248 firearm traces, of which 3,824 – 73% – were for "possession of weapon" and "found firearm." Keep in mind that the Garden State makes possession per se without the right papers a crime. How many of these were privately-made firearms? Only 67 traces were for "homicide" and 132 for "aggravated assault." As to firearms seized from the possessor, how did tracing solve any crime?

The Citizens Committee brief goes on point by point in explaining why tracing isn't what it's cut out to be and how meaningless is the supposed data on "ghost guns." First, a trace only leads to the first retail purchaser, if that person can be located. Without evidence, no reason exists to consider that person a "suspect" in whatever the crime is. And after that first purchase, the gun may have been inherited, given as a gift, sold, lost, or stolen.

Second, criminals don't typically buy guns from a licensed dealer, and thus their acquisitions cannot be traced. Where do criminals get their guns? Out of 24,848 prison inmates surveyed, a Bureau of Justice Statistics study Source and Use of Firearms Involved in Crimes (2019) reported:

Off the street/underground market: 43.2%

Obtained from individual: 25.3%

Theft: 6.4%

Purchased/traded at retail source: 10.1% [only 6.9% under one's real name]

Other sources: 17.4%

The study made no mention of any of the firearms being made from kits. Multiple studies of the sources from which criminals get their guns, going back to the 1980s, report similar results.

Third, evidence does not support the government's argument of an "urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms…." Let's compare some numbers. There are an estimated 500 million firearms in private hands in the United States. The types of kits that hobbyists most often make into firearms are for AR-15 rifle types and handguns similar to Glocks. ATF data shows that about two and a half million Glocks were introduced into commerce between 2016 and 2022. According to the National Shooting Sports Association, there were 24 million+ modern sporting rifles (mostly AR-types) in American civilian circulation as of 2020.

Compare those numbers with the 19,000 privately-made firearms alleged to have been traced in 2021. That's hardly a drop in the bucket. And consider this further finding by Congress in the 2013 law cited above: "Firearms selected for tracing are not chosen for purposes of determining which types, makes, or models of firearms are used for illicit purposes. The firearms selected do not constitute a random sample and should not be considered representative of the larger universe of all firearms used by criminals, or any subset of that universe."

Other than the numbers of privately-made firearms traced, no information exists as to why they were traced. ATF has raided companies that market kits and presumably seized their inventory, which could jack-up the statistics dramatically. Eleven states and the District of Columbia restrict privately-made firearms, so traces generated in those places may reflect mere possessory offenses.

Based on unverified media accounts, Everytown for Gun Safety Foundation lists 187 alleged "shootings" with "ghost guns" between 2013 and 2024, for an average of about 15 per year. But the data include accidents and suicides, not just assaults. In any event, 15 shootings per year are a miniscule fraction of the tens of thousands of traces of "ghost guns" now being reported by ATF annually.

This is not the first time ATF has manipulated trace data for political ends. In the 1990s, in order to justify a ban on "assault weapons," it was charged with creating the impression that criminals prefer them. Its Forward Tracing Program entailed getting information from manufacturers on the subject firearms and "tracing" them to the retail dealers. Then they told the public that the designated firearms were disproportionately used in crime based on them being traced so much. I document this cooking of the books in America's Rifle, chapter 14.

It goes without saying that the issue before the Supreme Court in VanDerStok is purely legal: does ATF have authority to expand the definition of "firearm" enacted by Congress and thereby to criminalize activity that Congress did not make unlawful? Contrary to government claims, there is no "urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms…." But even if there is, it's a matter for Congress, not the agency, to address.

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Today our team submitted an amicus brief in United States v. Trump before the Eleventh Circuit. This case is an appeal from Judge Cannon's decision declaring the appointment of the Special Counsel to be unlawful. Our brief was filed on behalf of Robert Ray, Professor Seth Barrett Tillman, and the Landmark Legal Foundation. We are grateful to Michael A. Sasso for serving as local counsel.

