Democrats in Congress have reintroduced a bill that would revive the ability to sue federal law enforcement officers for constitutional violations like excessive force, following a series of Supreme Court decisions that have made it practically impossible to do so.
Sen. Sheldon Whitehouse (D–R.I.) and Reps. Hank Johnson (D–Ga.) and Jamie Raskin (D–Md.) reintroduced the Bivens Act in the Senate and House, respectively, this week. The legislation would amend the Civil Rights Act of 1871—a federal statute that allows people to sue the government for civil rights violations—to include federal officials acting under the color of law, as well as state and local officials.
"Public officials at all levels of government, including law enforcement, should have a clear, fair standard of accountability when they break the law," Whitehouse said in a press release. "Our Bivens Act would end the confusing judicial precedent that for too long has prevented victims from holding federal officials accountable and securing compensation for constitutional violations."
In 1971, the Supreme Court ruled in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that federal agents may be sued when they violate someone's rights. But subsequent Supreme Court rulings over the years have steadily narrowed the scope of so-called Bivens claims to the point where it's a dead letter.
In the most recent case, Egbert v. Boule, the Supreme Court ruled in 2022 that a bed-and-breakfast owner could not sue a Border Patrol agent who had allegedly assaulted him and then retaliated after he complained. Reason's Damon Root summarized the case:
At issue were the actions of a border patrol agent who sought to question one of the guests at a Washington state bed-and-breakfast about the guest's immigration status. When owner Robert Boule told the agent, Erik Egbert, to leave his property, Egbert allegedly assaulted Boule. Then, when Boule complained about the alleged assault to the agent's superiors, Egbert allegedly retaliated by asking the IRS to investigate Boule, who was audited.
The Court ruled 6–3 that Boule could not bring a claim against Egbert for excessive force or First Amendment retaliation.
That same term, the Court declined to hear petitions involving cases where a St. Paul police officer invented a fake sex-trafficking ring and jailed a teenage girl for two years on trumped-up charges and where a Department of Homeland Security agent allegedly tried to kill a man because of an argument involving his son.
As Reason's Billy Binion wrote at the time, "A federal badge will now serve as an impenetrable shield against civil liability for violating the same laws agents are charged with upholding."
That's not just the opinion of some whacky libertarians either. Federal Judge Don Willett complained in a 2021 opinion that the Supreme Court has gutted Bivens to the extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."
The Bivens Act is supported by numerous civil rights and watchdog groups, including the American Civil Liberties Union, the Drug Policy Alliance, and the Project on Government Oversight.
A Texas public library can't remove books simply because they discuss topics like "butts and farts," a federal court ruled last week.
The case is one of the more bizarre instances of library censorship in recent years, but it nonetheless led to a decisive option from the majority, who found that it is unconstitutional to remove library books out of a "desire to limit access to ideas with which they [disagree]."
The legal battle began after Llano County Judge Ron Cunningham received complaints in 2021 concerning "pornographic and overtly sexual books in the library's children's section." The complainants were particularly upset about children's books about "butts and farts."
One of the aggrieved citizens, Llano resident Rochelle Wells, "had been checking out those books continuously for months to prevent others from accessing them."
Following the complaint, Cunningham told the library's director, Amber Milum, to remove the books from library shelves. After more complaints were lodged, Cunningham told the library director to also remove several other books that "depict any type of sexual activity or questionable nudity."
Milum later testified that she would not have removed the books as part of typical curation activities—she only removed them because of directions from county officials.
Making matters worse, in January 2022, the county's library board was dissolved and replaced with new board members. Two of the complainers who successfully pressured Cunningham to order books removed were placed on the new board.
According to the opinion, the new board "implemented several policy changes, including prohibiting Milum from attending their meetings and requiring her to seek approval before purchasing any new books."
Seven library patrons brought a suit in 2022, arguing that the removal of the book was unconstitutional viewpoint discrimination. Eventually, a lower court agreed, granting a preliminary injunction requiring defendants to return the removed books. However, the county appealed. Just this week, a panel of judges from the 5th Circuit Court of Appeals sided with the plaintiffs.
Referencing other cases surrounding attempted library censorship, the majority opinion constructed a series of "rules" about how books can be removed from library collections. "Librarians may consider books' contents in making curation decisions," Judge Jaques Weiner Jr. wrote in the majority opinion. "Their discretion, however, must be balanced against patrons' First Amendment rights…a book may not be removed for the sole—or a substantial—reason that the decision-maker does not wish patrons to be able to access the book's viewpoint or message."
The motivation for removing targeted books from Llamo public libraries doesn't meet this test. The opinion notes that censors wanted the books gone simply because they didn't like their content.
"Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree," the opinion concludes. "Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim."
"We wanted to file a lawsuit that was specifically focused on free speech and the First Amendment from the creators' perspective, rather than some of the other, business-related concerns in other lawsuits," Brad Polumbo of BASEDPolitics tells me. "We also wanted to emphasize the political speech aspect, rather than other creators who are more in the mold of everyday 'influencers,' and show that right-leaning/non-liberal voices are being impacted by this as well."
Polumbo hopes the lawsuit will "help Republicans and conservatives see why this ban is inconsistent with the free speech values they say they care about."
TikTok Ban: Not Just Bad for Lifestyle Influencers or Leftists
BASEDPolitics is a nonprofit media organization run by Polumbo, Hannah Cox, and Jack Hunter. Its goal is to introduce young people "to the ideas of free market capitalism and individual liberty."
