Free Minds & Free Markets

Weekly Volokh Conspiracy Archive 2019 February 1-31

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Gun Decontrol, 1986 to Now

The latest map of state laws related to concealed carry, 1986 to 2019, is out -- and it's striking.

[UPDATE: Though the original map, available here, shows changes each year, I can't seem to make that work here, so I've just included the static 1986 and 2019 maps for now; working on trying to make the dynamic map work.]

"Unrestricted" means that, generally speaking, any law-abiding adult can carry a gun concealed in public places without a license. (This used to be so only in Vermont; many people, I've found, are surprised by that being the one state.)

"Shall-issue" means that any law-abiding adult (in some states, limited to over-21-year-olds) can get a license to carry concealed, and the government has minimum discretion to deny that license.

"May-issue" means that the government can choose whether to give people concealed carry licenses. (This may vary sharply from county to country or city to city in the state.)

"No-issue" means that concealed carry is categorically forbidden to ordinary citizens (with some exceptions for government employees and perhaps some private security professionals).

From the Radical Gun Nuttery! site, but despite the name (either of that site or of this one), the data seems pretty accurate. You can agree or disagree on whether the change has been a good idea, of course, but it's an important reality to keep in mind when thinking about the shape of modern American gun policy.

Court Rejects "Scary Dexter" Lawsuit

In Njewadda v. Showtime Networks, Inc. (N.Y. trial ct. Jan. 29, 2019), plaintiff sued alleging that she stumbled and injured herself in Grand Central station because she saw a scary Dexter ad (apparently the one I reproduce above):

[S]he turned around and attempted to ascend the staircase to ascertain his whereabouts, when she saw and was confronted with, under the steps thereto, a semi sub-merged but dramatically oversized photograph, poster and or wraparound advertisement of the actor Michael C. Hall, who portrays himself as DEXTER, a Showtime series about a serial killer....

[T]he photograph, extending the full length of the steps from the top of the platform to the bottom, depicted a shocking, and menacing face of a Caucasian man (DEXTER) exhibiting an expression of fear or shock and was covered, draped or enwrapped in cellophane/plastic wrap ....

[T]he sight of [the] photograph startled, shocked and overwhelmed [p ]laintiff causing her to panic and become fearful, which fright, fear and anxiety caused her to panic and lose her balance on the steps resulting in her falling down the steps to the bottom thereof ....

Plaintiff essentially argued that the posting of such a supposedly distracting and frightening poster was negligent:

Plaintiff makes reference to the Dexter Advertisement as "a large, deliberately oversize wraparound and dramatically distorted poster of a man under the stairs visible only to pedestrians walking up the stairs'', "a dangerously distracting foreign object [in] the ocular field or flow of human traffic upon said precarious staircase", "a deliberate induction of a kinetic psychocognitive impulse generator of fear in the viewer", "an ocular trap" and "a malignant optical distraction buried in the stairs that functionally operated, in certain foreseeable circumstances, as an ocular shock trap or hazard to unwary pedestrians ....

No liability, says the court; I think its analysis isn't quite sound (which focuses on supposed lack of duty on the part of some defendants and lack of a "physical act" by others). But I agree that the court should have found that, as a matter of law, the defendants didn't act unreasonably.

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Does the Second Amendment Secure a Right to Carry Guns in Most Public Places?

Another cert. petition asks the Supreme Court to resolve the circuit split on this question.

The case is Rogers v. Grewal, which challenges New Jersey's restrictive firearms carry license policy. There's a split on the subject among lower courts; the details are a bit complicated, but the short version is that the First, Second, Third, and Fourth Circuits have upheld such restrictive policies, while the Seventh, Ninth, and D.C. Circuits, together with the Illinois Supreme Court have struck down some such policies. Several amicus briefs support the petition, including one signed by, among others, the California State Sheriffs' Association, which "represents each of the fifty-eight California sheriffs."

The defendants have waived their right to respond, so here are the possibilities:

  1. None of the Justices calls for a response, which means that the Court will deny review (likely on Feb. 22 or Feb. 25, because the petition is currently scheduled to be considered on Feb. 22).
  2. One of the Justices calls for a response, but the Court eventually still denies review, as it has done before. (Such a denial might or might not be accompanied by a dissent from some Justices.)
  3. One of the Justices calls for a response, and the Court eventually grants review, with the case being heard next Term, and likely decided during the heart of the 2020 election campaign.
  4. One of the Justices calls for a response, and the Court holds the case pending New York State Rifle & Pistol Association Inc. v. City of New York, the Second Amendment case that the Court has already agreed to hear, and that might be heard in April. Depending on the reasoning of the New York State Rifle & Pistol decision, the Court could then either agree to hear Rogers, decide not to hear it, or send it back to the Third Circuit to be reconsidered in light of the New York State Rifle & Pistol decision.

California's ban on all new pistol models: Supreme Court amicus brief

Since 2013, California has outlawed new semiautomatic handguns

Can a state ban all new handguns? According to a 2-1 panel of the Ninth Circuit, the answer is yes. A pending cert. petition asks the U.S. Supreme Court to consider the question. I filed an amicus brief in support of petition, on behalf of professors (including VC's Randy Barnett) who teach Second Amendment law, and also on behalf of several civil rights organizations (the Independence Institute, where I work; the Millennial Policy Center; and Mountain States Legal Foundation).

Background: The case is Pena v. Horan, with Supreme Court docket number i18-843. My amicus brief is here. The Supreme Court's docket page is here. As the docket indicates, California has received an extension for its reply brief until March 6.

A California statute requires that all new models of semi-automatic handguns stamp the handgun's serial number in two locations on each round of ammunition. It is possible for a handgun's firing pin to stamp the serial number onto the cartridge's primer, which is a disk in the center of the back side of the ammunition. It not possible to stamp a serial number in two locations, as an erudite amicus brief from the Cato Institute explains. Nevertheless, California Attorney General Kamala Harris in May 2013 declared that all conditions for implementation by the statute had been met. Accordingly, all pistol models created since May 2013 are prohibited from commercial sale in California.

Cert. petition amicus briefs were also filed on behalf of 19 states, led by Texas Attorney General Ken Paxton (lower courts have been flouting Heller and need guidance from the Supreme Court); and by gun rights organizations led by the Firearms Policy Coalition (detailing how the microstamping law and other California laws have greatly constricted California consumer choice on handguns).

After Attorney General Harris announced the ban on all new pistol models, a suit was brought by four individual plaintiffs, plus the Second Amendment Foundation. Attorneys are Alan Gura (winner of the Heller and McDonald cases in the Supreme Court) and Don Kilmer. Before the Ninth Circuit, amicus briefs in support of the ban were filed by the Law Center to Prevent Gun Violence, the Brady Center to Prevent Gun Violence, the Los Angeles City Attorney, and Everytown for Gun Safety.

The Ninth Circuit upheld the ban 2-1, with Judge Bybee dissenting.

