on remand, jury must be instructed that it has to determine (among other things) whether the defendant “reasonably believed the conversation was not confidential.”
From People v. Davies, decided on Feb. 8 by Justices Herbert Levy, Kathleen Meehan, and Charles Poochigian but revised slightly Wednesday:
Appellant James Clinton Davies surreptitiously recorded a conversation he had with his local police chief while they were in the chief's office. A police lieutenant was also present, and appellant discussed his own uncharged criminal matter with the chief. Unbeknownst to the officers, appellant recorded the conversation as a video on his cellular phone. A short time later, appellant posted the video on Facebook.
A jury convicted appellant of recording a "confidential communication" in violation of Penal Code section 632, subdivision (a). Following this felony conviction, appellant was placed on formal probation for three years….
Officials of political subdivisions in St. Louis County brought suit seeking a declaratory judgment that section 115.646, which prohibits officials from directly using public funds to advocate, support, or oppose a ballot measure or candidate for public office, violates the First and Fourteenth Amendments of the United States Constitution…. Because section 115.646 regulates the use of public funds, not the officials' speech, it does not implicate the free speech clause of the First Amendment….
Whether arising under the First Amendment or the common law, the public's right to access judicial proceedings "may be abrogated only in unusual circumstances." Under the First Amendment standard, a "denial of access" to publicly filed documents "must be necessitated by a compelling … interest and narrowly tailored to serve that interest." This high standard is required because public access "serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Judges are not accountable to the public like elected officials, thus "[a]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." …
Defendant asks to file his Letters of Support under seal because this "case has received high public/media attention … [and] to preserve [his] privacy and safety." However, the Court finds that sealing the Letters of Support is inconsistent with the First Amendment and the common law right to public access. While the Defendant states that his "privacy and safety" are at risk, he does so only in a conclusory manner and does not specifically explain how public access to the Letters of Support would cause him any harm. Hence, he has failed to provide the specific information required by Local Rule 49.1.1 to aid the Court in determining whether sealing is consistent with the First Amendment or common law.
Nor has he presented to the Court any authority for his request. Indeed, the mere presence of media scrutiny without more particularized proof of a compelling privacy interest is insufficient to support the sealing of court filings over the requirements of the First Amendment. Thus, the Court will deny the Motion and only consider Letters of Support contained in the public record.
Robert Michael George by and through his counsel of record, Myra Cause, and pursuant to Local Rule 49.1.1, respectfully requests that this Court to allow him to file his Letters of Support of Resentencing under seal based upon the sensitive nature of the information contained therein, including sensitive information supporting the request within the motion. This case has received high public/media attention and we respectfully ask the Letters of Support of Resentencing to be filed under seal to preserve Mr. George's privacy and safety.
From Judge Timothy Corrigan's decision in Bloomberg v. Blocker, decided (clearly correctly, I think) Thursday:
Bloomberg is a citizen of St. Johns County, Florida, where Blocker is Chair of the St. Johns County Board of County Commissioners. On March 8, 2021, Bloomberg emailed St. Johns County … about a proclamation celebrating "LGTBQ [sic] civil rights progress and the contributions of LGBTQ individuals to the St. Johns County community…." … Michael Ryan, the St. Johns County Assistant Director of Public Affairs in the Office of the County Administrator, called Bloomberg … to report that "they would not consider proclamations that were 'controversial' or 'too far left or too far right,' and therefore that the proclamation would not come before the Board for consideration." …
2/19/1942: President Roosevelt issues Executive Order 9066. The Supreme Court would consider the constitutionality of this Executive Order in Korematsu v. U.S. (1944).
Defendants argue that the Court should seal a police body-cam video that depicts the confrontation between [Fresno Police Department] officers and [minor plaintiff] Wallace. Defendants state that some of the individuals depicted in the video are minors who have privacy rights. Public disclosure of the video could have an adverse impact on the minor's reputation and standing in the community. To avoid the danger and harm that could come from release, sealing the video is appropriate….
There is a strong presumption of access to judicial records, including attachments/filings relating to summary judgment.
Although acknowledging the "presumption that parties' identities are public information," the plaintiffs claim that a privacy interest under governing authority overcomes the presumption. The plaintiffs assert that the privacy of their medical and health information and the privacy of their religious beliefs and practice, as well as the prospect of "stigma, ostracization, retaliation, and other harms," including threats of violence, require the use of a pseudonym.
The plaintiffs correctly observe that "religion is perhaps the quintessentially private matter." Prosecution of this action compels the plaintiffs to disclose sincere religious beliefs and to disclose the deeply personal experiences that form the foundation of those beliefs. For example, Lieutenant Colonel 2 opposes any vaccine associated with aborted fetal cell lines because she received an abortion after suffering a rape and later—through her religious devotion—believes herself forgiven, according to her beliefs, for the sin of abortion. Although the defendants argue that the plaintiffs' vaccination status "is not a matter of utmost intimacy," this action encompasses substantially more intimate detail than whether a person chose to accept a vaccine.
