Thor: Ragnarok Does Not Exemplify Trial By Combat

Tuesday

Over at the ABA Journal, Adam Banner claims that Thor: Ragnarok is the "latest instance of trial by combat in popular culture." He writes (don't worry, no spoilers yet):

First off, if you haven’t seen the new Thor film, I highly suggest it. It’s one of the best entries in the Marvel Cinematic Universe, and it contains one of the best scenes any fan could ask for: a battle between the God of Thunder and a giant, green rage monster. Without giving too much away, Thor is promised his freedom if he can best his captor’s “champion” in combat—it just so happens that champion is a super-angry Hulk. Trial by combat? Definitely.

I've seen Thor: Ragnarok twice (it's fantastic), and I've written a fair amount about trial by combat (see blog posts here, here, and here and a peer reviewed (!?) article that I coauthored with my former classmate, Raj Shah here). After reflecting on the history, basis, and characteristics of historic (and even Game-of-Thrones-style) trial by combat, the fight between Thor and Hulk in the movie cannot be fairly characterized as an example of trial by combat.

Banner (what a name for a guy writing about a fight that involves the Hulk) decides to write his article without spoilers, which allows him to advance his claim behind a fog of uncertainty that maybe there are other events in the movie that make the fight into a trial by combat scenario. I'll get into the nitty-gritty of the events leading up to the fight in the movie after the break, so I guess there are some minor spoiler alerts for those who didn't watch the trailers and put two and two together.

Banner's summary of historic trial by combat is a broad-stroke treatment, but is generally correct -- in instances of trial by combat in medieval England, the theory was that the victor in the combat was the one favored by God (an outcome made all the more likely by both participants taking oaths against sorcery or witchcraft). Banner does not mention the fact that trial by combat in medieval England typically involved a combat between champions selected by parties to a dispute, although he references Game of Thrones several times which employed a similar approach.

An important element of trial by combat is that it was typically employed as a method of dispute resolution. If arbitration between the parties or the court's involvement left the dispute unresolved, trial by combat remained as a last resort to settle the matter.

With that in mind, consider the background leading up to the fight between Thor and the Hulk. Thor is thrown through space and crashes onto the planet, Sakaar, which has a brutal system of quasi-government in which the Grandmaster (Jeff Goldblum) oversees a series of gladiatorial matches in his arena. Roving bands of scavengers roam the surface of the planet and either eat stragglers or, in the case of Thor, capture them so that they become ~~slaves~~ "prisoners with jobs" who fight in the Grandmaster's arena.

Thor is captured and forced to fight in the arena. The Grandmaster tells Thor that if he defeats the reigning Champion, Thor will be freed. This Champion turns out to be the Hulk, and after some initial attempts to amiably avert a fight, battle ensues.

This is not an example of trial by combat because, despite Banner's claim that there is a dispute, there is no underlying argument that the combat is designed to resolve. Hulk and Thor are not champions for parties disagreeing with each other, and the guilt or innocence of the parties for some crime is not an issue to be resolved in the combat. At best, Banner might claim that there is a dispute between Thor and the Grandmaster as to whether Thor should be freed, with Thor's victory assuring his freedom, and his defeat ensuring that he becomes another Doug. But this is not so much a dispute to be resolved as an incentive to goad Thor into participating in the fights. Thor is never on equal footing or able to present any sort of case against the Grandmaster, and is instead just a prisoner fighting for freedom, rather than a party fighting for a side of a case. While this could be an interesting metaphor for whether defendants (and especially prisoners) in the US criminal justice system have any sort of fair shot in proving their innocence or in seeking habeas relief, this gets us off of the subject of trial by combat (although it leaves us with some interesting ideas for future thinkpieces on the film).

As much as I love to see attention drawn to quirky areas of the law like trial by combat, Thor: Ragnarok is not an accurate example of the practice. Banner's oversimplification of the practice and failure to address the background of the Thor vs. Hulk fight unfortunately lead him to the wrong conclusion. I can only hope, for my sake, that if Banner ends up reading this post, it doesn't end up making him angry.

Bacongate: Did Senator Leahy Read My Confirmation Hearing Outline for Justice Willett?

Wednesday

Business Insider reports on a ridiculous exchange between Senator Patrick Leahy (D-VT), and Fifth Circuit Court of Appeals Judicial Nominee, Texas Supreme Court Justice Don Willett, a video of which is below:

Back when Justice Willet was being considered as a potential Supreme Court nominee, I wrote this post highlighting questions that could be asked at Willett's confirmation hearing based on his prior tweets. From that post, here is one of my potential questions (and the accompanying tweet):

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6
— Justice Don Willett (@JusticeWillett) April 30, 2015

In a fascinating display of either: (1) failing to understand simple humor; or (2) extreme partisan interpretation, Leahy lambasted Willet's tweet as an attack on gay marriage and the Supreme Court's decision legalizing gay marriage. From Business Insider:

"I don't think one would see that as praising the Supreme Court decisions," Leahy said of the tweet.

While I am happy that I was able to predict at least one of the tweets that would come up in Willett's confirmation hearing, Leahy taking the tweet in this direction made a farce of his line of questioning. Senators with concerns about Willett taking conservative stances on legal issues certainly have plenty to work with, but this exchange is just (to use some legal terminology) goofy.

All of this aside, I will assume without evidence that Senator Leahy got the idea to ask about that tweet by reading my blog, and I thank the good Senator for his attention to my work.

Honolulu Bans Looking at Cell Phones While Crossing The Street

Thursday

NPR reports here and here on a recent ordinance passed by the City and County of Honolulu that prohibits people from "viewing" "mobile electronic devices" while crossing a street or highway. From NPR:

Police in Honolulu on Wednesday will begin writing tickets for people who get distracted by their cellphones while walking in a crosswalk. Honolulu is the first major city in the country to pass such a law, citing a high rate of pedestrians being hit in crosswalks.

"Starting today, texting while walking in a crosswalk can get you a ticket," Hawaii Public Radio's Bill Dorman reports for our Newscast unit. "In fact, a downward glance at a screen of any kind will cost you — a phone, a tablet, a video game."

Under the new law, the only legal reason for a pedestrian to use a cellphone while crossing a street or highway would be to call 911 to report an emergency.

One of the NPR reports claims that Fort Lee, New Jersey banned texting while crossing the street a few years ago, but its only support for this claim is a link to a story where police say that they are cracking down on pedestrians who are in the road illegally and are also on their phones. There is no indication that looking at a device without engaging in some other illegal activity was banned.

Because this apparently is the first major restriction of crossing the street while looking at devices, this post takes a deep dive into the ordinance. There are some quirks and questions that the ordinance raises, and I lay them out in painstaking detail after the break.

The text of the ordinance is here. Initially I was surprised, as it seems that the new ordinance bans viewing mobile electronic devices while walking but now permits driving while viewing mobile devices (as the prior restriction on driving while using mobile electronic devices is repealed). After a bit more digging, however, it appears that this is not the practical effect, as Hawaii has a statewide ban on driving while using mobile electronic devices. So while Honolulu may no longer have an ordinance banning driving while texting, the practice is still illegal.

Most outlets reporting on the ordinance state that it bans texting while crossing the street. It does, but the scope of the ordinance is broader than that. The ordinance applies not only to cell phones, but to any electronic device that either: (1) is capable of providing wireless or electronic communication between two or more people; or (2) is capable of "providing amusement." The ban includes but is not limited to cell phones, pagers, PDAs, laptops, video games, and digital cameras. The ordinance also states that it does not include "audio equipment."

This definition of "mobile electronic device" is of particular interest and concern to me, as I am one of the seven or eight remaining people in the country who does not use a smartphone to listen to music while walking. Instead, I use an iPod Nano -- and before you ask, yes, that's what I used before Baby Driver made listening to those devices cool again. The iPod Nano has a screen that displays information about each song, and that you can use to scroll through to select songs. iPods are not included on the list of banned devices - although the list is not exclusive, and the iPod has a screen and buttons that mirror some functions of smartphones. But, there is a strong argument that the iPod is "audio equipment," as its primary function is to play music.