Tillman and Landmark joined our District Court brief. We are honored that Ray joined our effort on appeal. Ray served as one of the last Independent Counsels, replacing Kenneth W. Starr in October 1999, and was in charge of the Whitewater and Monica Lewinsky investigations. He concluded the investigations by March 2002 with the decision not to prosecute President Clinton once he left office.

Our brief makes four primary arguments:

The District Court correctly dismissed the indictment. Amici advance four rationales to support the judgment below.

First, from the 1850s through the 1950s, during six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: to assist a U.S. Attorney with prosecutions, or to assist the Attorney General with an investigation. Josh Blackman, A Historical Record of Special Counsels Before Watergate (2024), https://papers.ssrn.com/abstract=4970972 (hereinafter"A Historical Record"). And the Watergate Special Prosecutor is a thin reed to stand on. United States v. Nixon expressly and repeatedly recognized that the Watergate Special Prosecutor had "unique authority and tenure." 418 U.S. 683, 694 (1974). Further, in 1973, the Acting Attorney General, with the acquiescence of the President, granted the Special Prosecutor unsurpassed insulation against removal. Apart from those compromises, this insulation would be inconsistent with Bowsher v. Synar. 478 U.S. 714 (1986). Whether the Nixon analysis is holding or dicta, it is not controlling, and it should not be extended to today's context under today's statutory and regulatory framework.

Second, Special Counsel Jack Smith ("Smith") cannot rely on the permanent indefinite appropriation found in a "note" to 28 U.S.C. §591. In 2004, the Government Accountability Office determined that this appropriation can be used for "investigat[ing] and prosecut[ing] high ranking government officials." GAO, Special Counsel and Permanent Indefinite Appropriation, B-302582, 2004 WL 2213560, at *4 (Comp. Gen. Sept. 30, 2004). But Trump was not a "high ranking" official when he was indicted, and all the alleged conduct took place after he was out of office. In these circumstances, the funding mechanism in Section 591's note cannot be used to pay Smith.

Third, Supreme Court precedent distinguishes between officers and employees. An "Officer of the United States" position must have a duration that is continuous. Though Smith's prosecution has already continued for several years, and his duties are regular, his position is not continuous, because his extant position would not continue to a successor. Morrison v. Olson, 487 U.S. 654, 672 (1988). At most, Smith is a mere "employee" who cannot exercise the sweeping powers of a Senate-confirmed U.S. Attorney.

Finally, Amici have properly preserved for review by the Supreme Court the question of whether Morrison v. Olson should be overruled.

The Special Counsel, like the Independent Counsel, still comes as a wolf. Id. at 699 (Scalia, J., dissenting).

We look forward to this litigation proceeding.

I have posted to SSRN a new article titled, A Historical Record of Special Counsels Before Watergate. This Article is based on some extensive research into more than a dozen different archives. This Article is also relevant to the ongoing litigation over the Special Counsel, which I will address shortly.

Here is the abstract:

This Article presents a corpus of primary sources that were written by Presidents, Attorneys General, United States Attorneys, Special Counsels, and others between the 1850s and the 1950s. This corpus reproduces primary sources from more than a dozen archives to present a better legal account showing how Special Counsels were retained by Attorneys General under Presidents Buchanan, Andrew Johnson, Grant, Garfield, Theodore Roosevelt, and Truman.

During these six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: (1) to assist a U.S. Attorney with prosecutions, or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a Special Counsel, and then delegate to him the powers now claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. Attorney.

There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome Scandal defendants. These Special Counsels were afforded "total independence." It is doubtful that these positions would be consistent with the Supreme Court's modern separation of powers jurisprudence.

This practice shows that the positions of special counsels in the post-Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with.

I welcome comments and feedback!

