The Volokh Conspiracy

The decision is Largent v. Reed (Pa. Common Pleas Nov. 8, 2011), and it involves a discovery request by the defendant in a civil case arising from a car accident. The defendant has filed a Motion to Compel Facebook Login Information in an effort to look through the plaintif’s account for evidence that she was exaggerating her injuries. Judge Walsh grants the request, ruling:

Plaintiff . . . must turn over her Facebook login information to Defense counsel within 14 days of the date of the attached Order. Defense counsel is allotted a 21-day window in which to inspect [Plaintiff]’s profile. After the window closes, Plaintiff may change her password to prevent any further access to her account by Defense counsel.

Judge Walsh spends pages 10–12 considering how the Stored Communications Act applies to this situation, and given that he relies on an article I wrote, let me offer a quick comment. Judge Walsh writes that the Stored Communications Act isn’t implicated because the defendant seeks information directly from the plaintiff. As a result, neither the defendant nor the plaintiff is a regulated entity (known as an “RCS” or an “ECS”) under the statute:

In this case, [Defendant] seeks the information directly from [Plaintiff]. The SCA does not apply because [Defendant] is not an entity regulated by the SCA. She is neither an RCS nor an ECS, and accessing Facebook or the Internet via a home computer, smartphone, laptop, or other means does not render her an RCS or ECS. See Kerr, 72 Geo. Wash. L. Rev, at 1214. She cannot claim the protection of the SCA, because that Act does not apply to her. “The SCA is not a catch-all statute designed to protect the privacy of stored Internet communications.” Id. Rather, it only applies to the enumerated entities. Largent being neither an ECS nor an RCS, the SCA does not protect her Facebook profile from discovery.

While it’s true that neither the plaintiff nor the defendant are regulated entities under the statute, Facebook clearly is. Facebook is an ECS provider in some ways and an RCS provider in other ways. As a result, the privacy of Facebook communications are protected by 18 U.S.C. 2701 of the Stored Communications Act, which protects ECS providers, in addition to 18 U.S.C. 1030, the Computer Fraud and Abuse Act, which protects all computers generally. Both of these statutes prohibit accessing electronic accounts without authorization or in excess of authorizaton. So while ordering the plaintiff to disclose her password to the defendant doesn’t itself violate the SCA or the CFAA, it’s at least an open question whether the defendant’s future act of accessing the plaintiff’s account might violate those statutes.

As with many questions of the CFAA (and related provisions of the SCA), it hinges on what “authorization” means. Here’s the question: If Facebook says that only the individual account holder can access the account; the individual account holder refuses to voluntarily disclose the password; and someone else accesses the account only because the account holder was forced by a judge to disclose the password, is the “someone else’s” access authorized or not? Put another way, what governs authorization: The views of Facebook and the views of the account holder, or the views of the trial judge who granted the discovery request? It’s not an easy question, creating a significant risk that granting the motion to compel invites the movant to commit a federal crime in the course of discovery.

From the first sentence about World War II in All About World History (1999), a history book for children:

In 1939, Hitler (see below) sent armies to invade Czechoslovakia and Poland; Britain, France, and Russia decided to help the Czech and Polish people defend their lands.

I did not know that! In fact, I still don’t. Yikes.

From Louisiana Crisis Assistance Center v. Marzano-Lesnevich (E.D. La. Nov. 23, 2011):

Alexandria Marzano-Lesnevich served as an unpaid summer law clerk at the Louisiana Capital Assistance Center (“LCAC”) while she was a law student at Harvard University in 2003. LCAC is a nonprofit organization providing legal representation to indigent capital defendants. As a summer law clerk, she investigated the facts of assigned cases, conducted case analysis, drafted memoranda, managed client correspondence, and attended meetings where attorneys discussed case strategies for specific clients.

After graduating from law school, Ms. Marzano-Lesnevich pursued a career as a journalist and writer in lieu of a legal career. Nonetheless, her legal training has informed her writing, as she has published several essays relating to her experiences and dealing with the death penalty and sex crimes. Among her published works is an essay titled In the Fade, which was published in the Spring 2010 issue of a journal called The Bellingham Review, and an essay entitled Longtermer’s Day, which was published in a nonfiction periodical entitled Fourth Genre in 2010. Ms. Marzano-Lesnevich also published copies of these works, along with several other fictional works, on her personal website. In the Fade is a creative nonfictional description of the criminal prosecution of an LCAC client named Ricky Langley for the sexual assault and murder of a six-year old boy in Calcasieu Parish, Louisiana. Longtermer’s Day is a stylistically similar account of the author’s experience visiting Angola Prison and conversing with prisoners. It is these works, along with a forthcoming but yet uncompleted novel, which are at issue in this suit.

The director of LCAC, Richard Bourke, first discovered the existence of these works in 2001. Believing that they contained confidential client information, he directed his staff to contact Ms. Marzano-Lesnevich and request that she withdraw her works from publication, as well as to cease from disclosing any other confidential information relating to LCAC clients. In the meantime, he also contacted the Bellingham Review to request removal of the essay In the Fade from its website. It complied with this request in an effort to avoid litigation. These efforts eventually led to a conference call with Ms. Marzano-Lesnevich and her retained counsel. During the conference call, Ms. Marzano-Lesnevich informed LCAC that she did not believe that any of the information in her published essays was confidential. She also informed Mr. Bourke and LCAC that she was in the process of writing a novel relating to her experiences as a LCAC law clerk and planned to seek publication upon the work’s completion. [Footnote: Ms. Marzano-Lesnevich describes the book as a “literary work– part memoir based on her own experience as a victim of sexual abuse, and part literary journalism about the criminal prosecution of Ricky Langley for sexually assaulting and murdering a six-year old boy in Calcasieu Parish.” The work reportedly deals with essentially the same subject matter as her essay In the Fade.]

LCAC subsequently [sued], alleging breach of fiduciary duty and breach of contract, and seeking injunctive relief prohibiting Ms. Marzano-Lesnevich from future disclosure or dissemination of confidential or privileged information obtained in the course of her summer clerkship, as well as other information relating to LCAC clients which disadvantages or prejudices those clients.

Marzano-Lesnevich filed a motion under the Louisiana anti-SLAPP law, which lets defendants who are sued based on their speech get an early victory if they can show that the plaintiff isn’t likely to succeed. But the court agreed that LCAC was likely to succeed in showing that Marzano-Lesnevich promised not to reveal client confidences, and that Marzano-Lesnevich’s works likely revealed such confidences. (The court found it unnecessary to reach the breach of fiduciary obligation argument.) The court thus denied Marzano-Lesnevich’s motion; presumably at some point soon LCAC will itself move for a preliminary injunction, and the court will decide whether to order Marzano-Lesnevich not to reveal confidential information in the future.

I’m inclined to say that a permanent injunction against revealing information that the defendant had promised not to reveal would be constitutional, but a preliminary injunction would likely not be, for reasons discussed in this article. For a recent case upholding a permanent injunction on a contract theory, see Perricone v. Perricone (Conn. 2009); for a case upholding damages liability on such a theory, see the Supreme Court’s decision in Cohen v. Cowles Media (1991). Note, though, that these theories would not justify any order to third parties (such as the publications in which Marzano-Lesnevich published her earlier works) to take down the material containing the confidential information, and it seems that no such order is sought by LCAC.

Many readers know that I am the author of a law school casebook on computer crime law: Computer Crime Law, published by West, now in its second edition.

I’m pleased to announce the publication of another casebook on computer crime law, Thomas K. Clancy’s Cyber Crime and Digital Evidence: Materials and Cases, published by Lexis-Nexis. Professor Clancy teaches at the University of Mississippi Law School (no, not that Tom Clancy), where he is the Director of the “National Center for Justice and the Rule of Law” — a center that among other things has a Cyber Crime initiative largely focused on state and local law enforcement and judicial training.

By my count, Professor Clancy’s book will become the third computer crime law casebook, although only the second that is updated regularly.  In 2003, Carolina Academic Press published David Loundy’s casebook, Computer Crime, Information Warfare, & Economic Espionage, although I believe it has not been updated since its initial publication.

Is too much salt bad for you?  That used to be the conventional wisdom, but more recent scientific research has suggested the emphasis on salt is misplaced.  No matter.  As Walter Olson notes, the Food and Drug Administration appears to be moving ahead with plans to force gradual reductions in the salt content of processed foods.  Among other things, the FDA is concerning the adoption of federal targets for gradual salt content reductions to wean consumers from their taste for salt.  But reducing salt content will do more than alter food’s flavor.  It can affect texture and perishability as well.  Surely the FDA has better things to do than obsess over the salt content of processed foods.  But if the FDA persists, I suppose it just means these (no relation) will get more use.