Amicus brief: California's unprecedented ban prevents consumers from taking advantage of all improvements in pistol safety. Since 2013, new handgun models have introduced better ergonomics, reduced recoil (especially important for people who do not have great upper body strength), durability, and accuracy. Better ergonomics, better sights, easier control, and so on, make the gun safer to use, such as by reducing stray shots.

In Heller, the Supreme Court expressly rejected the notion that the Second Amendment could be limited to the types of arms in existence in 1791. In the 2016 Caetano case, the Court per curiam overturned a Massachusetts decision that had upheld a stun gun ban since stun guns did not exist in 1791. Because technological freezes on constitutional rights are forbidden, California may not bar citizens from buying pistols that were created after 2012.

The Ninth Circuit attempted to blame the California government's pistol freeze on firearms manufacturers, rather than on the government. The panel majority speculated that pistol manufacturers could produce double-microstamped guns but were refusing to do so.

As our brief explains, firearms manufacturers readily comply with California mandates (no matter how foolish) when manufacturers can do so. For example, certain laws in California require that semiautomatic rifles sold in California may not have particular useful features, such as adjustable stocks. (An adjustable stock is ergonomically helpful because people have varying heights and arm lengths, so users can adjust the stock for a good personal fit.) The brief and its appendix describe the hundreds of models of semiautomatic rifles that manufacturers have produced in order to be "California legal."

According to the Supreme Court, a court applying intermediate scrutiny should consider both sides of the evidence. As detailed in City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), the first step of intermediate scrutiny analysis is to see if the government has introduced evidence to "fairly support its rationale." According to the Ninth Circuit, California succeeded on the first step, because California had shown that microstamping technology does exist. So the rationale that microstamped cartridges could aid in solving crimes was sufficiently supported.

The second step, according ot Alameda Books, is to see if the other side can "cast direct doubt on this rationale, either by demonstrating" that the government's "evidence does not support its rationale or by furnishing evidence that disputes the [government's] factual findings." The Ninth Circuit majority skipped the second step. As Judge Bybee's dissent pointed out, the plaintiffs had introduced extensive evidence showing that double-microstamping as demanded by California is impossible.

"If plaintiffs succeed in casting doubt ... the burden shifts back" to the government "to supplement the record with evidence renewing support." So says Alameda Books. But the Ninth Circuit also ignored step three of intermediate scrutiny.

As Judge Bybee's dissent pointed out, "the question of technological feasibility—in the sense of whether a manufacturer can satisfy the testing protocol—is one that can be readily answered in a laboratory." California could have satisfied its step three burden by showing at a firearm exists (even one of the prototypes made by microstamping's inventor) that meets the California standards. California's failure to do so is a tacit admission that compliance is impossible.

A lower court faithfully applying Heller would have found the California ban categorically unconstitutional, since it a ban on an entire class of arms (as the Cato brief argues). Had the Ninth Circuit applied ordinary intermediate scrutiny, the ban still would have been stricken. But like many other courts (including the Second and Fourth Circuits) the Ninth Circuit persists in defying Heller and nullifying the Second Amendment.

"You Don't Get to Pick the Day You Need Your Gun. Someone else will pick that day and they will only tell you at the last minute."

A nice line, attributed to Tom Givens of Rangemaster. Thanks to Joseph Horton for the pointer.

The Andy Warhol Law of Food Science: In the future, every food will be health food for 15 minutes

Thanks to Prof. Maciej Banach (Medical University, Lodz, Poland) for finding "consumption of cheese to be associated with an 8% lower total mortality risk," and to Prof. Glenn Reynolds (InstaPundit) for the pointer. Meantime, here in L.A., the death rate is remaining constant -- one to a customer.

Why the Demand for Fake News is a Far More Serious Problem than the Supply

Canadian columnist Andrew Coyne explains why efforts to combat fake news by cutting off supply are barking up the wrong tree.

Since the 2016 election, there has been widespread concern about "fake news" and many proposals to combat it by constraining the supply, particularly that from foreign sources, such as the hostile authoritarian regime of Russian President Vladimir Putin. Fake news is a genuine problem and Putin really is a ruthless enemy of western liberalism and democracy that western nations should do more to counter. But Canadian columnist Andrew Coyne has a valuable critique of claims that we can overcome the problem by regulating the supply of fake news:

I have an urgent warning for the people of Canada. Even now, certain agents are plotting to influence the result of the next election campaign by means of stealth and deception.

Posing as ordinary Canadians, they plan to use social media to spread falsehoods designed to inflame public opinion, using the latest micro-targeting technologies to tailor their messages to the reader's particular fears and prejudices.

These agents are better known as the political parties....

No one disputes that Russia, China and others have interfered or attempted to interfere in recent elections around the world, notably in the election that gave us Trump (okay, Trump still disputes it)... But the impact of "fake news".... is more debatable....

I don't want to say that "fake news" doesn't matter. But to the extent that it matters, it would appear the problem is less the supply than the demand: the willingness, indeed the desire of large numbers of people to believe transparent falsehoods. But then, without it what becomes of politics?

What is true of Canada is even more true for the United States: The fake news generated by Russian and other foreign plants is trivial compared to that produced by our own political parties and their homegrown partisan and activist allies. John Sides, Michael Tesler, Lynn Vavreck's new book Identity Crisis, the most thorough social science analysis of the 2016 election, concludes that the impact of Russian-generated fake news was virtually undetectable in the data, and certainly trivial compared to that of homegrown misinformation, xenophobic attitudes and partisan polarization, which helped Trump eke out a narrow victory.

And, as Coyne points out, our own political parties routinely spread politically potent misinformation on a far larger and more effective scale than foreign-generated bots do. That was certainly true of Donald Trump's campaign, which relied extensively on bogus claims about immigration and trade. But while Trump is particularly brazen in his lies and deceptions, conventional politicians also routinely use such tactics, even if more subtly and less indiscriminately. It's hard to point to any one lie told by Trump that was as successful as Barack Obama's "if you like your health care plan, you can keep it," a deserving winner of Politifact's 2013 "Lie of the Year" award. I would be happy to see Trump removed from office. But we should not imagine that the problem of political disinformation is limited to him and his supporters, or that it is mainly caused by Russian plants infiltrating pir otherwise largely pure and wholesome political environment.

Indeed, Coyne's best insight is that the true root of the problem is not the supply of fake news, but the demand for it. In a relatively free society, there will always be people willing to spread lies and disinformation. The real danger is that so many people are willing to consume such material - and eagerly believe it when they do. If not for such avid consumers, political misinformation would cause little, if any, harm.

Part of the reason why many people are susceptible to deceptions and "fake news" is widespread public ignorance. Most voters know very little about government and public policy, in large part because itis actually rational for them to devote no more than a small fraction of their time to following political issues. Since an individual vote has only an infinitesimally small chance of influencing electoral outcomes, it makes little sense for most citizens to spend substantial time and effort learning about politics in order to become better voters. Unfortunately, such individually rational voter behavior can cause harmful collective outcomes. People who know very little about political issues are, by virtue of that ignorance, more susceptible to misinformation. Politicians and interest groups are well aware of this vulnerability, and routinely exploit it.

