2d Circuit issues new rules for supervisory liability under Section 1983

Monday

When the Supreme Court issued Ashcroft v. Iqbal in 2009, it drew attention for its new rules guiding motions to dismiss, requiring plaintiffs to make "plausible" claims for relief, a standard that is not found in the Federal Rules of Civil Procedure. That significantly changed the landscape for Rule 12 pleading, which had only required plaintiffs to state a claim. But Iqbal had a lesser-known holding relating to how plaintiffs can hold municipal supervisors liable under Section 1983. The Second Circuit has interpreted Iqbal to make supervisory liability more difficult to prove.

The case is Tangreti v. Bachmann, issued on December 28. Plaintiff was a prison inmate who claimed she was sexually abused and that prison officials were deliberately indifferent to her serious medical needs in violation of the Eighth Amendment. One of these defendants is Bachmann. Plaintiff claimed that Bachmann had reason to know about the sexual abuse but did nothing about it. The district court denied Bachmann's motion for summary judgment, citing Second Circuit authority that holds that public supervisors can be liable for their gross negligence in supervising subordinates. That authority was Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). The Court of Appeals (Menashi, Park and Livingston) holds that Colon conflicts with Iqbal and that Iqbal requires Section 1983 plaintiffs to show the supervisor was personally involved in the constitutional violation. Colon is now overruled. This is big news for lawyers who handle Section 1983 cases and probably know the Colon factors by heart. If not by heart, they certainly know about them and have cited Colon many times.

The Second Circuit notes that "Before the Supreme Court decided Iqbal, we identified five categories of evidence that may establish the liability of a supervisory official for a subordinate's conduct under § 1983." Those factors are as follows:

The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.

Language in Iqbal placed these standards in question. The Second Circuit states that "Iqbal holds that a plaintiff may not rely on a special test for supervisory liability." Iqbal also said that "the factors necessary to establish a [Section 1983] violation vary with the constitutional provision at issue. When, as in Iqbal, 'the claim is invidious discrimination in contravention of the First and Fifth Amendments ... the plaintiff must plead and prove that the defendant acted with discriminatory purpose,' regardless of whether the defendant is a subordinate or a supervisor." Therefore, Iqbal stated, a supervisor's "mere knowledge of his subordinate's discriminatory purpose" is not sufficient because that knowledge does not "amount[] to the supervisor's violating the Constitution." Despite this language, trial courts in the Second Circuit continued to hold that Colon v. Coughlin was still good law depending on the nature of the plaintiff's claim. Those cases are no longer good law. The Court of Appeals holds:

after Iqbal, there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove "that each Government-official defendant, through the official's own individual actions, has violated the Constitution." "The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue" because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.

. . .
Tangreti must therefore establish that Bachmann violated the Eighth Amendment by Bachmann's own conduct, not by reason of Bachmann's supervision of others who committed the violation. She must show that Bachmann herself "acted with `deliberate indifference'"—meaning that Bachmann personally knew of and disregarded an excessive risk to Tangreti's health or safety.

Since the plaintiff cannot meet the new standard guiding supervisory liability, the Court of Appeals holds that she cannot prevail against Bachmann, and that defendant is dismissed from the case.

Court of Appeals strikes down Cuomo's restrictions on religious gatherings

Wednesday

Covid-19 caselaw is developing at a brisk pace. The Constitution says nothing about pandemics, and it does not speak to emergencies in general, at least not in the context of civil rights such as equal protection or religious freedom. That's the theme of the latest ruling from the Second Circuit, which strikes down Gov. Cuomo's executive order that restricted the size of church and other religious congregations.

The case is Agudath Israel of America v. Cuomo, issued on December 28, only 10 days following oral argument. In October 2020, Cuomo issued an order that identified three zones, determined by the rate of Covid-19 infections. At issue in this case are the red and orange zones. In the red zones, non-essential gatherings are prohibited, restaurants can remain open for take-out only, and schools may continue with in-person instruction. Houses of worship have a 25% capacity limit or 10 people, whichever is fewer. In orange zones, non-essential gatherings can have up to 10 people, and gyms and tattoo parlors are closed. Restaurants can provide outdoor service, other businesses may operate without additional restrictions, and schools may remain open. But houses of worship have a 33% capacity limit or 25 people, whichever is fewer.

The Supreme Court has already entertained this issue on a couple of occasions, including in this case, holding the government to strict limits on how it can restrict religious gatherings. Following that lead, the Second Circuit (Livingston, Menashi and Park) hold the Governor to "strict scrutiny," which is a legal phrase that means the government cannot get away with certain restrictions without a compelling reason, and the challenged rule or order must be narrowly-tailored to satisfy that compelling interest. The Governor's order in this case fails strict scrutiny because it singles out houses of worship for restrictive in-person gatherings that do not apply to other establishments, including so-called essential services like liquor stores. While a facially-neutral limit on public gatherings might be constitutional, even if they have the effect of restricting religious observances, that's not on the table in this case. And, while some businesses (such as news media and certain retail stores) are deemed "essential," non-essential activities, such as religious worship, have greater restrictions.

The unequal treatment of religious and non-religious services creates a presumption that the distinction violates the Free Exercise Clause of the First Amendment, which protects the right to worship. But the Court of Appeals also says the restrictions are not sufficiently narrowly-tailored to get around the strict rules against these restrictions. The court says the restrictions stem from broad generalizations about church-going behavior, such as the assumption that people enter and leave the building together and remain in the building for long periods of time. But even if these generalizations are true, the Governor's order does not require masks or distancing, which might also reduce infections. The Court of Appeals notes that we cannot assume that churchgoers will ignore these alternative protective measures. For one of the two cases that are the subject of this appeal, the narrow-tailoring issue is sent back to the trial court to take that up in the first instance. But it looks like the Second Circuit has foreshadowed how that issue should turn out: against the Governor's order.

The Second Circuit wraps up with a discussion about the role of the courts in a public health emergency. I wonder if the court anticipates other judges borrowing this language in their own pandemic cases. The Second Circuit quotes from a recent Supreme Court ruling stating that the Constitution cannot be "cut . . . loose during a pandemic." While the court recognizes that regulating public health during a pandemic is a compelling government interest that would justify a strict governmental response, it also says the response must be carefully tailored in order to prevent any unnecessary infringement on constitutional rights.

Arbitrator properly handled dispute involving the hiring of temporary, non-union workers

The whole point of arbitration is to keep labor-management disputes out of court. This means that when a party challenges an adverse arbitration ruling in court, they face an uphill battle. In this case, after losing the arbitration, management took the issue to court, which rules that the arbitrator did not violate the rules and that the arbitration ruling will stand.

The case is A&A Maintenance v. Ramnarian, issued on December 16. A&A provides janitorial and maintenance services to commercial real estate and educational institutions. Its workforce is unionized and the parties must therefore comply with a collective bargaining agreement that addresses when A&A may employ "substitute employees" to fill in for people who are out on disability or worker's compensation or extended leaves. When the union noticed an unusual number of new, non-union employees at a college one day, it tried to resolve that issue without arbitration, but the dispute eventually went to an arbitrator, who ruled in the union's favor, finding that A&A had hired and rehired these people to perform bargaining unit work, and it did so to save money and to effectively keep them on as probationary employees with fewer rights in the workplace.

We have two issues here. First the employer says the arbitrator improperly allowed the union to frame the arbitration issue differently throughout the process. The first issue statement was in the original grievance, claiming the employer violated the CBA in hiring these "substitute employees." The union later framed the issue for the arbitrator as whether the employer violated the CBA by using "temporary employees," "a term undefined in the CBA and broader in scope than substitute employees," to perform bargaining unit work. The difference between the two issue statements was that the first one mentioned substitute employees, and the second mentioned temporary employees. Management said the first issue statement was proper, not the second, because "substitute employees" carries a narrower definition than "temporary employees."

The arbitrator said the union could frame the issue the second time around this way, and the Court of Appeals (Sullivan, Katzmann and Calabresi) agrees, finding the arbitrator did not resolve an issue that was not properly before him. The Court says that management's argument elevates form over substance, as the substance of the union's initial grievance was its contention that non-union workers were improperly performing bargaining unit work, a dispute which covers A&A's use of temporary employees. The union's grievance was based on facts that were known to management when the union filed the grievance, even though the grievance did not explicitly use the terms "temporary employees" and "probationary employees."