Today the National Labor Relations Board approved portions of a proposed rule to modify election procedures by a 2–1 vote.  Only some of the (relatively) less controversial reforms to accelerate the pace of union elections were adopted, primarily those concerning pre-election appeals to the NLRB. Board member brian Hayes, who had reportedly threatened to resign or skip the Board’s meeting, attended and cast the lone dissenting vote.  Hayes commented, ““It is not my nature to be obstructionist . . . I believe resignation would cause the very same harm and collateral damage to the reputation of this agency.”

Meanwhile, the AP reports that Boeing and the Macihinists union may have agreed to a new labor deal that effectively ends the dispute over Boeing’s decision to locate an aircraft assembly plant in South Carolina rather than Washington State.  If the tentative deal is approved, the AP reports, “the union would inform the NLRB that it has no further grievances with Boeing.”

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

That’s the title of a very interesting event tomorrow at the Brookings Institution in Washington, DC:

The conservative legal movement has shown remarkable success at defining the terms of the debate over jurisprudence, while the various visions of liberal theories of law that confront conservative orthodoxy have struggled to gain currency in the political sphere. Conservative legal theorists have coalesced around a relatively compact and politically effective set of ideas while their liberal critics have offered a diverse series of responses. In the face of conservative victories, can liberals forge a coherent response? Or will differences among liberals get in the way? What events might shake up the current state of the debate?

On December 1, the Brookings Institution will host a conference on the asymmetry between liberal and conservative visions of jurisprudence. Participants will discuss how modern conservative orthodoxy arose, the competing visions of liberal jurisprudence, and the prospects for political backlash against conservative orthodoxy and for a resurgence of liberal jurisprudence.

For a related post of mine from 2008, see here, with a response by Jack Balkin here, and my reply here.

I recently finished the new book by the late Bill Stuntz, The Collapse of American Criminal Justice. My co-blogger Paul Cassell reviewed it here in the Wall Street Journal, and I wanted to blog my own thoughts about the book. My basic take is that it’s a great book, with many important insights. It’s the most interesting book on the criminal justice system that I’ve read in a long time, and perhaps ever. At the same time, I’m not sure I’m entirely convinced: Stuntz makes a number of claims that strike me as questionable. Plus, his recommendations for reform stuck me as a bit utopian. In this post, I’ll introduce Bill’s basic theory, and then offer some thoughts in response. In a future post, I’ll turn to Stuntz’s recommendations, and again offer my own reaction.

I. The Basic Argument of Stuntz’s Book

Stuntz’s argument starts with a widely-heard set of complaints about today’s criminal justice system: Too many people are in prison, too many laws are too punitive, and criminal cases are generally resolved by guilty pleas guided by prosecutors rather than trials resolved by juries or judges. The question is, why? In Stuntz’s view, the major reason is that criminal justice has lost its local character.

In the 19th Century, Stuntz explains, criminal law and justice was largely local. There was a lot of variation by region, to be sure. But on the whole, local police captured local criminals, who were charged by local prosecutors and tried before local juries using criminal law standards from the common law that were vague and left considerable discretion to the jury. In Stuntz’s view, that system worked pretty well – much better than we realize today. Criminal punishment was relatively rare, and punishment reflected community norms and senses of justice. According to Stuntz, a range of forces have slowly eliminated the local character of criminal law. And losing the local character of the law has made it more punitive and less fair.

What changed? First, the shape of criminal law doctrine came to be seen as a legislative question, not a judicial question. Criminal law used to be fixed: It was settled by the basic doctrines of the common law. As criminal law became seen as a field subject to control of the state and federal elected branches, criminal law began to expand. Because most see themselves as potential crime victims rather than potential criminals, especially in the aggregate at the state and federal level, politicians have a strong incentive to be seen as “tough on crime” by making criminal law broader and harsher. And because most voters don’t directly experience crime levels or the effect of punishment on their own communities — most voters don’t live in high-crime neighborhood — they tend to be receptive to the “tough on crime” message even if the law is already tough. The system thus tends towards harsher and harsher punishment, especially at the state and federal level. Even local prosecutors have new incentives to be extra harsh, as state governments rather than localities have come to pay for the prisons: Local prosecutors can get all the public relations benefits of “locking them away” without having to pay the bill for costly imprisonment.

This trend was facilitated by the Supreme Court’s failure to keep legislatures in check. In Stuntz’s view, the Equal Protection clause should have been a major check on legislative and executive action in the criminal justice field. The Courts should have interpreted it to ensure substantive fairness in the laws, and especially to eliminate racial discrimination. But the Court instead gutted the Equal Protection clause in the 19th Century in United States v. Cruikshank. At the same time, the Supreme Court adopted an expansive interpretation of the Commerce Clause as far back as the 19th Century, allowing Congress to federalize morals legislation based on a simple showing that something crossed state lines. By taking a deferential position that allowed racial discrimination to flourish at the state level and enabled Congress to federalize criminal law, the Supreme Court wrongly let the political branches do as they pleased. Legislatures could raise punishments as high as they liked; police could engage in pretext prosecutions, and target minority groups; and prosecutors could add lots overlapping charges to induce guilty pleas.

Stuntz argues that the harshness of the criminal justice system was inadvertently aided by well-meaning progressive reformers. Reformers tried to make the system more fair, but their efforts backfired. In the 19th Century, criminal law was vague and procedural rights were few: Trials were cheap, they occurred all the time, and juries had a lot of discretion under common law standards. In response, 20th Century reformers tried to rationalize and clarify criminal law standards by replacing vague common law definitions of crimes with new clear ones (such as the Model Penal Code). The idea was to make criminal law more predictable and rational, but the perverse effect was to greatly diminish the role of the jury: Whereas traditional criminal law doctrines had left lots of discretion for the jury, the new clear standards gave defense attorneys very little to argue about. The result was more guilty pleas and fewer trials.

At the same time, the Warren Court’s criminal procedure revolution gave defendants more rights with the aim of making the criminal justice system more fair. To some extent, this was a belated response to the 19th century Supreme Court’s failure to take the Equal Protection clause seriously. But in Stuntz’s view, using the Bill of Rights to focus on the procedure of criminal justice (the law of investigations) rather than using the Equal Protection clause to focus on the substance of criminal law (definitions of crimes) only made the problem worse. More procedural rights raised the costs of trials. Because legislatures were free to alter the substance of criminal law however they pleased, legislatures responded to the new procedural rights by broadening criminal laws, jacking up criminal penalties, and giving prosecutors wide discretion to pressure defendants to plead guilty in exchange for a “deal.” Perversely, the result of giving defendants more rights was to create an environment in which most defendants were pressured into waiving all their rights in practice by pleading guilty. The Supreme Court’s regulating procedure instead of substance just made the substance worse instead of making the procedure better.

II. A Few Thoughts In Response

I find Stuntz’s argument fascinating. He makes a lot of intriguing claims, and there’s a ton to chew on here. It’s the kind of book I want to mull over and read again, which is about the highest compliment I can give. For what it’s worth, my initial “mull” finds me partially persuaded and partially unpersuaded. Some of what Stuntz says rings true, but some of his claims raise a lot of question marks.

Stuntz’s basic narrative of the need for localism strikes me as persuasive and really important. His focus on the need for criminal justice to stay attentive to the needs of the community — and the dangers when decisionmakers don’t reflect the views of the community most directly impacted by crime — rings true to me. To some extent, Stuntz’s view is the classic argument for local decisionmaking: People can take care of themselves better than others they don’t know, as they are more closely tied to the facts of what is happening and they can exercise judgment based on local opinions. So on the basic gist of the argument, I’m pretty impressed.

Stuntz’s effort to link the Supreme Court’s caselaw on substantive criminal law and criminal procedure is also a terrific and insightful move — one that is based on and extends what what is probably Stuntz’s most important article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, published in the Yale Law Journal in 1997. Uneasy Relationship is a favorite of mine, and I was glad to see its insights take a prominent place in Stuntz’s book.