But the problem here goes beyond simple ignorance. As Coyne suggests, many people are actively eager to believe dubious claims, so long as doing so confirms their preexisting views. Particularly in our current environment of severe political polarization, partisans often act not as truth-seekers, but as "political fans" eager to endorse anything that supports their position or casts the opposing party and its supporters in a bad light. These biases affect not only ordinary voters, but also otherwise highly knowledgeable ones, and even policymakers and politicians. This helps explain why many people eagerly consume crude misinformation, without giving careful thought to the validity of the claims made.

There is no easy solution to these problems. Individual voters can do a lot to better inform themselves and curb their biases. But I am skeptical that many will do anytime soon. In my view, the better approach is systematic reform to limit and decentralize the power of government, so as to reduce the potential harm caused by voter ignorance and bias. There are a variety of other possible solutions, as well. Regardless, the beginning of wisdom on the issue of fake news is to recognize - as Andrew Coyne does - that the root of the problem is demand, not supply. And as long as the demand remains high, there will be plenty of willing suppliers.

Second Amendment Right Regained, Despite 20-Year-Old Conviction

Federal law treated the conviction -- for altering a motor vehicles department certificate that allowed the owner to have tinted windows on his car -- as a felony, because the maximum penalty was five years in prison. But state law treated it as a misdemeanor, and the defendant was sentenced only to a year's probation.

From yesterday's decision in Miller v. Sessions (E.D. Pa.):

The background of this case revolves around a 1998 misdemeanor conviction. Miller was pulled over for having window-tint on his car that, according to the patrolman who stopped him, was too dark. He had previously received an exemption from the Pennsylvania Department of Transportation ("PennDOT") for tinted windows on a previously owned car. Miller did not apply for a new exemption for his new car. Instead, with the aid of a typewriter, white-out, and a scanner, Miller replaced his previously owned car's Vehicle Identification Number ("VIN") on the exemption certificate with the VIN of his new car.

Miller presented this altered PennDOT certificate to the Magisterial District Justice at his hearing regarding the window-tint violation. Based on the asserted authenticity of this certificate, he was found not guilty of the window-tint violation. After the hearing, the patrolman who had originally stopped Miller requested a copy of the PennDOT certificate that Miller had proffered to the court. When the patrolman attempted to verify its authenticity, PennDOT informed him that Miller had never obtained a window-tint exemption for his new car. PennDOT informed the patrolman that Miller had only ever received a window-tint exemption for his previously owned car. It then became apparent that the certificate evidencing the window-tint exemption proffered in court had been altered and was not authentic.

As a result, Miller was charged with and later pleaded guilty to possessing and using documents issued by PennDOT that he knew were altered in violation of 75 Pa. Cons. Stat. § 7122(3). Miller was sentenced to a year of probation, which he completed successfully, and has had a spotless record ever since.

Pennsylvania misdemeanors, unlike misdemeanors in most states, are punishable by up to five years in prison, which makes them felonies for federal firearm disqualification purposes. But that, the court says, violates the Second Amendment in this case:

In Binderup v. Att'y Gen. (3d Cir. 2016) (en banc), [Judge Ambro's plurality opinion] identified four factors to consider when determining if a challenger has been convicted of a serious crime. Specifically, the Court looks to (1) whether the state legislature classifies the offense as a felony or a misdemeanor; (2) whether the offense was violent; (3) the actual punishment imposed; and (4) any cross-jurisdictional consensus regarding the offense's seriousness....

As to the first factor, Pennsylvania has classified Miller's crime as a misdemeanor. It is punishable by imprisonment for up to five years, and although the "maximum possible punishment is 'certainly probative' of the offense's seriousness," the classification by the state legislature as a misdemeanor is an important consideration. Indeed, such a classification is "a powerful expression of [the state legislature's] belief that the offense is not serious enough to be disqualifying." Although labeling an offense as a misdemeanor is not conclusive, it is important in the Second Amendment context because it reflects the legislature's assessment of the seriousness of the offense. As the D.C. Circuit has observed, "[w]hen the legislature designates a crime as a felony, it signals to the world the highest degree of societal condemnation for the act, a condemnation that a misdemeanor does not convey." Here, given that the legislature has classified this type of offense as a misdemeanor, this factor weighs in Miller's favor.

As to the second factor, the Court must consider whether the offense had a violent element. In the instant case, the crime was wholly non-violent. Although "it is possible for nonviolent crimes to be serious, the lack of a violence element is a relevant consideration." Again, here, this factor weighs in Miller's favor.

As to the third factor, the Court considers the actual punishment imposed. As the label of a misdemeanor reflects the legislature's assessment of the offense, the actual punishment imposed reflects a judicial assessment of the gravity of the offense. Here, Miller was sentenced to a year of probation, which he completed successfully. Just as it was important in Binderup that the challengers each received minor sentences, it is important in Miller's case, too. As the Third Circuit noted, "severe punishments are typically reserved for serious crimes." Accordingly, this factor also weighs in Miller's favor.

As to the fourth factor, the Court considers whether there is cross-jurisdictional consensus regarding the seriousness of the offense. In Binderup, the challengers could not show that numerous states considered their crimes to be non-serious, but they did show a lack of consensus across jurisdictions. Here, Miller has also not shown a cross-jurisdictional consensus that many states consider his crime to be non-serious. On the other hand, the Government's fifty-state survey suggests that many states punish similar crimes by more than one year of imprisonment and label similar crimes as a felony. Miller, however, disputes the similarity of a number of the other states' crimes, pointing out, for example, that his offense only required possession and use of an altered PennDOT document while many of the offenses in the Government's survey require the offender to alter or forge a document. Whatever the relative merits of the parties' arguments, the Court need not compare the similarities and differences between Miller's crime and the crimes in the Government's survey because even if this factor is given some weight in the Government's favor, it does not outweigh the other three factors that weigh in Miller's favor.

Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer.

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Neomi Rao Under Fire

Senate Democrats and progressive groups launch unfounded attacks against a judicial nominee.

This morning, the Senate Judiciary Committee is scheduled to hold a hearing on the nomination of Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. Rao is currently the Administrator for the Office of Information and Regulatory Affairs (OIRA) and has been nominated to fill the vacancy created by Justice Brett Kavanaugh's elevation to the Supreme Court and (for reasons I explained here) is an excellent choice for this seat.

In today's hearing, Rao is likely to face tough questioning and strong opposition from Senate Democrats. Progressive groups, "still seething over the confirmation of Kavanaugh," have launched a barrage of unjustified and unfounded attacks on Rao. Although many of these groups have complained about the lack of diversity of the Trump Administration's judicial picks (with reason), they have no interest in seeing an exceptionally intelligent woman of color confirmed to what is often characterized as the "second highest court" in the country.