The undefined "audio equipment" term is a holdover from the prior version of the ordinance which banned using electronic devices in vehicles. There, the term's application made a bit more sense -- you wouldn't be violating the ordinance if you were adjusting the volume of the radio in your car, for instance. But now that the ordinance has been reworked to apply only to viewing devices while walking, the scope of "audio equipment" is less clear.

The current ordinance's origin as a ban on devices in cars also raises some interesting questions about the how to interpret the terms of the ordinance. Under the original ban on devices in vehicles, the argument that the ban applies to looking at iPod screens seems more compelling in light of the "audio equipment" that already exists in nearly all vehicles, making it less likely that the "audio equipment" term applied to an iPod that one might bring into the car. Could this argument apply to the current version of the ordinance, which keeps the same "audio equipment" term, but repeals the various references to vehicles, or does the "audio equipment" term need to be reinterpreted in light of the rewording of the ordinance? I wouldn't be surprised to see this ordinance generate innumerable articles and books in which legal scholars do battle over the meaning of "audio equipment," and whether Michael Smith could be arrested for scrolling through his "Trial" playlist while jogging across the street (by no coincidence, my "Trial" playlist doubles as an excellent soundtrack for a run). To any law review editors in my audience who may receive these articles, please make sure that they cite to this blog post.

Another important term in the ordinance is "viewing," which the ordinance defines as "looking in the direction of the screen of a mobile electronic device." This means that speaking on a cell phone held to one's ear while crossing a street does not violate the ordinance. It would also apply to pedestrians who look at the back of their phones while crossing the street, in the event that anyone is interested in engaging in a particularly petty and pointless form of civil disobedience.

My issues with wording aside, there are arguments both for and against passing ordinances like this. On one hand, I understand the urge to cull the hordes of smartphone zombies that crowd city streets. People staring at phones run into objects and people, fail to cross streets in a timely manner, and may end up walking into the path of oncoming traffic in extreme circumstances. And putting down the phone for the several seconds it takes to cross a street is not a particularly heavy burden on pedestrians. On the other hand, the law may strike some as paternalistic and overreaching, and pedestrians may argue that they can remain alert to their surroundings while texting or emailing. And if pedestrians are injured in a traffic collision while on their phones, the doctrine of comparative negligence will likely reduce the damages that they can claim from the driver who injured them, as there is a strong argument that they should have been paying more attention.

Ultimately (again, problems with the language aside), the ordinance seems fine to me, as long as it remains limited to instances of pedestrians crossing the street and looking at screens on devices. This narrow set of circumstances should be easy enough for pedestrians to understand, and limited enough to avoid selective (and often biased) enforcement of the law. And as someone who wants to get as much money as possible from the driver who may one day crash into me in the madhouse that is downtown Los Angeles, I already model my own behavior after Honolulu's ordinance so that I may avoid a reduction of my potential damages due to a comparative negligence defense.

Court Denies Sheriff Joe Arpaio's Request to Vacate All Orders and Dismiss Case Following Pardon

Friday

NPR reports:

U.S. District Judge Susan Ritchie Bolton says that President Trump's pardon of former Maricopa County Sheriff Joe Arpaio does not "revise the historical facts" of his case — and that she will not vacate her ruling that found Arpaio guilty of criminal contempt.

On Thursday, Bolton quoted Black's Law Dictionary to say that a pardon "releases the wrongdoer from punishment and restores the offender's civil rights without qualification." But she then added a further interpretation in her own words: "It does not erase a judgment of conviction, or its underlying legal and factual findings."

The NPR story contains a copy of the Order, but a complete copy of the Order can be found here. Additional coverage of this most recent development can be found here and here. Arpaio's attorneys have filed a notice of appeal of the ruling. My own discussion of the Arpaio pardon can be found here.

I do not have a time to do my own research on the law of pardons in the Ninth Circuit, but from the court's focus on the law of other circuits it appears that there does not seem to be any clean, controlling precedent in the Ninth Circuit. The court was not persuaded by Arpaio's reliance on U.S. v. Schaffer in which the DC Circuit vacated all orders following a pardon. The judge noted that due to the procedural background of Schaffer, the only issue pending was the court's grant of a new trial to Schaffer, which left Schaffer in a position "as if no trial had ever taken place." Accordingly, the seemingly broad order in Schaffer had a limited effect, which distinguished the ruling in Schaffer from Arpaio's broader request.

When this Order is appealed, I expect that the quick discussion in footnote one of the Order will be expanded upon. Here is the text of that footnote (with hyperlinks to the text of the cited cases added):

The United States Supreme Court originally signaled in dicta that a presidential pardon may have an expunging effect. See Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866) ("A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence."). The Court later rejected this view. See Burdick v. United States, 236 U.S. 79, 94 (1915) ("[A pardon] carries an imputation of guilt; acceptance a confession of it."). Other courts have followed suit. See, e.g., In re North, 62 F.3d 1434, 1436-37 (D.C. Cir. 1994) (finding Garland dicta not controlling); United States v. Noonan, 906 F.2d 952, 958-59 (3d Cir. 1990) (same); Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975) (same).

As the case works its way up through appeals, I suspect that discussion of the Supreme Court precedents and their interactions will move from the footnotes to the text of whatever opinions result. And if the law in the Ninth Circuit addressing this pardon issue is as absent as it seems from Judge Bolton's order, it will be interesting to see how the Ninth Circuit addresses the issue. In the end, I suspect that the ruling will not be favorable to Arpaio, but if the Ninth Circuit takes a thorough approach to the analysis (see, e.g., the approach in Noonan), the decision could be a notable contribution to this rarely-litigated area of law.

Plaintiff Asks Court to Declare That Defendant is a "BULLY"

Tuesday

From this tweet by Keith Lee, I learned of this fascinating Complaint filed on Sunday in the New York County Supreme Court. Lee takes note of the first two paragraphs of the Complaint, which are admittedly colorful:

1. The date, September 7, 2017, is a date that shall live in infamy in Staten Island history. On September 7, 2017, the circus came to town. The Defendant, DENNIS W. QUIRK (“QUIRK”) in his individual and personal capacity exploded on the courthouse steps as part rabid-dog and part carnival-barker, in a dangerous, intentional, outrageous, and malicious manner. QUIRK caused serious, substantial, unconscionable, intentional, and malicious harm to the Plaintiff, MICHAEL J. PULIZOTTO (“PULIZOTTO”), in the center of the public square – the steps of the Richmond County Courthouse – all to advance QUIRK’s own personal and political agenda.

2. The date, September 7, 2017, shall always and hereafter be known as “THE DAY OF THE RAT” in Richmond County.

The Complaint goes on to allege that Quirk set up a large inflatable rat outside the parking lot of the courthouse in an effort to ridicule Pulizotto, among many other things. Notably, in Paragraph 2, Pulizotto does not only use "THE DAY OF THE RAT" as shorthand for future reference in the document (as he does with "QUIRK" and "PULIZOTTO"), but dramatically states that September 7, 2017 shall be known as "THE DAY OF THE RAT" in Richmond County. It is unlikely that the Court has the authority to make such a declaration (as such a declaration would likely be within the province of county authorities), but Pulizotto does not seek the labeling of that date in his prayer for relief.

While I found much of the Complaint entertaining, due to its length and excessive hyperbole, I was not able to read the entire thing. But as I skimmed through, these two paragraphs caused me to chuckle:

56. Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

57. QUIRK is a BULLY.

As it turns out, these two paragraphs end up being relevant to Pulizotto's causes of action, specifically, his cause of action for declaratory judgment. For those who need to brush up on their remedies, a declaratory judgment is: "A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court" which does not provide for enforcement.

What sort of declaratory judgment does Pulizotto seek?

AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF(DECLARATORY JUDGMENT)

181. Plaintiff, PULIZOTTO, repeats, realleges, and restates all paragraphs above as if fully set forth herein and further states as follows.

182. As specifically plead above, a bona fide, justiciable, and substantial controversy exists as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

183. The Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic] have adverse legal interests.

184. A judgment would serve a useful purpose in clarifying or settling the legal issues as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

185. There is a clear and ascertainable standard for the Court to rule on this issue, to wit: Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

186. A judgment would finalize the controversy and offer relief from uncertainty as to whether the Defendant, DENNIS W. QUIRK is a “BULLY”.

And in addition to the $25 million in compensatory and punitive damages that Pulizotto seeks in his Prayer for Relief, he also asks for:

G. a declaration that: “DENNIS W. QUIRK IS A BULLY.”;

Declaratory judgments may be used to stop litigation "bullies" from sending repetitive demand letters or making meritless threats of litigation, but this is the first instance of which I am aware in which a party has sought to use the remedy to give its name calling the force of law. While Quirk likely does not want to be called a "Bully," the "BULLY" label that Pulizotto seeks is of no legal consequence and bears no apparent relevance to the parties' legal relationship or rights, the Court will almost certainly refuse to grant Pulizotto the requested relief on this cause of action.

Pulizotto may well have strong, negative feelings toward Quirk, but incorporating such a petty and futile cause of action into his Complaint will likely do nothing but harm his credibility before the Court in future proceedings. This Complaint and its dramatic language therefore join the vast ranks of pleadings that are amusing, yet awful examples of how litigants should act.

[UPDATE, 10/18/2017]

Another no-no I just noticed in the drafting of the Complaint is that the Plaintiff repeatedly misspells his own name. I have updated the above quotes with [sic]'s so that readers do not accuse me of shoddy copying and pasting.

Wall Street Journal Praises Judicial Ignorance of Statistical Methods

Wednesday

From yesterday's Wall Street Journal editorial page covering yesterday's oral arguments in Gill v. Whitford, a case that involved a challenge to alleged gerrymandering:

[Chief Justice John Roberts] zeroed in on risks for the credibility of the judiciary if the Supreme Court invalidates a state electoral map on purely political grounds for the first time. His reference to EG is to a political science standard offered by the plaintiffs as a test of when an electoral map is too partisan.

. . .

Chief Justice: “It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG was greater than 7%. That doesn’t sound like language in the Constitution.” . . .

[Plaintiffs' Attorney, Paul] Smith: “If you let this go, if you say this is—we’re not going to have a judicial remedy for this problem, in 2020, you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen.

And it may be that you can protect the Court from seeming political, but the country is going to lose faith in democracy big time because voters are going to be like—everywhere are going to be like the voters in Wisconsin and, no, it really doesn’t matter whether I vote.”

Chief Justice: “No, but you’re going to take this—the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.”

Gerrymanders are unsightly, but worse would be the sight of federal judges becoming political arbiters of every electoral map based on evidence that voters are likely to conclude is itself partisan.

An eye-opening Twitter thread by Steven Mazie illustrating how Chief Justice Roberts and Justice Gorsuch appeared to lack knowledge of the statistical methodology involved paints Chief Justice Roberts' comment as more disturbing than the quippy Editorial Board lets on. While "gobbledygook" is a fun word, reminiscent of "argle bargle" and "pure applesauce" of old, the implications of the comment are that the Court -- the last resort for challenging (often-complex) gerrymandering schemes -- should decline to do so because the methods involved are too complicated and potentially subject to partisan manipulation. Jesse Wegman at the New York Times' editorial page covers Smith's response, which summarizes this problem:

“The problem in this area is if you don’t do it, it is locked up,” Mr. Smith said. “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse.”

Gerrymanders are more than "unsightly" as the Journal describes. The contorted and bizarre-looking voting districts that gerrymandering creates may result in disenfranchisement of voters along party and racial lines. They threaten representative democracy. The Journal's and Chief Justice's implication that a lack of understanding of statistical methods is enough of a barrier to let this threat go unchallenged is concerning.

Trump to Nominate Justice Don Willett for Fifth Circuit

Thursday

So reports San Antonio Express-News:

President Trump on Thursday will nominate two conservatives from Texas with compelling personal stories to the 5th U.S. Circuit Court of Appeals, according to a senior administrative official.

Texas Supreme Court Justice Don Willett was cited by Trump as a potential U.S. Supreme court pick during his presidential campaign. Dallas appellate lawyer James Ho is a former Texas solicitor general who has argued cases before state and federal courts.

Willett -- a prolific Twitter user whose wit with more than 96,000 followers and the title of Texas “Tweeter Laureate” --had gently mocked Trump in some tweets during the campaign for the White House.

The article has a collection of some of Justice Willett's "gently mock[ing]" tweets.

I had previously blogged about Justice Willett back in the heyday of speculation as to who Trump would nominate to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia. At the time, Justice Willett was on Trump's list of potential nominees, although Trump ultimately nominated now-Justice Neil Gorsuch to the Court.

It will be interesting to see whether Justice Willett faces heightened scrutiny in his confirmation hearing given his prior inclusion on Trump's list of potential Supreme Court nominees. Justice Willett also may have a wider public profile than some of Trump's other nominees in light of his active, and often humorous, Twitter account. This, coupled with existing dissatisfaction by Democrats on the Senate Judiciary Committee may lead to some interesting exchanges whenever the hearings end up taking place.

Talking in Public: A Cautionary Tale for Lawyers

Tuesday

Kenneth Vogel of The New York Times has this remarkable story that should serve as a cautionary tale for all attorneys who may feel tempted to speak about their cases and clients outside of the office. Vogel reports that he was getting lunch with a source in a Washington DC restaurant, when he noticed Ty Cobb, the attorney retained by the White House to assist in responding to various Russia investigations, having a conversation with John Dowd, Trump's "lead outside counsel in the Russia investigations."

Mr. Cobb was not difficult to notice, on account of his incredible moustache:

Mr. Cobb chose to discuss his work in representing the White House in the Russia investigations, and apparently talked loudly and extensively enough about his work to give rise to this story detailing the conflict among Trump's attorneys over the proper level of cooperation in the Russia investigations.

From Vogel's article describing how he got the scoop:

I ordered yet another iced tea, and continued typing away, as Mr. Cobb and Mr. Dowd delved deeper, not paying me any mind.

They discussed presidential privilege and its effect on document production, tensions on the legal team and their colleagues. Mr. Cobb suggested one colleague was not on the president’s good side, but added, “I’m trying to get the president not to pick a fight with her.”

Finally, after more than 45 minutes of my assiduously listening to their conversation by myself, Mr. Cobb picked up the check and announced to Mr. Dowd, “All right, boss, I got to roll back to my little hole. I’ve got like a seven and a half foot ceiling ... Wilt Chamberlain couldn’t stand up in it.”

Attorneys are often warned during training or in law firm policies to avoid discussing matters related to their work in public settings. Whether it is in a restaurant, on the sidewalk, or in the elevator, attorneys should avoid discussing clients and cases, as any information communicated to lawyers is privileged, and attorneys' strategies and theories are protected by the work product doctrine. Speaking up about privileged information in a public setting is a very easy way for an attorney to run into serious problems.

Warnings against public discussion of work are often confined to the hypothetical elevator or restaurant. But Vogel's article gives a spectacular real-world example of what attorneys everywhere should avoid doing.

Boating Under the Influence and Probable Cause

Wednesday

Here's some good news out of Iowa: it appears that incidents involving people boating under the influence of alcohol are on the decline. From this KCRG report:

A total of 78 full time Iowa Department of Natural Resources conservation officers cover Iowa's 99 counties. This summer those officers did get the help from 29 seasonal water patrol officers but that still means full timers have multiple counties under their care. And when you consider around 500 boats may be out on a typical holiday weekend just at Coralville Reservoir alone, catching someone boating under the influence can be a challenge.

