I saw this new article by Prof. Richard Re, a leading scholar of federal courts law and my former UCLA colleague, and asked him if he would guest-blog about it; I'm delighted to say that he kindly agreed. Here's the abstract:
Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries."
As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing.
Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal justices become jurisdictionally hawkish. In the past, justices who found themselves out of power have often tried to tighten justiciability principles. So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.
Muhammad al-Ghamdi, a 54-year-old retired Saudi teacher, was sentenced "following 5 tweets criticizing corruption and human rights violations," his brother Saeed bin Nasser al-Ghamdi tweeted last week.
According to Human Rights Watch, Muhammad al-Ghamdi was arrested last year and given little access to a lawyer before his conviction in July "under article 30 of Saudi Arabia's counterterrorism law for 'describing the King or the Crown Prince in a way that undermines religion or justice,' article 34 for 'supporting a terrorist ideology,' article 43 for 'communication with a terrorist entity,' and article 44 for publishing false news 'with the intention of executing a terrorist crime.'" …
This post is a list of my upcoming speaking engagements for the Fall 2023 semester. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.
I may add additional events and information to this post, over time.
In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business! You can get an overview of the issues I write and speak about at my website.
Sept. 7, 4-5:40 PM, University of Virginia School of Law (virtual event): Live Taboo Trades podcast on "My Body, My Choice" issues. With Prof. Kim Krawiec (Univ. of Virginia). I believe participation is limited to U of Virginia law school students, possibly only those participating in the relevant class.
Sept. 18, 5-6:30 PM, George Mason University, Fairfax, VA. Horizon Hall 2017: "Immigration and Political Ignorance." Sponsored by the Schar School Jurisprudence Learning Community and the International Relations Policy Task Force.
Sept. 21, 12:30-2, Duke Law School, Durham, NC, Rm. 3037: "Unpacking Judicial Reform in Israel." Sponsored by the Duke Law School Federalist Society. Additional information here.
Sept. 27, 1:10-2:50 PM, New York University School of Law, Greenberg Lounge, Vanderbilt Hall: Title TBA, Supreme Court (P)Review Forum. With Melissa Arbus Sherry (Latham and Watkins), Abbie Vansickle (NY Times), and Prof. Melissa Murray (NYU). Description and RSVP information available here.
Oct. 4, 12-1:15 PM, Georgetown University Law Center, Washington, DC, McDonough Rm. 164: "Reforming Supreme Court Ethics." With Prof. Caroline Frederickson (Georgetown). Sponsored by the Georgetown Federalist Society.
Oct. 5, 12:30-1:30 PM, Vanderbilt Law School, Nashville, TN, Moore Room: "The Meaning of 'Property' Under the Takings Clause," (with Prof. Christopher Serkin, Vanderbilt). Sponsored by the Vanderbilt Federalist Society.
Oct. 17, 12-1:00 PM, Scalia Law School, Rm. 120, George Mason University, Arlington, VA: "Has the Supreme Court Gone Rogue? Debating Supreme Court Politicization," Debate with Prof. Eric Segall (Georgia State University). Sponsored by the George Mason University American Constitution Society, and the George Mason University Federalist Society.
Oct. 24, 12-1:15 PM (tentative time), William and Mary Law School, Williamsburg, VA: "Racial Preferences After Harvard v. SFFA." Sponsored by the William and Mary Federalist Society.
Oct. 25, time TBA, Pacific Legal Foundation symposium on "Rethinking Penn Central," Williamsburg, VA: "The Constitutional Case Against Exclusionary Zoning" (with Prof. Joshua Braver, University of Wisconsin). Tentative title.
Oct. 30, University of Minnesota Law School, Walter F. Mondale Hall 25, time TBA: Title TBA. Conference on "Section 3, Insurrection, and the 2024 Election: Does the Fourteenth Amendment Bar Donald Trump from the Presidency?" List of participants and other information available here.
Nov. 17, time TBA, University of Houston Law Center, Houston Texas: "Foot Voting and Hispanic Migration." Frenkel Lecture. Tentative title.
