Implementing decision A may also lead people to see B as less extreme and thus more acceptable. When we're at position 0 (no handgun ban), the leading policy options may be 0, A (a ban on small, cheap handguns), and B (a total handgun ban), and B may seem like a large step. But after A is adopted, the leading options may become A (the narrow handgun ban), B (the total handgun ban), and C (a ban on all firearms, whether handguns, rifles, or shotguns), and B may thus seem more moderate; position 0 might no longer be considered, because it's been tried and rejected.
In principle, such framing effects—whether B is seen as the extreme option among 0, A, and B or as the middle option among A, B, and C—should be irrelevant. When the choice is between A and B, people shouldn't be influenced by the presence of options 0 or C.
But social psychologists have shown that people do tend to view proposals more favorably if they are presented as compromises between two more extreme positions. In one experiment, for instance, one group of subjects was asked to decide which of two cameras, a low-end model and a mid-level model, was the better deal; 50% chose the mid-level as the better deal. Another group was asked to choose among the same two cameras plus a high-end model; in this group, the mid-level was favored over the low-end by over two-and-a-half to one.
The result may seem irrational; the addition of the new option might reasonably decrease the fraction of people choosing either of the other two options, but it shouldn't increase the relative fraction preferring the mid-level option. At the very least it reflects bounded rationality. But in any event, that's the result, which has been replicated for legal decisions by mock juries. And it fits our experience: people are often (though not always) more sympathetic to options framed as "moderate" than to those framed as "extreme." To the extent this phenomenon occurs among voters, it can produce slippery slope effects, as the enactment of even modest steps makes a formerly extreme proposal seem more moderate.
Let me close out this section with a final question: Are Attitude-Altering Slippery Slopes Good or Bad?
Colorado law says that ordinarily the decision is in favor of the person who doesn't want the embryos implanted; the Colorado Court of Appeals held that this applies even when the person has religious reasons for wanting to donate them to another couple.
From In re Marriage of Fabos & Olsen, decided today by the Colorado Court of Appeals (written by Judge Michael Berger and joined by Judges Jaclyn Casey Brown & Sueanna Johnson), in which the wife (Fabos) and the husband (Olsen) were "disput[ing] the disposition of their cryogenically frozen pre-embryos after their divorce":
[W]e review the district court's award of the parties' pre-embryos to wife based on its application of the multi-factor balancing test from In re Marriage of Rooks (Colo. 2018) …. Rooks resolved a dispute between one spouse who wanted to implant pre-embryos to have children and the other spouse who wanted to destroy the pre-embryos to avoid becoming a genetic parent. The supreme court recognized that the parties' constitutionally based interests "in either achieving or avoiding genetic parenthood" formed the underpinnings of the analysis. Rooks, however, did not address, as part of its balancing test, the issue of one party's desire to donate the pre-embryos versus the other party's desire to destroy them.
This case centers on a dispute between one spouse [here, the wife] who wants to donate the pre-embryos to another couple because of her religious belief that they are human lives and must be preserved and the other spouse who wants to destroy the pre-embryos to avoid procreation. Therefore, this case presents an issue not addressed by Rooks: how to account for one party's religious beliefs as part of the balancing test…. We reverse the judgment[ and] direct entry of judgment for husband ….
The opinion is long and interesting, but here's an excerpt:
From Politico (Josh Gerstein); Clement won the right-to-carry case this morning, and Erin Murphy was on the briefs with him:
Former Solicitor General Paul Clement and Erin Murphy, a regular Supreme Court litigator, said they were launching their own firm after Chicago-based Kirkland & Ellis decided to step back from gun-related litigation.
"We were given a stark choice: either withdraw from ongoing representations or withdraw from the firm," Clement said in a statement. "Anyone who knows us and our views regarding professional responsibility and client loyalty knows there was only one course open to us: We could not abandon ongoing representations just because a client's position is unpopular in some circles."
Through a firm spokesperson, Kirkland confirmed its decision but did not explain its rationale for dropping gun cases.
There's much to be said and debated about the N.Y. State Rifle & Pistol Ass'n v. Bruen opinions, and who got it right. But for now, I want to turn to the practical question: What does Bruen mean for gun laws going forward?
Here is my very tentative summary of what appears to me on first read, based on Justice Thomas's majority opinion (joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett) plus a bit from Justice Kavanaugh's concurrence, joined by Chief Justice Roberts:
[1.] The right to keep and bear arms generally includes the right to have arms available for self-defense, whether at home or outside the home.
[2.] This right can be limited to the extent that there is a historical tradition of limitation—especially from shortly before and around the time of the Framing, but also perhaps from up to the late 19th century. "[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, … the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."
And this history must be based on the aggregate of many jurisdictions' decisions, rather than a handful of outliers. Thus, for instance, the Court concludes that "we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation." Later, as to post-Civil-War regulations, it notes that, "we will not give disproportionate weight to a single state statute and a pair of state-court decisions." And as to regulations in Territories, "we will not stake our interpretation on a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment's adoption, governed less than 1% of the American population, and also 'contradic[t] the overwhelming weight' of other, more contemporaneous historical evidence."
But some reasoning by analogy, beyond the precise restrictions that had been enacted in the past, is inevitable and permissible, just as analogies to past practices and decisions are commonplace in other judicial decisionmaking, including in interpreting constitutional provisions:
Justice Breyer and others argue that gun regulations deserve special judicial deference because Second Amendment rights create risks to life. But the same is true of many other constitutional rights.
In his dissent to today's Supreme Court Second Amendment ruling in New York State Rifle and Pistol Association v. Bruen, Justice Stephen Breyer reiterates his longstanding argument that gun regulations deserve special deference from courts because guns endanger human life. He argues that the Court's decisions is wrong because it "severely burdens" States' efforts to "address some of the dangers of gun violence…. by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds." It isn't just that Breyer believes courts must take these "dangers" into account. He contends they justify near-total judicial deference in gun rights cases - deference far-reaching enough to uphold the New York law at issue in this case, which presumptively bans carrying of guns outside the home by nearly all law-abiding citizens, thereby effectively gutting the "bear" part of the right to "keep and bear arms."
In his dissent in the Court's last major gun rights ruling, McDonald v. City of Chicago (2010), Breyer argued that these dangers justified refusing to "incorporate" the Second Amendment against state governments at all, even though nearly all other parts of the Bill of Rights have been applied against state governments.
My 2010 critique of Breyer's McDonald dissent is also applicable to his dissent today, and to similar arguments made by others. The Second Amendment is far from the only constitutional right that poses threats to human life, and may not even pose the greatest such threat. If potential threats to life justify near-total judicial deference, we would soon have few constitutional rights left:
In his dissent in McDonald,… Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:
"Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others' lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation."
This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives as they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.
In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer's argument in McDonald is actually very similar to Justice Antonin Scalia's dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees "will almost certainly cause more Americans to be killed." That argument didn't move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does.
But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns. If the Russian Provisional Government of 1917 had suppressed the Bolshevik Party…., millions of lives would have been saved. The same goes for the Weimar Republic and the Nazis. Closer to home, many black lives could potentially have been saved if the federal government had suppressed neo-Confederate and segregationist political speech in the South in the aftermath of the Civil War, thereby preventing "Redeemer" forces from regaining political power in the region and suppressing black rights.
One could argue that these other rights don't endanger lives as directly as guns do. Action, not speech or procedural rights, is what really kills people. Perhaps the life-threatening effects of procedural rights and political speech can be forestalled without restricting these rights themselves. However, one could say the same of guns. As the NRA famously puts it, guns don't kill people, people kill people.
Whether we are talking about guns, speech, or other rights, there are going to be cases where, as a practical matter, it is impossible to prevent death by measures short of restricting the right itself. For example, allowing Nazi speech in the Weimar Republic may have greatly increased the risk that the Nazis would come to power, by which point it was too late too prevent them from killing large numbers of people. Similarly, once free speech by Redeemers and ex-Confederates allowed them to seize control of southern states, it was politically impossible for the federal government to protect black rights against them – at least not without much greater violence than might have sufficed to prevent the Redeemers from organizing in the first place.
In making these comparisons, I do not mean to suggest that judges should allow severe restrictions on constitutional rights any time there is a plausible argument that doing so might save lives. To the contrary, I think judges should generally avoid doing so. The trade-off between lives and constitutional rights is one better made by the framers and ratifiers of the Constitution than by judges. Moreover, there are often risks to life on both sides. For example, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Similarly, strong enforcement of the Fourth Amendment could sometime prevent abusive police behavior that itself endangers lives.
If we allow government to set aside constitutional rights whenever they "put… others' lives at risk," we soon won't have many constitutional rights left. I also object to Breyer's and Scalia's more selective invocation of risks to life in cases involving rights for which they have little sympathy, while simultaneously ignoring very similar considerations when the right at stake is one they value more highly…
Breyer tries to limit his argument to "substantive liberty rights," which may exclude procedural rights such as those protected by the Fourth Amendment or habeas corpus. However, it's not clear why life-threatening procedural rights should be any more vigorously enforced than similarly risky substantive rights. After all, the purpose of most of the procedural rights is to provide indirect protection for "substantive liberty." Moreover,…. freedom of speech is surely a "substantive liberty right," and it sometimes poses serious dangers to life as well.
Since I wrote the above, we have seen more examples of how other constitutional rights can create risks to human life. For example, anti-vaxxer speech might lead people to forego vaccinations that would save their lives. Bogus claims that the 2020 election was "stolen" from Donald Trump pretty obviously inspired the violence of January 6, 2021. Left-wing rhetorical excesses in response to the death of George Floyd might have helped inspire the riots of the summer of 2020. And this list could easily be extended.
Examples like the above have led some (wrongly, in my view) to call for government-imposed restrictions on political speech that spreads various types of "misinformation." But, even so, few advocate the kind of near-total deference to government speech regulations that Breyer defends in the case of guns. At the very least, government would have to meet a high burden of proof to show that the speech in question really is "misinformation," and really will have harmful effects that can only be prevented by censorship.
One can argue that guns inherently threaten life, while only a small percentage of exercises of free speech rights or criminal procedure rights do the same. But it is equally true that only a small percentage of gun owners ever use them to commit crimes. In all these situations, the case for regulation rests on the theory that we must restrict a wide range of people in order to forestall the relatively small minority who cause great harm.
Like most other constitutional rights, Second Amendment rights are not completely unlimited, and threats to public safety can potentially be weighed in considering whether particular regulation should be upheld. Justice Clarence Thomas's majority opinion notes that a wide range of gun regulations are permissible under its reasoning, particularly "shall-issue regimes" - currently in force in 43 states "which often require applicants to undergo a background check or pass a firearms safety course, [and] are designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.'" This point is emphasized even more forcefully in Justice Kavanaugh's concurring opinion, joined by Chief Justice Roberts. Their concurrence is likely to be influential, because they are the key swing voters on this issue.
Thomas's opinion also holds that gun regulations are constitutional if they are "consistent with the Nation's historical tradition of firearm regulation." What counts as consistency with "historical tradition" is far from entirely clear. But among the factors noted by Thomas are whether the weapons in question are "dangerous and unusual" and whether they are being wielded in ways that create "terror." Still, the government will have to actually prove that the weapons in question really are "dangerous and unusual" or that the defendant has wielded his or her gun in a way that terrorizes. Mere assertion and conjecture should not be enough.
There is plenty of room for debate over whether Thomas' reasoning draws the line between constitutional and unconstitutional regulation in the right place. Here, I just want to make the more limited point that the mere fact that a constitutional right potentially threatens lives doesn't justify near-total judicial deference of the kind advocated by Breyer and others. If taken seriously, this theory would gut a wide range of constitutional rights.
Even if you reject Breyer's argument about threats to life, one can still argue for broad judicial deference on gun rights on the ground that the Second Amendment isn't an individual right at all, but merely a "collective right" of states to organize militias. Alternatively, you can argue that many types of guns simply are not the kind of "arms" protected by the Amendment. Whatever the merits of such arguments, they don't threaten to undermine a vast range of other constitutional rights. Breyer's theory, by contrast, does.
UPDATE: I have made a few additions to this post, including linking co-blogger Eugene Volokh's post summarizing the many types of gun regulations today's majority opinion permits.
From Oberholzer v. Galapo, which was decided two months ago by the Pennsylvania intermediate appellate court (Judge Carolyn Nichols, joined by Judges Victor Stabile and James Gardner Colins) but just popped up for me on a Westlaw query:
Appellants Simon and Toby Galapo (individually, Appellant Husband and Appellant Wife) appeal from the judgment entered in favor of Appellees Frederick E. Oberholzer, Jr., and Denise L. Oberholzer (individually, Appellee Husband and Appellee Wife)…. [T]he backyards of the parties' respective properties abut each other and are separated by a creek. In November 2014, Appellants allegedly began landscaping their yard during the evening hours in violation of a township noise ordinance. Appellees eventually complained to the township and the evening noises temporarily ceased.
On November 22, 2014, Appellant Husband confronted Appellees about a resurveyed property line. During the ensuing argument, Appellant Husband alleged that Appellee Wife called him a "f***ing Jew." Appellants subsequently filed a police report, but it was determined that no further police action was warranted.
Starting in June 2015, Appellants erected signs on their property, which included primarily anti-hate and anti-racist statements. Appellants' signs contained the following statements:
No Place 4 Racism
Hitler Eichmann Racists
Racists: the true enemies of FREEDOM
No Trespassing - Violators Will Be Prosecuted
Warning! Audio & Video Surveillance On Duty At All Times
Racism = Ignorant
✡ Never Again
WWII: 1,500,000 children butchered: Racism
Look Down on Racism
Racist Acts will be met with Signs of Defiance
Racism Against Kids Is Not Strength, It's Predatory
Woe to the Racists. Woe to the Neighbors
Got Racism?
Every Racist Action Must be Met With a Sign of Defiance
Racism is Self-Hating; "Love thy Neighbor as Thyself"
Racism - Ignore It and It Won't Go Away
Racism - The Maximum of Hatred for the Minimum of Reason
RACISM: It's Like a Virus, It Destroys Societies
Racists Don't Discriminate Whom They Hate
Hate Has No Home Here [in multiple languages]
Every Racist Action Must Have an Opposite and Stronger Reaction
Quarantine Racism and Society Has a Chance
Racism Knows No Boundaries
As of June 2016, Appellants posted twenty-three signs on their property, all of which were placed facing towards and in the line of sight of the backyard of Appellees' property.
Appellees sued, and the trial court granted a permanent injunction:
From Mayfield v. Miller, decided Tuesday by Judge Douglas Harpool (W.D. Mo.):
Plaintiff Tad Mayfield worked for the Missouri House of Representatives … from August 29, 2011, until his termination on August 6, 2020. Plaintiff was employed by the House at the time as a Legislative Specialist II. Defendant Dana Rademan Miller … held the title of Assistant Chief Clerk in 2013, and she was Plaintiff's direct supervisor until 2018. In 2018, Miller was promoted to Chief Clerk, and Defendant Emily White … was promoted to Assistant Chief Clerk and became Plaintiff's new direct supervisor until Plaintiff's termination.
Plaintiff sued, claiming in part that he was fired because of a pro-mask-mandate e-mail he had sent on August 3 to the speaker of the statehouse and the president pro tem state senate:
I am writing to you because I feel an ethical and moral obligation to do so. We are living in unprecedented times that requires, likewise, unprecedented actions and decisions from the leadership and citizens of our state. Those actions and decisions, or lack thereof, will be recorded in history as either appropriate measures that helped save lives, or inappropriate and resulted in an increase in lives lost.
Businesses, cities, and states across this great nation have heeded the CDC's warnings and implemented a number of measures designed to slow/stop the spread of COVID-19, including mandatory face coverings, if we are to continue in our efforts to reopen the economy and get people back to work. I am grateful the Missouri House of Representatives has implemented some of the same measures in an attempt to protect Members, staff, and visitors to our Capitol. Unfortunately, as of yet, the decision to require face coverings in the chambers and public spaces in our Capitol has not been made, leaving all who enter our Capitol at greater risk of contracting COVID-19, and ultimately, negates any benefit received by the measures that have been implemented.
It is important to consider, Members from every district in this state are convening in our chambers and then returning to their respective communities to continue campaigning and holding fundraisers for their reelection bids, or assisting in the election of their successors. It compounds an already serious health crisis for Members to unknowingly contract or transmit COVID-19, due to the lack of a mask mandate in our Capitol, and then return home to unknowingly transmit it to their constituents. All this while hundreds if not thousands of new cases are reported in our state every day.
For the health and well-being of all who enter our Capitol, I am requesting that you, as leadership in the House and Senate, adhere to CDC guidelines and implement a mandatory face mask policy for all spaces within our Capitol, excluding the personal office spaces of Members.
With all due respect and for the safety of all Missourians,
Tad Mayfield
Legislative Specialist – Procedures
Assistant Chief Clerks Office
Missouri House of Representatives
(573) 522-3141
Experience with a policy can change people's empirical judgments about policies of that sort, and this can of course be good. Sometimes, though, people learn the wrong lesson, because they err in evaluating an experiment's results. For instance, suppose that after A is enacted, good things happen: stringent enforcement of a drug ban is followed by reduced drug use; an educational reform is followed by higher test scores; a new gun law is followed by lower crime rates.
People might infer that A caused the improvement, even if the true cause was different. Crime or drug use might have fallen because of demographic shifts. Test scores might have risen because of the delayed effects of past policy changes. The furor that led to enacting this policy might also have produced other policies (such as more efficient policing), and those policies might have caused the improvement. But because A's enactment was correlated with the improvement, people might incorrectly assume that A caused the improvement, and thus support a still more aggressive drug enforcement strategy, educational reform, or gun control law (B).
Those who are skeptical about A can argue that correlation doesn't necessarily mean causation, and that post hoc ergo propter hoc ("after, therefore because of") is a fallacy. But, as with the is-ought fallacy, the fact that philosophers have had to keep condemning this fallacy for over 2000 years shows that it's not an easy attitude to root out.
Moreover, as with the is-ought fallacy, post hoc ergo propter hoc may correspond to an often non-fallacious heuristic. People might be rational to generally assume that when a legal change is followed by a good result, the result probably flowed from the change, but be mistaken to believe this in a particular case. If we have reason to anticipate that voters or legislators who follow this heuristic will indeed draw a mistaken inference from the outcome of decision A, that may be reason for us to oppose A.
This concern about erroneous evaluation of decision A might be exacerbated, or mitigated, by two kinds of circumstances. First, we might foresee that people will evaluate certain changes using some incomplete metric that ignores the changes' costs and focuses disproportionately on their benefits. The benefits might be more quickly seen, more easily quantifiable, or otherwise more visible than the costs. The benefits might be felt by a more politically powerful group than the costs might be. The benefits might be deeply felt by easily identifiable people, while the costs might be more diffuse, or might be borne by people who aren't even aware of them. { Of course, if the harms flowing from decision A are more visible than the possible benefits, then A's net benefits may be underestimated. If that's so, then we needn't worry as much that an improper evaluation of A's effects will lead to greater enthusiasm for implementing B.}
Second, we might reasonably doubt the impartiality of those who will play leading roles in evaluating A's effects. Most new laws have some influential backers (whether media, government agencies, or interest groups), or else they wouldn't have been enacted. These influential authorities will want their favorable predictions to be confirmed, so we might suspect that they will consciously or subconsciously err on the side of evaluating A favorably. B might then be adopted based on an unsound evaluation of A's benefits. {Again, though, the opposite may also be true: if we know that, say, the media is generally against proposal A, then we shouldn't worry much about an improper evaluation of A leading to further step B—if A is seen as a success even by a generally anti-A media, then it probably is indeed a success, and perhaps the further extension to B is therefore justified.}
This danger suggests that we might want to ask the following when a policy A is proposed:
The ruling authorizing the award is at odds with other federal court decisions holding that law-enforcement exercises of the "police power" are exempt from takings liability.
Yesterday, a federal court jury awarded Vicki Baker $59,656 in takings compensation because her house was severely damaged by a police SWAT team trying to apprehend a fugitive who had holed up inside. The April 29 federal district court ruling in Baker v. City of McKinney that made the jury verdict possible is potentially more significant than the verdict itself. I think the decision is correct. But it is at odds with several previous federal court decisions (in other circuits), which have held that property owners are not entitled to "just compensation" under the Takings Clause of the Fifth Amendment when police damage or destroy property in the course of law enforcement operations.
The Tenth Circuit's 2019 decision in Lech v. Jackson is a notable recent example of cases where courts have ruled that the "police power" exception to takings liability applies in these kinds of cases (I criticized Lechhere). The facts of Lech were very similar to those of Baker. In both cases, police inflicted massive damage on an innocent owner's home in order to try to smoke out a fugitive. Fortunately, District Judge Amos Mazzant of the Eastern District of Texas wasn't bound by Lech, because his court is in the Fifth Circuit, not the Tenth. In a very thorough opinion, he explained why chose to rule a different way [I have not been able to find an open-access copy of Baker on the internet; but it is available on Westlaw and Lexis]. I don't agree with everything in his analysis. But he gets the bottom line right:
The Supreme Court has stated that a taking, within the meaning of the Takings Clause, includes any action the effect of which is to deprive the owner of all or most of his or her interest in the subject matter, such as destroying or damaging it….