Further, the plaintiffs point to an array of recent and current actions similar to, or nearly the same as, this action that permit pseudonyms for the same reasons that plaintiffs advance. See, e.g., Does 1–6 v. Mills (D. Me. 2021); Air Force Officer v. Austin (M.D. Ga. 2022). Mills recognizes the "reasonable fear of harm that outweighs the public's interest" in disclosure because of the "substantial public controversy currently surrounding public and private mandates requiring individuals to be vaccinated for the COVID-19 coronavirus or to provide proof of vaccination status." Mills (granting leave to proceed pseudonymously to healthcare workers objecting to a COVID-19 vaccination requirement). As in Mills, the plaintiffs in this action challenge the government on the controversial issue of a COVID-19 vaccination requirement. The statements and incidents cited by the plaintiffs adequately demonstrate, and everyday experience in recent weeks and months confirms, an acrid public atmosphere of contention about masks, vaccines, mandates, and the like.
Beyond the plaintiffs' interests in maintaining privacy and safety, the record shows that little harm results from the plaintiffs remaining innominate. The public's interest in this action is satisfied by the facts patent in the record—the branches of the armed forces involved; the rank, duty, service record, and the like of the litigants; the nature of the claims and defenses; and the orders of the court. The names add nothing substantial, but enable those who—through "social media," as well as more immediate mechanisms—intimidate, harass, and defame.
The law is actually quite unsettled as to whether pseudonymity is generally allowed in order to protect information about people's religious beliefs or even about their having had abortions; for more, see pp. 52-53 (abortion) and 59-61 (religious beliefs) of my forthcoming The Law of Pseudonymous Litigation.
Here is the short version: Expressly applicable to each branch of the federal government, the Religious Freedom Restoration Act (RFRA) commands the military to grant to a service member harboring a sincerely held religious objection to COVID-19 vaccination a religious exemption from the vaccination (1) unless a compelling overnmental interest requires the vaccination and (2) unless a good faith evaluation, directed specifically to the singular circumstances of the service member—that is, directed "to the person" requesting the exemption—demonstrates that no less restrictive means is available to the military reasonably to protect the compelling governmental interest. Under the command of RFRA, the military bears the burden of showing both the existence of a compelling governmental interest and the absence of a less restrictive means of reasonably protecting that interest.
In the instance of Navy Commander and Lieutenant Colonel 2, the Navy and the Marine Corps have failed manifestly to offer the statutorily required demonstration that no less restrictive means is available, and each of the two service members is entitled to preliminary injunctive relief that (1) permits them, pending a final determination on a complete record, to continue to serve without the vaccination and (2) forbids any punitive or retaliatory measure against either by the military pending a final judgment in this action.
In Thompson v. Trump, various plaintiffs are suing President Trump, Donald J. Trump Jr., Rudy Giuliani, and others for injuries (physical or emotional) caused to them in the Capitol as a result of the January 6 riot. The core claims are brought under the federal statute banning conspiracy "to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof."
Today, Judge Amit Mehta concluded that there was sufficient evidence that President Trump participated in such a conspiracy, and that his January 6 speech wasn't protected by the First Amendment against civil liability for such conspiracy, because it fit within the "incitement" exception recognized in Brandenburg v. Ohio (1969): Speech is unprotected if it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (The court doesn't discuss any criminal prosecution questions, but in a criminal case the elements of incitement would presumably have to be proved beyond a reasonable doubt; in a civil case, preponderance of the evidence likely suffices.)
Here is the heart of the Court's incitement analysis (there's of course much more in the opinion, which is 112 pages long, about various other aspects of the case), followed by some reactions on my part:
Texas Lieutenant Governor Dan Patrick held a press conference today to respond to the Faculty Council of the University of Texas, which recently passed a resolution reemphasizing the importance of academic freedom at the university and denouncing political interventions in the university curriculum.
At the center of the dispute is the ongoing political fight over "critical race theory." Republican-controlled state legislatures across the country have taken interest in how topics of race and social justice are taught and discussed in schools. The focus of the initial wave of lawmaking was on K-12 education, but the legislative cannons are now being aimed at colleges and universities. As I've written before, the bills are generally a sloppy mess that cause real problems for legitimate educational efforts.
Patrick is all too happy to escalate the fight. "Tenure, it's time that that comes to an end in Texas." Patrick likes to make bold declarations, but he is no backbencher who can be ignored. The lieutenant governor is arguably the most powerful political office in the Texas state government. Patrick is elected in his own right through a statewide ballot (he was reelected to the office in 2018), and he serves as the presiding officer of the state senate. In floating his proposal to end tenure, he claimed to have the support of the chair of the Senate Higher Education Committee and of university regents across the state (regents are appointed by the governor). Patrick declared that he wants to make an overhaul of state universities a "top priority" of the next legislative session, and he appears to be staking his future political ambitions on making professors into a punching bag.