In the fourth part of this coverage of the sexual misconduct allegations against ex-George Mason University law professor and former FTC Commissioner Joshua Wright (part 1 with Prof. Christa Laser is here, part 2 with Prof. Brandy Wagstaff here, and part 3 with Aliza Shatzman here), I have a conversation with Dilan Esper, an experienced litigator in areas that include defamation law and the First Amendment. Dilan walks listeners through Josh's highly unusual defamation legal complaint against two of the women who accused Josh of misconduct, Elyse Dorsey and Angela Landry.
Dilan and I focus on some of the most controversial parts of this legal document, and Dilan explains how Josh likely fails to meet the standard to get past a defendant motion to dismiss. Dilan also shows why things will probably get even worse for Josh if he does make it past such a motion, quite possibly resulting in more damaging materials and testimony appearing during the discovery process.
Come find out why Dilan says that despite reading thousands of complaints in his career, Josh's complaint is unmatched in the extent to which it opens a window into a man's dark soul.
Note: According to a statement printed in the media by Lindsay McKasson, counsel to Joshua Wright at Binall Law Group "all allegations of sexual misconduct are false," "These false allegations are being made public after unsuccessfully demanding millions of dollars behind closed doors," and "We look forward to total vindication in court." According to a tweet by Prof. Christa Laser, "I don't appreciate that his attorney falsely suggests we are all lying (1/2 was in writing!) & want $ (this is a lie–I only want him gone)."
The case was filed by 20 red states seeking to dismantle the CNVH program extending the successful Uniting for Ukraine policy to migrants fleeing Cuba, Nicaragua, Venezuela, and Haiti.
Judge Drew Tipton of the U.S. District Court for the Southern District of Texas is in the process of considering an important immigration lawsuit that could have tragic effects if the plaintiffs prevail. The trial, which ran between Aug. 24 and 25, involves an ill-conceived lawsuit brought by Texas and nineteen other GOP-controlled state governments attempting to shut down an immigration policy that simultaneously rescues people fleeing violence and oppression and relieves pressure on the southern border. Ironically, statements by the plaintiff states' own leaders show why they deserve to lose.
The legal basis for these private sponsorship programs is the 1952 Immigration and Nationality Act, which…. gives the Department of Homeland Security the power to use "parole" to grant foreign citizens temporary residency rights in the United States "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." Here, we have both "urgent humanitarian reasons" and "significant public benefit."
The humanitarian need is undeniable. Three of the four nations included in the program — Cuba, Nicaragua, and Venezuela — are ruled by oppressive socialist dictators, whose policies have created horrific conditions. Few have put it better than Florida Gov. Ron DeSantis (R), whose state is one of the plaintiffs in the present case.
As he said last year, Venezuela's socialist president Nicolas Maduro is a "murderous tyrant" who "is responsible for countless atrocities and has driven Venezuela into the ground." Venezuelan oppression and socialist economic policies have created the biggest refugee crisis in the history of the Western hemisphere….
In 2021, DeSantis rightly described Cuba's communist regime as responsible for "poverty, starvation, migration, systemic lethal violence, and suppression of speech…."
The CNVH program also creates a significant "public benefit." In December, Texas Gov. Greg Abbott sent a public letter to President Biden urging him to immediately address what he called a "terrible crisis for border communities."
CNVH parole does exactly that. Many of the migrants seeking entry at the border came from the four nations covered by program. Parole enables them to instead enter with advance authorization by ship or plane, and thereby bypass the border entirely, thus alleviating the "crisis" of which Abbot complained. A report by the conservative Manhattan Institute finds that "[t]he CHNV parole program…. has reduced combined illegal immigration by more than 98,000 immigrants per month…."
If the states prevail in this case, it will have dire consequences going far beyond the CNVH program. It would also imperil Uniting for Ukraine, which relies on the same authority, and has granted entry to some 140,000 Ukrainians fleeing Russia's war of aggression.