. . .

"If a state trooper or deputy officer in the cities, they know 'okay they're going across the lines.' There's no lines on the water. There's no evidence left other than the wake," said [Iowa Department of Natural Resources conservation officer, Eric] Wright.

By late July at Coralville Reservoir only three people had been arrested this summer for the crime. If you think that number is low, you're not alone.

"There's been fairly heavy enforcement on Coralville itself and we're starting to see the effects of it."

Data obtained by I9 through an Iowa open records request shows BWI arrests at Coralville have been on the decline since at least 2014 when 33 people were charged. The numbers statewide show a similar story, arrests did spike however in 2015 when 47 people were arrested. Fast forward to July of this present year and that number drops to 29.

The consequences for boating under the influence are similar if you are caught driving a car drunk in Iowa but if you get a BWI there is nothing stopping you from losing your driving privileges out on the road. In fact, when I9 searched the names of people charged over the years with BWI we found several who also had OWIs on their record as well.

The report is a bit confusing -- particularly the second-to-last paragraph. It is unclear whether the 47 people were arrested statewide or in the Coralville reservoir alone (the context suggests that it is in Coralville alone). With that number in the mix, the claim that arrests have been on the decline since 2014 isn't accurate - rather the arrests seem to have been on the decline since 2015 (assuming 2016 had fewer than 47 arrests, but more than 29).

But I did not highlight this story or spend untold numbers of what could have been billable hours writing this post to slog through numbers. Instead, I was intrigued by Officer Wright's discussion of deciding whether to pull over a boat -- noting that unlike officers who decide to pull over a car, there may not be clear cut instances where the car crosses a lane line. While the Fourth Amendment restricts officers from the unreasonable seizure of vehicles, officers are permitted to stop a vehicle if they have reasonable, articulable suspicion that a crime has occurred -- or "probable cause." Most typically, officers can establish probable cause by observing a traffic violation, like failing to signal, crossing a lane line, or speeding. But what about boats?

A potential basis for stopping a boat is analyzed in depth in the Iowa Supreme Court case of State v. Pettijohn. There, the Court held that an officer's stop of a boat was constitutional because the officer reasonably believed that the operator of the boat was violating Iowa Code 462A.12, which prohibits the reckless, negligent, or careless operation of a vessel, water skis, surfboard, or similar device. The basis for the violation? The defendant was driving a boat while a passenger was dangling her feet in the water near the motor, which the officer knew used an unguarded propeller based on his knowledge of the type of boat that he observed. Section 462A.12 likely operates as a catch all, as officers can likely articulate reasons for stopping boats based on numerous circumstances, including boating in darkness without lights (assuming there aren't laws that already specifically address that), or unsafe speed (particularly with other boats present), or both! See, e.g., Iowa Supreme Court Attorney Disciplinary Board v. Cannon (attorney suspended from practice of law for various prior alcohol/drug related offenses, including a boating while intoxicated offense in which he was stopped for accelerating "rather quickly" in a five mile per hour speed-limit zone at 10:30 p.m.).

Another potential basis for stopping a boat is mentioned, but not analyzed, in State v. Slade, where officers believed that a boat was over capacity, and stopped the boat for that reason. As it turns out, the boat contained 16 people, but only was designed to hold 14 people. Slade is notable because it involves "Party Cove" at the Coralville reservoir. Having grown up close to that location, were I to testify as an expert on the Fourth Amendment as applied to Iowa waters, I would likely conclude that the mere presence of a boat in that section of the reservoir constitutes probable cause to stop a boat on suspicion of boating under the influence. I doubt that the courts would agree with me, but that's just because the judges that make these important decisions haven't spent enough time out on the reservoir on the weekends.

But perhaps things have changed since I left Iowa. KCRG notes that only three people had been arrested on the reservoir for boating under the influence by late July this year. This does not sound like the booze-soaked body of water of my childhood memories, and if the arrest numbers reflect a general trend towards less drinking and boating, then it's a trend that I welcome.

Recent Equifax Breach Prompts Criticism of Arbitration Provisions (Updated)

Friday

The credit monitoring firm, Equifax, recently suffered a massive data breach, resulting in the exposure of the personal information of approximately 143 million Americans. This personal information includes names, Social Security numbers, birth dates, and addresses.

Equifax, realizing how terrible this is, has tried to respond by offering free credit report monitoring services to its customers for a year. But this isn't going over very well, as it appears that Equifax may be attempting to get people to waive their class-action rights and agree to binding arbitration provisions by signing up for the credit-monitoring service. From the Wall Street Journal:

The fine print in the Equifax agreement concerning the monitoring services said that consumers who take part waive the ability to bring or participate in a class-action suit, a class arbitration or other similar legal actions. That seemed to suggest that consumers would be bound to an individual arbitration process with the company, which some argue is a more difficult place for consumer to get larger rewards for their problems.

The Washington Post has similar reporting here, and a report from MarketWatch is here.

The Terms of Service that contain the "fine print" can be found here. Here is the relevant provision:

Binding Arbitration. Any Claim (as defined below) raised by either You or Equifax against the other shall be subject to mandatory, binding arbitration. As used in this arbitration provision, the term "Claim" or "Claims" means any claim, dispute, or controversy between You and Us relating in any way to Your relationship with Equifax, including but not limited to any Claim arising from or relating to this Agreement, the Products or this Site, or any information You receive from Us, whether based on contract, statute, common law, regulation, ordinance, tort, or any other legal or equitable theory, regardless of what remedy is sought. This arbitration obligation extends to claims You may assert against Equifax’s parents, subsidiaries, affiliates, successors, assigns, employees, and agents. The term "Claim" shall have the broadest possible construction, except that it does not include any claim, dispute or controversy in which You contend that EIS violated the FCRA. Any claim, dispute, or controversy in which You contend that EIS violated the FCRA is not subject to this provision and shall not be resolved by arbitration.

The key in this paragraph is the definition of "Claim," which is sufficiently broad to cover damages arising from the data breach (as these damages presumably arise from one's relationship with Equifax).

Equifax may claim that the Terms of Service linked to above do not apply to customers who enroll in the "TrustedID Premier" program that Equifax is offering after the breach. That program is linked to from this page (with a URL of www.equifaxsecurity2017.com). The Terms of Service associated with the TrustedID program are here, and while they also contain a pretty stringent-sounding arbitration provision, it does not contain the same, extremely broad "Claim" definition. [NOTE: See update below].

But the Terms of Service that I initially quoted should still apply to those who enroll in the TrustedID service because those Terms are extremely broad in their potential application:

THIS PRODUCT AGREEMENT AND TERMS OF USE ("AGREEMENT") CONTAINS THE TERMS AND CONDITIONS UPON WHICH YOU MAY PURCHASE AND USE OUR PRODUCTS THROUGH THE WWW.EQUIFAX.COM, WWW.IDENTITYPROTECTION.COM AND WWW.IDPROTECTION.COM WEBSITES AND ALL OTHER WEBSITES OWNED AND OPERATED BY EQUIFAX AND ITS AFFILIATES ("SITE"). YOU MUST ACCEPT THE TERMS OF THIS AGREEMENT, INCLUDING THE ARBITRATION AGREEMENT CONTAINED IN SECTION 4 BELOW, BEFORE YOU WILL BE PERMITTED TO REGISTER FOR AND PURCHASE ANY PRODUCT FROM THIS SITE. BY REGISTERING ON THIS SITE AND SUBMITTING YOUR ORDER, YOU ARE ACKNOWLEDGING ELECTRONIC RECEIPT OF, AND YOUR AGREEMENT TO BE BOUND BY, THIS AGREEMENT. YOU ALSO AGREE TO BE BOUND BY THIS AGREEMENT BY USING OR PAYING FOR OUR PRODUCTS OR TAKING OTHER ACTIONS THAT INDICATE ACCEPTANCE OF THIS AGREEMENT.