At the same time, I had some significant concerns with parts of the argument. Let me focus on two parts in particular. First, I thought Stuntz had a rather rosy view of the past of criminal justice. His conclusion that the system more or less worked in the past strikes me as optimistic. Much of his argument was based on data like crime rates and imprisonment rates that I found hard to assess. I found myself unsure of whether to accept the data as accurate, and I was dubious that we can say very much about how the criminal justice system worked assuming all the data is right Take the fact that crime rates have plummeted since the early 1990s: Does that really suggest that we’re doing something right today that we were doing wrong twenty years ago? Or is this just the fortunate byproduct of banning lead, or something else? Stuntz doesn’t have much of an answer for why crime rates have plummeted in the last 20 years — he discusses it at length, and concludes it is a real puzzle — which to my mind reflects a skepticism that could be equally well applied to the causes of crime rates in the past.

Similarly, I think the differences between the common law of crimes and the more modern approach to criminal law are much more modest than Stuntz suggests. There are some differences, yes. But on the whole, they’re minor: The basic elements of the basic crimes today are pretty similar to what they were in Blackstone’s time. And some defenses, like necessity, are generally considered broader today than they were in the past (to the extent they existed at all). As a result, it seems dubious to me that changes in approaches to criminal law played a significant role in changing the nature of the criminal justice system. It’s an intriguing idea, and fits the classic Stuntzian unintended consequences mold. But I’m just not sure it works. If there were such an important difference between the common law standard and the modern standard, wouldn’t we expect to see a difference between the outcomes in jurisdictions that today still retain the gist of the common law approach and those that have widely adopted the modern approach? Stuntz doesn’t suggest that there is such a difference, and I don’t know of one. So I’m skeptical that that there is an effect such as what Stuntz mentions, or at least that it is significant.

Of course, it may be that the law has operated differently, rather than the doctrine is different. Slight differences in trial procedure can have a huge difference in how the law is applied. Take the case of the trial judge’s gate-keeping function. These days, trial judges play a major gate-keeping role: If a defendant wants to put on a defense, for example, the trial judge has to find enough evidence to support it before it can be argued to the jury. If there were different gate-keeping functions in an earlier time, then the law could be applied very differently even if the formal doctrine were the same. If judges used to give all the issues to the jury, for example, the jury would have a lot more discretion than they do today because they would be invited to consider more defenses, not because the details of the jury instructions on the law would be any different. I don’t know enough about the history of criminal trials to know if that gate-keeping function has changed much, but I suspect that is more likely source of jury discretion than changes in doctrine.

Pepperdine law professor Gregory McNeal has a guest post at Lawfare on the US military’s processes of targeting and target review, drawing on his outstanding new paper, up at SSRN, “The US Practice of Collateral Damage Estimation and Mitigation.” The paper is descriptive, qualitative political science, drawing on extensive reviews of available US government documents and interviews about collateral damage mitigation processes used by the US military in Afghanistan.  I regard it as essential reading today in the law of armed conflict. As McNeal says in his guest post:

I was motivated to write about this topic because I sensed a major disconnect between the descriptions of the targeted killing process offered by commentators and what I knew to be the actual practice of the U.S. military in air to ground operations, in particular the rigorous steps followed to avoid civilian casualties through both the collateral damage methodology (CDM) and fairly protective Rules of Engagement (ROE). The paper is based on field interviews, documents released in litigation, training materials, official policy guidance released through FOIA requests, some WikiLeaked documents, press accounts and the standard fare of law review articles and other scholarly sources. The piece is empirical and descriptive; I take up the normative implications of my findings in a separate article entitled Collateral Damage and Accountability, which is not yet available in SSRN.

Much of the commentary about air launched targeted killing–especially the commentary that focuses on a “video game” style of warfare with unaccountable geographically remote pilots dropping bombs at their own discretion–simply does not describe the reality of current combat operations (I directly address the false claims about targeted killing in a forthcoming book chapter). To highlight one example of the reality I describe versus commentary we typically read, just consider the fact that in Afghanistan since at least June 2009, all air-to-ground operations are pre-planned operations unless troops are in an emergency situation requiring close air support (CAS), close combat attack (CCA) or the pilot is acting in self-defense. In both CAS and CCA in Afghanistan, the pilot may not deploy a weapon without ground commander direction, usually through a Joint Terminal Attack Controller (JTAC) (a JTAC is a person who accompanies ground forces and is specifically trained to direct accurate close air support to engage enemy targets while reducing collateral damage and civilian casualties). The pilot’s only discretion in current operations is to decide not to release a weapon, in other words the ground commander owns the battlespace not the drone pilot. Furthermore, Air Force leaders repeatedly emphasize to their pilots that they will not be disciplined for returning to base with all of their bombs on their plane. Air Force leadership will even support the decision of pilots not employ a weapon, even if that decision directly contravenes the orders of the ground commander. This reality is a far cry from the free fire zone of “video game” warriors described by many drone critics.

Because targeted killing operations by UAV are not CAS or CCA, they are pre-planned operations, and as such must be subjected to the military’s rigorous collateral damage methodology. That methodology is grounded in scientific evidence derived from research, experiments, history, and battlefield intelligence, and is designed to adapt to time-critical events. The CDM is a planning tool that assists commanders in mitigating unintended or incidental damage or injury to civilians, property and the environment and aids them in assessing proportionality and in weighing risks to collateral concerns. In the context of targeted killing, the CDM takes into account every conventional weapon a UAV could carry.

One of McNeal’s crucial observations is that although many of us who discuss targeting from a legal standpoint immediately turn to focus on the legal baselines of necessity, distinction, and proportionality.  However, if one looks at US military operations planning, there are many steps in seeking to estimate collateral damage and avoid it, long before reaching a legal analysis of proportionality under the laws of war:

[I]n the actual practice of modern operations there are a series of scientifically grounded mitigation steps that commanders undertake prior to engaging in any proportionality balancing.

The mitigation steps followed by the military are highly technical, however the best way to understand them is to recognize that the U.S. has an extensive database of weapons effects for nearly every conventional non-direct fire weapon in the U.S. military’s arsenal.  That database takes into account the blast, fragmentation and debris patterns of weapons when they explode.  This information, combined with knowledge about speed, direction of weapon employment, fusing techniques, and information about terrain and structures can be modeled in a way that allows for very precise estimates of weapons effects.  After positively identifying a target, the weapons effect data is converted into a collateral hazard area, and trained specialists will determine whether or not there are any collateral concerns within that area.  If so, mitigation techniques must be employed to reduce the likelihood of harm to collateral concerns.

For example, the military can predict that a 1,000 pound bomb dropped in a certain place within a structure will kill everyone within Room 1, and everyone in Room 2, and not harm anyone in Room 3.  A mitigation technique might be to use a 500 pound bomb, or bury the bomb in the ground prior to detonation, or detonate the bomb in the corner of Room 1, at a point farthest from Room 2.  Any of these mitigation techniques might ensure with a high level of certainty that the persons in Room 2 are unharmed.  Of course, in light of this precision, the biggest challenge is an intelligence challenge.

Note this quite extraordinary conclusion about how high a level of approval is required for any anticipated civilian deaths in Afghanistan in 2010:

[I]n Afghanistan circa 2010 ... if even one civilian casualty was expected in a pre-planned strike, that strike would have to be authorized by the Secretary of Defense or higher (although some reports indicate that this authority has since been delegated to the CENTCOM commander).

This is remarkable.  But it is also a testament to just how much intelligence and information can be utilized in Afghanistan operations today — after, however, a full ten years of war.  I have some concerns that these standards be taken as the norm for future operations elsewhere, where the intelligence and information is not available in such a wealth of detail to allow these kinds of detailed estimates.  NATO operations in Libya had nothing like this wealth of information, or precision in the actual strikes.  (Indeed, it seems to me as a salutary exercise for the US military to carry out a thorough legal review of the actual targeting practices deemed lawful by NATO militaries, particularly France and Britain, as a baseline of what was regarded in actual tactical engagements as lawful state practice.)  Future US military operations elsewhere will not start out with the informational and intelligence inputs that the US has in Afghanistan today.

A commenter on the food stamp law thread writes:

Stop with all the indulgences and exceptions, and make a reasonable law with reasonable punishments that is applied equally to everyone.

Maybe the punishment is either a fine or temporary ban, with the offending store owner free to choose.

The law, as you may recall, was that (1) food stamp recipients whose employees accept food stamps for ineligible items — even without the owner’s knowledge — can be permanently or temporarily disqualified from the food stamp program, but (2) a federal regulation (which, I believe, was originally created pursuant to a statutory requirement, though a requirement that has now been repealed) provides that the government

may impose a civil money penalty as a sanction in lieu of [temporary] disqualification when ... the firm’s disqualification would cause hardship to food stamp households because there is no other authorized retail food store in the area selling as large a variety of staple food items at comparable prices.