Relatedly, the Court says, the arbitrator did not rewrite the CBA in ruling that A&A violated the contract by hiring temporary employees even though the CBA does not mention "temporary employees. This technical argument is also rejected, as the dispute arose when A&A tried to hire non-union temporary workers "by means of a strained interpretation of the probationary period [under the CBA]." Since the issue resolved by the arbitrator concerned the interpretation, application, or claimed violation" of the contract, the arbitrator was able to resolve this issue and did not exceed his authority in doing so.

No retaliation claim for teacher who filed an EEOC charge

Tuesday

Proving causation in retaliation claims under Title VII and the First Amendment remans a tricky proposition without direct evidence ("we are firing you because you complained about XYZ") and the plaintiff has to rely on circumstantial evidence ("management loved me until I spoke out and then they issued a paper trial to fire me"). This case highlights that difficulty.

The case is Agosto v. New York City Dept. of Education, issued on December 4. I have written about the First Amendment part of the case at this link. But plaintiff (a teacher) also had a Title VII claim. He says that 3.5 months after filing the EEOC charge in March 2017, a "letter to file" was placed in his personnel folder in June 2017. Is that time-gap enough to prove retaliatory intent? The Court of Appeals (Menashi, Lohier and Cabranes) says it is not enough.

The Second Circuit notes that "this court has not imposed a strict time limitation when a retaliation claim relies exclusively on temporal proximity." Some cases extend it to eight months. Others limit it to three months. Really, the cases in this area are all over the place. Of course, plaintiff's lawyers will highlight the eight-month rule. Management lawyers will cite the two-month rule that turns up in cases from time to time. But in this case, the plaintiff "acknowledges that the gap of more than several months is typically too like by itself to survive summary judgment."

That concession hurts plaintiff in this case, but what also hurts him is evidence that the letter to file was triggered by an independent actor, the Parent Chairperson of the School Leadership Team, who complained that plaintiff had made a threat after a meeting. This indicates that the letter to file "was not a contrived excuse to penalize Agosto for prior protected activity." We call that the independent causation principle, which allows courts to exercise their judgment in determining what a jury can legally accept in finding causation. At some point, the court will decide that an independent event in the chain of events will absolutely kill the retaliation case. This is one of those cases.

Court clarifies retaliation standards for Federal Railroad Safety Act cases

Monday

A relatively obscure federal statute protects railroad workers from retaliation for certain protected activity. The statute is the Federal Railroad Safety Act. In this case, the Court of Appeals clarifies how the Act applies in practice, issuing this ruling a full year after oral argument.

The case is Tompkins v. Metro-North Commuter Railroad, issued on December 17. The Act says the railroad cannot retaliate against employees "for refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties." Plaintiff was disciplined because he refused to walk to a wheel shop at his work location, claiming it was too icy and dangerous, as evidenced by other workers slipping on their way to the wheel shop.

To win a case like this, the plaintiff has to show the hazardous condition presented an "imminent danger of death or serious injury" and "the urgency of the situation did not allow sufficient time to eliminate the danger without such refusal." The Second Circuit (Walker, Sullivan and Nathan [D.J.]) says for the first time in this Circuit that the plaintiff must objectively prove such a danger, and that his subjective belief of a dangerous condition is not enough. Other Circuits have applied this formulation, and now it applies in the Second Circuit. Under the rule, plaintiff loses. The Court says he submits no evidence to support his generalized statement that the walkways at the rail yard were unsafe, other than that other employees had slipped when they walked. In addition, "it is not necessarily true that an employee slipping on a walkway indicates that the trip as a whole presented a hazardous condition." Other employees did not refuse to make that walk to the wheel shop, and while they ultimately drove to the wheel shop, that could mean it they were tired or cold. The foremen also believed the walk was safe. While plaintiff could have argued that the foremen reached this conclusion as a means to convince the workers to get to the wheel shop and continue working, plaintiff did not make such an argument.

Plaintiff also claims that management retaliated against him for reporting the unsafe walkway condition. This issue also allows the Court of Appeals to clarify the standards for these cases, holding for the first time that plaintiffs must provide some evidence of retaliatory intent. As other Circuits have held, the statute expressly requires the plaintiff to show that management "discriminated" against him for engaging in protected activity. That implies a requirement that the plaintiff show retaliatory intent. While the plaintiff need not show that retaliatory intent was the sole factor behind the discipline, or that management acted only with retaliatory motive, "the plaintiff must . . . show more than a temporal connection between the protected conduct and the adverse employment action" to win the case. This standard is in line with that reached in other Circuits, from which the Second Circuit devises the following guidelines:

we will consider the following factors: (1) whether and to what extent the disciplinary measures were related to the protected activity, (2) the temporal relationship between the protected activity and the disciplinary measures, including whether any intervening incidents occurred that could independently justify the discipline, (3) whether the disciplined employee was represented by counsel or a similar representative in the disciplinary proceedings, and whether the disciplinary measures were upheld on appeal, (4) whether, if applicable, the disciplinary measures were upheld following Department of Labor proceedings, and (5) whether the persons accused of hostility towards the employee’s protected activity participated in the disciplinary decision.

Under the retaliation test, plaintiff loses. Factors 3 and 5 favor Metro-North. Factor 4 is inapplicable because DOL did not get involved, and factors 1 and 2 favor plaintiff, but only slightly. "Rather, the record supports that Tompkins was disciplined for failing to meet a legitimate expectation by an employer that when orders are given employees will comply."

Plaintiff further claims retaliation because he was disciplined for conduct unbecoming an employee after speaking to his foreman in the lunchroom about the discipline and discrepancies between the foreman's account and that provided by other witnesses (a conversation that made the foreman feel threatened). Plaintiff says this discipline was also motivated by his safety complaint. While factor 3 favors plaintiff because an arbitrator overturned the discipline from that incident, factors 1 and 2 strongly favor management; the lunchroom incident with the foreman was an intervening event that killed off the causation between the protected activity relating to safety and the discipline. The fact that the discipline was overturned does not support plaintiff's argument.

You can sue government defendants for religious discrimination under the Religious Freedom Restoration Act

Friday

The Supreme Court has held that plaintiffs in religious discrimination cases against the government can name individual governmental supervisors in their lawsuit. This is the rare unanimous Supreme Court ruling in favor of civil rights plaintiffs.

The case is Tanzin v. Tanvir, issued on December 10. Plaintiffs claim the federal government violated the Religious Freedom Restoration Act by placing them on the no-fly list solely because they are practicing Muslims who would not act as informants against against their religious communities. The Second Circuit interpreted RFRA to allow plaintiffs to sue individual defendants, and the Supreme Court agrees.

RFRA was enacted by Congress in the 1990s after the Supreme Court, in Employment Division v. Smith (1990), made it more difficult for plaintiffs to sue the government under the Free Exercise Clause. The Smith court said that neutral governmental policies or rules that incidentally disadvantage people on the basis of their religious practices do not violate the Establishment Clause. This controversial ruling deviated from prior Supreme Court cases, so Congress (back in the days when Congress still worked together) made passing RFRA a priority. The questions is how do we interpret RFRA and does it allows plaintiffs to sue individuals or only the government.

Statutory analysis is not the most exciting topic in the legal world, but it's actually pretty important, because if the court views the statute in a particular way, that is how the statute will be applied in the future unless Congress deals with the misinterpretation. Here, the Court finds that since the statute says plaintiffs can sue "the government," defined as "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." That language seems clear, that you can sue an individual in his personal capacity. The federal government had its own interpretation, though, which the Court rejected: that you can only sue governmental officials in their official capacities. The feds said this interpretation makes sense because the statute references "official[s]" as among the appropriate defendants. Writing for the Court, Justice Thomas says this argument may be "plausible," but it does not work here in part because the statute also says you can sue an official "or other person." This language "clarifies that 'a government' includes both individuals who are officials acting under color or law and other, additional individuals who are nonofficial acting under color of law." In Section 1983 litigation, suing people acting under color of law means suing them in their individual capacities. Congress presumably had that principle in mind when it enacted RFRA.