I previously posted about my draft chapter on "Land-Use Regulation" for the forthcoming forthcoming Routledge Handbook on Classical Liberalism (edited by Richard Epstein, Liya Palagashvili, and Mario Rizzo). It is now available on SSRN. Two other draft chapters for this book are also now up on SSRN: "Education," by Williamson Evers (Director of the Center on Educational Excellence at the Independent Institute), and "Classical Liberalism and Corporate Law," by Robert T. Miller (University of Iowa).

Here's the abstract for the education chapter:

This chapter contends that classical liberal reform of K–12 and higher education would restore liberty and efficacy to all participants. It discusses the pros and cons of public and private provision of K–12 education. It describes the movement from highly local control to increased centralization. The article discusses how the organizational format of K–12 education came about historically, with particular emphasis on the influence of millennialism and its secular successor Progressivism. It shows that Progressivism in educational policy was also influenced by the example of Prussia. The chapter describes teacher-union power and discusses in particular the cases of African American education and Catholic schools. It examines the classical liberal K–12 reforms of pluralism, demonopolization, and parental choice.

Section 3 lays out higher education's array of subsidies and its poor incentive structure. The government is quite often inserted between colleges and students. As with K–12 education, the chapter discusses how the institutional organization of higher education came about historically. It relates what classical liberals have said about professorial tenure. It portrays the increasingly illiberal milieu in institutions of higher learning. The section proposes removing direct subsidies and relying mainly on student tuition payments.

The chapter offers a great overview of both libertarian/classical liberal critiques of conventional government-controlled education, and internal disagreements among libertarians over education policy (e.g. - between those who advocate total privatization and those who support state-subsidized school vouchers). If you want a relatively short but thorough summary of libertarian perspectives on education, this is the place to go.

If I have a reservation, it's that I wish the author had paid more attention to the argument that government control and/or funding of education is needed to increase voters' political knowledge. Voter knowledge of government and public policy is a public good that the market is likely to underprovide. This is an important standard rationale for state intervention in education. I offer some reservations about it in Chapter 7 of my book Democracy and Political Ignorance, and in a more recent book chapter. But the topic is, I think, due for a more extensive reconsideration.

I cannot say much about the corporate law chapter, because it is too far removed my areas of expertise. But it seems a valuable overview of its topic, as well.

I wanted to specially note this Digitalist Papers essay by my Hoover colleague, economist (indeed, Grumpy Economist) John Cochrane; I'm somewhat more worried than he is, but I thought his perspective was interesting and worth noting. Here's the Conclusion:

As a concrete example of the kind of thinking I argue against, Daron Acemoglu writes,

We must remember that existing social and economic relations are exceedingly complex. When they are disrupted, all kinds of unforeseen consequences can follow…

We urgently need to pay greater attention to how the next wave of disruptive innovation could affect our social, democratic, and civic institutions. Getting the most out of creative destruction requires a proper balance between pro-innovation public policies and democratic input. If we leave it to tech entrepreneurs to safeguard our institutions, we risk more destruction than we bargained for….

The first paragraph is correct. But the logical implication is the converse—if relations are "complex" and consequences "unforeseen," the machinery of our political and regulatory state is incapable of doing anything about it. The second paragraph epitomizes the fuzzy thinking of passive voice. Who is this "we"? How much more "attention" can AI get than the mass of speculation in which we (this time I mean literally we) are engaged? Who does this "getting"?

Artificial Intelligence

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From a Justice Department statement yesterday (all redactions in original)

A Somerset County, New Jersey, man was sentenced today to time served—64 months—for concealing his attempts to provide material support to Hamas …. Jonathan Xie, 25, of Basking Ridge, New Jersey, previously pleaded guilty ….

According to documents filed in this case and statements made in court:

Xie knowingly concealed and disguised the nature, location, source, ownership and control of his attempt to provide material support and resources to Harakat alMuqawamah al-Islamiyya and the Islamic Resistance Movement, an organization that is commonly referred to as Hamas. Xie admitted that he knew Hamas was a designated foreign terrorist organization and has engaged in terrorist activities. He said he attempted to conceal his attempted support believing it would be used to commit or assist in the commission of a violent act.