Tenure has long been the cornerstone of academic freedom in American higher education. It is all well and good for universities to promise to recognize academic freedom, but it is the procedural protections and job security of tenure that make that promise meaningful. In practice, instructors and scholars without tenure protections are easily silenced and dismissed.
Texas will not be alone in reconsidering the future of tenure at public universities. The regents of the Georgia university system have already moved forward a proposal to weaken tenure protections. Regents and lawmakers in other states have similarly set their sights on tenure.
The prospects for academic freedom -- and ultimately for creative scholarly research and quality teaching -- will be dim in Texas and in other states if politicians like Patrick have their way. When I was growing up in Texas, the state bragged of its desire to construct world-class institutions. State politicians in recent years have largely abandoned that aspiration. It remains to be seen whether Texas will be able to preserve even a mediocre system of higher education in the years ahead.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Bianca King of Lakeway, Texas, is a single mother with two young children. Until recently, she was able to raise her 2- and 4-year-old kids while making a living running a small daycare out of her home. But on February 9, city officials—citing concerns of a group of nearby golfers (including former mayor Joe Bain) that they could hear and see children playing in her backyard—shut her down. This week, she joined forces with the Institute for Justice to file a lawsuit in state court challenging Lakeway's near total ban on running a home business. Learn more here.
Man in the Judiciary Square, D.C. Metro station falls into gap between waist-high parapet and station wall and ultimately dies of his injuries; his body is found four days later by a Metro rider. His family sues, claiming that had they done their job, Metro employees would have discovered him in time to save him. Metro: But he was drunk, meaning he was contributorily negligent, meaning we can't be held liable. District court: Correct. D.C. Circuit: Decidedly not. Under D.C. law (which controls here), the Metro's status as a common carrier means it can't avail itself of the contributory-negligence doctrine. To trial the case must go.
In this First Circuit opinion about the First Step Act, an unusually subdued Judge Selya lobs only a few modest vocabulary grenados: "immurement," for example, "paint the lily" (no, not "gild" it), and "monolithic." (By the by, "monolithic" (as you probably know) derives from the Greek for "single stone"—hence the Village of Monolithos on the Island of Rhodes, named for the rock on which perches the Knights of St. John's castle.)
Firearm-offense sentences can be enhanced if you're an "unlawful user" of drugs at the time of your crime. And, says the First Circuit, "evidence of long-time regular use interrupted by periods of abstention" doesn't fit the bill. So weed/gun enthusiast is entitled to a resentencing without the unlawful-user enhancement.
Twenty-six-year-old Honduran woman seeking asylum credibly alleges that when she lived in her native country, a gang member connected to a political opposition party physically and sexually abused her and her mother, stalked and raped her sister, and murdered her uncle. But, says the Fourth Circuit (over a dissent), she didn't produce copies of her fingerprints in advance of her hearing before an immigration judge, so back to Honduras she goes.
The Fifth Circuit denies qualified immunity and explains its reasoning with a page of charts. Judge Oldham, dissenting, argues that case law requiring charts cannot be clearly established.
An auto-antonym is a word with two opposite meanings, such as "cleave" or "sanction." Also, goat and G.O.A.T. are not the same thing in athletics. The point is: don't confuse prudential standing with Article III standing. If you don't have Article III standing, you're done in federal court. But if you merely lack prudential standing, you might be ok. (So, per the Fifth Circuit, a mother's federal suit for wrongful death can go forward if she amends to add the survivor with the right to sue under Louisiana law.)
In an unsigned order, the Fifth Circuit holds that United Airlines employees who have received religious exemptions from the company's vaccination requirement would suffer irreparable harm if the policy is not preliminarily enjoined. And Judge Jerry Smith (dissenting) Is. Not. Having It.
Under Kentucky's certificate-of-need regime, new home health agencies cannot open unless they prove their services are "needed," which they must do in an administrative litigation against their would-be competitors. But do billion-dollar incumbents really need to be protected from entrepreneurs who might provide better services? Would allowing a startup to provide Nepali-language care to Louisville's surprisingly sizable refugee population really make health care worse? Alas, it's rational to think so, holds the Sixth Circuit. Yes, it's "galling" to the plaintiffs. Yes, there's "considerable evidence" of "pernicious effects." And, yes, the entire rational-basis test might be an "overcorrection." But you'd have to take that up with the Supreme Court. [This is an IJ case.]
Sartre said that Hell is "other people," but the original French is better translated as "the Department of Labor's Benefits Review Board." And thus the Sisyphean saga of one Kentucky widow's struggle to get black-lung benefits on behalf of her late coal-miner husband. After 17 years and four trips from an administrative judge to the board, the widow receives zilch. She then appeals the fourth appeal to the Sixth Circuit. Held: "poor customer service," but no legal error. Because, hey, there was one issue that turned out to matter, and she didn't raise it during the first appeal ten years ago.