Some groups have sought to claim Rao is unqualified because she was never a litigator. This is a silly charge. Rao's experience as OIRA Administrator makes her "uniquely qualified" for this seat, as Ohio State law professor Chris Walker explains at Notice & Comment. Rao has more relevant experience to serve on the D.C. Circuit than did Elena Kagan when President Clinton first nominated her that court in 1999. At the time, Senator Pat Leahy (D_VT), the ranking minority member on the Senate Judiciary Committee called Kagan an "outstanding" and "highly qualified" nominee. Leahy was right, and Rao is no less qualified. Indeed, the American Bar Association agrees.

Rao's academic writings are serious and formidable. Her work discussing how excessive delegation of power to the executive branch undermines political accountability is insightful and particularly relevant today as the President threatens to use the such power to declare a "national emergency" in order to build a border wall. As Fred Barbash explained in the Washington Post, Rao's "brilliant article" on delegation shows why most alleged executive excesses are facilitated by Congress. Yet rather than engage the substance of her academic work, Rao's critics resort to caricatures and smears, such as by characterizing her work on the role of dignity in constitutional law as advocating "dwarf tossing" while ignoring her emphasis on autonomy and consent.

Desperate to find dirt on Rao, some groups have seized on opinion pieces she wrote over twenty years ago as a college student, as if the scribblings of a twenty-year-old tell us much about how someone will behave as a judge in the 40s and 50s. Obsessive focus on college writings is absurd, but it's par for the course in judicial nominations these days.

In Rao's case, groups are distorting and misrepresenting her views in an effort to paint her as extreme. Some are even claiming that nuanced, thoughtful op-eds discussing feminism and a date rape controversy at Yale (where she was an undergraduate) suggest she blames rape victims for their plight. These attacks distort her writings and, as KC Johnson explains, implicitly reject the broad consensus among judges in Title IX cases that men and women must be held to the same standards of responsibility and behavior. It's sad but true that people are more vulnerable to sexual assault if they drink too much alcohol. Noting that fact, particularly while emphasizing that no amount of inebriation can excuse sexual assault, hardly constitutes "blaming the victim."

Rao is an accomplished lawyer and administrative law expert -- just the sort of person who should sit on the D.C. Circuit. Nominations like hers are among the (very) few bright spots of this administration. I hope the Senate will agree.

And a Welcome to Our New Coblogger Keith Whittington

I'm also delighted to report that Prof. Keith Whittington, William Nelson Cromwell Professor of Politics at Princeton University will be joining us as a coblogger. He is the author of, among other books, Speak Freely: Why Universities Must Defend Free Speech, Constitutional Construction: Divided Powers and Constitutional Meaning, and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. As you can tell, he does constitutional law and constitutional history; I'm very much looking forward to his posts!

Black swans, black ops, BlackCube, and red herrings

Episode 249 of the Cyberlaw Podcast

In this episode, I interview Chris Bing and Joel Schectman about their remarkable stories covering the actions of what amount to US cyber-mercenary hackers. We spare a moment of sympathy for one of those hackers, Lori Stroud, who managed to go from hiring Edward Snowden to hacking for the UAE in the space of a few years.

In the news, I ask my partner Phil Khinda whether the $29 million Yahoo breach settlement opens a new front in breach derivative litigation or is a black swan event. He says it's more of a red herring – and explains why.

This week in black ops: I ask Nate Jones to comment on the tradecraft used in an apparent effort to smear Citizen Lab for its reports on NSO. My take: This feels a lot like what BlackCube did for Harvey Weinstein, except that this was the low-budget version.

I'm not sure the indictments are working. The Russians are so far from being shamed that now they're engaged in fake hacking. Dr. Megan Reiss notes Special Counsel Mueller's recent claim that Russians are leaking discovery materials and pretending they came from a hack of the counsel's office. Remember the remarkably adroit robot that turned out to be a Russian in a robot suit? That's what this reminds us of.

Maury Shenk and I discuss Google's latest imitation of Apple's "law enforcement lockout" feature and Google's claim that hurting law enforcement was an "unintended side effect." I call BS.

Maury also notes the flap over a flaw in Apple's FaceTime that allows for eavesdropping. Predictably, New York State is investigating.

And in possibly related news, Apple went out of its way to publicly embarrass Facebook and Google over their use of corporate certificates to sideload apps to record the browsing habits of paid volunteers. I'm not convinced that the fuss is justified. Whatever those users sold their data for, it's a lot more than I'm getting.

Quick hits:

This week in dogs biting men: Ukraine says Russia is trying to disrupt its upcoming election, and the Pentagon is reportedly failing to stay ahead of cyber threats. Megan covers the first and Nate the second.

I offer one and a half cheers for Japan's pioneering and mildly intrusive survey of bot-vulnerable IoT devices. Unfortunately, it's not intrusive enough to really address the problem.

Finally, EPIC is calling on the FTC to impose a $2 billion fine, structural changes, and more on Facebook, claiming that "the algorithmic bias of the [Facebook] news feed reflects a predominantly Anglo, male world view." If you still need evidence that privacy law is the legal equivalent of a Twitter mob – an always-ready tool for punishing unpopular views – EPIC's filing should do the trick.

Download the 249th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Encouraging Civil Discourse at a Time of Partisan and Ideological Bitterness

The Liberty & Law Center a Scalia Law School is launching a program to encourage civil discourse among students of differing ideological commitments.

The Liberty & Law Center at the Scalia Law School, George Mason University, is the law school's newest academic center. I'm the executive director. Among the programs we've launched in the last year are a free speech legal clinic, a public interest litigation and advocacy concentration, and a liberty and law reading group.

Our newest program launches Wednesday, and I thought many VC readers would find it of interest. The program, a response to the increasingly bitter partisan and ideological divide in the United States, is called "Discussion over Division."

Given the increasing vilification of and attempts to silence people with divergent viewpoints, Discussion Over Division aims to facilitate constructive dialogues between those with differing points of view and ideological perspectives. Discussion Over Division is open to all students at Scalia Law, and will facilitate conversations between students of differing political ideologies (as self-identified by participating students) by matching students up and providing a meal over which the students can converse about issues about which they might disagree. The hope is that participants will be more likely to see people across the political and ideological aisle as well-meaning fellow citizens, rather than as "the enemy."

Following our launch event on Wednesday, the Liberty & Law Center will host boxed-lunch and -dinner events where participating students will have a discussion with someone with a different political ideology. Students will alternatively be able to schedule their discussion on their own and receive reimbursement from the Liberty & Law Center.

The Liberty & Law Center believes that discussions such as these are an important to reducing the current divisiveness and animosity seen in the political and policy arenas. The Discussion Over Division Program will also host policy debates and conversations that highlight the value of civil discussion on important issues.

The Scalia Law School is a good place to launch this program because we have a student body that, according to informal surveys, is closely divided between left-leaning and right-leaning students, and the law school's environment is one in which students aren't afraid to reveal their viewpoint for fear of social ostracism by their colleagues. Conditions may not be quite as inviting elsewhere, but we nevertheless hope that the idea spreads to other law schools and beyond.

Anyone interested in started a similar program at their institution should feel free to contact me for details about logistics and so forth.