The final question in this case is what can plaintiffs under RFRA sue for? The statute says you can recover "appropriate relief." What does that even mean? The Court says that phrase encompasses damages claims. The Court notes that such relief has always been available under Section 1983, and it seems that Congress wanted plaintiffs under RFRA to recover the relief that had been available to them under the Smith ruling that RFRA was intended to correct.

No Cat's Paw for plaintiff claiming retaliation for filing safety objections at the railroad

Wednesday

Every now and then the Court of Appeals decides a retaliation case brought under the Federal Railroad Safety Act (FRSA). This is a little-known statute that provides relief for employees who suffered retaliation for speaking out against safety violations on the railroad. These cases are normally resolved under the same legal principles that guide cases under Title VII and the other well-known anti-retaliation laws. And like those cases, lawsuits brought under the FRSA often lose under the complex evidentiary model covering all retaliation claims.

The case is Petronio v. National Railroad Passenger Corp., a summary order issued on December 2. Plaintiff says he was fired after sending emails to Amtrak management requesting trainings and reporting safety concerns. But this claim fails, the Second Circuit says, because there is no evidence that the Amtrak officers who charged and terminated plaintiff even knew about his protected activity. To get around this, plaintiff relies on the Cat's Paw theory of liability, which holds that even if the decision makers did not know about the protected activity, the organization is liable if a lower-level supervisor who did know about the retaliatory activity played a meaningful role in the plaintiff's termination. (If you are wondering what this has to do with the cat's paw, it has something to do with Edgar Allen Poe and a story he wrote about a monkey who fooled the cat with a chestnut near the fireplace).

The Cat's Paw is a nice evidentiary tool for plaintiffs who need to connect their protected activity with their termination, but it will not work in every case, like this one. Plaintiff says that Collins, who knew about his safety reports, played a meaningful role in his termination because he suspended plaintiff and testified at his disciplinary hearing. But someone else, Obey, was responsible for filing the charges, and it was Obey who advised Collins on how to proceed against plaintiff. While Collins testified at the hearing, others testified against plaintiff also, and decision makers relied on that testimony as well in finding that plaintiff had violated company policies.

Plaintiff tried to show that Collins was biased against him because Collins said that he thought it was odd that a new employee like plaintiff would complain about safety violations outside the chain of command. But this testimony does not show bias against plaintiff; it only shows that Collins thought plaintiff's conduct was unusual. A fine distinction, but a distinction nonetheless.

Pretext not enough to avoid summary judgment in discrimination case

Tuesday

Here is another case demonstrating that even if the plaintiff can show the employer lied about the reason for his termination, the court can still dismiss the case on a summary judgment motion if that lie is not enough to prove discriminatory intent.

The case is Palencar v. New York Power Authority, a summary order issued on December 8. Prior to 1997, the Second Circuit usually held that if the employee makes out a prima facie case of discrimination and can prove the employer's articulated reason for his termination (or demotion, etc.) was knowingly false, the case will go to the jury on the discrimination claim. That changed in 1997, when the Circuit issued Fisher v. Vassar College, an en banc ruling that said pretext is not always enough to prove discrimination, and that plaintiff may still have to proffer other evidence of discriminatory intent. We call that the "pretext plus" theory. Although the Supreme Court in Reeves v. Sanderson Plumbing (2000) suggested that pretext alone is usually enough and that pretext plus is the exception, the Second Circuit continued to adhere to a pretext-plus evidentiary model, though every few years it reverses the grant of summary judgment on pretext alone. That's rare, though.

The Court of Appeals in this case assumes plaintiff has made out a prima facie case. It focuses on whether plaintiff can prove he was fired for discriminatory reasons. In doing so, the Court (Sullivan, Park and Nardini) reminds us that this requires a totality-of-the-circumstances approach, drawing from cases that were decided in the last 1990s and early 2000s.

From that angle, the Court says, plaintiff has no case because the record shows that plaintiff's subordinates "lodged repeated complaints against him over the course of several years, that he was consistently combative and defiant toward his supervisors, and that he was unwilling to incorporate constructive feedback in response to his reviews over that time." What it all means is that even if plaintiff can show "some evidence of pretext," that evidence cannot override the evidence of plaintiff's performance deficiencies. The Court finds that plaintiff cannot prevail on his sexual orientation discrimination claim.

Sexual harassment and assault at Suffolk County jail may violate Section 1983

Monday

This case is disturbing on several levels. It involves inmates at the Suffolk County jail who claim one of the correction officers got away with sexually harassing and assaulting them for years because jail management knew about it but looked the other way. The primary question raised on appeal involves whether the plaintiffs can prove municipal liability under Section 1983. The Court of Appeals says they can.

The case is Lucente v. County of Suffolk, issued on November 17. The offending officer's name is Joseph Foti. The Court of Appeals (Kearse, Carney and Bianco) lays out the allegations. After Internal Affairs investigated, it found that Foti had violated departmental guidelines in the course of sexually assaulting the inmates. But prior to Foti's ultimate retirement (which he claimed had nothing to do with the Internal Affairs report), none of his supervisors ever spoke to him about this. Yet, the district court dismissed this Section 1983 case against the County, holding that Foti was merely a rogue officer whose actions cannot give rise to the "policy and practice" that plaintiffs need to prove municipal liability under Monell v. Dept. of Social Services, the seminal Supreme Court ruling on this issue from 1978. The district court also excluded allegations of Foti's misconduct from the 1990s as time-barred, and ruled that no county policymaker had knowledge of Foti's actions. The district court also ruled that plaintiffs cannot sue the county, focusing on whether management knew about the assaults rather than the allegations of sexual harassment. The Court of Appeals reverses, rejecting the district court's analysis in its entirety.

First, there was nothing isolated about Foti's misconduct, the Court says, because "the record is replete with evidence of inappropriate touching and/or other sexual harassment of female inmates on a regular basis by Foti" over the course of 18 months. And it was not limited to the six plaintiffs in this case. The evidence suggests this harassment was "open and notorious" as others at the jail saw Foti as an "accident waiting to happen." Foti also created opportunities for himself to get the female inmates alone so he could engage in the inappropriate behavior. This was not isolated behavior but severe, persistent, and pervasive, "executed in a manner that would have been difficult to conceal from supervisory personnel at the Riverhead facility, including policymakers."

Plaintiffs' case is strengthened by evidence that the Sheriff knew about Foti's sexual misconduct from the 1990s outside the jail. Off-duty conduct may be relevant in proving a Monell claim, as per Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995). Internal affairs reports from the 1990s involving jail-related sexual misconduct also support plaintiffs' claims. While some supervisors were aware of sexual harassment but not sexual assault, their knowledge of the harassment can hold the County liable for the overall sexual misconduct because even sexual harassment violates the Equal Protection Clause. These officials knew about Foti's unconstitutional misconduct, and that is enough under Monell.

Finally, we have a statute of limitations issue. The district court rejected evidence that fell outside the three-year limitations period, but the Court of Appeals finds the older harassment constitutes the kind of continuing violation that is unique to sexual harassment claims, as the harassment as a whole was part of the overall policy and practice. We associate this principle with employment discrimination claims, but the Court of Appeals notes that it applies in other contexts as well, including land-use claims under Section 1983.

Can You Serve Legal Documents Via Pigeon?

Thursday

It's been a while, but I'm back to answer the important questions. Today's pigeon-themed inquiry is not inspired by any news stories or current events. Instead, it popped into my head and demanded an immediate answer. Those who would like to know the answer, and learn some trivia about pigeons and related laws should read on.

As a bit of background, carrier pigeons (or homing pigeons) are pigeons that have been bred to find their way back to a fixed point even after being transported over long distances. Pigeons may be trained to carry small packages containing messages or other items. Because pigeons can only return to a fixed point, the person sending the message must have a pigeon that will return to the recipient's location. As this New York Times article details, pigeons have been used for sending messages, samples of blood, and other items over long distances, and have been employed in multiple wars to send communications from the field. In the John Wick universe, the Bowery King uses pigeons to send messages and small objects.

Naturally, this prompts the question of whether pigeons may be used to effectuate service of pleadings or documents in litigation. Case law on whether sending a document by pigeon constitutes valid service is limited. From what I could find in a cursory search, no US court has directly addressed a situation where a party has attempted to serve a legal document on someone using a pigeon. A couple courts have considered pigeon-service as a hypothetical scenario, but both appear to disapprove of the practice.