This exception is largely aimed at situations where a store is the only food store, or the only discount food store, in the immediate neighborhood. But it could in principle also be invoked when a store is the only food store that carries food that’s adapted to the felt religious needs of a particular religious group (the situation in the case about which I posted). And it is this exception that the commenter faults.

Now I sympathize with the commenter’s thinking, and I see the unfairness that the regulation creates: Say the owners of Store A and Store B are equally culpable (or not culpable), but Store A is surrounded by other comparable stores and Store B happens to be the only one for many blocks around — Store B gets the exemption, but Store A doesn’t, despite the equal moral status of the owners.

But at the same time the regulation is aimed at easing a burden on the innocent shoppers: In this hypothetical, imposing the same disqualification on Store A and Store B would burden A’s shoppers very little, but would burden B’s shoppers a great deal. And imposing an equal but lesser penalty (such as a fine, presumably one not large enough to drive the store out of business), as the commenter suggests might be possible, would have a lesser deterrent effect on stores than imposing disqualification would, and would thus less effectively serve the government’s interest in preventing food stamp fraud.

Now when I say “burden,” I don’t mean the shoppers have some constitutional or moral entitlement here: This is, after all, a government subsidy that the government is free to cut off if it wishes.

But the whole point of the subsidy is to help poor people. The disqualification provision usually doesn’t much interfere with that goal, because the shoppers can go elsewhere. (I assume for purposes of this post that the food stamp program does generally help people, both in the short and the long run, and that the limitations on which products are food stamp eligible are sound; that, after all, is the premise of the program.) But in certain situations — usually having nothing to do with cultural or religious food preferences, and everything to do with the simple number of affordable food stores in the neighborhood — the disqualification provision would substantially undermine the program’s goal. And it’s at least plausible that in those cases where there are no other nearby food stores this immediate effect would exceed whatever benefits the deterrent effect of the disqualification provision provides.

So that’s why such “indulgences and exceptions” strike me as at least plausible, and not easily dismissed simply by labeling them “indulgences and exceptions” and calling for rules that “appl[y] equally to everyone.” When circumstances are different in different cases, it is not necessarily sensible to have rules that apply equally to those different cases.

Now of course this question comes up in lots of other enforcement situations as well, which is why I’m blogging about it. For instance, throwing a wife-beater in jail might end up hurting the wife (who may lose the source of income for herself and her kids) more than it helps her, even counting the deterrent benefits of the law. And I certainly agree that in some situations equal treatment without exceptions for such cases is better, either for practical deterrent reasons, practical enforcement reasons, or moral reasons.

It just seems to me that the general question is difficult, and that our normal intuitions in favor of exceptionless equal treatment may not be sound in all such cases.

Jerusalem Post:

After 20 months of attacks and a quarter million shekels in damage, a religious bookstore in the ultra-Orthodox Mea She’arim neighborhood of Jerusalem decided on Monday to accede to the demands of extremists responsible for the violence.

Under the terms of the compromise, Ohr Hachaim/Manny’s put up a large sign requesting that all customers dress modestly. A mashgiach, who checks the store’s inventory to make sure there are no controversial books, will go over the books in the coming week and require that some books be removed from the shelves, though they will not be permitted to remove any English books, said Marlene Samuels, one of the store’s managers.

A haredi group called Sikrikim deemed the store as “promoting immodesty,” and since Manny’s opened in March 2010, the group has smashed its windows more than a dozen times, glued its locks shut, thrown tar and fish oil at the store and dumped bags of human excrement inside. The owners were also personally threatened multiple times.

One of the group’s leaders has been arrested, which apparently allowed the bookstore owners to reach a “compromise” than fell short of acceding to all of the extremists’ demands. Nevertheless, this strikes me as a result an abdication of responsibility by Israeli authorities. The owners had to pay for their own security guards. How about a police patrol protecting the store? The leader was arrested, great. But what about all the lower-level thugs who perpetrated the vandalism and threats? The Israeli government has long permitted Haredi extremists to be above the law, permitting them enforce “modesty” rules on public streets via violence and threats, illegally segregating the sexes on public buses, tolerating violent demonstrations against construction projects allegedly taking place on ancient cemeteries, and so on. Not to mention the greatest malfeasance of all, allowing Haredi extremists to take control of domestic relations law. With the Haredi population increasing exponentially, the government needs to stand up for liberalism while it still can.

My latest article in the Green Bag (link will open seven-page PDF file):

(1) First, social reform was not in nearly as much danger from Lochner as the standard story suggests....

(2) The supposed simple-minded formalism of late nineteenth and early twentieth century judges has been called into serious question by recent scholarship....

(3) Brandeis’s Muller brief was not as original as his admirers have suggested....

(4) Brandeis’s brief was not as bold as often portrayed, because Oregon’s attorney general filed a traditional brief focusing on the relevant legal precedents....

(5) Brandeis’s brief, rather than being a social science masterpiece, consisted largely of a “hodgepodge” of reports of factory or health inspectors, testimony before legislative investigating committees, statutes, quotes from medical texts, among other miscellany. Some of the “scientific” arguments presented in the brief are nonsensical, even given the state of medical knowledge at the time....

(6) Brandeis’s brief likely did not influence a single vote on the Supreme Court....

(7) While Brandeis Briefs quickly became commonplace in constitutional litigation over social reform, such briefs did not have any clear significant effect on the outcome of Progressive-era cases....

Bonus myth: Despite many assertions to the contrary, Brandeis evinced little interest in women’s legal equality, and was at best a very tepid supporter of women’s rights.

Mehrab No. 1. Corp. v. United States (N.D. Ill. Nov. 23, 2011) deals with a legal question that touches on two interesting issues:

(1) To what extent should the law try to protect religious or linguistic minority groups from generally applicable rules that have an unusually large impact on those minority groups?

(2) To what extent should penalties be softened when the penalty indirectly affects innocent third parties, whether that might be a criminal defendant’s children or a business’s customers?

The issue in Mehrab No. 1 came up in an area I know little about — food stamp law — but the questions recur in many fields, so I thought this might be an interesting case to discuss.

Here’s the situation, as best I understand it: Food stamp recipients can pay for particular kinds of products using the food stamps, and the seller can then turn in the food stamps for real money. But if a store’s employees accept food stamps for ineligible items, the food store could be permanently or temporarily disqualified from the program, even if the store’s owners didn’t know of their employees’ misbehavior. Such a disqualification could be devastating for the store, because many stores find it necessary to accept food stamps in order to stay in business.

Because of this, a federal regulation (which, I believe, was originally created pursuant to a statutory requirement, though a requirement that has now been repealed), provides that the government “may impose a civil money penalty as a sanction in lieu of [temporary] disqualification when ... the firm’s disqualification would cause hardship to food stamp households because there is no other authorized retail food store in the area selling as large a variety of staple food items at comparable prices.” So this regulation deliberately eases the penalty on the store in order to prevent harm to the store’s customers.

Now the regulation, I assume, was originally enacted to protect poor customers generally. But the question then arises: What if the store is one of many stores in the neighborhood that sell cheap staple food items, but the only one that sells halal meat (the issue in Mehrab No. 1), kosher food, Glatt kosher meat, products guaranteed suitable for Buddhist vegetarians, or products guaranteed suitable for purist vegetarians generally? Or what if it is the only store in which the clerks speak Spanish, Arabic, Cambodian, or some other language that many non-English-speaking local residents speak?

Say that there are two stores in the neighborhood whose employees have violated food stamp rules: John Smith’s Grocery, which sells ordinary food that’s much like what most other stores sell, and Mehrab, which sells halal meat that is sought by the local observant Muslim community. John Smith’s Grocery is disqualified, and no relief is available because there are lots of other “authorized retail food store in the area selling as large a variety of staple food items at comparable prices.” Should Mehrab also be disqualified? Or should it be eligible for relief, because the other food stores don’t sell halal food?

In Mehrab No. 1, the court took the view that Mehrab could prevail if no other food-stamp-accepting store “in Mehrab’s vicinity offers an equivalent variety of Zabiha Halal items at comparable prices.” The court implicitly interpreted “as large a variety of staple food items” as meaning as large a variety of the sorts of items that the customers specially want because of their felt religious obligations — not just as large a variety of staple food items generally.

To my knowledge, this is the first decision under these regulations confronting this particular question, though I also found another case dealing with a related question: Phany Poeng v. United States (S.D. Cal. 2001), which involved a store that catered to customers with particular linguistic limitations, and which rejected the hardship argument, because “[a]lthough the competing stores’ employees may not speak Cambodian, the FNS is not required to guarantee the existence of an authorized store that caters to food stamp participants of every minority language. Moreover, the Court is hard-pressed to identify a reason why a food stamp participant would necessarily have to converse with a cashier at the time of purchase.”