Conference at Emory (3/21-3/23) on academic freedom and campus free speech

I'm helping organize an exciting conference, from the evening of March 21 to the afternoon of March 23, 2019, bringing together academics and student-affairs professionals to talk about current issues related to academic freedom and free speech on campus.

I'd like to announce this exciting new conference at the Emory University Conference Center, beginning on the evening of March 21, 2019, and ending on the afternoon of March 23, about academic freedom and campus free speech. It's brought to you by the office of Emory's provost, Dwight McBride, Emory Campus Life, and the Emory University Senate's Committee for Open Expression (which I'm the chair of).

Note that Emory University is one of the handful of universities that has earned a green light rating from the Foundation for Individual Rights in Education for its speech-protective policies. Emory's Open Expression policy is very speech-protective, and the Committee for Open Expression has issued a number of opinions interpreting the policy, including one in 2016 explaining that the Trump chalkings were protected speech.

You can register at this link; registration is free for Emory students, faculty, and staff, and for students at other places; and is a very affordable $100 for everyone else.

Academic Freedom and Free Speech on Campus

Join Emory University for its conference Academic Freedom and Free Speech on Campus March 21-23, 2019 to discuss what academic freedom and free speech mean in the life of higher education institutions today.

The conference is an opportunity to showcase how public and private institutions of higher education continue to be on the forefront of debate, deliberation, and knowledge creation. Emory University is committed to this through its strategic framework, which states that "we practice the values of intellectual rigor, integrity, risk taking, and collaboration. Our faculty and students pursue open inquiry across disciplines—guided by evidence, committed to critical inquiry, fueled by the creative spirit, and dedicated not only to discovery in its own right but to solving problems and serving society." This conference was created to demonstrate this commitment.

The goal of the conference is to generate conversations on ideas, laws, policies, and practices related to academic freedom and free speech on college campuses. It will provide opportunities for faculty, scholars, student affairs professionals and students to interrogate ideas ranging from academic freedom and free speech to safe spaces, and to discuss campus protests and dissent in order to develop practices and policies that promote free speech.

Please join the conversation by attending the conference.

Who's participating? A mix of academics, student-affairs professionals, and others. Here is a (not necessarily complete) list, in no particular order:

In addition, we have several participants from Emory, including:

  • Deborah Lipstadt, professor of modern Jewish history and Holocaust studies,
  • Pamela Scully, vice provost for undergraduate education,
  • Michael Shutt, senior director of Campus Life,
  • Michele Hempfling, associate dean of Campus Life, Oxford College of Emory University,
  • Ed Lee, senior director for debate, deliberation, and dialogue,
  • Christa Acampora, deputy provost for academic affairs,
  • Steven Sencer, Emory's general counsel,
  • Lisa Garvin, acting dean of the chapel and spiritual life,
  • Courtnay Oddman, assistant director of residence life,
  • Nancy Seideman, vice president of academic communications,
  • Bert Buchtinec, captain of Emory Police Department,
  • Fred Smith Jr., law professor,
  • Julie Seaman, law professor,
  • Frank Lechner, sociology professor,
  • Karen Andes, professor of global health,
  • Dabney Evans, professor of global health,
  • Henry Bayerle, classics professor,
  • Zach Raetzmann, student,
  • and me.

Please come represent the readership of the Volokh Conspiracy, and say hi to me when you're there!

Dog Nips Cow, Cow Tramples Man

If a statute imposes strict liability for dog bites, does that extend to a herding dog nipping at a cow that then trampled the plaintiff?

From Smith v. Meyring Cattle Co., an interesting tort and statutory interpretation case decided a week ago by the Nebraska Supreme Court; the case is interpreting Nebraska Revised Statutes § 54-601(1), which in relevant part reads:

[T]he owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (a) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs and (b) to any person ... by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons or any sheep or other domestic animals belonging to such person ....

The question is whether this strict liability

encompasses the act of a herding dog nipping at the heels of a cow, causing the cow to move forward, collide with a ranch employee, and inflict "bodily hurt" [apparently quite serious injuries -EV] on the employee.

Yes, argued the employee:

He points out that to "injure" has a broad definition of "'to inflict bodily hurt on [someone or something],'" that standard principles of proximate causation apply in strict liability actions, and that an animal's normal response to an action is not a superseding cause in the chain of proximate causation.

No, says the court:

Given that other words in § 54-601(1)(b)— "worrying" and "chasing" "any person or persons or any sheep or other domestic animals belonging to such person ..."—entail action directed toward the injured person or toward the injured animal owned by the damaged plaintiff, we hold that "injuring" must also be limited to bodily hurt caused by acts directed toward the person or animal hurt....

And here is the court's more detailed analysis:


A Fine Obituary for the Weekly Standard, from Reason's Katherine Mangu-Ward

Check it out here; I liked it a lot, especially its tone -- too rarely seen these days -- of sympathetic adversariness.

Welcome Also to Our New Coblogger Stephen Sachs

I'm delighted to report that Stephen E. Sachs, Professor of Law at Duke Law School, will be joining our blog. Steve specializes in constitutional law, civil procedure, Anglo-American legal history, and conflict of laws. He clerked for Judge Stephen F. Williams (D.C. Circuit) and for Chief Justice John Roberts (the year after our own Will Baude). Much looking forward to Steve's posts!

Welcome to Our New Coblogger, Irina Manta

I'm delighted to report that Irina Manta, Professor of Law and Associate Dean at Hofstra Law School, is joining our blog. Irina is the Founding Director of the Center for Intellectual Property Law at Hofstra, and she primarily specializes in intellectual property law, though she has written about criminal law and national security law as well. Back in the day, she clerked for Judge Morris Arnold on the Eighth Circuit. Even further back in the day, she was born in Romania, which raises our East European representation to a whopping five (Sasha, Ilya, Eugene K., and me being the other four). We much look forward to having her with us!

The Northam Controversy, the Kavanaugh Controversy, and Long-Past Misbehavior

I think highly of Justice Kavanaugh, and I do not think he was guilty of what he was accused of doing. But -- contrary to some arguments I've been seeing -- I don't think that the demands that Gov. Northam resign because of his yearbook photo 35 years ago are particularly similar to the demands that Judge Kavanaugh not be confirmed because of what he allegedly did 35 years ago.

First, Judge Kavanaugh was accused of committing a very serious crime; Northam is accused of including in a yearbook a photo that was in bad taste, and that may (or may not) have reflected that in 1984 he had some racist attitudes.

Second, Judge Kavanaugh firmly denied the allegations against him, so if they were true, he would have been guilty of lying about them (eventually under oath) -- which would have been current bad behavior, not just long-past. Northam had (at least when I had posted my earlier post) admitted the allegations, so the issue was his behavior in 1984, not today. Since then, CNN has reported that Northam is saying he wasn't in the photo (though he's not denying including the photo in the yearbook). If he's now lying, then that is quite bad, again because it is current bad behavior. But the focus should be on his current or at least recent behavior, not his behavior at age 25 now that he is 60.