Sorry for all the capital letters. I strongly suspect that attorneys who draft terms of service agreements are secretly angry people, and sometimes the rage manifests itself in the work product.

In case you cannot read the paragraph above, it applies the terms in the Agreement to all websites owned and operated by Equifax and its Affiliates.

In response to critics pointing out how Equifax appears to be systematically herding potential Plaintiffs' into agreeing to binding arbitration, Equifax has set up this "Progress Update" page where it tries to put out the new fire that it has caused:

2). NO WAIVER OF RIGHTS FOR THIS CYBER SECURITY INCIDENT

In response to consumer inquiries, we have made it clear that the arbitration clause and class action waiver included in the Equifax and TrustedID Premier terms of use does not apply to this cybersecurity incident.

Have they though?

Let's go back to the Terms of Service -- specifically, to the relevant portion of the integration clause near the end:

ENTIRE AGREEMENT BETWEEN US. This Agreement constitutes the entire agreement between You and Us regarding the Products and information contained on or acquired through this Site or provided by Us, including through other linked third party Internet sites.

This appears to exclude Equifax's damage control statements, which appear on a separate page and are not included in the terms of the Agreement. All Equifax would need to do would be to point to this clause and argue that its statements elsewhere about the arbitration agreement not applying are of no legal relevance.

In short, commentators who are criticizing Equifax's response seem to have a pretty good point. Signing up for Equifax's free (for a year) credit report monitoring service may result in a waiver of rights that the average consumer would not expect, and likely would not agree to if it were put into plain English.

All of this may end up being moot, however, as signing up for the credit monitoring service requires customers to give Equifax the last six digits of their Social Security numbers. Perhaps those willing to entrust Equifax with this information following a breach of this magnitude are willing to agree to just about anything, including a waiver of the right to trial and right to join in a class action.

[UPDATE: 9/11/2017]

I have revised the post above to add the link to the TrustedID Program Terms of Use, which I had not linked to in the original post. Additionally, at the time I wrote the initial post, the TrustedID Program's Terms of Use included an arbitration provision, albeit one that was less all-encompassing than the provision in Equifax's general Terms of Service Agreement. The TrustedID Program's Terms of Use have now been updated and no arbitration provision appears in these terms at all. The TrustedID Agreement contains integration clause near the end of the Agreement, which states, in pertinent part:

ENTIRE AGREEMENT BETWEEN US. This Agreement constitutes the entire agreement between You and Us regarding the Products and information contained on or acquired through this website or provided by Us, including through other linked third party Internet sites.

This may have the effect of fulfilling Equifax's promise that their arbitration provisions do not apply to the recent breach. Users affected by the breach could visit the webpage for the TrustedID Program without ever accessing Equifax's general website (say, by linking to the TrustedID page from the link in the post above). And while the broad terms of Equifax's general Terms of Use still apply, Equifax would probably have a harder time arguing in court that customers are bound to the general Terms of Use if those customers could have enrolled in the TrustedID Program without ever visiting (or being prompted to visit) a page containing or linking to Equifax's general Terms of Use.

In short, users looking to enroll in the TrustedID Program now have a much stronger argument that they have not agreed to arbitration and may still pursue claims in court, either as individuals or through a class action. Of course, I just checked the TrustedID page and it is still seeking the last six digits of my Social Security Number ... so users still must decide whether entrusting Equifax with this information following the breach is a prudent action to take.

North Carolina Court of Appeals Rejects Constitutional Challenge to Alienation of Affections and Criminal Conversation Causes of Action

Tuesday

From the Washington Post:

A jilted husband’s lawsuit against a doctor accused of stealing his wife’s love can proceed after a North Carolina appeals court ruled Tuesday that the husband can continue suing the spouse’s lover, seeking damages.

The state Court of Appeals decision resurrects a lawsuit that a trial judge had thrown out in Forsyth County, whose seat is Winston-Salem. The judge ruled that state law violates a person’s constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults.

North Carolina is one of only about a half-dozen states that still allow lawsuits accusing a cheating spouse’s lover of alienation of affection and criminal conversation.

The Court of Appeals' opinion is here. From the introduction to the opinion:

This case concerns two common law causes of action—alienation of affection and criminal conversation—that permit litigants to sue the lovers of their unfaithful spouses. These laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.

Defendant Derek Williams contends that these aging common law torts are facially unconstitutional because they violate individuals’ First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.

As explained below, we reject this facial constitutional challenge. Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments. This sets these common law claims apart from the discriminatory sodomy law at issue in Lawrence v. Texas, 539 U.S. 558 (2003), which was not supported by any legitimate state interest and instead stemmed from moral disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent personal and societal harms without regard to the content of the intimate expression that occurs in the extra-marital relationship. Thus, under United States v. O’Brien, 391 U.S. 367 (1968), these torts are constitutional despite the possibility that their use burdens forms of protected speech and expression.

I have not had a chance to look through the opinion, but will do so in a later post. For now, the media outlets covering the case have failed to link to the full opinion, so hopefully anyone else who wants to write about it will see this post and link to the opinion like I did.

This case is particularly notable because a North Carolina Superior Court judge struck down an alienation of affection lawsuit in 2014 arguing that there was no rational basis for the law and noting that the law chilled protected speech. My post breaking down that decision and examining North Carolina's law is here.

From a quick glance at the Court of Appeals opinion, it looks like there is some fairly in-depth discussion of the law's First Amendment implications, which I will be interested in reading in light of my prior criticism of the law. Additionally, the fact that this is a facial challenge to the law may not foreclose future challenges -- although having an appellate decision on record upholding the law may deter lower courts from upholding such challenges. I will discuss this in more depth in a future post.

A Survey of State Laws Against Glue Sniffing and Driving Under the Influence of Glue

Thursday

After writing yesterday's post on this story about a man arrested in Cedar Rapids, Iowa for allegedly driving while sniffing fumes from an aerosol can, I decided to do a little more research into glue sniffing laws in other states. As I noted in yesterday's post, Cedar Rapids' ordinance does not apply to any substances other than glue or cement, so any non-adhesive, aerosolized substances that people may inhale to get high are not covered by the ordinance. Additionally, I was unable to find any provisions in Iowa law regarding driving under the influence (operating while intoxicated) that clearly applied to driving while under the influence of inhaled glue or other aerosolized substances.

Cedar Rapids' ordinance banning glue sniffing states:

62.29 - GLUE SNIFFING.

(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.

(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.

(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

While I concluded that Cedar Rapids' ordinance did not apply to the conduct described in the article, there are other, more expansive, state laws on glue sniffing that Cedar Rapids may want to imitate if it wants to broadly ban the huffing of fumes from glues and aerosols.

Tennessee and Indiana both have laws that outlaw not only the sniffing of glue, but of other substances as well. The relevant subsection of Tennessee's law, for example, states:

40-6-391(a) No person shall, for the purpose of causing a condition of intoxication, inebriation, elation, dizziness, excitement, stupefaction, paralysis, or the dulling of the brain or nervous system, or disturbing or distorting of the audio or visual processes, intentionally smell or inhale the fumes from any glue, paint, gasoline, aerosol, chlorofluorocarbon gas or other substance containing a solvent having the property of releasing toxic vapors or fumes; provided, that nothing in this section shall be interpreted as applying to the inhalation of any anesthesia for medical or dental purposes, or to the use of nitrous oxide to implement the distribution of beverages or other foodstuffs for commercial purposes.

Unlike the Cedar Rapids ordinance, Tennessee's law lists a number of substances other than glue, including "aerosol." Another wider-reaching law on glue sniffing can be found in Indiana:

IC 35-46-6-1: "Model glue" defined

Sec. 1. As used in this chapter, "model glue" means a glue or cement containing toluene or acetone, or both.