I’m inclined to say that the Mehrab court interpreted the regulations in a sensible way, and that looking to whether there are stores that provide as large a variety of products that are adequate to the customers’ particular felt religious needs is a sound way of reading the regulation. (I’m not as confident about Phany Poeng’s interpretation, which reached the opposite result as to linguistic minorities, though it’s possible that both cases are correct given the regulation’s focus on “as large a variety of staple food items,” which seems to refer to the adequacy of the goods and not the adequacy of the services.) But in any case, this struck me as an interesting question that I thought I’d flag for our readers.

Here’s a statement that Cain’s lawyer made to a TV station that is planning to broadcast a story about an alleged affair that Cain (who is married) had:

Mr. Cain has been informed today that your television station plans to broadcast a story this evening in which a female will make an accusation that she engaged in a 13-year long physical relationship with Mr. Cain. This is not an accusation of harassment in the workplace — this is not an accusation of an assault — which are subject matters of legitimate inquiry to a political candidate.

Rather, this appears to be an accusation of private, alleged consensual conduct between adults — a subject matter which is not a proper subject of inquiry by the media or the public. No individual, whether a private citizen, a candidate for public office or a public official, should be questioned about his or her private sexual life. The public’s right to know and the media’s right to report has boundaries and most certainly those boundaries end outside of one’s bedroom door.

Mr. Cain has alerted his wife to this new accusation and discussed it with her. He has no obligation to discuss these types of accusations publicly with the media and he will not do so even if his principled position is viewed unfavorably by members of the media.

I don’t find the argument particularly persuasive. Whether someone is faithful to his wife is not by any means a perfect predictor, or even a strong predictor, of whether he will be faithful to his country or to the oath he takes when elected. But it strikes me as not completely irrelevant to that question, either. We elect candidates not just because we like their policies, but because we think they can be trusted on the myriad matters that they will decide in secret, without our scrutiny; and that’s especially so as to the President.

A candidate’s trustworthiness is thus quite important; and evidence that he betrayed his wife’s trust is some evidence — though, again, not the strongest of evidence — of whether he would betray other trusts. And while a candidate’s having had an affair shouldn’t be disqualifying, I don’t think that discussion of it can just be ruled out of bounds. (I recognize the possibility that there was no betrayal of trust because it was always understood by the particular husband and wife that such extramarital affairs would be permitted; but that, it seems to me, is an unusual arrangement, and a spouse who had an affair and who wants to assure the public that the affair did not involve a betrayal of trust should bear the burden of showing that there was such an arrangement.)

I would think that this view would be especially strongly held (1) by people who believe marriage to be a sacred religious bond, (2) by people who particularly respect Cain because he is a minister, and (3) by people who faulted President Clinton for his affairs (and not just for his statements to the grand jury or to the public about those affairs) — and I suspect that Republicans, and in particular Cain supporters, are especially likely to fall into one or more of these three groups.

Blogger Amber Taylor has a fascinating Institute for Humane Studies podcast on themes of liberty in George R.R. Martin’s Game of Thrones fantasy series (which has now also been turned into an HBO series). Amber previously wrote about Game of Thrones for a symposium in the Atlantic. I agree with most of Amber’s points, but I’m not entirely convinced that the Starks are more favorable to liberty than their enemies, the Lannisters. There doesn’t seem to be more than a modest difference in the way the two sides treat the common people who come under their control. By contrast, I think Amber is right to suggest that Daenerys Targaryen is a quasi-libertarian heroine, with her devotion to the abolition of slavery and the promotion of freedom more generally (which, however, as Amber notes, coexists with a devotion to the divine right of “legitimate” kings). I commented on the series here.

For those who may be interested, I have done two IHS podcasts on political themes in science fiction myself: one on Star Trek, and one on Battlestar Galactica (covering both the new series and the 1970s original).

Over at Lawfare, I’ve posted a new review of three academic books on combatants, civilians, and POWs, if you’re interested in fairly technical academic writing on laws of war issues.  My conclusion about the principle of humanitarianism that two of the three books take as essentially overriding is below the fold: Continue reading ‘Lawfare Review of Three Books on Combatants and Civilians’ »

That’s the news today from the Ninth Circuit. For more decisions in this case, see here; for more on the panel decision that is now going to be reconsidered en banc (and my views on the decision), see this post. Thanks to Gene Hoffman for the pointer.

A commenter on the Amish heretic hair-cutting thread writes:

How sexist is everyone — the Amish, the Feds, especially — when stretching to such absurd reaches (scissors transported across state lines) for felony hair assault — to say n-o-t-h-i-n-g of RAPE. Oh, that... It is more than disgusting and even outrageous that beard cutting, is construed as a felony act of “violence”; but, worse, is the focus although women were raped.

This, it seems to me, is a good illustration of the danger with too quickly drawing inferences of bias — whether sex bias, racial bias, political bias, or what have you — from seeming differences in treatment. To show that bias is the proper explanation, one has to explain why other possible reasons for the difference are inadequate.

And here, it turns out, there seem to be some pretty clear non-sexist reasons for why the federal government isn’t prosecuting the leader’s sex with his followers:

(1) According to the complaint, those who left the religious community where the sex took place did so in 2005. The statute of limitations for federal crimes is generally, to my knowledge, 5 years. This means that the statute of limitations has run by now as to the people who are likely to object. Presumably the leader of the community has continued having sex with other women in the community, but they don’t seem to have complained to the authorities, which makes any prosecution understandably less likely (partly because it’s not clear that their sex with the leader was nonconsensual, and partly because, even if it was, such crimes are very hard to prosecute if the victim doesn’t come forward).

(2) Generally speaking, pressuring someone into sex through the use of one’s perceived spiritual authority, or even through the threat of excommunication — which is what the affidavit seems to describe — would not constitute rape in most American jurisdictions. Rape generally requires the use of coercive physical force, or the threat of such force (whether the victim is male or female). Some have argued that this aspect of rape law is sexist, but that’s far from clear; and in any event, it would be the fault of federal lawmakers, not of the federal officials enforcing the law.

(3) Federal law doesn’t generally criminalize rape, murder, robbery, and other crimes, leaving them to state law. The statute at issue here bans violence against people “because of the actual or perceived race, color, religion, or national origin of any person,” which is why the assault is covered. But it seems unlikely that the group leader’s sex with his group’s married women would be treated as taking place “because of the ... religion” of the women, in the sense of being motivated by the women’s religion. It’s possible to argue that there was such a motivation, since he wouldn’t have had the same influence over women who weren’t Amish; but I doubt that courts would accept that, just as I doubt that they would conclude that a priest’s molestation of Catholic boys was a religion-based bias crime, even though the Catholic boys were obviously more susceptible to the priest’s approaches than non-Catholic boys would be.

So just a reminder: Before concluding that someone’s actions were motivated by bias — again, whether based on sex, race, religion, politics, or whatever else — it’s important to consider the other possible explanations. And within the legal system, there are often many such explanations, often turning on legal doctrines that laypeople are not fully familiar with.

UCLA hosts the journal Dukeminier Awards: Best Sexual Orientation and Gender Identity Law Review Articles. (Many of our lawyer readers have seen Jesse Dukeminier’s work in their property and wills and trusts classes; he was a leading casebook author and scholar in both fields.) The journal mostly reprints articles that it selects from those published in other journals — I had the honor of having one of my articles, Same-Sex Marriage and Slippery Slopes reprinted in the Dukeminier Awards 2006 issue — but it also prints student articles that it selects among those that are submitted directly to it, and throws in a $1000 award to boot. So if you have any articles on the subject that you’d like to submit, please do so; here are the details:

Continue reading ‘Student Writing Competition, Hosted at UCLA, on Sexual Orientation and Gender Identity’ »

Among this morning’s cert grants was Christopher v. SmithKline Beecham Corp., in which the Court will have to determine whether pharmaceutical sales representatives are subject to the “outside sales” exemption from the Fair Labor Standards Act’s overtime requirements.  At first glance, Christopher may seem like a rather pedestrian labor law case.  Don’t be fooled. Christopher has the potential to be an important administrative law case concerning the extent to which courts should defer to agency interpretations of their own regulations.