More broadly, consider what standard we're trying to set for the future. If it's "people who are lying today about their bad behavior from 35 years ago shouldn't be in high office," that may be sensible. If it's "people who committed serious crimes 35 years ago, for which they weren't punished, shouldn't be in high office," that may be sensible. (Again, I don't believe that Justice Kavanaugh was guilty on those counts, but that goes to the particular facts related to those accusations, and not the general principle of what should have been done if the accusations were accurate.)

But if it's "people who said or did offensive things 35 years ago shouldn't be in high office," or even "people who expressed racist / sexist / anti-gay / anti-Semitic / etc. opinions 35 years ago shouldn't be in high office," that's a very different thing. It's tarring someone forever for minor misconduct (again, I note that major misconduct would be a different matter), without considering whether he may have developed better judgment and better views from age 25 to age 60. It's rejecting the possibility that people actually get wiser as they get older -- that they grow up -- that they improve their judgments, their beliefs, and their conduct.

And it's potentially depriving the nation of many valuable public servants because of a dumb thing they did long ago. Northam's specific past behavior (again, I'm setting aside the newly emerging denial, and whether it's a false denial) may not be that common. But consider all the other things that can be blown up into similar hurricanes. Maybe some people (black, white, or of any other race) quoted some sexist lyrics. Or maybe they expressed anti-gay views, which they may now regret. (Lots of people's minds have changed in 35 years about sexual orientation, as they have changed about what is so racially offensive that it shouldn't be said.) Or maybe they praised people who shot at police officers, or said nasty things about American soldiers. Or maybe they told jokes about Jews or gays or Puerto Ricans or men or women, whether or not those jokes actually reflected their own serious views about such matters.

Or maybe they did things that actually risked physically harming people, rather than just offending them. Maybe, for instance, they drove drunk -- poor judgment, potentially very dangerous, not something we'd want of a sitting Governor -- but doesn't it matter that it happened three decades ago rather than today?

If you want to go after Northam for his current views on abortion, go ahead. If you want to go after him because you think he's lying today about what happened then, go ahead. But calling for him to resign because of his bad judgment (or even his racist views, if you think he actually held such views then) from 35 years ago -- what kind of country would we be creating if that were really adopted as the rule?

Refusal to Testify = Being Accessory After the Fact

An interesting 2018 California case I just came across.

In People v. Partee (Cal. Ct. App. 2018), defendant was convicted not just of misdemeanor contempt but also of being accessory after the fact to murder for refusing to testify against family members in a gang killing case; defendant said that

She feared retaliation by the gang (she had experienced retaliation in the past); she feared for her safety and that of her daughter; she did not want to alienate her family; all four of the accused were family to her, and she did not want them to go to prison for the rest of their lives because of her testimony. Defendant further acknowledged that when she refused to testify in 2015 she knew her failure to appear as a witness in 2008 had led to the murder case being dismissed. But she denied she was helping her brother avoid trial. She testified: "Well, you guys are saying that I am helping my brother avoid trial. I believe you guys still have a case without me." She added that when her family members discovered she had spoken with Detective Skaggs, they told her not to testify because "[f]amily is first."

California law defines an accessory after the fact as

Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof ....

The offense could be punished as either a misdemeanor or a felony; here, defendant was sentenced to 365 days in jail and three years of probation for refusing to testify against family members. Defendant argued that her refusal to testify could only be punished as criminal contempt, and not on accessory-to-murder theory (which might in theory carry a much heavier penalty). The majority disagreed:

[D]espite being held in custody as a material witness and offered immunity and relocation, defendant's refusal to testify was motivated in part by the desire to ensure that her brother, cousin, and lifelong friends were not convicted and incarcerated. As a result, four accused murderers avoided trial and possible conviction. The prosecution, having tried in vain to compel defendant's testimony [including through a grant of immunity and offer of relocation], and no doubt desiring to discourage similar behavior by other witnesses, particularly in gang-related cases, resorted to the present prosecution. We find no legal authority precluding it....

Defendant claims she cannot be guilty as an accessory after the fact because her silence — refusing to testify — is not an affirmative act.... [But though t]he failure to act is not an `overt or affirmative' act unless there is a duty to act[,] ... [a] witness who has been subpoenaed and given immunity that is co-extensive with the scope of her Fifth Amendment privilege has a duty to testify." Under these circumstances, defendant's "silence" was an overt or affirmative act falling within the terms of section 32 because she had a duty to testify at defendants' preliminary hearing.

Judge Lamar Baker, dissenting in relevant part, disagreed:

For 82 years, Penal Code section 32 has proscribed "harbor[ing], conceal[ing] or aid[ing] a principal" in his or her commission of a prior felony. Today, the majority affirms convictions under this statute that are, so far as the Attorney General is aware, literally unprecedented in its 82-year history. No California case has ever sanctioned use of Penal Code section 32, the accessory statute, to mete out felony punishment for a witness who merely opts to remain silent (as distinguished from a witness who affirmatively tells some falsehood in a police interview or while on the witness stand to throw the police or the jury off track). Indeed, while I cannot claim to have conducted a fully exhaustive survey, I have discovered no court in any jurisdiction nationwide that has ever sanctioned this sort of an accessory after the fact prosecution.

The oddity of today's decision is no accident, nor is it a manifestation of the old adage that there must be a first time for everything. It is rather a product of well-intentioned but flawed legal reasoning that courts have heretofore avoided: Believing the statutorily authorized criminal penalty for refusing to testify (six months in jail) is too light a punishment for refusing to testify against defendants charged with murder, the majority blesses the invocation of Penal Code section 32, which imposes a higher penalty. As I shall discuss, however, authority dating back at least 50 years explains that resort for what might be viewed as overly light penalties for contumacious witnesses must be to the legislative process. A prosecuting office's decision to type up felony charges using a statute ill suited to the task is no adequate substitute, and the majority errs by refusing to say so.

These are just brief excerpts; if you're interested, you can read the full opinions.

UPDATE: Prof. Charles Weisselberg notes that the California Supreme Court has agreed to rehear the case; thanks, and sorry I didn't notice that originally.

No, Gov. Northam Shouldn't Resign Because of 1984 Blackface/KKK Photo

A 60-year-old is far removed from the 25-year-old he once was.

[UPDATE: For more, including the analogy some have drawn to the Kavanaugh allegations, see this follow-up post.]

Sen. Kamala Harris (D-CA), Republican Party of Virginia Chairman Jack Wilson, and others have called on Virginia Gov. Ralph Northam to resign because of his 1984 medical school yearbook photo, in which he and a classmate are shown in blackface and in KKK garb. (It's not clear who is in which costume.) That doesn't make much sense to me. It's 2019, 35 years later; what Northam thought was in good taste when he was 25 says next to nothing, I think, about his beliefs and actions today, when he is 60.

I don't think the photo actually endorses the KKK; it seems like a stupid joke more than a political statement. Nor does it seem to endorse hostility to blacks; some blackface displays do, others don't, and it's not clear that this one was understood that way. Some believe that all blackface is offensive; but even if that's so, that just tells you that Northam, when he was 25, did something offensive. How relevant is that today?