In addition, it would make it difficult or impossible for presidents to use parole to aid migrants fleeing future wars and repressive regimes. This harms both migrants unable to escape awful conditions, and the U.S. economy… It also undermines the U.S. position in the international war of ideas of against oppressive dictatorships, like those of Cuba, Russia and Venezuela.
Welcoming migrants fleeing their governments is a powerful signal of the superiority of ours. Conservatives understood this point during the Cold War, when they supported the use of this same parole power to grant entry to Hungarian, Cuban, Vietnamese and other refugees from communism.
The article is partly based on an amicus brief I filed in the case on behalf of the Cato Institute, MedGlobal (a humanitarian medical organization), and myself.
On Thursday, a federal district court in Florida concluded that voters lack standing to challenge Donald Trump's eligibility to appear on the Republican primary ballot. The plaintiffs had sought to advance the claim that Trump is ineligible to serve as President under Section 3 of the 14th Amendment due to his conduct on and around January 6. As I noted here, such claims face many obstacles, of which Article III standing is but one.
Here, Plaintiffs lack standing to challenge Defendant's qualifications for seeking the Presidency, as the injuries alleged are not cognizable and not particular to them. Plaintiffs allege that they have standing because Plaintiff Caplan has actively participated in the last twelve Presidential elections, voted for both Republicans and Democrats, is a Florida resident and United States citizen, is an attorney and member of various courts, and has never been sanctioned. DE 1 at 2. Plaintiffs further allege that Plaintiff Butin is a Florida resident and United States citizen and Plaintiff Strianese is a Nevada resident and United States citizen. Id. Plaintiffs allege they will suffer injury if Defendant is allowed to run for President and prevail when he could be disqualified or removed from office. Id. at 2-3. However, an individual citizen does not have standing to challenge whether another individual is qualified to hold public office. See, e.g., Kerchner, 612 F.3d at 207; Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009).
In Berg, the plaintiff, an attorney representing himself, filed a complaint seeking declaratory and injunctive relief in district court before the 2008 Presidential election, alleging that then-candidate Barack Obama was ineligible to run for President because he was not a "natural born citizen" within the meaning of Article II. Berg, 586 F.3d at 237. The district court observed that "[s]tanding has been a consistent barrier to lower courts hearing generalized, undifferentiated claims by voters and citizens," and noted various cases in which citizens attempted to challenge a Presidential candidate's eligibility for office or other governmental actions but lacked standing. . . . The court concluded that an alleged injury "stemming from a presidential candidate's failure to satisfy the eligibility requirements of the Natural Born Citizen Clause is not concrete or particularized enough to constitute an injury in fact sufficient to satisfy Article III standing." Berg, 574 F. Supp. 2d at 518.
The Third Circuit affirmed the district court's rulings in Berg and reiterated that the plaintiff "suffered no injury particularized to him" and, therefore, lacked standing. Berg, 586 F.3d at 239. Courts throughout the United States have uniformly concluded that citizens do not have standing to bring lawsuits challenging a candidate's eligibility for national office. See, e.g., Drake v. Obama, 664 F.3d 774, 778, 780-84 (9th Cir. 2011) (group of military personnel, state representatives, political candidates, and individual citizens did not have standing to challenge President Obama's eligibility to hold office); Chapman v. Obama, 719 F. App'x 13 (D.C. Cir. 2018) (per curiam) ("The district court correctly concluded that appellant lacked standing to challenge President Barack Obama's qualifications for holding office."); . . .
Further, at least two courts have concluded that citizens attempting to disqualify individuals from participating in elections or from holding office based on the January 6, 2021 events at the United States Capitol lacked standing. See, e.g., Stencil v. Johnson, 605 F. Supp. 3d 1109 (E.D. Wis. 2022). In Stencil, the plaintiffs sought a declaratory judgment that three members of Wisconsin's Congressional delegation were ineligible to serve under the Fourteenth Amendment because their participation in the January 6 attack constituted an insurrection against the United States. Id. at 111213. Among other things, the court determined that the plaintiffs lacked standing and explained that "[e]very citizen and voter could claim to have suffered the same injury as the plaintiffs here, which amounts to nothing more than engaging in political advocacy against candidates for office or issue advocacy against the views the candidates hold. The relief that the plaintiffs seek would no more directly and tangibly benefit them than it would the public at large." Id. at 1117. . . .