In December 2018, Xie sent $100 via Moneygram to an individual in Gaza who Xie believed to be a member of the Al-Qassam Brigades—a faction of Hamas that has conducted attacks, to include suicide bombings against civilian targets inside Israel. At approximately the same time that Xie sent the money, he posted on his Instagram account "Just donated $100 to Hamas. Pretty sure it was illegal but I don't give a damn."

In April 2019, Xie appeared in an Instagram Live video wearing a black ski mask and stated that he was against Zionism and the neo-liberal establishment. When asked by another participant in the video if he would go to Gaza and join Hamas, Xie stated "yes, If I could find a way." Later in the video, Xie displayed a Hamas flag and retrieved a handgun. He then stated "I'm gonna go to the [expletive] pro-Israel march and I'm going to shoot everybody."

Free Speech

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Politics

Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom "Brady Violation" and Got Supreme Court Review (Part I)

Glossip alleges that his prosecutors withheld evidence at his murder trial—and the Oklahoma A.G. curiously supports his claim. But the prosecutors didn't withhold anything. And the victim's family remains enmeshed in decades of frivolous capital litigation that has now reached the Supreme Court.

Paul Cassell | 10.1.2024 8:45 AM

Next week the Supreme Court will hear oral argument in Glossip v. Oklahoma. Death row inmate Glossip claims that the prosecutors at his murder trial withheld evidence from him. In a curious twist, the State of Oklahoma has reversed its long-held position supporting Glossip's conviction and now joins Glossip. I have filed an amicus brief for the murder victim's family, presenting important facts about the case the parties have concealed from the Court. In this three-part series, I review the true facts of the case. Working together, Glossip and Oklahoma have concocted a phantom denial of evidence. In fact, the prosecutors never withheld any evidence from the defense. The Supreme Court should rapidly affirm the lower court's decision upholding Glossip's conviction and death sentence—and help bring the victim's family closer to closure after more than two decades of litigation.

In this first post, I demonstrate that the alleged violation of Brady v. Maryland (requiring the State to provide exculpatory evidence to a defendant) simply never happened. The evidence that Glossip alleges prosecutors withheld was, in fact, fully known to the defense, as my amicus brief explains. Tomorrow, in the second post, I will review Glossip's and Oklahoma's (non)responses to this decisive point. Their silence in briefing before the Court is powerful support for my position. Finally, in the last post, I draw some broader conclusions about non-adversarial litigation such as this one. This case presents a cautionary tale about the dangers of courts simply accepting an elected prosecutor's confession of "error," which may be politically motivated.

The story begins on January 7, 1997, when authorities found the slain body of Barry Van Treese in a motel located in Oklahoma City that he owned. Van Treese had been missing for several hours that day. The subsequent search for Van Treese consumed everyone associated with the motel … everyone, that is, except Richard Glossip.

Glossip managed the motel and had allowed it to fall into disrepair in the latter months of 1996. Additionally, Van Treese and his wife, Donna, suspected that Glossip was embezzling money. Van Treese had planned on confronting Glossip about these issues on January 6, 1997. But Glossip said that encounter never happened. Instead, Glossip maintained that Van Treese was his normal self on that day.

As police were searching for Van Treese the next day, suspicion quickly fell on Glossip, who provided conflicting statements and sent investigators on false leads. Later, a friend of Glossip's—Justin Sneed—would confess that he (Sneed) had murdered Van Treese and that Glossip had commissioned him to commit the murder. In 1998, a jury convicted Glossip and he was sentenced to death. After reversal of that conviction for ineffective assistance of counsel, in 2004 a jury again found Glossip guilty and he was sentenced to death based on testimony from Sneed and other witnesses. The judge who presided over the trial found Sneed "to be a credible witness on the stand," as quoted at p. 46 of the 2022 State's Submission to Parole Board. At sentencing, another judge echoed this conclusion, saying to Glossip: "I would say that after observing the witnesses and hearing the testimony I have absolute confidence in the decision the jury reached, both to convict you, to find the aggravators and to impose the sentence of death," as quoted at p. 48 of the same 2022 submission.