People will doubtless ask me: What if this were something offensive to the group I belong to? Very well, if I saw a medical school yearbook picture of someone in 1984 of someone wearing a Nazi uniform, alongside someone dressed as a religious Jew with fake curls and a hooked nose, I'd say: Yes, 35 years ago, this person did something in bad taste, which many people understandably find offensive. So?

Indeed, even if Northam had actually expressed hostility to blacks back then, I don't think that says much about him today. People change their views, and their actions, a lot over three and a half decades. Judge the man on what he is doing now, now on what costume he wore and what yearbook photo he chose -- or even what he may have believed about race -- in 1984.

Short Circuit: A Roundup of Recent Federal Court Decisions

Inoperable fuzes, sweetened sugar beverages, and sexed cow semen.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Friends, the Short Circuit team has just released Episode 3 of Bound By Oath, our podcast on the 14th Amendment. Please do give it a listen. On this episode: the Supreme Court reduces the Privileges or Immunities Clause, the clause meant to do much of the heavy lifting protecting civil rights, to a practical nullity. For shame! Professors Randy Barnett and Chris Green to do the explicating. And Justice Ruth Bader Ginsburg makes a surprise appearance, time traveling back to 1873. Subscribe wherever you get your podcasts or click here.

  • Brentwood, N.H. man purchases four military M67 fragmentation grenades with inoperable fuzes from undercover FBI agents. District court: To be a grenade, a device must contain not only explosive material but also a means of detonating that explosive material. Inoperable fuzes mean the man didn't buy grenades. First Circuit: Reversed. The grenades were explosive; they just needed new fuzes. Congress can't have meant for agents only to use fully functioning "weapons of war" in their sting operations.
  • Nineteen-year-old (or perhaps he's 20) impregnates 14-year-old in 2009, is sentenced to 16 years of probation. He seeks parental visitation rights; she tries to stop that from happening. Suit 1: State court won't stop it. Suit 2: Federal court won't stop it. Suit 3: State court won't stop it; he's been ordered to pay child support, and Massachusetts family courts were (at that time, anyway) authorized to adjudicate the parental rights of a parent convicted of statutory rape. Plus, the kid should be getting financial support from both parents. Suit 4: Federal district court won't stop it. First Circuit: Subject to exceptions that don't apply here, losing parties in state court don't get to re-litigate in federal trial courts.
  • Hoke County, N.C. officer knocks on door of home, threatens to break it down unless it's opened. It's opened. A voluntary knock-and-talk or a coercive, warrantless entry? Fourth Circuit: Other than threatening to knock down the door, the officer and federal agents were casual and nonhostile. No need to suppress the evidence.
  • A man is shot dead at a Wilson County, N.C. convenience store in 1976. Three alibis place Charles Ray Finch at a poker game when the shooting occurred, but a witness places Finch at the shooting and picks him out of a lineup. Finch is convicted. Fourth Circuit: We've now learned that the witness had cognitive and short-term-memory problems, that the lineup was unduly suggestive, that another witness was coerced, and that a host of forensic conclusions were wrong, so Finch's habeas claim—ordinarily time-barred—can go forward.
  • Two people crawl through a Goldsboro, N.C. McDonald's drive-thru window, demand money at gun point, throw cash drawers at employees, hit the manager with the gun, and make off with $1k. One perpetrator pleads guilty to robbery and the additional, distinct crime of using a firearm in connection with a crime of violence. Fourth Circuit (en banc, splitting 8–7): Alas, the statutory definition of "crime of violence" is unconstitutionally vague, given the Supreme Court's treatment of materially identical laws. Dissent: Courts should look to the underlying facts of the crime, rather than just the statutory language in a hypothetical case, to determine whether a crime is one of violence. Pistol whipping during a robbery clearly is. (Circuit-split watch: The Fourth joins the Fifth, Tenth, and D.C. Circuits but departs from the Eleventh Circuit in this holding. Moreover: SCOTUS will hear the Fifth Circuit case.)
  • Galveston, Tex. police get warrant to search drug suspect's house, seize any "ledgers" they might find. They seize a cell phone. Is a cell phone a ledger? Close enough, says the Fifth Circuit, so no need to suppress evidence from the phone (which helped convict him of pimping minors).
  • Texas inmate threatens guard, has his stuff taken away, gets put in solitary. Or maybe—as inmate alleges—guard was lying, retaliating against inmate. Inmate brings a hodgepodge of claims (to get out of solitary, over loss of his stuff, and more). Fifth Circuit: Almost none of which can go forward. But if the guard really took away the inmate's Bible (and books by mega-pastors like Joel Osteen), there needed to be a valid reason. The inmate's First Amendment claim should not have been dismissed.
  • "Sexed cow semen" is bull semen containing only X- or Y-chromosome-bearing sperm. It allows dairy farmers using artificial insemination to ensure they breed only female—and thus milk-bearing—cows. It's valuable stuff, and, until recently, the U.S. market was controlled by a monopolist whose technology worked by identifying sperm cells, electrically charging them, and then sorting them with magnets. But when an upstart hired one of the monopolist's ex-employees, she shared the monopolist's trade secrets. The upstart then began using a different, potentially faster method: individually vaporizing the unwanted sperm cells with a laser millions of times per second. The ensuing antitrust/patent infringement/breach of contract suit, culminating in a two-week trial, gave wins and losses to both sides. On appeal, the Seventh Circuit affirmed some of the monopolist's wins but also—in a complicated discussion of patent law featuring set theory, subscripted variables, and LSAT-esque diagrams—gave the upstart a second chance at invalidating the seminal patent claims.
  • Federal law prohibits any "unlawful user" of marijuana from possessing a firearm. "Unlawful user" is unconstitutionally vague, says criminal defendant who admits to smoking daily for the past decade. Perhaps in some hypothetical scenarios, says Seventh Circuit, but your conduct "undoubtedly falls within the obvious core" of the statute. As a consolation prize, however, the court "commend[s] everyone involved in the briefing and arguing of this case" (along with the district-court judges) for a job well done.
  • San Francisco requires that advertisements for "sugar-sweetened beverages" contain a warning, taking up 20 percent of the advertising space, that sugary drinks contribute to obesity, diabetes, and tooth decay. Unconstitutional compelled speech? The en banc Ninth Circuit unanimously agrees that it is, though they disagree vociferously as to why.
  • Pizza chain's website and app are incompatible with screen reading software, so blind man can't order online. A violation of the Americans with Disabilities Act? District court: No, the Act doesn't mention the internet, and the feds have failed to provide formal guidance on how it applies—despite promising to do so. Ninth Circuit: Reversed. The feds have said that websites must comply; there's no need for the gov't to produce a blueprint detailing how to do it.
  • Douglas County, Colo. officer tases man who has a rifle muzzle in his mouth and his thumb on the trigger. The gun goes off; the man dies. Can the man's parents sue the officer? No, they filed suit 27 days too late, says the Tenth Circuit; the deadline started running on the date they asked the coroner to reconsider her report, not when the amended report was released (over a year later).
  • There are a number of federal crimes—from fraud to robbery—that apply only to banks that are FDIC insured at the time of the crime. Inexplicably, and despite repeated warnings from federal courts, prosecutors routinely fail to produce direct evidence that a bank was FDIC insured at the time of the crime—the testimony of a single witness would do—and instead rely on circumstantial evidence that it was insured at some point before or after. Is enough finally enough? Eleventh Circuit (over a dissent): Although prosecutors are "cruisin' for a bruisin'," we won't bruise them today.
  • After seven years' imprisonment for rape, man is released after tests confirm that his DNA was not on the victim. Chatham County, Ga. DA declines to re-prosecute. Trial court dismisses indictment. And state lawmaker introduces bill to compensate the man $1.6 million for the wrongful conviction. But wait! The DA opposes the bill and (allegedly) falsely states that the man remains under indictment. Bill fails; man sues. Eleventh Circuit: The DA's defamation absolutely amounted to unconstitutional retaliation. But even so, qualified immunity. Concurrence: "My only comfort with this result is knowing that if another official in this circuit henceforth engages in conduct similar to [the DA's], he or she will not be entitled to hide behind the doctrine of qualified immunity."
  • And in en banc news, the Eleventh Circuit will reconsider its holding that an Alabama law enacting a statewide minimum wage of $7.25 that preempts a Birmingham minimum wage of $10.10 might violate equal protection. The now-vacated opinion declared: "Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends."