The underlying labor law question — whether drug companies must pay pharmaceutical sales representatives overtime — divided the lower courts. The U.S. Court of Appeals for the Second Circuit, in In re Novartis Wage & Hour Litigation, answered “yes,” deferring to the Department of Labor’s interpretation of its own regulations implementing the FLSA.  In Christopher, however, the U.S. Court of Appeals for the Ninth Circuit reached the opposite result, in the process rejecting the Labor Department’s interpretation of its own regulations offered in an amicus brief.  The two courts divided not only on the overtime question, but also the scope of Auer deference to subsequent agency interpretations of ambiguous regulations.  The Second Circuit found the Labor Department’s interpretation “controlling,” while the Ninth Circuit concluded that (under Gonzales v. Oregon) no such deference is due when an agency’s regulation does little more than “parrot” the underlying statutory language.

The split over the applicability of Auer deference was expressly noted in SmithKline’s response to the petition for certiorari.  Indeed, this split was one of the reasons that SmithKline supported the cert petition.  SmithKline’s brief stressed that the uncritical application of Auer deference can empower agencies to circumvent the normal process for revising regulatory requirements and evade the limitations on Chevron deference imposed by Christensen and Mead.  It further noted the serious questions about Auer deference Justice Scalia raised last term in Talk America v. Michigan Bell. In all likelihood, these concerns contributed to the Court’s decision to grant cert.

What the Court will do with Auer deference is anyone’s guess.  The Court may be content to clarify the limitations on the doctrine hinted at in Gonzales. On the other hand, the Court could take the opportunity to pare back the doctrine to bring it into line with other recent changes in administrative law doctrine, the post–Mead reformulation of Chevron in particular.  In any event, for those interested in administrative law, this will definitely be a case worth watching.

On December 5th, the Supreme Court will hear oral argument in a Fourth Amendment case, Messerschmidt v. Millender, that concerns the particularity of search warrants and the qualified immunity standard. In this post, I’ll explain the facts and issues in the case and then offer my thoughts on how I think the Court should rule.

I. The Facts

Los Angeles police detective Curt Messerschmidt obtained an arrest warrant and search warrant for Jerry Ray Bowen, who was wanted for a domestic assault with a deadly weapon against his girlfriend, Shelly Kelly.  Kelly had tried to leave Bowen, and Bowen had responded with extreme violence when Kelly had called the cops to protect her. As the Ninth Circuit explained:

Bowen appeared and screamed, “I told you to never call the cops on me bitch!” Bowen physically assaulted Kelly and attempted to throw her over the top railing of the second story landing of their residence. Bowen grabbed Kelly, bit her, and tried to drag her by the hair back into their residence. When Kelly resisted by bracing herself against the door, Bowen grabbed both of Kelly’s arms, but Kelly was able to slip out of her shirt and run to her car. Bowen followed seconds later, now holding “a black sawed off shotgun with a pistol grip.” Standing in front of Kelly’s car, Bowen pointed the shotgun at Kelly and shouted, “If you try to leave, I’ll kill you bitch.” Kelly was able to escape by leaning over in her seat and flooring the gas. Bowen jumped out of the way and fired one shot at her, blowing out the front left tire of Kelly’s car. Chasing the car on foot, Bowen fired four more times in Kelly’s direction, missing her each time.

Detective Messerschmidt had considerable experience investigating gang members, and he conducted an “extensive background search” on Bowen using “departmental records, state computer records, and other police agency records.” His investigation revealed that Bowen “has gang ties to the Mona Park Crip gang based on information provided by the victim and the cal-gang data base.” (All quotes from the affidavit.) Detective Messerschmidt also knew, but did not include in the affidavit, that Bowen had a previous criminal record and was on summary probation for spousal battery and driving without a license. The detective obtained an arrest warrant and a search warrant to enter Bowen’s home, which was a home owned by Bowen’s foster mother, Augusta Millender.

The key to the Messerschmidt case is the particularity of the items authorized to be seized in the search warrant. The text of the Fourth Amendment requires that a search warrant must particularly describe the thing to be seized, and Fourth Amendment caselaw requires that there must be probable cause for each of the items to be seized. The items to be seized in the Bowen warrant were the following:

All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.

Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to “Mona Park Crips”, including writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the “Mona Park Crips” street gang.

The Detective submitted the warrant for review within both the Sheriff’s office and the District Attorney’s office, and it was approved by both.

The search warrant was then executed, although the search proved almost entirely a flop. The police encountered twelve people at the home, but Bowen was not among them. The police did recover a shotgun and ammunition, but it was not Bowen’s: the shotgun was the personal shotgun of Bowen’s foster mother, Augusta Millender, and the ammo was a box of .45 caliber “American Eagle.” The only other evidence recovered was a letter from Social Services addressed to Bowen. The police arrested Bowen two weeks later at a hotel, where he was discovered hiding under a bed.

II. The Civil Case

The Millenders who owned the home searched filed suit against the officers who were involved in the search, alleging that the search and seizure violated the Fourth Amendment. The district court ruled that the arrest warrant authorizing the entry in the home and search for Bowen was valid, and that ruling was never appealed. Instead, the remaining litigation concerns the scope of the search warrant. Everyone agrees that the police had probable cause to enter and search the home for the sawed-off shotgun that Bowen used to fire at Kelly. But the Millenders claim that the warrant was constitutionally overbroad for permitting the search for seizure of all firearms and all evidence of gang membership, as well. According to the Millenders, these errors are sufficiently obvious that no reasonable officer could have been unaware of them. As a result, they say, qualified immunity should not apply and the officers should be held personally liable.

The Ninth Circuit ruled en banc that the officers could be held personally liable because the warrant violated the Fourth Amendment and qualified immunity didn’t apply. Specifically, the Ninth Circuit held that (1) the warrant was invalid because the probable cause did not extend to all of the items described in the warrant and (2) the officers were not entitled to qualified immunity, because no reasonable officer could have believed that there was probable cause to search for and seize all of the items described in the warrant. The warrant was invalid because there was no probable cause to seize the broad categories listed in the warrant. While there was probable cause to seize Bowen’s sawed-off shotgun, that probable cause did not extend to all firearms. And there was no probable cause to seize gang-related material because Bowen’s threat against Kelly was not gang-related.

The Ninth Circuit’s reasoning for why qualified immunity did not attach was that the error in the warrant was “glaring,” and therefore that any reasonable officer should have spotted it:

[T]he warrant in this case suffered a “glaring deficiency.” Groh, 540 U.S. at 564. Neither it nor the affidavit established probable cause that the broad categories of firearms, firearm-related material, and gang-related material described in the warrant were contraband or evidence of a crime. Moreover, a reasonable officer in the deputies’ position would have been well aware of this deficiency. The affidavit indicated exactly what item was evidence of a crime, the black sawed-off shot– gun with a pistol grip, and reasonable officers would know they could not undertake a general, exploratory search for unrelated items unless they had additional probable cause for those items.

The officers then petitioned for certiorari. Notably, the officers did not ask the Court to evaluate whether the warrant was valid. Instead, they asked the Justices to assess whether qualified immunity should apply, and they then added a second question presented: Should the standard for qualified immunity “be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?”

The Court re-listed the case a few times, suggesting a possible dissent from denial of certiorari or a summary reversal. Instead, the Court granted the petition and scheduled the case for oral argument.

III. How I Think the Court Should Rule

I think the Supreme Court should reverse the Ninth Circuit because the Ninth Circuit misapplied the well-established qualified immunity standard. The error in the warrant was hardly glaring: It was actually a rather subtle error. So I think the Court should reverse and hold that qualified immunity should attach. At the same time, I don’t think the Court should depart from the well-established qualified immunity standard in this case.

Continue reading ‘Thoughts on Messerschmidt v. Millender, A Pending Case on Search Warrants and Qualified Immunity’ »

A very amusing post, and, unfortunately, pretty accurate.

The allegations are in this FBI affidavit; here is the summary, from Prof. Howard Friedman (Religion Clause):

And from the Plain Dealer article [UPDATE: link fixed]:

“You’ve got Amish all over the state of Ohio, Pennsylvania and Indiana that are concerned,” said Jefferson County Sheriff Fred Abdalla. “We’ve received hundreds and hundreds of calls from people living in fear. They are buying Mace. Some are sitting with shotguns. They’re putting locks on their doors — because of Sam Mullet.”

Plus this:

The hair and beard cuttings, bizarre in today’s culture, are meant to degrade Amish men, who grow their beards after marriage based on their religious beliefs. In some of the attacks, Mullet’s followers used a camera to capture the images of the cut beards, a further attempt to insult the victims, authorities said.

These are not your Harrison Ford’s Amish.

Starr International, a firm headed by former AIG CEO Hank Greenberg, has recently sued the federal government, claiming that some provisions of the 2008 AIG bailout violated AIG shareholders’ constitutional rights (Starr was a major AIG shareholder at the time of the bailout). One of the claims Starr has advanced is that the takeover violated the Takings Clause of the Fifth Amendment by taking various shareholder rights without paying compensation. This claim raises several interesting issues, but on balance I doubt that it will succeed.

Federal courts have long recognized that the Takings Clause applies to intangible property, including shareholder rights. However, Greenberg and Starr must still overcome several other difficult hurdles. First, there can be no taking if the property owner agreed to give up his or her rights to the government voluntarily. In this case, the bailout was approved by AIG’s board. As I understand it, Starr claiming that the board exceeded its legal authority. If they lose that part of their argument, there can be no taking.

If the transfer of rights is held to be involuntary, Starr could easily win if it could show that the takeover destroyed 100% of the value of their rights, as the Court ruled in Lucas v. South Carolina Coastal Council. However, it seems to me unlikely that they can prove any such thing, since the stockholders shares were not completely taken away. Assuming there was no 100% loss of value, the case would be analyzed under the three-factor Penn Central test, which considers 1) the economic impact of the government action on property, 2) the extent to which the government action undermined “investment-backed expectations,” and 3) the character of the government action. Application of the Penn Central test is often imprecise and murky. The bottom line, however, is that the government usually wins, as I discuss in greater detail in this article. I’m no fan of Penn Central myself, both because it is vague and because it provides insufficient protection for property rights. But it seems unlikely that the Court will use this case as the vehicle for changing the test. There is, however, uncertainty about the application of the test to this case, since — as far as I know — federal courts have never applied the test to anything remotely resembling the AIG bailout.

Finally, if Starr proves that there was no voluntary transfer of rights and prevail under Penn Central, they will face one last major challenge: proving that they are entitled to a more than nominal amount of compensation. The standard rule is that a taking entitles the owner to “fair market value” compensation for the loss of their rights. But prior to the bailout, AIG was on the verge of bankruptcy. Therefore, any shareholder rights may have had little or no market value at that point. The rule is that the “fair market value” must be assessed as it existed prior to the taking. So courts will not take account of any additional value added by the bailout. However, I’m no expert on either AIG’s assets in particular or the valuation of stockholder rights more generally. So it’s possible that these rights had greater value than is apparent to me. Experts on corporate law and finance are welcome to weigh in on this point.

This Wednesday, the National Labor Relations board is scheduled to vote on a controversial proposed rule to streamline and accelerate the union election process.  The Board is acting now  because it could lose a quorum  when the recess appointment of Craig Becker expires at the end of the year.  Only three of the NLRB’s five spots are filled, and (under New Process Steel v. NLRB) there must be three active board members to adopt a new rule.

NLRB Board Member Brian Hayes, the lone Republican currently on the Board, opposes the new rule and believes the Board is moving too quickly — and cutting procedural corners — to approve the new rule.  As he detailed in a letter to Rep. John Kline, Chairman of the House Committee on Education and the Workforce, Hayes claims he will not be allowed to review the rule and draft a proposed dissent before the rule is published and that this “would contravene longstanding board tradition and the Board’s own internal operating rules.”  According to Hayes, the Board traditionally allows a potentially dissenting member 90 days to review a rule or decision and draft a dissent prior to publication and only overturns existing case precedent (as this rule would) if at least three NLRB board members support the move.   NLRB Chairman Mark Pearce responded with a letter of his own alleging that Hayes’ account was “inaccurate and misleading.”  (Rep. George Miller (D-CA) added a letter of his own, requesting information from Hayes about his complaints and communications with outside parties.)

Last week, the NYT reported that Hayes could refuse to attend the NLRB’s meeting on Wednesday, or even resign, in order to deprive the majority of a quorum to adopt the rule.  (See also this WSJ editorial on the dispute and threat to resign.)  It’s unclear whether a failure to attend Wednesday’s meeting would be sufficient to stop the NLRB’s majority from going ahead with the new rule.  Resigning from the Board would do more than block this rule, however.  It would also prevent the Board from taking action on any matter whatsoever — something which will happen in any event when Becker’s recess appointment expires.

The NLRB is often the site of partisan infighting.  Democratic appointees tend to support unions and Republican appointees do not. Still, this level of partisan division — and mutual mistrust — seems worse than usual.  As GWU law professor Charles Craver told the NYT this was the worst he’d seen in 40 years — and the worst may be yet to come.  Stay tuned.

It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment.   Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination by state entities.  Nor did the original public meaning of Section One embody a rule that would prevent state governments from engaging in sex discrimination.

In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court’s sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment.  Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular.  Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court’s decision in the VMI case.

This article is Lawrence Solum’s “Download of the Week,” and with good reason, as it is sure to prompt significant discussion and debate.  As Solum would say, “Download it while it’s hot!”

I have an occasional series of posts highlighting issues where Barack Obama and I agree. So far, the list includes creating a playoff system for college football, allowing gays in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president’s right to forego defending federal statutes he believes to be unconstitutional, and that the Obama health care plan’s individual mandate is not a tax.

I am happy to announce that we have another addition to this distinguished list. Both Obama and I are happy that the NBA lockout seems likely to end soon:

NBA owners and players reached a tentative agreement early Saturday to end the 149-day lockout and hope to begin the delayed season on Christmas Day.

Neither side provided many specifics but said the only words players and fans wanted to hear.

“We want to play basketball,” NBA commissioner David Stern said....

President Barack Obama gave a thumbs-up when told about the tentative settlement after he finished playing basketball at Fort McNair in Washington on Saturday morning.

The shortened season might end up helping veteran teams like my Boston Celtics against younger ones like the Chicago Bulls (Obama’s favorite team). Our agreement on basketball issues might collapse if the president again tries to undermine the confidence of Celtics point guard Rajon Rondo:). Hopefully, Obama won’t want to alienate Celtics fans during an election year.

A recently leaked United Nations report claims that the new rulers of Libya have committed numerous human rights violations:

Thousands of people, including women and children, are being illegally detained by rebel militias in Libya, according to a report by the Secretary-General of the United Nations. Many of the prisoners are suffering torture and systematic mistreatment while being held in private jails outside the control of the country’s new government.

The document, seen by The Independent, states that while political prisoners being held by the Gaddafi regime have been released, their places have been taken by up to 7,000 new “enemies of the state”, “disappeared” in a dysfunctional system, with no recourse to the law.

The report will come as uncomfortable reading for the Western governments, including Britain, which backed the campaign to oust Gaddafi....

The report says that “while political prisoners held by the Gaddafi regime have been released, an estimated 7,000 detainees are currently held in prisons and makeshift detention centres, most of which are under the control of revolutionary brigades, with no access to due process in the absence of a functioning police and judiciary.”

Of particular worry was the fate of women being held for alleged links with the regime, often due to family connections, sometimes with their children locked up alongside them.

“There have also been reports of women held in detention in the absence of female guards and under male supervision, and of children detained alongside adults,” says the report.

A number of black Africans were lynched following the revolution following claims, often false, that they were hired guns for the Gaddafi regime.

I have long expressed the concern that Libya’s new rulers might turn out to as bad or worse than the old (e.g. here and here). The leaked UN report provides further evidence showing that such concerns have a reasonable basis.

However, there are two important caveats. First, the UN is far from a completely reliable information source when it comes to human rights issues. Its record on such matters is a very poor one. The UN Human Rights Council, for example, is often stacked with egregious human rights violators, and, until recently, actively promoted violations of religious freedom and freedom of speech. Given the UN’s dubious record, it’s certainly possible that this report is either wrong or at least exaggerated. Second, even if the report is correct, the new Libyan regime might still be less bad than the old. Even a government that falls well short of being a paragon of liberal democratic virtue can still be better than Gaddafi’s dictatorship was.

Despite these important caveats, the new Libyan government certainly isn’t looking too good so far. And if radical Islamist elements in its leadership get the upper hand, things might get a lot worse before they get better.

The jury is still out on whether NATO intervention in Libya will achieve its original objective of improving respect for human rights in that country. The new Libyan government might yet clean up its act, or be forced to do so by Western pressure. On the other hand, President Obama’s war in Libya may turn out to have been counterproductive as well as illegal.
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This past Spring the federal government awarded $433 million for the development of a new smallpox drug, at an inflated cost, after a non-competitive bid, even though a new drug is unneeded and cannot be tested.  Smallpox has been eradicated, for all practical purposes, and the government already has substantial vaccine stockpiles.  With no actual smallpox cases, the new drug can’t be tested, and yet the federal government was apparently willing to pay over $250 per dose.  By comparison, the vaccine costs approximately $3 per dose.  It’s no wonder Senator Claire McCaskill (D-Mo) is seeking an investigation.