In Geiling v. Wirt Financial Services, Inc., No. 14-11027; 2014 WL 8473822 (E.D. Mich. Dec. 31. 2014), the plaintiffs took issue with documents that had been produced in discovery that contained the plaintiffs' social security numbers, claiming that the mailing of these documents violated a Michigan state law against transmitting full social security numbers through the mail. The court noted an exception to this rule for documents sent by mail pursuant to legal discovery or process. The plaintiffs argued that this exception should not apply and the court disagreed, noting that the Michigan Court Rules envisioned that parties would produce documents in discovery through first-class mail. The court further suggested that "parties sending documents by untrustworthy means, carrier pigeon for example, could be faulted for operating outside normal discovery bounds," but not parties using standard methods to mail documents. (emphasis added). This suggests that the court would view service by carrier pigeon as a method of service outside of normal discovery practices, but a direct ruling on the issue must wait for another day.

In Seibold v. Commissioner of Dept. of Motor Vehicles, No. HHBCV136019840S; 2014 WL 565905 (Ct. Sup. Ct., Jan. 9, 2014), the court addressed whether a party had properly served an appeal by fax on the Office of the Attorney General, even though the rules required service by certified mail or personal delivery. The party claimed that because the Attorney General had actual notice of the appeal and had not been prejudiced by the failure to make proper service, her case should not be dismissed. The court rejected the plaintiff's argument, noting that at "its logical extreme" the argument would allow "service of the appeal on the agency by any means, including by a carrier pigeon, as long as the agency actually receives the appeal and is not prejudiced." (emphasis added). This, the court concluded, was not supported by statute or case law.

In summary, while courts have not directly addressed a situation where a party has attempted service using a pigeon, the disapproval of the method expressed by the few courts that have contemplated such a scenario means that it is probably is not advisable to do so.

Practically, service by pigeon is unlikely to catch on. The most apparent barrier to wide usage of homing pigeons is the fact that the person sending a document via pigeon must already have a pigeon in their possession that will return to the recipient. This suggests that a network of homing pigeons trained to deliver documents to law firms and courts must be supported by a secondary network of delivery personnel who take the pigeons from the recipients to the senders. Pigeons may be seen as redundant if a system for their physical delivery is already in place.

Another potential criticism of the practice is that even the smallest filing or item of correspondence is too large to be carried by a pigeon. The answer to this, however, is that these documents could be loaded onto tiny flash drives that could, in turn, be deposited into a pack that the pigeon can carry.

States considering permitting service via pigeon may be encouraged to learn that there are already legal barriers in place to prohibit interference with homing pigeons. In Pennsylvania, for instance, it is a summary offense to shoot, maim, or kill a homing pigeon. Similar restrictions exist in Michigan, Virginia, and Wisconsin. Laws like these may assuage concerns that interlopers will interfere with pigeons used for legal service.

Impossibility, What

Saturday

If you're looking for inspiration in the California Civil Code this weekend, look no further than section 1597:

IMPOSSIBILITY, WHAT. Everything is deemed possible except that which is impossible in the nature of things.

The first two words of the statute appear to have been dictated by someone who had expected an impossible contract to be performed, but just learned that the entire contract was void under California law.

I prefer the statute standing alone with no further explanation. But readers interested in learning more can start by knowing that it is not legally impossible to build and operate a sawmill, while ensuring that no sawdust or debris from the mill fall into a stream. Peterson v. Hubbard, 9 P. 106, 107 (1885). It is, however, impossible to grade and level a parcel of land on which there are many trees without removing some of those trees. Greathouse v. Daleno, 57 Cal. App. 187, 190 (1922).

The Flawed Ideal of the Unfazed Lawyer: A Response to Volokh

Friday

Yesterday I saw this series of tweets by Matthew Stiegler regarding Professor Eugene Volokh's decision to use the n-word in class, and Volokh's arguments for doing so. Stiegler refers to Volokh's post here where he notes that the dean of UCLA Law School had issued an apology for Volokh's behavior, which states:

Earlier in the year, Professor Eugene Volokh used the "n-word," both in class—in teaching a First Amendment case—and outside of class when recounting the incident to a colleague. As you may know, Professor Volokh has strong views about why he chooses to use incendiary language—even when vile—in his classroom, without euphemism or alteration. While he has the right to make that choice as a matter of academic freedom and First Amendment rights, so long as he is not using this or other words with animus, many of us—myself included—strongly believe that he could achieve his learning goals more effectively and empathetically without repeating the word itself. That is equally true in casual settings outside the classroom. Slurs, even when mentioned for pedagogical purposes, hurt people. The n-word is inextricably associated with anti-Black prejudice, racism and slavery; it is a word that carries with it the weight of our shameful history and the reality of ongoing anti-Black racism. I am deeply sorry for the pain and offense the use of this word has caused, and I very much respect the important work our Black Law Students Association undertook, using speech to counter speech, in the flowchart they distributed around the building.

Volokh's reply?

I want to respond here by explaining why I think I was right, and why I will continue to accurately quote things in class and outside it.

Volokh offers five (5) justifications for his use of the word. Stiegler took particular issue with one of them:

[4.] Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be. They need to read cases that contain nasty words and describe nastier actions.

. . .

And indeed every day, lawyers of all races, religions, ethnic groups, and sexual orientations handle cases—whether in criminal law, employment law, education law, civil rights law, family law, or elsewhere—in which they hear extremely offensive material. They handle these situations with professionalism, and don't let the casual cruelty, callousness, and hatred that they read or hear about get them down.

. . .

I do not for a moment think that black lawyers allow themselves to be debilitated by hearing material about racism, gay lawyers about hatred towards gays, Jewish lawyers about anti-Semitism, and so on, whether that material describes violent attacks, contains epithets, or whatever else. I think that, as law students and law professors, we should follow this example.

Volokh's argument relies on an inaccurate view legal practice and the ideal attorney, does not account for the dynamic between professors and students, and fails to acknowledge the impact that his words have on his audience.

First, there's a difference between being "debilitated" by something and suffering stress, offense, or discomfort as a result of something. While lawyers may not always become debilitated in the circumstances Volokh describes, it's unrealistic to claim that they do not suffer some form of stress. Students, likewise, may not be debilitated by Volokh's use of the n-word, but it adds to the already stressful environment in which most, if not all, law students operate.

Second, Volokh's claim that attorneys don't let "casual cruelty, callousness, and hatred . . . get them down," is false. Volokh uses an idealized, unfazed attorney as a model that law students should not only aspire to be, but should already be. Shannon Kilpatrick makes this point in a series of tweets reacting to Stiegler--noting that lawyers should not aspire to be "unemotional robots" and that having an emotional response to negative circumstances motivates attorneys to right wrongs. It is, at best, questionable that a professor's use of offensive language in a law school class will effectively desensitize students against that sort of language. But if such a desensitization scheme were to succeed, the result would be a group of jaded, unemotional attorneys unable to effectively react to instances of vile behavior. Taking offense at the behavior of one's own client or adversary is crucial--as attorneys can work to control their client's behavior, or exploit the bad behavior of an adverse witness, party, or attorney.

Third, Volokh's overall claim is false: lawyers often do become debilitated by the stresses of the job. Much has been written on the stress of the legal profession, and the impact of this stress on attorneys' mental health. Many attorneys think that their mental health is worse off because of their work. As for mental health issues in legal academia, I highly recommend this three-part series of posts by Brian Clarke (here, here, and here). One instance of offensive language often will not result in the depression and anxiety that these articles and posts describe. But each instance contributes to the broad range of stressors that students and attorneys face every day.

Volokh's fifth argument in his post is worth noting as well:

[5.] Indeed, the implicit message of the claim that black law students, in particular, need to be protected from hearing cases that contain [the n-word] because they find it so "painful" or "challenging" (to quote the Dean of Wake Forest's law school) or offensive or even traumatic, is that young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices—in courtrooms, in depositions, in witness interviews, wherever it is part of the facts of a case or of a relevant precedent. If this were true, then this would suggest that black lawyers are going to be less effective than white lawyers, because they are so pained, challenged, disturbed, and distracted by simply hearing the word.

As I mentioned in item 4 above, I do not for a moment believe that black lawyers actually are less effective lawyers, precisely because I do not believe that they are so easily wounded simply by hearing the facts of a case. But I also don't believe that black law students (or other law students) are likewise so easily wounded.

I believe that students and lawyers of all identities are perfectly capable of handling the often ugly reality of the world, as reflected in the precedents and in the cases before them. And I think it does them no service to tell them that they are somehow entitled to be so shielded from that reality that they don't even hear some aspects of that reality.

Volokh's point in his fifth argument ignores the backlash to his use of the n-word, as well as students' requests that he not use the word. It also uses his students as a shield for his own behavior by claiming that because they are tough and capable, he should be able to act in ways that these tough students will be able to withstand. Doing so shifts the spotlight from Volokh's own behavior onto his students and accusers.

Volokh attempts to shift the onus to whoever is accusing him of insensitivity--claiming that criticism of his use of the n-word implies that students will be "sharply disturbed" by his doing so, and that the accuser is therefore "suggest[ing]" that African-American lawyers will be less effective than white lawyers. This argument goes a step too far with its unsupported assumption that if people are disturbed or offended by certain language, they will be less effective lawyers. People can be offended, but still get their jobs done. And as I've already noted above, being affected by vile language or facts is a mark of empathy, not ineffectiveness--and recognizing the impact this language has on oneself and others can help attorneys craft arguments that appeal to a range of judges or jurors.

Even though people can perform under difficult circumstances, this does not mean that multiple instances of offensive language or behavior do not eventually take a toll. And it does not mean that people in Volokh's position shouldn't take steps to minimize the negative impact their actions will have on others. Taking such steps isn't coddling, it's basic decency.

Moreover, attorneys faced with similar instances of offensive or vile language and behavior operate under different circumstances than law students. Many attorneys choose their clients, and if a potential client behaves in a way that the attorney finds offensive, the attorney may simply choose not to work for that client. Some attorneys like public defenders have clients appointed to them, but these attorneys can exert pressure on their clients to change their behavior, as offensive actions and remarks are unlikely to play well with judges and juries. Attorneys with existing clients, or who have less of a choice of who they choose as clients, can exercise this control as well--using the threat of a bad outcome or sanctions as motivation to get clients in line. And if it is the other side that is acting badly, effective attorneys will document this behavior to use it against the other side at deposition, trial, or in a motion for sanctions.

Beyond choosing whether to take his class in the first place, students in Volokh's class have little ability to exert control over Volokh's actions. And the limited availability of classes or spaces in those classes often removes students' ability to choose what course to take altogether. Volokh's post makes it clear that he is unwilling to change, as an apology from the dean resulted in nothing more than him doubling down on his behavior.

Volokh's arguments rely on an unrealistic portrayal of practicing attorneys, a failure to acknowledge the stress of the legal profession, and a refusal to consider the dynamics between professors and students.

My original plan for this post was to expand on the argument that Stiegler made in his series of tweets and the argument I made in my own thread here. That argument--in short--criticizes the (all too common) use of bad practices in the legal world to justify unusual and offensive teaching techniques. I'll get to that argument in my next post.

Does Quartering Troops in Hotels Implicate the Third Amendment?

With protests sweeping the nation, various cities have called on the National Guard to provide support for law enforcement officers. The District of Columbia is one such city, and among the soldiers sent to DC were National Guard Soldiers from Utah. An NPR report quotes a National Guard spokesperson, who stated that the National Guard soldiers had been quartered at the hotel and paid "government rates" for the housing.

Fast forward to today, where continued protests and criticism of the presence of troops has started to take a toll. The Salt Lake Tribune reports:

Utah National Guard soldiers and other forces from states deployed to the nation’s capital were forced out of their hotels on Friday morning in what Sen. Mike Lee called an eviction by an “ungrateful mayor.”

The mayor of the District of Columbia, Muriel Bowser, said this week that she wanted National Guard troops out of the district, which has seen days of protests — some of which have been violent — over racial injustice and the death of black Americans at police hands.

Utah’s 200 soldiers in the nation’s capital had been staying at a Marriott hotel near downtown Washington since they’re activation on Monday but were checking out Friday after being deployed to various parts of the capital city until the early morning hours.

The Utah Guard had until noon Eastern Time to depart their hotel and lodging and other accommodations were “still up in the air for this evening,” said Lee's spokesman Conn Carroll.

Lee voiced his complaint on Twitter in the following tweets:

Just heard that Mayor Bowser is kicking the Utah National Guard out of all DC hotels tomorrow. More than 1200 troops from 10 states are being evicted. This is unacceptable. 1/2
— Mike Lee (@SenMikeLee) June 5, 2020

These brave men and women have risked their lives protecting DC for three days. Rioting, looting, arson, and vandalism have all disappeared bc these soldiers served. And now they are being kicked to the curb by an ungrateful mayor. This must be stopped. 2/2 pic.twitter.com/YYyctKvUqN
— Mike Lee (@SenMikeLee) June 5, 2020

People on Twitter were quick to respond by arguing that Lee was calling for the quartering of soldiers in hotels--a position they argued was inconsistent with the Third Amendment, which states:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

The Salt Lake Tribune noted this response from Lee's spokesperson to the Third Amendment issue:

Carroll said the issue has nothing to do with the Constitution’s 3rd Amendment — which prohibits forcing a homeowner to quarter troops without the owner’s consent — but a political move by Bowser.

Twitter is abuzz with debate over the issue, with some people claiming that the Third Amendment will finally get some attention, and others arguing that this sentiment is overblown. There seems to be an assumption that the officers were removed as a result of the Third Amendment being invoked by Mayor Bowser, but I have seen nothing suggesting that this is the case.

A lot of this talk is off the cuff, and bereft of case law and authority. Maybe these commentators don't realize that at least one court has addressed Third Amendment claims before. Maybe they are fair weather Third Amendment enthusiasts (unlike myself, and the National Anti-Quartering Society). Whatever the explanation may be, here is the in-depth analysis of the Third Amendment questions you were undoubtedly waiting for.

In Engblom v. Carey, two correction officers at a prison sued the state of New York, arguing that their Third Amendment rights were violated when they were evicted from their facility-residences so that members of the National Guard could be housed their during a correction officer strike. The residences at issue were located in a building a quarter mile from the prison, and included rooms with beds, dressers, and other fixtures, a private or semi-private bath, and shared common kitchens. A department directive set forth conditions of occupancy and, among other things, referred to the occupants as tenants and required a $36 per month payroll deduction for each occupants to described as "rent" or "rental cost." There were restrictions against overnight guests and personal firearms.

The Second Circuit Court of Appeals started by agreeing with the district court that the Third Amendment was incorporated into the Fourteenth Amendment and therefore applied to actions by the states. It then noted that the officers' Third Amendment claim was "novel" and "rarely invoked in the federal courts." The court found that the National Guardsmen were "soldiers" within the meaning of the Third Amendment. The court then noted that there was little background on the Third Amendment, as there was no case law directly construing the amendment, and "little illumination" from the Constitutional Convention debates. The court noted that "a technical and literal reading of the language . . . would only protect fee simple owners of houses," but the court rejected this "formalistic" reading:

The Third Amendment was designed to assure a fundamental right to privacy. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), at 552, 81 S.Ct. at 1781 (Douglas, J., dissenting), 549, 81 S.Ct. at 1779 (Harlan, J., dissenting). Since the privacy interest arises out of the use and enjoyment of property, compare Griswold, supra (privacy in marital relationship), an inquiry into the nature of the property-based privacy interest seeking protection becomes necessary. In closely analogous contexts rigid notions of ownership are not prerequisites to constitutional protections. When determining whether a legitimate expectation of privacy exists for the purposes of the Fourth Amendment, for instance, the Supreme Court has rejected the notion that a protected privacy interest in a place must be "based on a common-law interest in real or personal property." Rakas v. Illinois, 439 U.S. 128, 143-44 n.12, 99 S.Ct. 421, 430-31 n.12, 58 L.Ed.2d 387 (1978). Rather, the Court stated that "one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy." Id. (emphasis added). Similarly, in applying the due process clause, the Court has extended its procedural protection "well beyond actual ownership of real estate, chattels, or money," Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972), and has interpreted "property" as "not limited [to] a few rigid, technical forms," but as "denot[ing] a broad range of interests that are secured by `existing rules or understandings.'" Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). A rigid reading of the word "Owner" in the Third Amendment would be wholly anomalous when viewed, for example, alongside established Fourth Amendment doctrine, since it would lead to an apartment tenant's being denied a privacy right against the forced quartering of troops, while that same tenant, or his guest, or even a hotel visitor, would have a legitimate privacy interest protected against unreasonable searches and seizures. See, e.g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (friend's apartment); United States v. Agapito, 620 F.2d 324, 333-35 (2d Cir.) (hotel room), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980); United States v. Bell, 488 F.Supp. 371 (D.D.C.1980) (apartment tenant)

Accordingly we hold that property-based privacy interests protected by the Third Amendment are not limited solely to those arising out of fee simple ownership but extend to those recognized and permitted by society as founded on lawful occupation or possession with a legal right to exclude others. (bold emphasis added).

The court went on to find that the officers had "a legitimate expectation of privacy protected by the Third Amendment," and reversed the lower court's summary dismissal of the Third Amendment claim.

With that background, let's get to the two key questions. First, does the situation involving the DC hotel and Utah National Guard soldiers involve a Third Amendment question? And second, could the Third Amendment be invoked if soldiers were quartered in a hotel?

As to the first question, the answer appears to be no. While people are asserting that DC's mayor invoked the Third Amendment, there is no indication that this is true. Indeed, her spokesperson simply stated that the city would not pay for the quartering of troops that it no longer wanted. And even if the mayor had invoked the Third Amendment, it is unclear whether such an argument would succeed--as the Third Amendment protects the rights of the hotel owners (and potentially those staying at hotels whose stays are cut short as a result of the troops' arrival).

I have not seen any statements from the hotel's owners regarding their position on the presence of troops--but I suspect that absent the mayor's action, they would agree to quarter troops. The hotel has an incentive to agree, because the National Guard is paying for the rooms, which brings in income during a time where business for hotels has sharply decreased. Additionally, refusing to allow the troops to stay could create a public relations problem and hurt future business, as the hotel is a "regular spot for U.S. Army events."

The second question--whether the Third Amendment applies to situations where soldiers are quartered in a hotel--is more interesting, and the answer is far less certain. A restrictive interpretation of the Third Amendment's text suggests that the Third Amendment does not apply to hotels. One can argue that hotels are distinct from "houses," as many staying at hotels do so only for short terms, and the owners of the buildings in many cases do not live at the hotel. This argument may go too far in some cases, though, as some people stay in hotels for long periods of time and may be more akin to tenants in an apartment than an overnight hotel guest. Engblom's broad interpretation of "Owner" suggests that in these cases, the people staying in the hotel may have a Third Amendment claim, even if the owner of the hotel does not (or chooses not to assert a claim).

Additionally, in the emphasized portion of the quote above, Engblom notes the importance that the Third Amendment's scope of protection be coextensive with Fourth Amendment protections. The court remarks that it would be an "anomalous" result for a person to have rights against unlawful searches and seizures in a residence, while not having a right against troops being quartered there. This logic can be applied both to hotel residents (who have long-recognized Fourth Amendment rights against searches and seizures of hotel rooms) and, to a lesser extent, hotel owners (who are protected from mandatory searches of their records of guests).

A response to this argument is that it is not strange to claim that the scope of the Fourth Amendment to be broader than the Third Amendment. Indeed, the text of the Fourth Amendment is broader--as it protects persons, houses, papers, and effects--while the Third Amendment only applies to houses. And if an intrusion into a hotel room violates the Fourth Amendment but not the Third Amendment, the person staying in that room can still assert a Fourth Amendment claim.

Since the only significant precedent opts for a broad interpretation of the Third Amendment, I suspect that many courts would approach a hotel or hotel resident's Third Amendment argument in a similarly broad way. This may lead some courts to conclude that quartering troops in hotels implicates the Third Amendment. But there are opportunities for courts that want a more restrictive reading--for instance, courts could distinguish Engblom because it did not involve a dispute over the meaning of "houses," and only discussed "owners."

The DC case will probably not bring about the Third Amendment litigation we are all hoping for. But it highlights issues that courts will need to address should this largely-forgotten Amendment be invoked in the future.

Has President Trump Already Pardoned Roger Stone?

Thursday

There are a lot of people out there who generally express reasonable opinions and seem normal, but who nevertheless are willing to entertain the odd outlandish belief. You may get through your workday without incident while believing that the world is flat, that we are living in a computer simulation, or that the spelling of "The Berenstain Bears" is evidence of a parallel universe. Indeed, you may believe all of these things and still get along just fine with your friends and coworkers.

I'm not here to judge you. Instead, desperate for distraction from quarantine and curfews, I've cooked up my own wild theory--a theory that I may have fooled myself into believing is true. Maybe I'm right. Or maybe I've just been stuck inside for too long.

News outlets have reported for some time, with renewed interest today, that President Trump may be about to pardon Roger Stone, who was sentenced to three years in prison back in February after being convicted of lying to authorities, obstructing a congressional investigation, and witness intimidation. My wild theory is that Stone has already been pardoned as a result of Trump's tweets.

From Politico, earlier today:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe.

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer.

“This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!”

Trump went on to share the tweet Thursday morning, writing in his own accompanying message: “No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night!”

Here is the tweet:

No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night! https://t.co/HHg24tcZrx
— Donald J. Trump (@realDonaldTrump) June 4, 2020

This is not the first time Trump has tweeted something like this. Kirk wrote a similar tweet criticizing Stone's conviction back in April, which also prompted a response from Trump:

This is a disgraceful situation! https://t.co/s2qZSrGw6U
— Donald J. Trump (@realDonaldTrump) April 18, 2020

Politico and other outlets are reporting that Trump's tweet today appears to be a promise by Trump to pardon Roger Stone, as his suggestion that Stone "can sleep well at night" strongly suggests that Stone will not end up spending the night in prison (because he will be pardoned).

I'll go a step further and suggest that there's an argument to be made that this tweet itself (and his April tweet) constitute a pardon of Roger Stone.

The Argument

Trump's tweet is a quote-retweet of Charlie Kirk, an outspoken commentator whose shtick is to appear down with the youths and whose tweets are frequently hyperbolic, misleading, or false. In addition to Kirk's false claim that Stone was sentenced to prison simply because he supports Trump, Kirk's tweet includes this key, final sentence: "RT for a full pardon of Roger Stone!"

For those who are unfamiliar with Twitter, first let me say good for you! Here's some background: the last sentence in Kirk's tweet is a request for retweets (RTs). Twitter users can hit a "retweet" button that appears below another user's post ("tweet") that shares that tweet with the retweeting user's followers. The typical goal behind retweeting something is that it results in the original tweet being shared with a larger audience. Users have the option of simply retweeting, which shares the tweet (with a little note that the user retweeted it) with that user's followers, or quote-retweeting, where they share the original tweet, plus their own commentary, with their followers. That is what Trump did here.

For members of the general public on Twitter, the statement "RT for a full pardon of Roger Stone!" is similar to a petition, as retweets symbolize agreement with Kirk's sentiment. If I thought that Roger Stone should receive a full pardon, I could retweet Kirk, both to spread the word, and to express my agreement with Kirk. While there are some users who occasionally claim that "retweets are not endorsements," this is generally unconvincing--particularly as users now have the option to make critical quote-retweets of statements with which they disagree. In any event, Trump has no such caveat in his account description.

For nearly all Twitter users, retweeting or quote-retweeting has the effect of spreading the message, expressing agreement, or--in the case of certain quote retweets--expressing criticism. But for the president, retweeting Kirk's particular message may have an additional effect--as he, and only he, has the power to issue the pardon. Kirk's tweet is worded without qualifications--rather than saying "RT if you think Stone should be pardoned!" it asks other users to retweet "for a full pardon."

Indeed, the specific wording of the tweet suggests that it may be aimed at Trump in particular. Stone may argue that if Trump retweets, he is not expressing mere agreement or stating his opinion--he taking an action that, given the context of the original tweet, constitutes a full pardon of Stone.

An analogy would be that Kirk is standing in public, holding out a pardon of Stone for everyone to sign. I could sign it. My friend Max could sign it. This would have no legal effect. Our signing the document could be taken as an expression of agreement that Stone should be pardoned--albeit in a somewhat awkward way. But if Trump happens to sign the pardon, then the legal effect of doing so is that Stone is pardoned. That, Stone can argue, is precisely what Trump has done here. Kirk's tweet indicated that a retweet could constitute a full pardon, Trump retweeted, and the pardon has been effectuated.

Can The President Pardon Someone Via Tweet?

The presidential pardon power is almost entirely a matter of presidential discretion. While the Constitution limits the president from exercising the pardon power in cases of impeachment, it does not set forth specific procedures or requirements that the president must follow when issuing the pardon. And although there are regulations in place governing the procedure for submitting a petition for clemency (see 28 C.F.R. § 1.1, et seq.), these regulations are advisory and do not restrict the president's authority. 28 C.F.R § 1.11.

Some background on the historic exercise of the pardon power is here. And commentary on Trump's particular pardon practices is here.

News outlets and commentators have emphasized the lack of constraints on the pardon power in light of President Trump's use of pardons on political allies. Following the pardon of Joe Arpaio, the BBC speculated that Trump could pardon someone via tweet--suggesting that signing his name at the end of the tweet would be the equivalent to a signature on a pardon. That article cites to this 1929 memorandum by Acting Solicitor General Alfred A. Wheat to the Attorney General, which notes that the Constitution does not prescribe how the president should exercise the clemency power and that it is "wholly a matter for the president to decide, as a practical question of administrative power." Wheat goes on to suggest that the pardoned person should at least have "some token to show that he has been pardoned," such a token need not bear the president's signature. While Wheat cites an 1893 executive order that requires pardons to be countersigned by the Attorney General, the scope of that order is limited to warrants of pardons and commutations "heretofore prepared at the Department of State on the requisition of the Attorney General," and would not apply to a pardon tweet.

As the BBC notes, Wheat could not have contemplated something like Twitter when he wrote his 1929 memo. But the general points Wheat sets forth in his memo confirm the breadth of the president's pardon power, and several of his statements are applicable to Trump's present day practices.

In light of the president's broad pardon power, there is a strong argument that Trump could pardon someone by tweet. The tweet itself could be the "token" showing that a person has been pardoned, and the fact that it comes from Trump's verified account can be treated as the equivalent of a signature. There are responses to both of these arguments--particularly, there may be a factual question as to whether Trump himself wrote the tweet. But courts would likely refuse to second guess a purported pardon-by-tweet, as lack of constitutional and legal procedural requirements would constitute a political question. For more on court's unwillingness to second-guess pardons, see the discussion at the end of this prior post.

Counterarguments

There are many arguments that Trump has not pardoned Stone with his tweet. Some are stronger than others, but all of them have some issues.

One response would be to run with the petition analogy that I used above. Kirk's tweet served no purpose other than a forum in which people could express their agreement that Stone should be pardoned. Trump's quote-retweet was therefore akin to signing a petition that Stone be pardoned rather than signing the pardon itself. This is how media outlets have interpreted the tweet, treating it not as a pardon, but a strong suggestion of an impending pardon.

The absolute nature of Kirk's original tweet undermines this interpretation. Moreover, Trump has previously tweeted suggestions that he will pardon somebody. He did so in mid-March with former national security adviser, Michael Flynn, stating "I am strongly considering a Full Pardon!" Unlike the Roger Stone tweet, that prior tweet was not made in response to a tweet asking for users to "retweet for a full pardon." And the Flynn tweet was qualified with language that Trump was "strongly considering" the pardon. There is no such qualifying language in the present tweet.

Alternatively, one could argue that Trump's quote-retweet of Kirk's original tweet is not an outright retweet, so Trump has not technically "retweeted" Kirk. This argument is weak. Quote-retweeting, as the name suggest, constitutes a retweet with the addition of a comment. Rather than not being a retweet, it is a retweet, plus something else. Sometimes, a tweet may appear to be a quote-retweet because a user has linked to a tweet, rather than quote-retweeting it. But there is no link in the tweet suggesting that Trump copied and pasted the tweet at the end of his comment.

Another argument against the tweet being treated as a pardon is that it is, instead a refusal to pardon Stone, as it begins with "No." A narrow reading suggests that this contradicts the message of the quoted tweet. But this reading is not plausible. An uncomplicated contradiction would be a situation where Trump retweeted Kirk with a comment like, "Stone is a good friend, but his trial was fair and I will not upset the court's ruling." Here, Trump's simple statement of "No," in the context of his full comment, which criticizes Stone's sentence, is much more plausibly read as a reaction to Kirk's statement in the original tweet that "This isn't justice."

A stronger argument against the pardon interpretation is that Trump tweeted this from his personal account. Since he did not use the official presidential twitter account, this is simply Trump expressing his own opinion rather than taking official action. But the personal/official distinction is troublesome as well--particularly in light of case law regarding lawsuits by Twitter users who were blocked by Trump's personal account. Most recently, an en banc Second Circuit refused to review the Second Circuit's ruling that Trump's account "bear[s] all the trappings of an official, state-run account" and that the account is "one of the White House's main vehicles for conducting official business." And, as noted above, Trump's statement and its context was not couched in terms of opinion and contained no qualifiers as to whether Trump was "considering" pardoning Stone.

I have also seen arguments that Trump is prohibited from pardoning Stone, since doing so would be a pardon in a case of impeachment, which the Constitution prohibits. Those arguments are beyond the scope of this post, and do not alter the analysis on whether Trump has pardoned Stone through his retweets.

The sheer number of counterarguments, and the unusual nature of a pardon-by-retweet, appear to be enough to give pause to Stone and commentators from arguing that Trump has already issued a pardon. But if Trump's presidency and 2020 thus far are to be any guide, what may seem outlandish one day may be routine the next.

Conclusion

I don't expect anything to come of Trump's recent Stone tweet, since he tweeted essentially the same thing in April and Stone did not claim that he had been pardoned. I would be surprised to see Stone make such an argument now, as Trump has repeatedly expressed a desire to pardon him. If Stone were to start arguing the aggressive interpretation of Trump's tweets that I set forth above, this could jump the gun on what appears to be an inevitable pardon.

If Trump indeed goes ahead and pardons Stone, the discussion above will be moot for his case. But this phenomenon shouldn't be ignored--as Trump is pretty quick to retweet particular commentators on certain subjects. Charlie Kirk, and others like him, will likely tweet similar statements in the future, and this question will likely come up again. At the very least, the pardon argument and the counterarguments shed light on the flexibility of the pardon power and its application, and how the intricacies of technology relate to the pardon power and presidential actions more generally.

City in Japan Proposes Broad "Distracted Walking" Ordinance

Wednesday

The Independent reports:

Politicians in Yamato, about 25 miles southwest of Tokyo, have put forward a bill that could make it illegal for people to gaze at their devices while walking.

The bill was submitted to the city’s assembly on 1 June. If passed, the law would come into effect from 1 July.

Officials said that people were unlikely to be punished for flouting the proposed new measures.

Instead, the law has been designed to keep pedestrians safe when crossing roads, officials added.

People are being encouraged to use their devices while standing in a spot where they are unlikely to pose a hindrance to others passing by.

The Daily Mail reports on the ordinance as well, claiming that city politicians "allegedly claim there has been an increase in injuries among people walking while distracted by their phones," and that this ordinance, if passed, would be the first such restriction on phone use while walking in Japan.

Both outlets cite various statistics regarding injuries resulting from distracted walking. The Independent cites a study by a Japanese telecom firm which simulated what would happen if 1,500 people crossed the Shibuya pedestrian crossing in Tokyo if all were looking at their smartphones--noting that there would be: "446 collisions, with 103 people getting knocked down while 21 others dropped their phones." The Independent and Daily Mail also refer to this study authored by researchers at the University of Calgary, which reviewed 14 studies and found that mobile phone conversation and text messaging increased rates of hits and close calls in intersections--with texting having a greater impact and resulting in decreased rates of looking left and right prior to crossing the street.