Officials in Yorktown, Indiana want to bulldoze a small neighborhood with many long-time, elderly residents and replace it with: a tech firm, other businesses, and new residences. To bypass the state's eminent domain law, which bars seizing property for private projects, officials have strategically placed some public amenities in the plan. Sneaky! Sharon and Jerry Puckett's home, for instance, is scheduled to be replaced by "courtyard/games" and part of a new restaurant. The kicker: The town already owns enough property to build the development just 500 feet away. IJ has helped gather over 105,000 signatures on a petition opposing the plan, and in January residents presented the Town Council with the petition. But the project is still rolling along, so please do sign the petition if you're of a mind.

California State Bar Gender / Sexual Orientation Options

I'm just registering for my online bar account, and here's what I'm given for a survey they're running about, among other things, professional satisfaction.

What is your gender?

Choose all that apply

[ ] Female

[ ] Male

[ ] Transgender

[ ] Gender Variant/Non-conforming/Non-binary

[ ] Two-Spirit

[ ] Not listed (please specify): _____

What is your sexual orientation?

Choose all that apply

[ ] Lesbian or Gay

[ ] Bisexual

[ ] Heterosexual

[ ] Pansexual

[ ] Asexual

[ ] Not listed (please specify): _____

The "I identify as a person with a disability" question unfortunately only offers "Yes" and "No," rather than the regrettably more accurate "Not Yet."

UPDATE: I was initially unsure whether this was just going to be used for a survey or whether it would be kept more broadly in the files associated with my bar record, and I noted that in the subheading of the post. But I did a bit more research, and it appears that under Cal. Bus. & Prof. Code § 6009.5, "Any demographic data collected shall be used only for general purposes and shall not be identified to any individual licensee or his or her State Bar record"; I assume that this means it can't be so identified even within the State Bar records, and not just to the public.

Council of Europe: "The Institution of Sharia Law and a Theocratic Regime [Are] Incompatible with ... a Democratic Society”

The Council of Europe's new resolution about Sharia at home and abroad.

From Resolution 2253 (Jan. 22, 2019), "Sharia, the Cairo Declaration and the European Convention on Human Rights":

[4.] The Assembly considers that the various Islamic declarations on human rights adopted since the 1980s, while being more religious than legal, fail to reconcile Islam with universal human rights, especially insofar as they maintain the Sharia law as their unique source of reference. This includes the 1990 Cairo Declaration on Human Rights in Islam, which, whilst not legally binding, has symbolic value and political significance in terms of human rights policy under Islam. It is therefore of great concern that three Council of Europe member States—Albania, Azerbaijan and Turkey (with the limitation "so far as it is compatible with its laws and its commitments under international conventions")—have endorsed, explicitly or implicitly, the 1990 Cairo Declaration, as have Jordan, Kyrgyzstan, Morocco and Palestine, whose parliaments enjoy partner for democracy status with the Assembly.

[5.] The Assembly is also greatly concerned about the fact that Sharia law—including provisions which are in clear contradiction with the Convention—is applied, either officially or unofficially, in several Council of Europe member States, or parts thereof.

[6.] The Assembly recalls that the European Court of Human Rights has already stated in Refah Partisi (The Welfare Party) and others v. Turkey that "the institution of Sharia law and a theocratic regime were incompatible with the requirements of a democratic society". The Assembly fully agrees that Sharia law rules on, for example, divorce and inheritance proceedings are clearly incompatible with the Convention, in particular its Article 14, which prohibits discrimination on grounds such as sex or religion, and Article 5 of Protocol No. 7 to the Convention (ETS No. 117), which establishes equality between marital partners. Sharia law is also in contradiction with other provisions of the Convention and its additional protocols, including Article 2 (right to life), Article 3 (prohibition of torture or inhuman or degrading treatment), Article 6 (right to a fair trial), Article 8 (right to respect for private and family life), Article 9 (freedom of religion), Article 10 (freedom of expression), Article 12 (right to marry), Article 1 of Protocol No. 1 (ETS No. 9) (protection of property) and Protocols Nos. 6 (ETS No. 114) and 13 (ETS No. 187) prohibiting the death penalty.

[7.] In this context, the Assembly regrets that despite the recommendation it made in its Resolution 1704 (2010) on freedom of religion and other human rights for non-Muslim minorities in Turkey and for the Muslim minority in Thrace (eastern Greece), asking the Greek authorities to abolish the application of Sharia law in Thrace, this is still not the case. Muftis continue to act in a judicial capacity without proper procedural safeguards. The Assembly denounces in particular the fact that in divorce and inheritance proceedings—two key areas over which muftis have jurisdiction—women are at a distinct disadvantage.

[8.] The Assembly is also concerned about the "judicial" activities of "Sharia councils" in the United Kingdom. Although they are not considered part of the British legal system, Sharia councils attempt to provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction mainly in marital and Islamic divorce issues, but also in matters relating to inheritance and Islamic commercial contracts. The Assembly is concerned that the rulings of the Sharia councils clearly discriminate against women in divorce and inheritance cases. The Assembly is aware that informal Islamic Courts may exist in other Council of Europe member States too.

[9.] The Assembly calls on the member States of the Council of Europe to protect human rights regardless of religious or cultural practices or traditions on the principle that where human rights are concerned, there is no room for religious or cultural exceptions....

[11.] The Assembly calls on Council of Europe member States and those whose parliaments enjoy partner for democracy status with the Assembly to: