The Volokh Conspiracy

So holds Judge Edward Chen in yesterday's Deschamps v. City of Sausalito. The factual backstory:

Mr. Deschamps asserts that he has claims pursuant to 42 U.S.C. § 1983. Specifically, he asserts violations of the First Amendment (his "right to associate with pets"), the Fourth Amendment, the Eighth Amendment, and the Fourteenth Amendments. In the complaint, Mr. Deschamps explains that he has brought these claims because "[t]hey gave us 3 days to move to the tennis courts, and now they are taking away the structure I need to keep my cats." The TRO application sheds additional light on Mr. Deschamps's claims. In the TRO application, he states that he will not be allowed to use his "tent structure" and instead will be issued a "standard one" that is 8x6 feet. He asserts that the standard tent is inadequate because "[t]here is not enough space for my cats" and "they are made out [of] really thin material" that his "cats will rip up easily." In contrast, his own tent "is made [up of] strong reinforced canvas[] my cants can't tear up…. [If] my cats escape before they acclimate to the tennis courts, they will go astray and may die by getting hit by vehicles or eaten by coyotes."

Say what you will about Mr. Deschamps' plight, and about how government officials should deal with homeless encampments, I agree that the First Amendment isn't implicated here.

I learned from Mark Walsh's column at SCOTUSBlog that Art Lien, the veteran Supreme Court artist, will retire at the end of this term.

[Art Lien] is entering his last few months of arguments before himself retiring at the end of the term. He first started sketching Supreme Court arguments in the 1977-78 term, when Regents of the University of California v.  Bakke, an affirmative-action case, was decided. I would like to prevail on him to go one more term and have some symmetry by sketching the Harvard and University of North Carolina affirmative-action cases, but it seems that his mind is made up. And unlike Breyer, Lien has not conditioned his retirement date on the confirmation of a successor.

Art provides such a valuable function. Even with the audio live-streamed, we still have no visuals from inside the chamber. How else will we know if the Justices are wearing masks? And today, for reasons unknown, there was a fire extinguisher to the left of the bench. Why? Who knows. But Art drew it.

Mark Walsh had a comment that was just *fire emoji* (Reason.com blocks the inclusion of emoji in posts).

As we wait for the session to begin, the always astute Art Lien notices an object in the courtroom that is not usually there, at least not in so prominent a position. A fire extinguisher is resting on the floor just below and to the left of the bench. Perhaps the court has concluded that certain podcasters are in need of more fodder for their metaphors about the status of the court. Lien has, of course, quickly drawn a sketch of the fire extinguisher

We will miss you, Art.

Troops and sanctions and accusations are coming thick and fast in Ukraine as we record the podcast. Michael Ellis draws on his past experience at the National Security Council (NSC) to guess how things are going at the White House, and we both speculate on whether the conflict will turn into a cyberwar that draws the United States in. Neither of us thinks so, though for different reasons.

Meanwhile, Nick Weaver reports, the Justice Department is gearing up for a fight with cryptocurrency criminals. Nick thinks it couldn't happen to a nicer industry. Michael and I contrast the launching of this initiative with the slow death of the China initiative due to a few botched prosecutions and a whole lot of anti-American racial political correctness.

Speaking of political correctness, Michael and I do a roundup of news (all bad) for face recognition technology. District Judge Sharon Johnson Coleman (ND IL) gets our prize for least persuasive first amendment analysis of the year -- in an opinion holding that collecting and disclosing people's public images can be punished with massive civil liability even if no damages have been shown. After all, the judge declares in an analysis that covers a full page and a half (double-spaced!), the Illinois law imposing liability "does not restrict a particular viewpoint nor target public discussion of an entire topic." Well, that settles that.

But if you're a first amendment fan, don't worry; the amendment is bound to get a heavy defense in the next big face recognition lawsuit – the Texas Attorney General's effort to extract hundreds of billions of dollars from Facebook for tagging the faces of their users. My bet? This one will make it to the Supreme Court. Next, we review the IRS's travails in trying to use face recognition to verify taxpayers who want access to their returns. I shamelessly urge everyone to read my latest op-ed on the topic in the Washington Post.

Finally, I mock the wokesters at Amnesty International who think that people living in high-crime New York neighborhoods should be freed from the burden of face recognition cameras that could identify and jail street criminals. After all, if facial recognition were more equitably allocated, think of how many Staten Island scofflaws could be identified for letting their dogs poop on the sidewalk.

Nick and I dig into the pending collision between European law enforcement agencies and privacy zealots in Brussels who want to ban EU use of NSO's Pegasus surveillance tech. Meanwhile, in a rare bit of good news for Pegasus's creator, an Israeli investigation is now casting doubt on press reports of Pegasus abuse.

Finally, Michael and I mull over the surprisingly belated but still troubling disclosures about just how opaque TikTok has made its code and methods of operation. Two administrations in a row have started out to do something about this sus app, I note, and neither has delivered – for reasons that demonstrate the deepest flaws of both.

Download the 395th Episode (mp3)

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

Today, the Supreme Court denied certiorari in Ortiz v. Breslin. This case has been floating around for some time. It was first distributed for conference on 9/27/2021. It was rescheduled twelve times! It seems that Justice Sotomayor was likely trying to muster three more votes for cert. She was unsuccessful. Instead, she wrote a six-page statement respecting the denial of certiorari. It is not quite a dissent, but Justice Sotomayor states very clearly that she thinks the New York Court of Appeals got the case wrong.

Here is Justice Sotomayor's summary of the dispute:

In New York, criminal defendants who earn sufficient good time credits before the end of their prison sentences are entitled to conditional release. Defendants classified by the State as "level three sex offenders," however, must first assure the State that they will not reside within 1,000 feet of any school. In New York City, this is no easy task, and the difficulties of finding a compliant residence can result in defendants serving additional time in prison past the expiration of their sentences. Because petitioner Angel Ortiz was unable to identify any release address that satisfied the State's requirement, he spent over two additional years in-carcerated when he should have been at liberty. Although Ortiz's petition does not satisfy this Court's criteria for granting certiorari, I write to emphasize that New York's residential prohibition, as applied to New York City, raises serious constitutional concerns.

Justice Sotomayor explains that in New York City, it is virtually impossible for a person to live more than 1,000 feet from a school. And, she contends, the state's policy is not narrowly tailored to the density of New York City. She is exactly right. In many large cities, sex offenders are forced to live near highway overpasses and in other dangerous areas. These 1,000 feet buffer zones do not work in urban areas.

Turning to the constitutional analysis, Justice Sotomayor favorably cites the dissent of Judge Rivera on the New York Court of Appeals. (The Court of Appeals is New York's court of last resort, and its members are referred to as "Judge" rather than as "Justice".)

Judge Jenny Rivera's dissent below ably explains how New York's policies as applied to people like Ortiz raise constitutional concerns.3

When I first read this sentence, I wondered why Sotomayor would mention the judge's first name. When two judges on the same court share the last name, it is common to use the Judges' first names. For example, on the D.C. Circuit, Douglas and Ruth Ginsburg, or on the Eleventh Circuit, William and Jill Pryor. But there is only one Judge Rivera on the New York Court of Appeals. Then I googled Judge Rivera. She clerked for then-Judge Sotomayor on SDNY in 1993. (Rivera's term was Sotomayor's first or second year on the federal bench.) Here, Justice Sotomayor was giving her former law clerk a first name shout-out. And once Judge Jenny Rivera got a shout-out, Judge Rowan Wilson had to get a shout-out as well. In a Footnote, Justice Sotomayor offers some praise for the other dissenting vote--also identified by his first name:

FN3:Judge Rowan Wilson's dissent also importantly addresses how DOCCS's policy violates New York City's obligation to provide shelter to those in need.

I think "ably explains" is more praiseworthy than "importantly addresses."

Then, Justice Sotomayor engages in the sort of substantive due process analysis that was all-too-common in a bygone era:

Here, New York law provides that a defendant "shall . . . be conditionally released" once he earns sufficient credits, as Ortiz did. N. Y. Penal Law Ann. §70.40 (West 2021). As a New York City resident, Ortiz also enjoyed a right to "shelter and board [for] each homeless man who applies for it." Callahan v. Carey, 307 App. Div. 2d 150, 151, 762 N. Y. S. 2d 349, 350 (2003). In my view, under these New York state and city policies, Ortiz may well have held a liberty interest at the point that he became entitled to conditional release. At the very least, however, Ortiz indisputably held a liberty interest in his release at the expiration of his full sentence.

Sotomayor couldn't even get a second vote on this position.

As a policy matter, I agree with Sotomayor. New York's policy is irrational. These sorts of residency restrictions have not been shown to actually reduce reoffending. Indeed, to the contrary, restricting where a person can live may actually increase the risk of reoffending. But, these laws remain difficult to change. Sotomayor writes:

Despite the empirical evidence, legislatures and agencies are often not receptive to the plight of people convicted of sex offenses and their struggles in returning to their communities.

Still, I part company with Sotomayor's constitutional imperative:

Nevertheless, the Constitution protects all people, and it prohibits the deprivation of liberty based solely on speculation and fear. When the political branches fall short in protecting these guarantees, the courts must step in.

"Must step in." This position does not command a majority, or even a plurality of the current Court. Footnote 4 is once again a dictum.

Justice Sotomayor ends her dissent with a message to the New York Assembly:

New York should not wait for this Court to resolve the question whether a State can jail someone beyond their pa-role eligibility date, or even beyond their mandatory release date, solely because they cannot comply with a restrictive residency requirement. I hope that New York will choose to reevaluate its policy in a manner that gives due regard to the constitutional liberty interests of people like Ortiz.

I agree that the New York government is capable of creating a statutory right. This fact reaffirms why the Court was right not to intervene.

An interesting and important new article by Profs. Glenn Harlan Reynolds (InstaPundit) and Penny White, both of the University of Tennessee College of Law (see also this Wall Street Journal piece, excerpted without a paywall here):

Many municipalities have chosen to use the criminal justice system as a revenue-extracting tool. Offenses, even minor ones, produce fines and court fees that are used to fund municipal government removing the need to raise the taxes of those who might object to paying. In many cases, as in the Ferguson, Missouri example we discuss below, this revenue-generation strategy becomes the chief driver of a government's criminal justice priorities.

The result is an interaction between law enforcement and citizens that appears essentially predatory: Officers are tasked with finding (or generating) violations and issuing citations, after which courts and clerks assess a seemingly endless array of fees, fines and costs whose chief purpose is the fattening of government coffers. Meanwhile citizens are jailed, arrested, and bankrupted. They lose jobs, licenses, opportunities, and liberty….

Worse yet, judicial supervision in these cases is essentially missing in action, as the courts are not umpires, but rather participants, in this process, benefiting from the revenues that the system extracts. Instead of controlling the system, the courts are compromised by it. Moreover, the system is not racially neutral. A common factor in cities that rely on hefty fines, fees, and court costs as a mechanism of funding the courts is a large African-American population. What the Justice Department found to be true in Ferguson, Missouri, is true throughout the country. "Among the fifty cities with the highest proportion of revenues from fines, the median size of African American population—on a percentage basis—is more than five times greater than the national median." The disproportionate concentration in communities of color results not only in an increase in incarceration rates for African Americans but also in a community-wide increase in the racial wealth gap. The impact of this increase in the racial wealth gap often persists long after the citizen's encounter with the police has ended.

The current system of fee-based criminal justice as it prevails in many communities is both unfair and discriminatory. It is also unconstitutional. That is a strong charge, but it is also true. It also calls for strong measures in response, which we discuss below.

We begin this analysis from vastly different places. As people, lawyers, and law professors, we hold very different views about most of the important issues of the day. Our backgrounds are dissimilar, as are many of our values, interests, and areas of expertise. Yet, after starting at altogether different places, in the end, we are joined in conclusions and solutions and imagine that others, despite their varying points of view, may agree. Based on Supreme Court caselaw on judicial independence, along with two very recent cases from the Court of Appeals for the Fifth Circuit, we conclude that a judicial system that depends on revenue extracted from its "users"—criminal defendants, victims of civil forfeiture, and the like—violates due process of law because it is insufficiently independent and unbiased. We also offer a number of solutions that can be applied by both courts and legislatures.