IC 35-46-6-2: Inhaling toxic vapors

Sec. 2. A person who, with intent to cause a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses, ingests or inhales the fumes of:

(1) model glue; or

(2) a substance that contains:

(A) toluene;

(B) acetone;

(C) benzene;

(D) N-butyl nitrite;

(E) any aliphatic nitrite, unless prescribed by a physician;

(F) butane;

(G) amyl butrate;

(H) isobutyl nitrate;

(I) freon;

(J) chlorinated hydrocarbons;

(K) methylene chloride;

(L) hexane;

(M) ether;

(N) chloroform; or

(O) halothane; or

(3) any other chemical having the property of releasing toxic vapors;

commits inhaling toxic vapors, a Class B misdemeanor.

Indiana's law is interesting because the stand-alone provisions regarding model glue are entirely unnecessary, as the "Inhaling Toxic Vapors" section applies not only to model glue, but also to "a substance that contains" toluene or acetone -- which includes "model glue," defined as a "glue or cement" that contains those chemicals.

What about driving under the influence of glue? For that, we go to the relevant sections of the law banning driving under the influence in Georgia:

O.C.G.A. 40-6-391 (2010)

40-6-391. Driving under the influence of alcohol, drugs, or other intoxicating substances; penalties; publication of notice of conviction for persons convicted for second time; endangering a child

(a) A person shall not drive or be in actual physical control of any moving vehicle while:

(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;

(2) Under the influence of any drug to the extent that it is less safe for the person to drive;

(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;

(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;

(emphasis added)

Massachusetts also bans driving while under the influence of "the vapors of glue," although the law and applicable jury instructions do not provide a definition for the term.

If you were curious about various laws across the country after reading yesterday's post on glue sniffing, this post has hopefully been of some help to you. Additionally, all of this should make for excellent party conversation, so go forth and educate your friends on our nation's various laws prohibiting the inhalation of glue fumes, aerosols, and other chemicals.

[Author's note: while I have not yet submitted this post to the legal journals, let alone received any offers of publication, I do not think it presumptuous or premature to state that this post is almost-certainly forthcoming in a prestigious law review. Congratulations to you, dear reader, on seeing it here first.]

Driving Under the Influence of Glue?

Wednesday

I like to check in on what's happening in my old home state of Iowa, and in doing so today I was drawn to this KCRG story on an (allegedly) very stupid and irresponsible driver:

A Cedar Rapids man was charged with Driving Left of Center and Glue Sniffing.

An officer was traveling westbound in the 4500 block of 1st Avenue East around 5 p.m. on August 29 when they saw a car driven by James Knight, 58, traveling in the left lane veer into the right lane.

The car crossed the dotted line and the driver corrected it, but then crossed the solid yellow line dividing the westbound lanes with the center turn lane.

The officer saw the driver holding a canister and suspected Knight may be huffing. He followed the car and when it stopped, the officer got out of his squad car and approached Knight's car.

The driver appeared to be passed out or had blacked out. When the officer knocked on the window, the driver appeared startled and the car began to roll forward.

The officer told the driver to put the car in park but the driver didn’t seem to understand and appeared to be in some intoxicated state.

The vehicle rolled forward and hit another parked car.

The officer was able to put the car in park. Knight was holding an aerosol can and denied huffing the gases out of the can.

When the story's headline contains "glue sniffing," it's difficult not to click.

Knight's reported behavior is more dangerous than driving over the center line, so it is understandable that the authorities wanted to charge him with something more than simply driving over the center line. Knight probably cannot be charged with driving under the influence (or operating while under the influence, to use Iowa's language) as this statute (Iowa Code 321J.2) is limited to those under the influence of alcohol or drugs. "Drug," is conveniently undefined under Iowa's OWI laws. Unless there is an extremely expansive definition of "drug" elsewhere in the Iowa Code that applies, the language of the OWI statute appears to foreclose charging Knight with this offense, which is most likely why Knight was not charged with OWI.

But does Knight's conduct constitute "glue sniffing?"

To answer this, we need the text of the Cedar Rapids City Ordinance that bans glue sniffing. You can find it here, and the complete text of the ordinance is as follows:

62.29 - GLUE SNIFFING.

(a) As used in this section the term model glue shall mean any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors.

(b) No person shall, for the purpose of causing a condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of the senses or nervous system, smell or inhale the fumes from any model glue; provided, however, that this section shall not apply to the inhalation of any anesthesia for medical or dental purposes.

(c) No person shall possess, buy, sell, transfer possession, or receive possession of any model glue for the illegal purposes set forth in subsection (b) hereof.

Knight was reportedly in possession of an "aerosol can," and was presumably suspected of huffing gasses out of the can. People can get high from huffing or sniffing fumes from aerosol cans, as noted by the National Institute on Drug Abuse. But while the end result of sniffing these fumes may be similar to the result of sniffing glue, King's alleged conduct does not appear to fall under the scope of the glue sniffing ordinance.

Based on the language of the ordinance, it does not seem to apply to instances where a person sniffs fumes from an aerosol can to get high. The ordinance defines "model glue" as "any glue or cement containing toluene, acetone, or other solvent or chemical having the property of releasing toxic vapors." This definition is irritating, since it essentially uses the word "glue" to define "glue." While a number of chemicals are named, and while the catch-all at the end of the definition includes other toxic vapors, these chemicals are restricted to chemicals contained in "glue or cement." While I am not an expert on what is going on inside of an aerosol can, Wikipedia informs me that the cans contain small particles or liquids that are dispersed with a propellant, which creates the pressure that forces the particles/liquid out of the can as a spray. This sounds like quite the opposite of glue or cement, which have high viscosity.

It's possible one might attempt to apply the "or other solvent or chemical having the property of releasing toxic vapors" portion of the model glue definition to an aerosol can. But this reading is not correct, since this catch-all provision is part of a list that modifies the terms "glue" or "cement." The most subtle revision to the statute that could support such an interpretation would be to separate the named chemicals from the catch-all -- for example: "the term model glue shall mean any glue or cement containing toluene or acetone, or other solvent or chemical having the property of releasing toxic vapors." If this is what the ordinance said, Knight's conduct could potentially fall under it. As written, however, sniffing or huffing from an aerosol can does not fall under the language of Cedar Rapids' glue-sniffing ordinance.

[UPDATE - 8/30/2017]

A friend surprised me with a sudden outpouring of his proclaimed knowledge and enthusiasm for glue and its diverse potential forms. He informed me that glue does not necessarily have high viscosity, and that rubber cement, for example, could become fluid enough to be aerosolized if enough of a solvent were added to it. Indeed, here is a "Multipurpose Adhesive Aerosol" that I found with some quick Googling! I suppose that the law could be interpreted to apply to aerosolized adhesives, as glue can be defined by its function of binding objects together, although it most commonly refers to a substance that absorbs water and becomes a viscous solution with strong adhesive properties. Perhaps the courts will one day address these pressing questions regarding the true definition of glue.

Of course, it is doubtful that Knight was sniffing aeresolized glue, unless he somehow even less intelligent than initially thought. Such a practice would carry the risk of gluing his nose shut while attempting to get high, an outcome that would not only be inconvenient and painful, but that would also prevent Knight from continuing to sniff the aerosol. I suspect that if Knight indeed was using an aeresolized substance to get high, it was likely a substance other than the aeresolized adhesive that I linked to above.

The Arpaio Pardon: Awful, But Not Unconstitutional

Tuesday

"Pardoning Joe Arpaio Would Be a Constitutional Crisis" proclaims the headline of this article by Bob Bauer in Foreign Policy. The text of the article is less extreme, with no mention or definition of a constitutional "crisis." Yet Bauer's argument is in line with most of the criticism published in the last week arguing that President Trump's recent pardon of Sheriff Joe Arpaio would likely support a case for impeachment against Trump. Bauer writes:

[W]hile the president may well get away with the specific act of pardoning Arpaio, this action will not be without effect on future calls for impeachment. Unlike a pardon of himself, family members, or aides in the Russia matter, pardoning Arpaio would probably not result in the immediate demand for an impeachment inquiry. If, however, impeachment pressure increases, or a formal impeachment inquiry is launched on the basis of Russian “collusion,” obstruction, or on other grounds, an Arpaio pardon in the background will be highly damaging to the President’s position. It will immeasurably strengthen the hand of those arguing that Donald Trump does not have the requisite respect for the rule of law, or an understanding of the meaning of his constitutional oath, to be entrusted with the presidency.