Plaintiffs in this case similarly lack standing and, thus, this Court lacks jurisdiction. Accordingly, the Court exercises its discretion under the Declaratory Judgment Act, along with its obligation to examine its own jurisdiction, to dismiss this case.
This case presents a constitutional challenge to Arkansas Act 689 of 2023, the "Social Media Safety Act" …, a new law that aims to protect minors from harms associated with the use of social media platforms. Act 689 … requires social media companies to verify the age of all account holders who reside in Arkansas. Self-reporting one's age (a common industry practice) is not sufficient; Arkansans must submit age-verifying documentation before accessing a social media platform.
Under Act 689, a "social media company," as defined in the Act, must outsource the age-verification process to a third-party vendor. A prospective user of social media must first prove their age by uploading a specified form of identification, such as a driver's license, to the third-party vendor's website. A verified adult may obtain a social media account. Minors, however, will be denied an account and prohibited from accessing social media platforms, unless a parent provides express consent—which will require more proof to confirm the parent's age, identity, and relationship to the minor….
The court held that the law likely violated the First Amendment:
Deciding whether Act 689 is content-based or content-neutral turns on the reasons the State gives for adopting the Act. First, the State argues that the more time a minor spends on social media, the more likely it is that the minor will suffer negative mental-health outcomes, including depression and anxiety. Second, the State points out that adult sexual predators on social media seek out minors and victimize them in various ways. Therefore, to the State, a law limiting access to social media platforms based on the user's age would be content-neutral and require only intermediate scrutiny.
On the other hand, the State points to certain speech-related content on social media that it maintains is harmful for children to view. Some of this content is not constitutionally protected speech, while other content, though potentially damaging or distressing, especially to younger minors, is likely protected nonetheless. Examples of this type of speech include depictions and discussions of violence or self-harming, information about dieting, so-called "bullying" speech, or speech targeting a speaker's physical appearance, race or ethnicity, sexual orientation, or gender. If the State's purpose is to restrict access to constitutionally protected speech based on the State's belief that such speech is harmful to minors, then arguably Act 689 would be subject to strict scrutiny.
From Texas Supreme Court Justice John Devine's dissent from denial of petition for writ of mandamus today in In re Hotze:
In our republican form of government, the relationship between citizens and their political representatives is sacred and constitutionally protected. "[T]he people are the sovereign," but they express their will and govern through their duly elected representatives. For that to happen, our elected representatives must be free to communicate and share information with their constituents. The freedom of political dialogue and association is of such "transcendent importance" to "the maintenance of democratic institutions" that the Texas Constitution expressly guarantees the right to speak, to assemble, and to petition our government. These bedrock principles of freedom are the foundation of an enduring democracy.
But at a historic moment for our great state, these rights are imperiled by rules adopted in connection with the impending impeachment trial of Warren Kenneth Paxton, Jr., the third-term Attorney General of the State of Texas. In an unprecedented move, the Senate, sitting as the "Court of Impeachment," has adopted Rule of Impeachment 10, which broadly prohibits political representatives from talking to their constituents about "any matter relating to the merits of the proceedings before the court of impeachment." In a corollary measure, Rule 10 also requires the presiding officer of the impeachment court to issue a "gag order." The presiding officer has complied by issuing an extremely broad suppressive order that threatens representatives with contempt, criminal confinement of up to six months, and monetary penalties. In effect, if not by design, the gag order chills our representatives from engaging in constitutionally protected attributes of our government….
Our Constitution grants an "inviolate" right to "speak … on any subject." At the very core of this protection lies political expression. Speech between constituents and their representatives about the merits of impeachment and removal is undoubtedly political. In many ways, it is archetypically political.
A N.J. judge has thrown out the lawsuit, on the narrow grounds that, even if the newspaper deliberately discouraged people from attending the group's charity gala, the N.J. Law Against Discrimination doesn't apply to charity galas.
In Arc Mercer, Inc. v. MediaNews Group, decided Wednesday by N.J. trial court judge Brian McLaughlin, Arc Mercer—"a non-profit organization serving the needs of the persons with developmental and intellectual disabilities"—sued the newspaper The Trentonian and one of its journalists under the N.J. Law Against Discrimination. To quote the court, the journalist, "alerted to the planned attendance of several prominent elected officials at a charity event held at a venue co-owned by an allegedly controversial figure, wrote a series of opinion articles critical of said elected officials" and likewise criticizing "Arc Mercer for hosting the gala at the venue."
Arc Mercer argued that this violated the LAD, because "Defendants unlawfully discriminated against Plaintiff by targeting Plaintiff on the basis of the disabilities of its consumers in order to incite others, and attempt to incite others, to refuse to do business with Plaintiff":
In 2022, Plaintiff, like multiple other businesses and politicians, chose to host its annual fundraising gala at [the restaurant and catering venue] the Stone Terrace…. [T]he Arc [believes it] is the only organization that has held an event at the Stone Terrace since June 2020 that had a client base of persons with developmental and intellectual disabilities….
On June 11, 2020, Joseph Russo, the head chef and partial owner of the Stone Terrace at the time, published statements on social media that were racially offensive. These statements included slurs towards Black Lives Matter, as well as calling George Floyd protesters "evil."
The Stone Terrace experienced a considerable backlash from the local community including protests and boycotting of the venue. John Henry and Catherine Henry, owners of the Stone Terrace, released a statement referring to Russo as their "former executive chef" and apologized for the offensive statements by Russo, and confirming that Russo's views did not reflect the Stone Terrace's views or policies, and that the Stone Terrace supports the Black Lives Matter Movement.
"The concept of using 'p**** so wet' as a rhetorical device in a song is neither original nor unique to Plaintiff, and, in any event, '[c]opyright does not protect ideas or themes.'"
The key passage, from Judge Andrew Carter's opinion Tuesday in Jones v. Atlantic Records(S.D.N.Y.) (all expurgation in original):
The Court finds that the short phrases over which Plaintiff seeks copyright protection are not protectable as a matter of law…. "Because songwriters must be free to borrow sayings and expressions from popular culture, the Second Circuit and courts in this district have found that short and commonplace phrases are not protectable, even when used as the title or repeated lyrics of a song…."
The lyrics over which Plaintiff asserts copyright protection are no more than common phrases, employed frequently in popular culture and other Hip-Hop songs. The concept of using "p**** so wet" as a rhetorical device in a song is neither original nor unique to Plaintiff, and, in any event, "[c]opyright does not protect ideas or themes." Indeed, Defendants have cited at least three examples of works pre-dating GEBTP which use similar lyrics.
Likewise, Defendants have provided examples of at least three songs pre-dating GEBTP which use some variation of the phrase "n****s wild'n". Where the only similarity between two works is not original to the author, a plaintiff's work is not protected by copyright, and thus is subject to dismissal….
Another passage, which is less central but struck me as amusing:
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
You want to hear something neat? Next month, IJ is going to argue before the Michigan Supreme Court—but not at the Michigan Supreme Court. Instead, oral argument will be held at a high school in Flint because sometimes—in cases of deep importance and keen public interest—the Michigan supremes take their show on the road. And indeed the question of whether officials who repeatedly flew a drone over private property in search of code violations should have first obtained a warrant is of great moment. Click here to learn more.
And speaking of neat, Georgia Public Radio has a story about IJ's latest eminent domain case, one which asks the question: is a taking by a private railroad, primarily to benefit a different private company, a public use?