Virginia was one of several states that enacted a strong eminent domain reform law after the Supreme Court ruled in Kelo v. City of New London that it was permissible for government to take private property and transfer it to other private individuals in order to promote economic development. Supporters of the Virginia law are now trying to incorporate it into the state Constitution. But, as the Washington Times reports, they are beginning to encounter resistance from local governments, which have a vested interest in keeping their eminent domain authority as broad as possible [HT: VC reader James Taylor]:

A state constitutional amendment to expand Virginia’s eminent domain laws is meeting local resistance, with the city of Alexandria agreeing to contribute as much as $5,000 for a lobbying firm to help fight the legislation.

The amendment, sponsored for the 2012 General Assembly session by Delegate Rob Bell, Albemarle Republican, attempts to change the Virginia Constitution by updating a law enacted in 2007 that says private property can be taken only when the public interest dominates the private gain, among other conditions.

“The goal is to put [the amendment] into the constitution so that it can’t be tinkered with,” Mr. Bell said....

The amendment passed with wide support during the 2011 General Assembly session, with help from Mr. Bell. It cleared the House by a vote of 83–15 and the Senate by a vote of 35–5.

But to amend the state constitution, the measure must pass again in the assembly before going to the public as a voter referendum on the 2012 ballot.

Despite the broad support, Mr. Bell said, amendment supporters are girding a fight.

“We are not taking anything for granted,” he said....

Mr. Bell said, the impetus was to protect property owners.

“The local governments were certainly opposed to the original statute and claimed it would bring along the end of the world,” he said. “Of course, it hasn’t.

When it comes to property rights, Virginia’s present constitution is one of the least protective in the country. Article I, Section 11 gives the state legislature virtually unconstrained authority to “define” what qualifies as a “public use” that justifies taking property by eminent domain. Essentially, the legislature can license the condemnation of property for virtually any reason it wants. Few if any other state constitutional rights are left so completely to the mercy of the very state officials they are supposed to protect us against. It would be as if the legislature had total discretion to determine what kind of speech can be censored or when police are authorized to search your home.

In the short term, it doesn’t matter much whether eminent domain in Virginia is constrained only by strong statutory restrictions or by a constitutional amendment. But in the long run, a constitutional amendment would be a vital safeguard against the gradual erosion of property rights. Effective post–Kelo reforms like that in enacted in Virginia are the product of an unusual upsurge in public attention focused on eminent domain issues. Most of the time, the vast majority of “rationally ignorant” voters pay little or no attention to the subject. Even in the immediate aftermath of Kelo, many states enacted ineffective laws in part because voter ignorance makes it difficult for the electorate to tell the difference between genuine reforms and those that only pretend to constrain economic development takings.

As Kelo recedes into the past, public attention will understandably focus on other matters, and influential interest groups can lobby state legislators to gradually roll back post–Kelo reforms. The public might not even notice what is happening, just as most of them were unaware of the prevalence of Kelo–style takings in many states before the Supreme Court focused a national spotlight on the issue in 2005. A state constitutional amendment can help forestall this kind of gradual erosion of property rights. Unlike some other state constitutions, the Virginia Constitution is relatively difficult to amend. Thus, it will be much harder to roll back a constitutional reform than a purely statutory one.

UPDATE: Richmond Times-Dispatch columnist A. Barton Hinkle has a good column about the proposed Virginia amendment here.

Radley Balko has an interesting piece at Huffington Post on the ways in which the War on Drugs creates perverse incentives for police departments:

Arresting people for assaults, beatings and robberies doesn’t bring money back to police departments, but drug cases do in a couple of ways. First, police departments across the country compete for a pool of federal anti-drug grants. The more arrests and drug seizures a department can claim, the stronger its application for those grants.

“The availability of huge federal anti-drug grants incentivizes departments to pay for SWAT team armor and weapons, and leads our police officers to abandon real crime victims in our communities in favor of ratcheting up their drug arrest stats,” said former Los Angeles Deputy Chief of Police Stephen Downing. Downing is now a member of Law Enforcement Against Prohibition, an advocacy group of cops and prosecutors who are calling for an end to the drug war.

“When our cops are focused on executing large-scale, constitutionally questionable raids at the slightest hint that a small-time pot dealer is at work, real police work preventing and investigating crimes like robberies and rapes falls by the wayside,” Downing said.

And this problem is on the rise all over the country. Last year, police in New York City arrested around 50,000 people for marijuana possession. Pot has been decriminalized in New York since 1977, but displaying the drug in public is still a crime. So police officers stop people who look “suspicious,” frisk them, ask them to empty their pockets, then arrest them if they pull out a joint or a small amount of marijuana. They’re tricked into breaking the law. According to a report from Queens College sociologist Harry Levine, there were 33,775 such arrests from 1981 to 1995. Between 1996 and 2010 there were 536,322.

Several NYPD officers have alleged that in some precincts, police officers are asked to meet quotas for drug arrests. Former NYPD narcotics detective Stephen Anderson recently testified in court that it’s common for cops in the department to plant drugs on innocent people to meet those quotas — a practice for which Anderson himself was then on trial.

At the same time, there’s increasing evidence that the NYPD is paying less attention to violent crime. In an explosive Village Voice series last year, current and former NYPD officers told the publication that supervising officers encouraged them to either downgrade or not even bother to file reports for assault, robbery and even sexual assault.

Even when police officials don’t consciously prioritize drug crimes ahead of violent crimes, the vast expenditure of law enforcement resources on the former probably reduces the amount of police effort that can be devoted to the latter.

Later in the article, Balko notes that the War on Drugs also incentivizes police departments to shift resources away from violent crime because drug busts allow them to earn extra money through asset forfeiture, while solving violent crime usually does not:

The most perverse policy may be asset forfeiture. Under civil asset forfeiture, police can seize property from people merely suspected of drug crimes. So long as police can show even the slightest link of drug activity to a car, some cash, or even a home, they can seize it. In the majority of cases, most or all of the seized cash goes back to the police department. In some cases, the department has taken possession of cars as well, but generally non-cash property is auctioned off, with the proceeds then going back to the department. An innocent person who has property seized must go to court and prove his property was earned legitimately, even if he was never charged with a crime. The process of going to court can often be more expensive than the value of the property itself.

Asset forfeiture not only encourages police agencies to use resources and manpower on drug crimes at the expense of violent crimes, it also provides an incentive for police agencies to actually wait until drugs are on the streets before making a bust.

I wrote about the ways in asset forfeiture threaten constitutional property rights here.

From the Oct. 31 issue of Time, re Citizens United:

I feel strongly that the court made a serious mistake in finding that money is the equivalent of protected speech. If followed out to its logical conclusion, that would have provided First Amendment protection to the Watergate burglars. They were financed with campaign expenditures.

Huh?

According to leftist gay [judging by this piece, she obviously cares much more about leftism than about gay rights] activist Sarah Schulman, it’s the following: “Last year, the Israeli news site Ynet reported that the Tel Aviv tourism board had begun a campaign of around $90 million to brand the city as ‘an international gay vacation destination.’”

I kid you not. Schulman, it should be said, is making something of a hobby of being a leading member of what has to be the rather small club of “Jewish lesbians for Palestine.” Here’s a short (and dishonest) video of her attacking Israel as “unprogressive.”

Professor Schulman, if you happen to read this, I have an offer for you: I will pay for your ticket to Israel and accommodations, if you will agree to live among your “progressive” allies as an openly gay Jewish woman in Gaza for one month. But my offer is a bit disingenuous, because it’s very unlikely that I would need to pay out for more than a one-way ticket, and a few days of accommodations.

Professor Jacobson has more.

David Savage of the LA Times reports that many criminal defendants should be thankful for Justice Scalia.  In recent years he has led the charge for more strict enforcement of the Sixth Amendment’s confrontation clause.  This is but one example of how originalist approaches to constitutional interpretation do not always produce “conservative” results.  Justice Scalia’s commitment to his understanding of the Constitution’s original meaning is not all that’s at work here, however.  His commitment to formalism, and the imposition of bright-line rules, is even greater.  Indeed, the best way to understand the current Court’s division on many (though not all) questions of criminal procedure is as a split between formalists and pragmatists — between those inclined to enforce a bright-line constitutional rule and those inclined to account for practical considerations.