If an ordinary litigant forfeits a non-jurisdictional argument, a court generally won't consider it. If you're the government, the court will raise the argument for you. So it is in this case out of the Sixth Circuit, in which the court holds that a criminal defendant had no Fourth Amendment standing to challenge the search of a car in which he was a passenger, and that it was perfectly all right for the trial court to raise that argument on its own.
Plaintiff files his claims one day after the statute of limitations runs out. BUT! The statute of limitations expired on a federal holiday, which means he filed on time as a matter of law. BUT! The plaintiff's lawyer didn't make that argument in the district court, even when the district court all but asked him to. BUT! The Eighth Circuit, invoking the age-old doctrine of "oh, for Pete's sake," says we should cut the guy a break. Case un-dismissed.
The thorny intellectual puzzle of what constitutes a "violent felony" for purposes of federal law has generated opinions wrestling with conundrums fit for a philosophy seminar. And it has generated this Eighth Circuit opinion, which finds that "attempted second degree murder" just super-duper obviously counts as "violent."
At least eight times, plaintiff provided her employer with a doctor's note requesting a different accommodation for an asserted disability. Each time, her employer accommodated her. The ninth time, when she neither submitted a doctor's note nor asked for a specific accommodation, her employer did not accommodate her. How did her Americans with Disabilities Act claim against the employer fare in the Eighth Circuit? The answer may surprise you. (Unless you read those first three sentences. Then you can pretty much guess.)
Wherein the plaintiff loses his property because his house was on fire but also loses his case because the Eighth Circuit finds that, when he generated a list of the personal property he claims was destroyed, his pants were on fire.
If a property owner owes $15,000 in back taxes, can the government sell the property for $40,000 at auction and just pocket the profits? Apparently so, says this Eighth Circuit panel.
After suffering financial ruin while speculating on the rice market, Joshua Abraham Norton of San Francisco rechristened himself Norton I, Emperor of the United States and Protector of Mexico. When the beloved eccentric died in 1880, upwards of 10,000 people lined the street to pay him homage at his funeral. Somewhat less charming is Mark Rogers, the self-proclaimed Emperor of North America who in 1980 committed a triple murder and was arrested while hanging onto the luggage rack of a moving station wagon. Ninth Circuit: Nevertheless, he deserved a lawyer in his capital murder trial who was more than four months out from passing the bar.
In which the Ninth Circuit reminds us that Batson—much like his father—is rarely any help to criminals.
Champion Petfoods manufactures dog food that it advertises as "Biologically Appropriate," "Trusted Everywhere," and containing "Ingredients We Love [From] People We Trust." Tenth Circuit: None of which can serve as the basis for a consumer class action.
"Generally, issues that are not raised in a party's brief on appeal are considered abandoned." Bet you can't guess what happens next in this en banc ruling from the Eleventh Circuit (over a dissent), in which the government is trying to get evidence admitted against a criminal defendant.
Perhaps investors should have guessed that a combination of a new cryptocurrency and multi-level marketing was, in fact, a big old Ponzi scheme. But, per the Eleventh Circuit, the Ponzi schemers can't escape liability by arguing that their online ads were targeted to the world at large, and not particular purchasers.
And in amicus brief news, IJ is asking the Third Circuit to allow a Temple University physics professor's case against the federal gov't to proceed. Falsely accused by an FBI agent of being a Chinese spy, plaintiff's life was turned upside down for years. The brief argues that the district court was wrong to dismiss the case under the discretionary function exception to the Federal Tort Claims Act, as gov't officials do not have the "discretion to violate the Constitution," and that the district court was wrong to expand qualified immunity's "clearly established" test into this new context.
Calling all Southern law students! Join us for an immersive and practical day of learning and connect with like-minded peers and industry experts. We are excited to offer an opportunity for law students to learn about practicing constitutional law from a public interest perspective during our upcoming Legal Intensive at UNC's Friday Center on Saturday, March 26. The experts at IJ will lead interactive sessions throughout the day that are aimed at helping students learn and practice public interest law strategies, such as identifying constitutional litigation targets, framing cases, and advocating in the court of public opinion. Register by March 4 using this link: ij.org/students/ – space is limited so secure your spot soon!
Over the last year, several red states - in a trend begun by Montana - have adopted "gun sanctuary" laws that are in many ways modeled on immigration sanctuary policies previously enacted by liberal cities and states. Just as liberal immigration sanctuary jurisdictions restrict their employees' cooperation with federal efforts to enforce immigration restrictions, so conservative gun sanctuaries similarly limit state and local assistance to federal agencies enforcing federal gun laws.
One reason why conservative states have copied liberals' sanctuary policies is that the latter repeatedly prevailed in court against various Trump Administration attacks on them. I went over those cases in detail in a 2019 Texas Law Review article, and a piece for the Washington Post. Courts rightly ruled that the Constitution allows states to bar their officials from helping to enforce federal law.
Perhaps because of this history, the Biden Administration at first wisely left the conservative gun sanctuaries alone. This week, however, the Justice Department filed a dubious lawsuit challenging H.B. 85, the Missouri "Second Amendment Preservation Act." The suit is reminiscent of the Trump Administration's challenge to the California's "Sanctuary State" law, which was largely rejected by the courts. The new Biden lawsuit deserves to lose for the same reason.
Reason's Elizabeth Nolan Brown has a helpful overview of the Missouri law and the Justice Department lawsuit against it:
H.B. 85 says that Missouri rejects several categories of federal gun provisions, which it considers to be "infringements on the people's right to keep and bear arms." These provisions include "any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services," "any registration or tracking of firearms, firearm accessories, or ammunition" or the ownership of them, "any act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens," and "any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens."
H.B. 85 orders state and local law enforcement not to cooperate with the feds to enforce such measures and says Missourians can sue if they do.
Another provision of the law bars any state or local agency from employing people who had previously helped enforce the federal gun laws in question, and imposes civil liability of up to $50,000 "per employee hired by the political subdivision or law enforcement agency."
As the Ninth Circuit explained in its ruling in that case, the state sanctuary law "may well frustrate the federal government's immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts."
Similarly, the Biden Justice Department complains that federal gun law enforcement efforts in Missouri have been hampered by H.B. 85 because "the Missouri State Highway Patrol has implemented H.B. 85 by withdrawing personnel from federal task forces and restricting the information that can be shared with federal authorities in connection with federal firearm offenses." Restricting assistance and information-sharing by state law enforcement agencies is exactly what California did, and courts rightly ruled that such policies are protected by the anti-commandeering principle. What's good for the liberal goose applies equally to the conservative gander!
The Biden DOJ tries to sidestep the anti-commandeering rule by claiming that H.B. 85 goes beyond merely denying assistance: "a state may not directly regulate federal authority. H.B. 85 does exactly that by purporting to nullify, interfere with, and discriminate against federal law."
The nullification accusations were wrong then, and are equally wrong now. I explain why here, in a post about the Montana gun sanctuary law:
As understood by John C.Calhoun and others who sought to use nullification to protect slavery and other southern state interests in the 19th century, the term meant that the federal laws in question were null and void in their states. If the theory was correct, neither state nor federal authorities would have any right to enforce them. By contrast, liberal immigration sanctuaries and conservative gun sanctuaries are merely preventing their own state and local law enforcement agencies from helping the federal government enforce the laws in question. But the laws remain binding, and the federal government can still use its own resources to pursue violators. For example, federal ICE agents can still pursue undocumented immigrants in immigration sanctuaries, and federal ATF agents can still pursue people who violate federal gun laws in Montana.
Nothing in H.B. 85 prevents the federal government from using its own officials and resources to investigate and prosecute suspected violators of federal gun laws in Missouri. It's true that HB 85 asserts that several types of federal gun laws violate the Constitution. But the law doesn't instruct state officials to impede federal law enforcement efforts in any way, merely to refuse to assist them. More specifically, the law says that the five categories of federal gun regulations in question "shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state" (emphasis added). All of this simply imposes constraints on what the state government does, not federal officials.
The closest the Missouri law comes to actually restricting federal officials is in a provision that says "No entity or person, including any public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms as described under section 1.420." Read in the context of the rest of the law (which focuses entirely on the operations of state and local governments), I think this language should be interpreted as constraining state and local officials. But even if "[n]o entity or person" encompasses federal officials, the fact remains that nothing in the act in any way penalizes or obstructs federal employees seeking to enforce the laws in question.
Like the statement that some types of federal gun laws violate the Constitution, any restriction on federal employees here is purely aspirational. H.B. 85 doesn't actually constrain them in any meaningful way. That said, a federal court could potentially rule that the "no entity or person" language is unconstitutional in so far as it applies to federal officials, while otherwise upholding H.B. 85. Such a ruling would make no practical difference to the operation of the law, but might relieve anxieties about "nullification."
Finally, the Justice Department claims that the H.B. 85 provision barring state and local governments from hiring people who previously participated in the enforcement of the types of federal gun laws listed in the Act violates the doctrine of "intergovernmental immunity," which which bars states from "discriminating" against the federal government or "those with whom it deals."
This issue, too, came up in the California sanctuary state case. The Ninth Circuit ruled that intergovernmental immunity does not forbid a part of the California law that requires employers to notify workers of potential ICE raids:
The Supreme Court has clarified that a state "does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them." Washington, 460 U.S. at 544–45. AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all. Accordingly, the district court correctly concluded that AB 450's employee-notice provisions do not violate the doctrine of intergovernmental immunity.
The same reasoning applies here. The hiring-restriction provision of H.B. 85 also "does not regulate federal operations at all." All it does is restrict state and local governments from hiring certain types of former federal employees and private parties who assisted in enforcing the federal laws in question. There is no discrimination impeding the actual performance of federal employees' jobs. Indeed, any discrimination only occurs with respect to careers the latter may want to pursue after leaving federal employment.