From FIRE's letter sent yesterday to the Superintendent of Harrison School District Two in Colorado; I generally trust FIRE's factual accounts in such matters, and I think its legal analysis here is spot on:
The Foundation for Individual Rights and Expression (FIRE), a nonpartisan nonprofit dedicated to defending freedom of speech, is concerned by The Vanguard School's removal of student Jaiden Rodriguez from class for displaying Gadsden flag and Firearms Policy Coalition patches on his backpack. As over fifty years of Supreme Court precedent makes clear, the First Amendment protects Jaiden's silent, non-disruptive expression of his views at school. FIRE calls on Harrison School District Two and The Vanguard School to confirm they will permit Jaiden to attend school with the patches on his backpack without facing discipline or removal, and for the district to revise its unconstitutionally overbroad dress code.
The Vanguard School Removes Jaiden from Class for Displaying Gadsden Flag andFirearms Policy Coalition Patches on His Backpack
Jaiden Rodriguez is a seventh-grade student enrolled at The Vanguard School, a tuition-free public charter school within Harrison School District Two. {The narrative in this letter reflects our understanding of the pertinent facts, but we appreciate you may have more information and invite you to share it with us.} For two years, Jaiden has displayed various patches on his backpack without incident, including one depicting the Gadsden flag, which shows a coiled rattlesnake above the words "DONT TREAD ON ME." {The flag traditionally lacks an apostrophe in the word "don't." [Now that's a reason for banning it! -EV]} The flag was designed during the Revolutionary War and symbolized the American colonies' united resistance against the British monarchy.
Jaiden has also long displayed a Firearms Policy Coalition ("FPC") patch, which includes an image of a rifle. FPC is a nonprofit organization whose "efforts are focused on the right to keep and bear arms and adjacent issues including freedom of speech, due process, unlawful searches and seizures, separation of powers, asset forfeitures, privacy, encryption, and limited government."
In March 2018, the West Virginia Legislature enacted House Bill 4817 [the Parking Lot Amendments], which amended the BLPA to prohibit property owners from banning firearms in the parking lot areas of their properties ….
The Parking Lot Amendments also prohibit owners, lessees, or persons "charged with the care, custody, and control" over parking lots from "violat[ing] the privacy rights of a customer, employee, or invitee … [b]y verbal or written inquiry, regarding the presence or absence of a firearm locked inside or locked to a motor vehicle in a parking lot[.]" The court will refer to this section as the "Inquiry Provision." …
Subsection 61-7-14(d)(2)(C) prohibits the same individuals from taking "any action against a customer, employee, or invitee based upon verbal or written statements of any party concerning possession of a firearm stored inside a motor vehicle in a parking lot for lawful purposes, except upon statements made pertaining to unlawful purposes or threats of unlawful actions involving a firearm made in violation of § 61-6-24 [pertaining to threats of terrorist acts] of this code." The court will refer to this subsection as the "Take-No-Action Provision."
The court held that the Inquiry Provision violated the First Amendment, and that the Take-No-Action provision was unconstitutionally vague in part because of the possibility that it would be read as restricting speech as a form of action. The opinion is very long, so I thought I'd excerpt just portions of the free speech discussion (which I think is generally correct):
Previously, the BLPA [West Virginia's Business Liability Protection Act] allowed property owners to prohibit the open or concealed carry of a firearm anywhere on their properties …[:] "[A]ny owner, lessee or other person charged with the care, custody and control of real property may prohibit the carrying openly or concealing of any firearm or deadly weapon on property under his or her domain." …
In March 2018, the West Virginia Legislature enacted House Bill 4817 [the Parking Lot Amendments], which amended the BLPA to prohibit property owners from banning firearms in the parking lot areas of their properties …:
No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit any customer, employee, or invitee from possessing any legally owned firearm, when the firearm is
Lawfully possessed;
Out of view;
Locked inside or locked to a motor vehicle in a parking lot; and
When the customer, employee, or invitee is lawfully allowed to be present in that area….
No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit or attempt to prevent any customer, employee, or invitee from entering the parking lot of the person's place of business because the customer's, employee's, or invitee's motor vehicle contains a legal firearm being carried for lawful purposes that is out of view within the customer's, employee's, or invitee's motor vehicle….