In 2007, the Oklahoma Court of Criminal Appeals ("OCCA") affirmed Glossip's conviction and sentence, rejecting Glossip's claim that the evidence only proved his was an accessory after the fact. In the years since, courts have rejected multiple challenges by Glossip to his conviction and death sentence.

Nearly two decades later, Oklahoma was preparing to execute Glossip when a new Attorney General, Gentner Drummond, was elected. Shortly after assuming office in January 2023, and apparently sensing political opportunity, the new Attorney General hastily commissioned an "independent" review of Glossip's conviction. Conveniently, General Drummond hired Rex Duncan, his lifelong friend and a political supporter who possessed limited experience in capital litigation. Duncan suddenly discovered "new" evidence the prosecution had purportedly concealed from the defense.

As the tale is told in Glossip's and Oklahoma's briefs before the Supreme Court, the trial prosecutors withheld from Glossip's defense team information about Sneed's lithium usage and related psychiatric care. This story rests on an interpretation of notes the prosecutors took during a pretrial interview of Sneed. Specifically, General Drummond asserts that the handwritten notes indicated that Sneed told the prosecutors "that he was 'on lithium' not by mistake, but in connection with a 'Dr. Trumpet.'"

Before the Oklahoma Court of Criminal Appeals (the "OCCA"), Oklahoma's highest court on criminal issues, five judges considered General Drummond's confession of error and were unimpressed. In April 2023, in a detailed opinion, the OCCA unanimously concluded that the Attorney General's concession was "not based in law or fact."

In May 2023, Glossip sought certiorari, supported by Attorney General Drummond. The Court re-listed Glossip's petition twelve times through the end of 2023.

In January 2024, the Supreme Court granted certiorari to review questions relating to the Court's jurisdiction and the implications of "the State's suppression" of Sneed's "admission he was under the care of a psychiatrist …." Because no one was defending the OCCA's judgment below, the Court appointed Chris Michel, a very capable appellate lawyer in Washington, D.C., to defend it as Court-appointed amicus.

The Supreme Court lacks jurisdiction in this case, for the reasons explained in briefs by the Court-appointed amicus, Utah and six other states, and the Criminal Justice Legal Foundation. But more important, Glossip's conviction should be affirmed because the prosecutors never suppressed anything.

Here's what really happened during the prosecutors' interview of Sneed two decades ago: On October 22, 2003, before Glossip's retrial, prosecutors Connie Smothermon and Gary Ackley interviewed Sneed, with Sneed's counsel present. Smothermon and Ackley both took notes. Read in context, the notes show that Sneed told the group that members of Glossip's defense team had previously visited him (Sneed) and questioned him about being "on lithium?" and a "Dr[.] Trumpet?" Smothermon and Ackley simply took notes recording what Sneed recounted about questions from Glossip's own defense team!

Turning first to Smothermon's notes, General Drummond argues that the prosecutor had "taken handwritten notes confirming her knowledge of Sneed's diagnosis and treatment"—e.g., treatment for a psychiatric condition by lithium by a Dr. Trumpet. But General Drummond fails to quote Smothermon's notes accurately, much less discuss their context or meaning in any detail. Smothermon's note regarding lithium contains a question mark—e.g., her note reads, "on lithium?" And her related note about "Dr[.] Trumpet" likewise contains a question mark. You can see the notes in question in the image below—with "on lithium?" and "Dr[.] Trumpet?" flagged with black arrows:

Stepping back to examine the surrounding context of these two notes reveals that Smothermon was simply recording Sneed recounting what Glossip's defense team was questioning him (Sneed) about—hence, the two question marks reflecting questions being asked. Smothermon's adjoining notes reflect two visits ("2X") by defense representatives—with notes about the two visits separated by a curving line. Read More

Free Speech

MSNBC Pundit's Tweet Accusing Lawyer of "Coach[ing a Witness] to Lie" Is a Potentially Defamatory Factual Assertion, Not an Opinion

Plaintiff (Stefan Passantino, Cassidy Hutchinson's former lawyer) may thus eventually prevail, if the claim is shown to be false, and if the defendant is shown to have spoken with "actual malice" (if plaintiff is a public figure) or negligently (if plaintiff is a private figure).

Eugene Volokh | 10.1.2024 8:01 AM

From Judge Loren L. AliKhan's decision yesterday in Passantino v. Weissmann (D.D.C.):

The following factual allegations drawn from Mr. Passantino's complaint, are accepted as true for the purpose of evaluating the motion before the court. Mr. Passantino has been a lawyer for more than thirty years. In 2017 and 2018, he served as a senior lawyer in the Trump administration. Since then, he has been in private practice.

Following the attack on the U.S. Capitol on January 6, 2021, the House of Representatives established a Select Committee to investigate what had happened. As part of its investigation, the Select Committee interviewed numerous witnesses, including Cassidy Hutchinson, a former special assistant to President Trump who had been serving under the direction of White House Chief of Staff Mark Meadows on January 6, 2021.

Mr. Passantino represented Ms. Hutchinson at her first three closed-door Select Committee depositions on February 23, March 7, and May 17, 2022. While the complaint does not specify exactly when this occurred, Ms. Hutchinson sent text messages to a friend expressing that she "d[idn]'t want to comply" with the Committee's requests. In the same conversation, however, she noted that "Stefan [Passantino] want[ed] [her] to comply."

Following the second deposition, Ms. Hutchinson felt that she had "withheld things" from the Select Committee and wanted to "go in and … elaborate … and kind of expand" on some topics. Unbeknownst to Mr. Passantino, Ms. Hutchinson asked a friend to "back channel to the committee and say that there [were] a few things that [she] want[ed] to talk about." While Ms. Hutchinson deliberately kept this from Mr. Passantino, she explained at a future deposition that, at that time, she "wasn't at a place where [she] wanted to terminate [her] attorney-client relationship with [Mr. Passantino]."

Free Speech Libel

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The Volokh Conspiracy

Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom "Brady Violation" and Got Supreme Court Review (Part III)

Insulting Anti-Gay Preaching at PrideFest Event May Have Been Protected by the First Amendment

Today in Supreme Court History: October 3, 1990

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Judge Blocks California Law Restricting "Materially Deceptive" Election-Related Deepfakes

"Stalking" a Child or Being at the Same School Event with One's Own Children?

"[T]his Is a Matter of Law, Not of Wounded Feelings": Univ. of Maryland May Not Ban All Oct. 7 Demonstrations …

Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom "Brady Violation" and Got Supreme Court Review (Part II)

Today in Supreme Court History: October 2, 1967

Tuesday Media Recommendations: General Fiction (not Historical, SF, Fantasy, Mystery, or Detective)

Second Amendment Roundup: ATF's Wish to Trace More Firearms Doesn't Justify Redefining "Firearm"

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New Article: A Historical Record of Special Counsels Before Watergate

Draft Chapters on Education and Corporate Law for the Forthcoming Routledge Handbook of Classical Liberalism

"AI, Society, and Democracy: Just Relax"

5 Years in Prison for "Concealing Material Support to Hamas"

Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom "Brady Violation" and Got Supreme Court Review (Part I)

MSNBC Pundit's Tweet Accusing Lawyer of "Coach[ing a Witness] to Lie" Is a Potentially Defamatory Factual Assertion, Not an Opinion

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