Because I cannot find a full text version of the cited University of Calgary study, it is difficult to evaluate--although the authors note that "a variety of study quality issues limit the interpretation and generalisation of the results." As for the telecom firm simulation, its assumption that absolutely everyone in the intersection would be on their phone is somewhat extreme. Indeed, researchers working for the city observed far lower rates of cell phone use, reporting a 12 percent user rate after observing 6,000 people at two "stations" in Yamato.

This proposed ordinance would be far broader than ordinances in US cities such as Honolulu, Hawaii, and Montclair, California. While those ordinances apply to cell phone use while crossing a street, the proposed Yamato ordinance would apply to "city streets and sidewalks as well as 'shared public spaces' such as plazas outside train stations." While the impact of the statute is offset by its lack of a punishment provision, its application to pedestrians who are not crossing streets is the first such ban of which I am aware.

I generally oppose bans on "distracted walking," as they tend to be based on studies and statistics that are uncertain at best, and because they criminalize common behaviors, which invites selective enforcement of the law. Yamato's ordinance is even broader, as it targets pedestrians both on and off the street. Additionally, the ordinance appears to have little basis in evidence, as most studies warning of potential injuries from pedestrian cell phone use stem from use of phones while crossing the street. Here's hoping that the ordinance fails, as it otherwise may serve as a model for other cities, states, and countries eager to implement their own bans.

Yes, It's Possible for a Dead Person to Win at Trial by Combat

Saturday

I'm writing a paper on trial by combat in my spare time because these days, what else is there to do? I've written about the subject before, both on this blog and in an article I coauthored with my former law school classmate, Raj Shah. Why I have such an enduring interest in the subject is unclear. Perhaps after days spent working on various civil litigation matters, reading accounts of cases where people physically battle each other to resolve their disputes makes my job seem calm by comparison.

I found one particularly quirky story of trial by combat in the short article, His Body Shall be Brought to the Lists, by W. Croft Dickinson. Dickinson notes that, in cases of trial by battle that involve "a cause touching life and limb," the party responding to the accusation of the crime (the "defender," or in a more modern sense, the "Respondent"), is obliged to appear for the battle within two weeks. If the Respondent dies within that time, his pledges (people who swore that he would appear) would bring his corpse to the area where the battle was to take place (the "lists.") After all, they had sworn an oath that they would ensure that the Respondent would appear and would make sure that their oath was fulfilled, even if the Respondent had died.

Dickinson then describes what happens when a dead body is brought to the lists. From "The Lawe of Armes Within Listis," Dickinson provides the following quoted account--with very little clarification or explanation:

It mycht fal sa that the appellour deis before the day; his borowis, quilk ar bound wndir gret panis, cummis and enteris his ded cors within the barreris to freith thaim of thair borowgang. The defendour, lik as he fand borowis, is enterit within [the] barreris; he findis the provour ded, and he can nocht sla a slane man; and he him self wnpurgit of the crime quhilk that the provour, that thair is deid, put upoun him. Than has he na recover bot to cast this ded cors our the barreris or the day be gane, or ellis the frendis of the ded man] may allege that the luffand man had tynt his actioun and ask him to be justifeit thairfor. Bot it mycht be allegit that [[an] assise war metast than; or ellis a campione for the appellour that is ded to mak gud it that he tuk apon hand, gif the juge and partii will admytt him.

Bot as to that purpose I haf herd that that samyn impediment com anys to preiff and [lege in] the kynrik of spanye, that quhen the ded man wes laid within barreris he wes sa hevy that the liffand man was nocht of mycht to put this ded cors out of [the] barreris, and al the day wes in hand thairwith quhill the son wes gane doun. And than the frendis of the ded man come before the Juge and askit the law of armes, and allegit that the peremptour day wes passit and thair frend had wonnyn his accioun; for he had nothir said the word ne wes not put out of the feld thocht he wes ded. And sua be the law of armes the ded man wan the quyk, and he demanyt as culpable of that actioun; and this wald the law of armes. And sum sais that as this quyk man wald haf castin the ded man our the barreris he fell bakwart on his bak and the ded man on his brest, and cud nocht avoid him of him quhill the day wes passit. And sua be the law he wes jugit in the crime and justifeit hairfore.

To my knowledge, nobody has taken up the task of translating this account from the old Scottish vernacular that was in vogue at the time (around the 1400s). While I am sure there are people better qualified than me to do this, I have a paper to write and I'm not going to wait around for them to get to this, so here is my attempt at a translation:

It might happen that the appellour ["Appellant" -- the party making the accusation of the crime, and responding to a demand for trial by battle] dies before the day; in which case his pledges, who are bound under great pains, come and enter his corpse within the lists [the area where the fight was held], to free them of their responsibility. The defendour ["Respondent" -- the party accused of the crime, who demands trial by battle], along with his pledges, enters within [the] lists; he finds the Appellant dead, and he cannot slay a slain main; and he himself is unabsolved of the crime which that the appellant; who is there dead, put upon him. At this point, he has no remedy but to cast the corpse out of the lists before the day is over [before sunset], or else the friends of the dead [man] may allege that the accused man is guilty of his alleged actions and ask him to be adjudicated guilty as a result. But it might be alleged that that the respondent has met the challenge, as the Appellant's champion is already dead.

But as to that purpose, I have heard that same impediment came to proof in the country of Spain, and when the dead man was laid within the lists he was so heavy that the living man was not strong enough to put his corpse out of [the] lists, and was there all day until the sun went down. And then the friends of the dead man came before the judge and requested the law of arms, alleging that the day had passed and their friend had won his action; for he had neither said the word ["recreant," or "craven" -- spoken to surrender the battle] nor was he put out of the field though he was dead. And so, by the law of arms, the dead man defeated the accused, who was found culpable of his alleged conduct; and this was the law of arms. And some say that as this accused man attempted to cast this dead man over the barriers, he fell backwards on his back, and the dead man was on his breast, and he could not free himself before the day had ended. And so, by the law, he was judged in the crime and therefore adjudicated guilty.

Some notes on terminology: the "Appellant," is the party making a private accusation of a crime against another party--typically known as an appeal of felony or appeal of murder (in cases where involving allegations of murder). This is not to be confused with a situation where a party appeals from some lower action (although in some cases, an appeal of felony or murder could follow after a party had been acquitted or pardoned of a crime). And while the term "trial by battle" may be more in line with language used in historic accounts of the practice, I use "trial by combat," as this is the more commonly used phrase today (thanks, Game of Thrones).

My reading of the text differs from the scenario Dickinson discusses at the start of his article. Dickinson contemplates a situation where a party accused of a crime (the defender, or--in the terminology I chose, the "Respondent") dies before the trial by combat against the accuser, (aka the "Appellant," "appelour," or "provour") takes place. But the text discusses what happens if the Appellant dies before the battle--and the conundrum faced by the accused who finds himself unable to battle against a dead person. The solution, apparently, is for the living to "put forth" the dead man from the lists, that is, toss him out of the ring--a seemingly simple task.

Not so for the poor fellow described in the story, who tried to throw his opponent's corpse out of the lists, but instead ended up being pinned under the body. As he was unable to free himself before sunset, he was adjudicated to have lost, as the dead man had not been thrown out of the lists, nor had the dead man verbally signaled that he had surrendered.

As I am writing this, people all over the world are going through tough times. Many of us are stuck inside, some of us have lost our jobs or suffered reductions in pay, and all of us are stressed over the state of the economy and the health of the nation. Perhaps we can all take comfort in the fact that, at the very least, we haven't been found guilty of a crime because we failed to win at trial by combat against a dead person.

(NOTE: Translating old Scottish texts is not my day job, and I welcome any comments on words or phrases I messed up. The last sentence of the first paragraph was unclear, and my version is largely a guess based on context. I translated "justifeit" as "adjudicated guilty," based on the context in which the term was used, and based on similar usage of the term in other sources. I translated "borrowgang" as "responsibility," although it appears that this is a technical term that may be more akin to "suretyship." I could not find a translation for "luffand," which I translated as "accused," based on the context. The same is true for "wnpurgit," which received a whopping zero results on Google and which I translated as "unabsolved," based partly on the context and based on the similarity of part of the word to "purged.")

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