I would add that, as in the California case, the concept of "discrimination" is only relevant in situations where the state treats the federal government and its agents worse than other similarly situated actors, simply because the former are employed by the federal government. As in the case of the ICE operations affected by the California law, there is no meaningful private-sector analogue to federal enforcement of gun laws, and thus no possible state discrimination against the feds.
However, I recognize that the district court ruling in the California case went the other way on this specific issue (I critiqued its reasoning here). Regardless, the court hearing the Missouri case need not even reach this question, because the Missouri law - unlike the relevant provision of the California one - doesn't even target actual federal law enforcement operations: it merely restricts state and local government hiring of people who previously participated in them.
As with Trump-era efforts to attack immigration sanctuaries, the Missouri case has broader implications that go well beyond the specific laws at issue. If the Justice Department can force Missouri to assist federal gun law enforcement, it can commandeer states and localities for other purposes, as well. And if Missouri is not allowed to refuse to hire former federal gun-law enforcers, other states will not be able to bar former federal employees whose law-enforcement activities they find abhorrent. Imagine, for example, a liberal state that refuses to hire former Department of Homeland Security employees complicit in the Trump Administration's cruel immigration enforcement policies, such as child separation.
It is worth emphasizing that all of the points made above apply regardless of whether the federal gun laws listed in H.B. 85 violate the Second Amendment or not. Even if these laws are entirely constitutional, so far as the Second Amendment is concerned, the federal government still can't commandeer states to help enforce them.
In sum, the Biden lawsuit against Missouri is just as ill-conceived as various Trump administration suits against blue immigration sanctuaries, and deserves to fail for the same reasons. Liberals who (rightly, in my view) supported immigration sanctuaries should think about what might happen to them in the next Republican administration, should the Biden DOJ prevail in the Missouri case.
UPDATE: On Twitter, law professor Jamie Fox points out that the HB 85 arguably prohibits state courts from helping to enforce the federal gun laws in question. If so, that aspect of the law might indeed be unconstitutional, because Supreme Court precedent exempts state courts from the anti-commandeering rule. Fox makes a good point that deserves serious consideration.
Whether state courts are covered by HB 85 is far from entirely clear. Section 1.450 of the statute says that "No entity or person, including any public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms as described under section 1.420." The phrase "No entity or person, including any public officer or employee of this state" seems broad enough to include state judges.
On the other hand, the liability provisions of the law (which allow lawsuits to enforce it) only covers "political subdivision[s] or lawenforcement agenc[ies]," neither of which includes courts. Read in the context of the rest of the statute, 1.450 could also be interpreted as only applying to executive branch employees, and employees of local governments.
In addition, the power denied by 1.450 is "the authority to enforce or attempt to enforce" any of the federal laws in question. In legal parlance, "enforcement" is generally seen as an executive function, not that of the courts. The latter do assist in enforcement by adjudicating cases related to it. But they are not, technically, law enforcement officials, as such. An admittedly quick and nonexhaustive search of the Westlaw database of Missouri state court decisions shows that Missouri courts routinely refer to "courts" and "law enforcement" as distinct entities. A limitation of "enforcement" authority therefore may not be considered as a limitation of judicial power.
Section 1.440 of the act does address courts directly, saying that "[i]t shall be the duty of the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens to keep and bear arms within the borders of this state and to protect these rights from the infringements defined under section 1.420." This can be seen as potentially denying courts the power to hear cases enforcing the federal laws in question. However, a statement that a given government official has a "duty" to pursue objective X is not an unlimited grant of power to do anything and everything that might promote the goal in question. It does not, by it self, authorize actions that violate the federal Constitution or other binding state and federal laws. For example, if a state judge or law enforcement official decides that the goals of Section 1.440 can be advanced by killing gun-control advocates (thereby making it less likely that new gun control laws will be enacted), that does not mean he or she is authorized to commit murder!
Moreover, by listing "the courts" and "law enforcement agencies" separately, the Section 1.440 suggests that these are two distinct entities. That reinforces the notion that the Section 1.430's constraints on "the authority to enforce or attempt to enforce" do not apply to the consideration of cases by courts (which, on this view, is not a "law enforcement" function).
In sum, both sides have plausible arguments on the question of whether HB 85 bars state courts from hearing cases arising from federal attempts to enforce the federal gun laws covered by the act. But it's important to remember that Missouri courts, like federal courts, follow a strong doctrine of "constitutional avoidance," which requires state laws to be interpreted in ways that avoid violating the Constitution, if at all possible. For example, the Missouri Supreme Court has ruled that "[i]t is a well accepted canon of statutory construction that if one interpretation of a statute results in the statute being constitutional while another interpretation would cause it to be unconstitutional, the constitutional interpretation is presumed to have been intended."
Thus, if the application of HB 85 to state courts is a close question (which I think it pretty obviously is), judges must interpret the law in a way that avoids rendering it unconstitutional. And when it comes to interpretations of state law, federal courts follow the interpretive principles of the courts of the state whose law it is.