[E]ven a minimal "permanent physical occupation of real property" requires compensation under the Takings Clause. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). "When the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation." Cedar Point, 141 S. Ct. at 2071…. Examples of physical takings include formally condemning a property through the power of eminent domain, taking possession of property without acquiring title, or even by recurrent flooding as a result of building a dam…..These sorts of physical appropriations constitute the "clearest sort of taking…"
Ignoring this jurisprudence, the City asks the Court to adopt a new brightline rule: destruction resulting from a legitimate exercise of the City's police power does not constitute a taking under the Fifth Amendment…
The City relies on decisions from other circuits that have wholly banned recovery as a matter of law where the destruction of property was the result of a valid exercise of police power. SeeLech v. Jackson, 791 Fed. App'x. 711 (10th Cir. 2019)… The most factually analogous to the case at bar is Lech….
Lech's decision rests on an untenable analysis of police power and eminent domain. The Tenth Circuit first held that in the police power context, there is no distinction between physical and regulatory takings, and any taking pursuant to a police power is categorically non-compensable. Id. at 717. Second, the Tenth Circuit decided that the destruction of the Lech's home was a valid exercise of the state's police power. Id. at 718–19. Accordingly, the Tenth Circuit denied the Lech's takings claim….
The Tenth Circuit characterized Mugler [v. Kansas (1887)] as the first time the Supreme Court acknowledged a "hard line between those actions the government performs pursuant to its power of eminent domain and those it performs pursuant to its police power … in the context of regulatory takings." Id…... But the Supreme Court made no such distinction. Indeed, the Lech court improperly extended the Supreme Court's purported holding in Mugler to physical takings cases, rather than treating physical takings differently than their regulatory counterparts….
This decision is prudent in the regulatory context where enactment of a rule or regulation by a state pursuant to its police powers is likely to have "tangential," "unanticipated," and unquantifiable effects on the private use of property. Tahoe-Sierra, 535 U.S. at 324, 122 S.Ct. 1465. Moreover, these unquantifiable effects can often be justified by pointing to the benefit to the public good…. That is not the case in the context of physical takings….. Physical invasions of property made pursuant to a state's police powers—Baker's case here—are "relatively rare, easily identified, and usually represent a greater affront to individual property rights," Tahoe-Sierra, 535 U.S. at 324, 122 S.Ct. 1465. These physical invasions represent such a greater affront to individual property rights—as compared to regulatory takings—because they often involve an "unoffending property [being] taken away from an innocent owner" with few easily identifiable benefits in return. Mugler, 123 U.S. at 669, 8 S.Ct. 273. In such cases, the property owner should be compensated for forfeiting the property for a public use…..
Judge Mazzant makes many additional points, including emphasizing that the rule advocated by the City would, if applied consistently, effectively gut the Takings Clause, because all sorts of government actions can potentially be construed as exercises of the police power, given how broadly the latter has been defined. I covered this point in my earlier critique of Lech:
The fact that the "police power" may have been involved does not normally immunize the government from takings liability. As the Lech decision notes, the police power extends to government actions "for the protection of public health, safety, and welfare." Modern jurisprudence defines these concepts very broadly. Yet, in many contexts, courts nonetheless routinely rule that takings have occurred even though the purpose of the law at issue was to protect health or safety. For example, in the classic 1922 case of Pennsylvania Coal v. Mahon, the Supreme Court ruled that a prohibition on mining can qualify as a taking, even though its purpose was to protect the safety of people and property on the surface. Similarly, environmental regulations can sometimes qualify as takings if they destroy enough of the value of a property, even though their purpose is often to promote health or safety…
Outside the context of law-enforcement operations, the fact that the government was trying to promote public safety does not create blanket immunity from having to compensate innocent owners whose property is taken or destroyed in the process. There is no good reason to exempt law-enforcement operations from takings liability of the same kind that applies to other government actions that might enhance public safety.
Indeed, as the Supreme Court recognized in the 2015 Horne case, the Takings Clause was inspired in the first place in part by revulsion at both British and American forces' seizure of property during the colonial era and the Revolutionary War. Many of these British actions were, of course, undertaken for the purpose of enforcing British law against recalcitrant colonists.
In December 2019, the US Court of Federal Claims ruled that the US Army Corps of Engineers was liable for a taking when it deliberately flooded numerous properties in Texas during Hurricane Harvey in order to prevent even worse flooding elsewhere. In 2012, the Supreme Court ruled that the government could be liable for a taking when it inflicted recurrent flooding on property, even though the purpose of the flooding was to protect farm interests in the region. If the "police power" theory doesn't immunize the government in these kinds of cases, despite potentially massive benefits to public safety, it is difficult to see why law-enforcement operations should be given blanket immunity from takings liability.
Here, as elsewhere, if there really are great public benefits from the government's seizure or destruction of property, it should be willing to pay for the damage it inflicts on innocent owners. If, on the other hand, law enforcement agencies find that they routinely end up paying compensation that far exceeds any plausible benefit arising from the use of such aggressive tactics, then they would be well-advised to issue stricter guidelines for their employees. Maybe they should be more careful about destroying property in the future.
As Judge Mazzant notes in one section of his opinion, things may be different when the owner's property or his use of it itself poses a threat to public safety, as when it promotes the spread of a deadly disease, for example. I plan to return to this issue in future writings. But if an innocent person's land is damaged or destroyed merely to forestall a threat emanating from elsewhere - whether flooding or a fugitive criminal - then the Takings Clause requires compensation. As the Supreme Court famously stated inArmstrong v. United States (1960), "[t]he Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."
Judge Mazzant's ruling might well end up being reviewed on appeal. Regardless, the issue of takings liability for destruction of property by law-enforcement agencies is likely to remain contentious for some time to come. Hopefully, more courts will come to realize that the police power is not a blank check to for cops to destroy innocent people's property without paying for it.
NOTE: The plaintiffs in this case are represented by the Institute for Justice, for which I served as a summer clerk when I was a law student, and have written pro bono amicus briefs in various cases more recently. I do not have any involvement in the present litigation, however.
An Indiana man was sentenced to federal prison today for repeatedly and intentionally jeopardizing the lives of police officers, destroying public property, and encouraging others to commit violence during protests that occurred in Portland in 2020.
Malik Fard Muhammad, 25, was sentenced to 10 years in federal prison and three years' supervised release.
"In the summer of 2020, a historic protest movement in Portland was marred by violent rioters taking advantage of the momentum built by thousands of peaceful demonstrators. Sadly, this violence drastically changed the narrative around these protests and what they accomplished. In the lead up to and during protests, federal law enforcement is focused on doing everything we can to support the First Amendment rights of individuals while keeping all demonstrators, other community members, and law enforcement officers safe. Holding accountable those individuals whose sole focus is violence and destruction, like Mr. Muhammad, is central to our ongoing effort to support the rights of all Oregonians," said Scott Erik Asphaug, U.S. Attorney for the District of Oregon.
"Malik Fard Muhammad intentionally planned and committed acts of violence that threatened other protestors, members of the public, and law enforcement officers. This type of violence has no place in our community," said FBI Portland Special Agent in Charge Kieran Ramsey. "The FBI is committed to apprehending and charging violent instigators who plan, promote, and commit acts of violence and destruction. We will continue to work with our law enforcement partners to protect the peaceful expression of free speech throughout Oregon."
"The right to protest peacefully is absolute," said ATF Seattle Field Division Special Agent in Charge Jonathan T. McPherson. "But it is clear Mr. Muhammad didn't come to exercise his rights. He came from out-of-state to bring violence to our community. This sentence should send a clear message to those who want to engage in violence that it will not be tolerated, and ATF will investigate these acts whenever they occur." …
Here, I will take a step back from my prior post, and address a much broader question: why should society provide special protections for religious conscience, as opposed to secular beliefs? For example, why should the state exempt from mandatory military service a religious person who adheres to a Pacifist faith, but not exempt a non-religious person who holds a Pacifist philosophy? Why does religion get preferential treatment, but philosophy does not? This question predates Fulton or RFRA or Smith or Sherbert or even the Free Exercise Clause. Why is religion special--so special, that it requires exemptions from civil laws?
To be sure, people today and in the past argue that religion is not special, and that it ought not receive any special protections. Religious groups, they contend, should be treated like any other faction--political, social, or philosophical. But under the contrary view, religious groups do stand in a different position than those who hold beliefs based on politics, social theory, or philosophy. Consider a hypothetical. Person A refuses to work on Saturday because that is the day she volunteers at a homeless shelter to feed the poor. That work is very meaningful to her on a moral level, but it is no way required, or even encouraged by religion. Person B follows a faith that prohibits working on Saturday, the Sabbath. Now, the state denies both people unemployment benefits because of their unwillingness to work on Saturday.