The court will refer to [those provisions] collectively as the "No-Prohibition Provisions."
The decision provides important protection for property rights, and features a powerful concurring opinion by prominent conservative Judge Amal Thapar.
In many states, asset forfeiture laws allow law enforcement agencies to seize valuable property based on mere suspicion that it was used in a crime, and then keep it even if the owner was never convicted of any crime. On top of that, some force owners to wait many months before they even have a chance to challenge the forfeiture in a hearing. Yesterday, in Ingram v. Wayne County, the US Court of Appeals for the Sixth Circuit issued a decision holding that the Due Process Clause of the Fourteenth Amendment requires the government to give owners a hearing within two weeks, in at least some cases where their cars seized through asset forfeiture.
The ruling also features a compelling concurring opinion by Judge Amul Thapar, a prominent conservative jurist often considered a potential future Supreme Court nominee. Here's the majority's summary of their ruling (authored by Judge John K. Bush):
Plaintiffs allege the government of Wayne County, Michigan has a policy or practice of seizing and holding vehicles while taking months to decide whether to initiate forfeiture proceedings. Plaintiffs claim they were not provided an opportunity to be heard about the detention of their vehicles and that this failure violates the Due Process Clause of the Fourteenth Amendment. The district court held that plaintiffs are entitled to the requested hearing. We agree and hold that Wayne County violated that Constitution when it seized plaintiffs' personal vehicles—which were vital to their transportation and livelihoods— with no timely process to contest the seizure. We further hold that Wayne County was required to provide an interim hearing within two weeks to test the probable validity of the deprivation.
Following the lead of several other circuit courts, Judge Bush concluded that the court should apply the three-part balancing test outlined in the Supreme Court's 1976 ruling in Mathews v. Eldredge (originally developed in a context far removed from asset forfeiture): "(1) 'the degree of potential deprivation that may be created by a particular decision,' (2) the 'fairness and reliability of the existing pretermination procedures, and the probable value, if any, of additional procedural safeguards,' and (3) the public interest." In this case, the Sixth Circuit concluded all three factors support the property owners, and thus the latter had a right to a hearing within two weeks of seizure. But it is not entirely clear what might happen in other cases involving the seizure of cars, much less forfeitures of other kinds of property.
In his concurring opinion, Judge Thapar argues for a bright-line rule instead of a balancing test, and suggests a 48-hour standard is preferable to a two-week one:
The Constitution requires the government to provide prompt process before depriving someone of life, liberty, or property. Normally, that means a hearing. But Wayne County, Michigan hasn't followed that simple requirement. The County has been seizing cars, holding them for months, and denying hearings to anyone bold enough to ask for them. There's only one surefire way to get your car back: pay up. How much? $900 if it's the first time the County seized your car. $1,800 if it's the second time. Or $2,700 if it's the third. Even worse, if you challenge the seizure too early or too late, the County can just keep your car.
Wayne County's scheme violates the Constitution's due-process requirement. Constitutional text, history, and precedent show why. History links protections for liberty and for property. And when the government arrests someone, depriving them of liberty, Supreme Court precedent requires a preliminary hearing within 48 hours. I would apply the same rule to Wayne County's seizure of the plaintiffs' property.
Judge Thapar's opinion is real tour de force. It effectively explains the relevant history and constitutional text, and why property rights, especially when it comes to important property like a car, are entitled to strong procedural protection, similar - in many cases - to those provided for liberty. He also provides a strong argument for why a bright-line rule is preferable to using the Mathews balancing test:
First, Mathews suffers from problems common to many balancing tests. It requires us to compare values that aren't comparable: (1) the individual's interest in more process, (2) the government's interest in providing the same or less process, and (3) the risk of error in current procedures and the probable value of additional protections. Mathews, 424 U.S. at 335. This test puts judges in an impossible position. "It is more like judging whether a particular line is longer than a particular rock is heavy." Bendix Autolite Corp. v. Midwesco Enters., 486 U.S. 888, 897 (1988) (Scalia, J., concurring).