If the federal court nonetheless concludes that HB 85 does apply to state courts, it could easily rule it to be unconstitutional in that context, while upholding the law's vastly more important constraints on state and local executive authority and law enforcement agencies. The law includes a broad severability clause (Section 1.485) indicating that if any provision or "application" of HB 85 is held "invalid," the rest will remain in force. As a practical matter, it is unlikely that federal officials would bring enforcement actions for these laws in Missouri state courts, as opposed to federal courts.
John Witte and Rafael Domingo are coediting the forthcoming Oxford Handbook of Christianity and the Law. One of the chapters will be on "Christianity and Equity," and my colleague Paul Miller and are writing it. There's a lot of terrain to cover--starting with Aristotle (yes, we know he's pre-Christian, but also formative for the later tradition), Roman law, the New Testament, scholastic theology, canon law, the Magisterial Reformation, and the English Court of Chancery. If you're interested in the ways the classical and Christian sources influenced the equity tradition, then you'll want to read it. If this is the sort of thing you like, you will like it.
The two implications we focus on are thinking of equity not just as a matter of public virtue, but also as a matter of personal virtue (for judges, lawyers, and litigants). And the value of holding on to the idea of conscience in equity. On that latter point we say this:
All this is clear from equity's institutional history and doctrinal development. Even in contemporary doctrine one finds numerous indicia of concern for conscience, including in concepts of good faith, oppression, clean hands, unconscionability, and undue influence. And yet, even though in each of these lines of doctrine there remains a connection between equity and conscience, that connection is now kept at arms-length. Rarely is it explicitly acknowledged, much less explained or elaborated. Toward conscience, judges adopt a posture of detachment.
One unfortunate effect has been the present calcification of equity. Many lawyers may point to what has been done in the name of equity, but cannot really inhabit it as a living, organic tradition. A willingness to deliberate publicly about the demands of conscience might permit a different and more fruitful perspective. It might encourage thinking about the performance of equity, of equity as something that needs to be done.
This line of thought is consistent with the Getting Into Equity piece that Paul and I recently wrote for the Notre Dame Law Review's federal courts symposium.
The Seventh Amendment civil jury trial right is complicated. Originalists and non-originalists alike tend to see the text as requiring a historical inquiry, because the right is "preserved" in "suits at common law." But how should that inquiry be done? My article Equity, Law, and the Seventh Amendment has just been published by the Texas Law Review, and you can read it here.
Here's the abstract:
The Seventh Amendment requires that the civil jury trial right be "preserved" in "Suits at common law." Those bits of constitutional text have long set the justices on a path of historical reconstruction. For roughly two centuries, the Supreme Court has determined the scope of the civil jury trial right in federal court by reference to historic English courts. But no one is happy with the current test. In one widely used variant, it requires an inquiry into analogous 1791 actions, followed by an inquiry into the legal or equitable provenance of the remedy sought, and then a weighing that favors the second of these two incommensurable inquiries. The test is anachronistic and internally incoherent, and it leads to anomalous results.
This Article critiques the current approach and offers a new test for the scope of the Seventh Amendment civil jury trial right. This test would presume a civil jury trial right, but with three categorical exceptions. One exception is for areas of substantive law developed exclusively in equity, another is for remedies developed in equity, and the third is for case-aggregating devices developed in equity (e.g., the class action). The historical inquiry that is required would be somewhat stylized. But it is more manageable than the current approach, and it would allow judges to determine the scope of the civil jury trial right with greater predictability and accuracy.
The plan sent Congress into a tizzy. Sen. RonWyden (D-Ore.) complained that "many facial recognition technologies are biased in ways that negatively impact vulnerable groups, including people of color, women, and seniors." Fifteen Republican senators objected that the face recognition system threatened to make taxpayers"pay the toll of giving up their most personal information, biometric data."
Cowed by the accusations of bias and privacy,the IRS announced that it will "transition away" from face recognition. But both accusations are false, and the price that you and I will pay for this panicky retreat is enormous.
…
Wyden wants the IRS to switch to "verification by humans." Talk about lose-lose. At this point, the technology is much better than humans: Even human "super-recognizers" can't beat the algorithms. Their best accuracy rates are around 95 percent, well behind today's machines, and ordinary mortals, with an error rate of about 81 percent, aren't even close. They will almost certainly show more bias, too; humans are notorious for having trouble recognizing people outside their ethnic group.
Meanwhile, taxpayers would get worse service that costs more. If you've flown home from overseas in the past few years, you've probably skipped the customs line served by a humanofficer and headed straight for a kiosk that uses face recognition to match youto your passport. And I'll wager money you never want to go back to the old system.
But when it comes to protecting yourself from identity theft, that's exactly what the bipartisan critics in Congress want the IRS to do to you. Instead of a quick, automated process, you will wait on the phone to be verified by a human being. That human being will be working for the same understaffed IRS thathas not even gotten around to opening and logging all the returns it received in the mail nearly two years ago.