(Bauer's article was published on August 25, 2017, prior to Trump's pardon of Arpaio). In the August 24, 2017 edition of the New York Times, Martin Redish argues that Trump's pardon of Arpaio would be unconstitutional because it violates the due process clause of the Fifth Amendment -- a theory that Redish admits is "novel" and unsupported by any Supreme Court opinions.

Other commentators call for Trump's impeachment as a result of the pardon. Noah Feldman claims that Trump's pardon of Arpaio is "so exceptional -- and so bad" because it involves the charge of criminal contempt of court. Explaining the background for Arpaio's conviction, Feldman writes:

Specifically, Arpaio was convicted this July by Judge Susan Bolton of willfully and intentionally violating an order issued to him in 2011 by a different federal judge, G. Murray Snow.

The order arose out of a civil suit against Arpaio brought by the American Civil Liberties Union, accusing him of violating the law by detaining undocumented immigrants simply for lacking legal status.

Snow issued a preliminary injunction that ordered Arpaio to stop running so-called saturation patrols -- police sweeps that essentially stopped people who looked Latino and detained those who were deemed undocumented. The basic idea was that the profiling, warrantless stops and detention were unconstitutional.

Yet despite the federal court’s order, Arpaio kept running the unlawful patrols for at least 18 months, and publicly acknowledged as much.

Arpaio was subsequently convicted of criminal contempt of court as a result. Feldman argues that Trump's pardon of Arpaio reflects "express presidential contempt for the Constitution," and "undermine[s] the rule of law itself" because it effectively pardons the willing violation of constitutional rights. Feldman's critique grows more abstract, as he argues that a pardon would "threaten the very structure on which [Trump's] right to pardon is based," and that "the president is breaking the basic structure of the legal order" by blocking the authority of the courts to tell law enforcement what the law is. Frank Bowman advances a similarly-toned argument, lamenting that the pardon is an impeachable offense because it is "a direct attack on the constitutional powers of the judiciary as a coordinate branch of government."

While I agree with these commentators that Trump's pardon of Arpaio is a bad thing, I am less inclined to argue that it undermines the "rule of law" or that it creates any constitutional crisis. I certainly do not think that it violates the Constitution.

On the constitutionality front, Ex Parte Grossman is a difficult obstacle for any would-be claim of unconstitutionality. There, the Supreme Court upheld a pardon of a conviction for criminal contempt of court, noting that the hypothetical impact of abusive pardoning of criminal contempt does not warrant "reading criminal contempts out of the pardon clause." Considering the hypothetical of even broader abuse, the Court noted:

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.

It is important to consider Grossman's broader lesson, particularly for critics like Bowman who argue that Trump's pardon is an attack on the constitutional powers of the judiciary. Any pardon undoes a judicial ruling -- it is a direct check that the executive branch of government has on the judiciary. Trump, in pardoning a conviction of criminal contempt stemming from constitutional rights violations, has simply laid out this conflict in what may be its rawest possible form. While it is "emphatically the province and duty of the judicial department to say what the law is," the Constitution explicitly grants the President the ability to override whatever the courts might say, and does not place any procedural constraints on the pardon power (such as a requirement that the Department of Justice review a petition for a pardon) or restrict the power to instances that are apolitical. Accordingly, Trump's pardon is an instance where the executive's check on the judiciary is extremely apparent, but this does not warrant cries of a "constitutional crisis" or a threat to "the very structure on which the right to pardon is based."

That being said, I believe that Trump's pardon of Arpaio is a disturbing endorsement of race-based enforcement of laws, and helps out a former Sheriff who has done many, many terrible things. And critics should still point out all of the problems with Trump's pardon, and should emphasize that Trump has just endorsed a brutal and senseless approach to law enforcement.

And you may notice that my argument above does not dismiss the possibility of impeachment. I don't. And I won't. Because as the too-often ignored case of Nixon v. United States tells us, the basis for impeachment is a political question, meaning that impeachment effectively means whatever Congress decides, and the courts will not review or challenge the determination. Interestingly, the Court would likely say the same of any challenge to Trump's use of the pardon power. Trump can pardon whatever the heck he wants, but on the flip side, he can be impeached for whatever the heck Congress wants.

At base, this system may seem imprecise and the implications of pardons and impeachments may be profound. But it is ultimately how the system was designed. Trump's recent pardon is not a crisis, but is instead an example of the system in operation, albeit an operation performed for an awful reason. It is not a system that is in crisis.

Kanye West calls Kim Kardashian his 'muse' as he displays on wife's naked images

Saturday

Everybody - and we suggest Absolutely everyone - seems to have an view on Kim Kardashian's naughty naked pics. Which is why it should not come as a shock to discover that husband Kanye West has now chimed in with his very own ideas on the matter. The 38-yr-old rapper broke his silence on his wife's nudity when he shared 1 of the nude photographs on his Twitter on Tuesday. A man of several phrases, Kanye merely had 1 when he wrote 'muse' alongside the image. It really is not the initial time that Kanye's claimed to be impressed by Kim flashing the flesh.

Back in December he was total of praise when his missus launched her very own brand of emojis and shared the raciest one particular of the complete collection. It seems that where Kim is concerned, Kanye capable of employing social media for anything at all other than ranting. The very best-offering artist is presently away on small business in Sweden and told his wife and kids he was missing them just moments immediately after posting the nude selfie. He wrote: "can’t wait to get property to North, Saint and my wife…" However for Kim, the general reaction to her standing in the buff has not been anywhere close to as complimentary as Kanye's response.

Right after the reality star shared the very first nude picture - which featured conveniently placed black lines across her body - men and women started to make jokes at her cost. One particular person who could not resist building light of the picture was actress Bette Midler, who tweeted: "Kim Kardashian tweeted a nude selfie these days. If Kim would like us to see a aspect of her we have under no circumstances witnessed, she's gonna have to swallow the camera." Afterwards the wisecrack was re-tweeted by Chloe Moretz, much to the annoyance of Kim. Kim did not get the joke lying down and hit out at the two stars with a Kanye-design rant.

Source www.mirror.co.uk

See the Before &Soon after Pics: Did Kendall Jenner Have a Nose Task?Absolutely sure Seems to be Like It!

Thursday

Will not get us incorrect, it truly is clear Kendall Jenner is a stunning lady — there is a motive why she gets paid to search scorching in images, following all. But we've noticed the actuality star's pretty tiny face has modified fairly a bit because 2010. Certain, we all increase up, adjust, go by means of puberty, and so on.

but our noses will not. So, did Kendall Jenner get a nose task or what?

Properly, we know how a lot the Kardashian loved ones love to change up their appears — and then firmly deny undertaking so — which is why we reached out to Dr. Alessi of the Alessi Institutes and the Encounter Forward foundation to get a skilled view. "The reduced lateral cartilage outline in the tip can be witnessed clearly and appears to have been lowered in the photo on the appropriate. The nasal bridge appears to be smaller sized," Dr. Alessi, who has by no means treated Kendall, said. "This is additional than a single would assume with just makeup and smiling." And to think all this time we've been focusing on Kylie Jenner's ever-shifting seems to be. Hold up with Kendall Jenner in the pages of Life & Fashion by subscribing now.

Khloé Kardashian Fuels Plastic Surgery Rumors With New and Improved Look

Wednesday

Khloé Kardashian had a book signing in LA earlier this week and debuted a new search that has followers speculating that she's had plastic surgical treatment. The 31-yr-old's encounter seems to be noticeably diverse, and it can be her skin that has all people speaking. Whilst it is clear that she has fairly a bit of contouring around her nose and cheeks, her encounter appears tighter – in some photos it virtually seems like she can not physically smile. Preserve up with Khloe Kardashian in the pages of Daily life & Type by subscribing now.

Source www.lifeandstylemag.com

Kim Kardashian and Kanye West are 'taking time apart' in accordance to a surprising new report

Tuesday

Upcoming week will be Kim Kardashian and Kanye West’s third wedding ceremony anniversary, and as a substitute of posting lovey-dovey couple shots all over social media like they would commonly, the pair are set to invest the day 1,000 miles apart. In truth, heat magazine. out right now, reviews that the couple, who acquired married on 24 May 2014, could be getting ready to split up. “Right now, points are very difficult for their marriage," a supply tells heat. Kim Kardashian and Kanye have only been witnessed together in public four instances this year (Photograph: Information) Kim's husband Kanye has flown out to the mountains of Wyoming to work on his following album (Photo: Information) Final week Kanye. 38, left LA for a remote mountain leading in Wyoming, to get to function on his new album. He also deleted his beloved Twitter and Instagram accounts. Kim, meanwhile, is nonetheless in LA, posting on Instagram as typical - but she has not posted a picture with Kanye in four weeks. The Preserving Up With The Kardashians star even attended the Met Gala with out him. An occasion they’ve been with each other at for the previous 4 years. Heat’s supply says the singer - who suffered a breakdown and was hospitalised in November - disappearing to the mountains is much less about his music, and much more about escaping their challenges.

They say: “We’re all concerned that this could be a signal their marriage is on the rocks and that they want time apart. “Kanye is in a quite odd place in his existence appropriate now, so he’s pleased to get a break. Kim convinced him that this was the very best remedy for him, as it would enable him to get time out of the spotlight. “I consider she’s enjoying the freedom to do what she would like, being aware of Kanye’s out of the city and has a fantastic crew around him." Heat adds that Kanye is no longer filming for his wife's reality show and points out that last 12 months Kim went to see her divorce lawyer, Laura Wasser “to get items in order in case they split". It truly is not been a excellent week for Kim, who spent Sunday gushing about her household - devoid of mentioning her husband.

Congratulating her infants for acquiring this kind of a wonderful mom on US Mother's Day, she posted a bikini pic of herself with her daughter North, 3, and son, Saint, one particular.

Beside the picture, Kim wrote: "Thank u to my babies for picking me to be your mom.

You have offered me a deep love I can not clarify. I am often right here to educate you & shield you." Fans had been unsurprisingly perplexed by how North and Saint managed to in fact, er, choose their mum Kim, and the actuality star was inundated with tweets like these: For her personal mum - notorious momager Kris Jenner - she wrote: A representative did not immediately reply with a comment, but we'll update you if they do. No matter what happens with Kimye, at least we know Kim's acquired lots of powerful women about to search immediately after her.

Kim Kardashian hit with shocking claims she's 'planning to DIVORCE Kanye West' following explosive Twitter rants

Kim Kardashian has been hit by surprising claims she's preparing to divorce Kanye West. The rapper has been airing his views on existence in a series of explosive Twitter rants just lately, and now several US reviews declare it can be grow to be also substantially for Kim. In spite of the pair looking happier than ever collectively following the birth of their son Saint, they are now facing rumours there's trouble in paradise. “Kim announced to her mom [Kris Jenner], ‘I have to divorce Kanye',” a source sensationally claimed to In Touch magazine this week. “It breaks her heart, but she doesn’t see any other way.” A rep for Kim and Kanye advised Mirror Celebs the claims had been "absolutely false" and she did not inform her mum she was set to divorce him. The mag however claims it does not quit at his current Twitter rants and public bashing of Taylor Swift - as Kanye reportedly kicked off at New York’s Waldorf Astoria recently too. A supply claimed he "brought on a huge scene" and additional: “He refused to listen to any individual and kept screaming, ‘I am Kanye West and my wife is Kim f***ing Kardashian'.” Kim is said to have hit the roof, and a supply added: “Kim feels Kanye has given her no alternative. Divorce papers are currently being drawn up.” More than the last couple of weeks Kanye has raised concern and outrage with a series of rants on social media – ranging from speaking about the cost of college books to begging for dollars from Mark Zuckerberg.

'Oi, Bruce, get your d*** out': Caitlyn Jenner 'suffers vile transphobic abuse' as she leaves an LGBT awards show in London

Monday

Caitlyn Jenner, formerly decathlete Bruce Jenner, was at LGBT awards in London When she the left the awards to get into her car, a photographer shouted at her Police have launched a hate crime investigation after incident on Friday evening A photographer shouted at Caitlyn Jenner 'Oi Bruce, get your d*** out' as she left the British LGBT Awards in London. Police have launched a hate crime investigation right after the incident on Friday evening. Jenner was a guest at the ceremony, where she received a Loud And Proud trophy following her transition from Bruce Jenner in 2015, which she has spoken about publicly.

As she left the occasion at the Grand Connaught Rooms in central London an onlooker hurled transphobic abuse at her until eventually she received into a automobile. A source advised The Sun On the internet. 'Caitlyn had an amazing evening and when she won her award the space went crazy. 'She'd had this kind of a great time but as she went to leave the full atmosphere modified. 'Someone shouted to her, "Oi, Bruce, get your d*** out". Then somebody else threw something at her. It was horrible.'

A Metropolitan Police spokesman confirmed that officers had been identified as to the handle on Friday night. 'Officers attended and spoke to one particular of the organisers who alleged that a photographer had verbally abused a female and a guy as they have been leaving the occasion.

Source www.dailymail.co.uk

Kanye West Is Not Residing With Wife Kim Kardashian And Their Little ones Right after Leaving Hospital

Kanye West was launched from hospital a few days in the past immediately after being admitted for erratic behaviour but he is at this time residing apart from his wife Kim Kardashian and their children Reports say he will continue to get remedy for undisclosed wellness concerns and will do so even though staying at another well being facility. “He is receiving outpatient care elsewhere with a medical staff. Kim nevertheless would seem concerned but is supportive. They don’t know for how extended Kanye will need to have outpatient care,” the supply unveiled. Although Kim remained by her husband’s side 24/seven through his hospital stay sources say she feels ‘overwhelmed’ and ‘concerned’ about Kanye becoming close to their two young youngsters, North and Saint. “She is very concerned about the little ones being all around Kanye,” the source mentioned. The dramatic 911 call has been leaked and demonstrates just how unpredictable and erratic Kanye’s behaviour was at the time. “Don’t allow him get any weapons or anything like that,” the operator can be heard telling the health practitioner. “If you can just hold an eye on him,” he continued.

The 39 yr outdated performer was thought to have been struggling a “psychotic breakdown” which good friends say coincided with the 9-12 months anniversary of his mum’s death who passed away although undergoing plastic surgery.

According to insiders, Kanye had been struggling to take care of pressure in excess of the final number of months, especially following on from the robbery in Paris which noticed Kim getting held up at gun level.

Chrystal is a author and blogger who loves practically nothing much more than watching back to back episodes of crime exhibits. Need to she ever find herself needing to cover up a crime, she'll know precisely what to do! Her dream is to one particular day reside in Palm Springs wherever she can do her writing poolside whilst consuming countless gin and tonics. Mum to the cutest twin boys in the planet, she loves absolutely nothing far more than the sound of their laughter (generally heard when they're conspiring against her). Entertainment author and pop culture junkie, she will be bringing you all the celebrity gossip and information that your brain can take care of.You can comply with her blog at https://lovechrystal.com.au and on Instagram at Chrystalovevintage

Source www.mumslounge.com.au

Tuesday

Wednesday

Thursday

Friday

Tuesday

Wednesday

Thursday

Tuesday

Wednesday

Friday

Tuesday

Thursday

Wednesday

Tuesday

Saturday

Thursday

Wednesday

Tuesday

Monday

About Me

Blog Archive