Also like other balancing tests, Mathews leads to unpredictable results. With three subjective factors at play, will two judges ever balance them in the same way? I'm skeptical. And unpredictability hurts everyone. It's a problem for government officials who don't know what they're required to do. But Mathews also harms ordinary people. It prevents them from helping themselves. They can't call out government officials for violating their rights because Mathews doesn't say what those rights are. Instead, it says that sometime later a judge will let them know. A potential court victory years in the future is little solace for the Melisa Ingrams and Stephanie Wilsons of the world who need their cars now for work and school.
Apart from these problems, which are common to all balancing tests, Mathews also suffers from unique shortcomings. For one, Mathews doesn't account for all the important interests at stake. "Nowhere does the test allow the Court to weigh the plain old value of process itself, i.e., of simply knowing why the government has decided to take action against you." Hicks v. Colvin, 214 F. Supp. 3d 627, 641 n.7 (E.D. Ky. 2016). For another, under Mathews, everything is negotiable. "[A]ll process is, potentially, up for sale." Id. at 643 n.8. But that's not what the Constitution says. It says you're entitled to process when the government deprives you of "life, liberty, or property." U.S. Const. amend. XIV, § 1. That should be where we start and end.
The awful facts in these cases highlight the wrongs of the current asset forfeiture regime in Michigan and other similar jurisdictions. Here's Judge Thapar again:
Wayne County claims that it seizes cars to fight crime (and holds onto them for months for the same reason). But the County is happy to return those very cars as soon as it gets paid. That practice proves the County's scheme is simply a money-making venture—one most often used to extort money from those who can least afford it.
Consider the plaintiffs' experiences. Melisa Ingram works full time and goes to school at night. When her boyfriend asked to borrow her car to find a job, she loaned it to him. Rather than using it to find a job, he used the car to pick up a prostitute. The police pulled him over and seized the car. When Ingram tried to get it back, Wayne County officials told her she'd have to wait four months for a hearing. So rather than spend the long Michigan winter without a car, she paid the ransom Wayne County demanded: $1,355 (the $900 "redemption fee" plus towing and storage).
Several months later, Ingram loaned her car to her boyfriend again. This time, for him to attend a barbecue. Police pulled him over again and took the car, claiming the house he went to was linked to prostitution or drugs. Just like the last time, Ingram demanded her car back from the County. Yet again, County officials told her the best way to get her car back was to pay the redemption fee—increased this time to $1,800. But the first redemption fee had bankrupted her; she couldn't afford to pay another one. Ingram never got her car back.
Stephanie Wilson is a single mom, pursuing her nursing degree at a community college. Her daughter's father is a homeless drug addict. Out of pity, Wilson twice agreed to give him a ride, and twice that cost her a car. Both times, the police took her car only moments after she picked up her daughter's father. After the first seizure, Wilson went to the County office building to get her car back. She was told to come back later. When she did, she was told it was too late—she lost the car forever. Then, she bought a second car from a tow yard using her tax refund. The County took that one too. She insisted on a hearing, but the County delayed and pressured her to pay the $1,800 redemption fee instead. Eventually, a state judge forced the County to return Wilson's car.
Robert Reeves, a construction worker and father of five, had his car taken by the County after leaving a job site. And it wasn't even for anything he'd done or for anything connected to his car. His coworker had allegedly stolen a piece of equipment from Home Depot. Robert didn't know anything about the theft and had seen rental paperwork for the equipment, but the police arrested him and seized his car anyway. The County held onto his car for more than six months even though they let him out of jail after just a few hours.
Does this sound like a legitimate way of cleaning up Wayne County? Or does it sound like a money-making scheme that preys on those least able to fight it? To ask the question is to answer it.
The Supreme Court has not yet ruled on the extent of procedural due process protections required in asset forfeiture cases. When and if they do, I hope they follow Judge Thapar's approach.
NOTE: The property owners in this case represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case.
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