But that's what's in store for all of us if the bipartisan group of congressional critics gets its way. If it's any consolation, we probably won't be on hold for the whole two years.
Nay, says the Florida Court of Appeal majority, interpreting a recent "statute authoriz[ing] residential property owners to remove trees from their property without interference from local government" if an arborist or landscape architect says the "trees present a danger to persons or property."
From Wednesday's decision in Vickery v. City of Pensacola, by Judge Thomas Winokur, joined by Judge B.L. Thomas (over a dissent by Judge Scott Makar):
Larry and Ellen Vickery appeal from an order denying dissolution of a temporary injunction prohibiting them from removing a tree from their property. Because the injunction was improper, we reverse.
The Vickerys own a residential lot in the North Hill Preservation District of Pensacola, on which a live oak tree is situated in the rear corner. Hoping to build a house and wanting to avoid potential damage from the tree, the Vickerys applied to the Parks and Recreation Department for a permit to remove the tree. The permit was denied shortly before section 163.045(1), Florida Statutes, came into effect on July 1, 2019. This statute authorizes residential property owners to remove trees from their property without interference from local government if the owners obtain documentation, from an International Society of Arboriculture (ISA)-certified arborist or Florida-licensed landscape architect, indicating that the trees present a danger to persons or property.
The Vickerys' builder emailed the City of Pensacola (the City) to inform it that the Vickerys planned to remove the tree. The builder attached a letter from an ISA-certified arborist indicating that the main trunk of the tree had "severe decay" resulting from the prior removal of one of the tree's main stems, as well as other evidence of the tree "rotting on the inside." As a result, the letter contained the arborist's opinion that the "location of the tree puts homes and the occupants at risk of severe damage and safety" when the tree fails.
The City filed an action for declaratory judgment seeking a determination that section 163.045(1), Florida Statutes, did not prohibit the City from enforcing the local code provisions requiring the Vickerys to obtain a permit to remove the tree. It argued that the statute's use of the words "documentation" and "danger" is ambiguous, that the Vickerys' documentation was insufficient, and that the Legislature must have intended to require property owners to obtain an objective evaluation based on standards used by ISA-certified arborists. The City also requested a temporary injunction prohibiting the Vickerys from removing the tree.
In IPSOS MMA, Inc. v. Doe (decided Jan. 25 but just posted on Westlaw), the plaintiff, a marketing analytics company, sued an ex-employee for alleged trade secret infringement; the case settled within three months of filing, and Judge Paul Engelmayer (S.D.N.Y.) allowed it to be litigated pseudonymously:
On November 18, 2021, at a preliminary stage of the case, the Court permitted the defendant to proceed pseudonymously…. [T]he Court finds that pseudonymous identification of the defendant remains warranted, with the case having settled promptly, including for the following reasons.
First, although claims of professional wrongdoing were made against Doe, they were not established, and because the case settled, prior to formal discovery, will not be.
Second, as the Court earlier noted, Doe is not a public figure, and because there will be no motions practice or other litigation, the public interest is not independently served by the disclosure of his identity. Cf. Delta Airlines, 310 F.R.D. at 225 (where lawsuit was proceeding to trial, "Delta could suffer concrete prejudice in several respects were Doe permitted to proceed pseudonymously"); Del Rio, 241 F.R.D. at 159 (noting that party's anonymity could "deprive a litigant and the court of the chance that a yet unknown witness would … know to step forward with valuable information about the events or the credibility of witnesses").
Third, the defendant did not initiate this matter or seek to use the litigation process for personal advantage.
Fourth, Ipsos continues not to oppose this motion on any grounds, including that it may be prejudiced by Doe's pseudonymity.
And fifth, thus far, Doe's identity has successfully been kept confidential. Accordingly, Doe may continue to proceed based on a pseudonym, and the appropriate redactions of his identifying information will remain in place. This case remains closed.
It seems to me that this analysis would justify allowing pretty much all defendants who are accused of serious misconduct, whether intentional or negligent—malpractice, sexual assault, employment discrimination, many kinds of breach of contract—to litigate pseudonymously, at least until there is some "motions practice or other litigation." That is not the way most courts operate, it seems to me (see, e.g., Appendix 7 of my The Law of Pseudonymous Litigation draft, and cf. this case). Still, one thing I learned in writing that article is that the legal standards for pseudonymity are phrased quite vaguely, and that much depends on the views of the particular judge you draw.
By the way, you might wonder how a defendant got to be pseudonymous in the first place, given that the plaintiff files the Complaint and usually names the defendant. As best I can tell, what happened is that the plaintiff filed the Complaint under seal, because it wanted to get an ex parte TRO without alerting the defendant that such an order was coming. The judge later ordered the Complaint unsealed (since permanent sealing of such documents is much frowned on), but with the defendant's name redacted out.