This hypothetical, of course, is based on the facts of Sherbert v. Verner. And in Sherbert, Person B was granted an exemption. But I doubt under the reasoning of Sherbert that Person A would have received an exemption. Why? Because Person B faced an intractable choice between violating her faith or violating civil law. Person A, by contrast, only faced a choice between violating her personal preferences or violating civil law. Sherbert v. Verner recognized Person B's dilemma. Justice Brennan wrote that South Carolina's policy "forces [the Seventh-day Adventist] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." Sherbert faced a conflict between Church and State. The State told her to work on the Sabbath, her Church said she could not.
Underlying Brennan's opinion is an important, but seldom-recognized principle: society provides protections for religious conscience to alleviate people from having to make this choice. The government should not force them to choose between God and Country, because for many believers, the former will often prevail. Indeed, throughout history, many martyrs have faced death rather than follow the government over their faith. Others have practiced their faith in secret to avoid conforming to the state's orthodoxies. By contrast, Person A, who follows her own beliefs, without regard to some higher power, stands in a different position. We all should develop our own moral, philosophical, and political beliefs. But if we are forced to choose between our own morality and the state, the sort of conflict that faced Sherbert and others simply is not present.
This background, I think, illustrates the basis of my thinking on a Jewish right to abortion. Even assuming that Jewish law requires an abortion in certain circumstances (my colleagues Howie Slugh and Tal Fortgang address this point), as a matter of first principles, society ought to provide an exemption for those who actually face that intractable choice between a higher power and civil law. Those who do not actually think a higher power imposes some obligations on their lives--that religion is only internal, aspirational, cultural, or traditional--do not fit within the paradigm that has historically justified granting exemptions from civil laws.
No matter how the Supreme Court rules in West Virginia v. EPA, absent legislative action it is unlikely new power plant rules will be in force before 2024.
Climatewire reports that the Environmental Protection Agency (EPA) has pushed back the planned release of new proposed regulations under the Clean Air Act to limit greenhouse gas emissions from power plants. This is auspicious timing, as the Supreme Court is poised to issue an opinion in West Virginia v. Environmental Protection Agency, which will likely define the scope of the EPA's authority to issue such rules.
As the Climatewire story notes, the Biden Administration had initially planned to issue proposed rules in July of this year that could be finalized in summer 2023. At oral argument in WVA v. EPA, however, Solicitor General Elizabeth Prelogar told the Court that EPA expected to issue a notice of proposed rulemaking by the end of the year. Now the EPA is not planning to issue a proposed rule until March 2023, which would mean that it is unlikely any rule could be finalized before 2024.
One consequence of the EPA pushing back the timetable for greenhouse gas regulations for power plants is that any legal challenge to the rule would likely be resolved after the 2024 election. Whether a potential Republican administration would defend any such rule would likely depend upon how aggressively the EPA interprets its Clean Air Act authority, and whether such interpretation pushes up against the Supreme Court's ultimate ruling in WVA v. EPA.
Arkansas Act 710 prohibits state entities from contracting with private companies unless the contract includes a certification that the company "is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel." The statute defines "boycott of Israel" as "engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner." The Act exempts contracts if a company provides goods or services for at least 20% less than the lowest certifying business, or if the contract has a total potential value of less than $1,000.
The court held that boycotts, in the sense of refusals to engage in commercial dealings, generally aren't protected by the First Amendment, and therefore imposing a no-boycott requirement as a contractual provision isn't unconstitutional, either:
The government imposes an unconstitutional condition when it requires someone to give up a constitutional right in exchange for a government benefit. This includes making government benefits contingent on endorsing a particular message or agreeing not to engage in protected speech.
The basic dispute in this case is whether "boycotting Israel" only covers unexpressive commercial conduct, or whether it also prohibits protected expressive conduct. Arkansas Times points us to N.A.A.C.P. v. Claiborne Hardware Co. (1982), which held that expressive conduct accompanying a boycott is protected by the First Amendment. The State, on the other hand, argues that Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR) (2006) controls. There, the Supreme Court held that First Amendment protection does not extend to non-expressive conduct intended to convey a political message.