TikTok helps them reach audiences they likely wouldn't reach on other platforms, says Cox. "Both Brad and I have large platforms across social media, but TikTok offers a unique audience that can't be found elsewhere," she tells me. "Most on TikTok loathe Meta and X, so if they weren't on TikTok it's unlikely they'd engage meaningfully elsewhere. Their algorithm is also more open, and it enables us to reach many people who would never encounter us otherwise."
There's a popular perception that TikTok either isn't a place for political speech or is an asset only for left-leaning political speakers. But the BASEDPolitics team hasn't found this to be true at all.
"Anyone who thinks TikTok is all just frivolous content is probably not a user," says Polumbo. "There's substantive conversation happening on there on every issue under the sun, from religion to dating to politics." And while "TikTok is dominated by left-leaning content," it's also "a much more politically diverse ecosystem than many might think."
Their suit focuses not just on how a ban would negatively affect BASEDPolitics but on its larger repurcussions for civil liberties.
"We felt the need to stand up as individuals who are using TikTok to effectively fight back against the government and educate others on the principles of free market capitalism, individual rights, and limited government," says Cox, who sees all sorts of "incredible work being done on TikTok—both politically and non politically."
"People are pushing back on war…they're questioning our monetary system, they're highlighting injustices carried out by our government," she says. "Outside of politics, TikTok is now the top search engine for young people. They're getting mental health resources from therapists, DIY help from retired grandpas, nutrition information they can't get from their health insurance and pharmaceutical companies. The list is endless."
Propaganda Is Free Speech
BASEDPolitics is being represented by the Liberty Justice Center. The suit seeks a declaration that the anti-TikTok law—officially known as the Foreign Adversary Controlled Applications Act—is unconstitutional and a block on the U.S. Attorney General enforcing it.
The law makes it illegal for Americans to "access, maintain, or update" apps linked to "foreign adversaries," a category that the measure defines to include TikTok. TikTok will be banned if TikTok parent company ByteDance does not sell it by January 19, 2025. The law also allows the president to declare other apps off limits (or force their sale) if they're based out of any country declared a foreign adversary or if anyone based in these countries owns a fifth or more of the app.
"The Act violates the First Amendment because it bans all speech on TikTok—even though all, or nearly all, of that speech is constitutionally protected," the Liberty Justice Center states in a press release. "The lawsuit also argues that lawmakers' justifications for the ban—national security and protecting Americans from propaganda—cannot justify the infringement on users' First Amendment rights, because there is no evidence that TikTok threatens national security or that a complete ban is necessary to address whatever threat it might pose. Furthermore, the lawsuit argues, the First Amendment does not allow the government to suppress 'propaganda,' which is simply speech."
Cox elaborates on this point in a video about the lawsuit, noting that people act like TikTok is unique because it could be linked to the Chinese Communist Party. Yet "you have tons of state-owned media that is available in the U.S.," points out Cox, citing the BBC and Russia today as two examples.
In the U.S., we don't ban speech merely because another government—even one we find alarming—might endorse it. So even if some of the more speculative fears about China and TikTok are true, that should be no reason to ban it entirely.
Cox says this sort of thing is more befitting of "communist dystopias" such as North Korea.
There's been some (overhyped) concern about TikTok suppressing content that could offend Chinese authorities. But even if that's true, it wouldn't justify a ban either.
"As First Amendment supporters, we also support the legal right of TikTok as a private platform to ban or restrict whatever kinds of content it wants even if we personally resent their choices or think it's unfair," Polumbo adds.
Larger Anti-Speech and Anti-Tech Trends
"If enacted, this would constitute one of the most egregious acts of censorship in modern American history," Cox and Polumbo write, placing the TikTok ban in the midst of larger anti-speech and anti-tech trends:
In the federal and state governments, both Republicans and Democrats have become increasingly anti-free speech in recent years. We've seen a plethora of bills that have sought to strip Americans and their businesses of their right to free expression, many of them presented as necessary to rein in "Big Tech." The TikTok ban is merely the latest iteration of this trend.
The truth is that government actors who want to preserve and expand their own power have a vital interest in taking over the tech industry. Of course the government has yet to see a thriving free market industry it doesn't want to get its hands on. But social media in particular poses a unique threat to the government—which has for decades been able to control the flow of information and the narrative on political issues via its cozy relationship with many in the mainstream media.
We've seen the Biden Administration seek to lasso social media in a similar fashion numerous times over the past couple of years thanks to the bombshell reports released under both the Twitter Files and the Facebook Files—not to mention the government-wide conspiracy to shadowban information on our own government's funding of the Wuhan lab….
The obvious point is that government officials do not want the American people to be able to freely share information, especially information that makes them look bad.
The bottom line, they suggest, is that "if they can control the flow of information, they can control you."
"Social media poses a unique threat to politicians and the government, and that's because for decades…the government could control the narrative, and they could control the narrative because they mostly control the mainstream media," says Cox in her video. "As social media has grown, they have lost more and more control of the narrative, because they are no longer the gatekeepers, and they don't control the gatekeepers anymore."
"Ultimately the war on Big Tech is a war on free speech and the government desperately trying to regain control of the narrative the [mainstream media] granted them for decades," she tells me.
The BASEDPolitics team also pushes back on the idea that this isn't really a ban because it gives ByteDance the option to sell. "In effect, the legislation is an outright ban on the app, because Bytedance, TikTok's parent company, is likely legally prohibited from selling the TikTok algorithm by China's export control laws," write Cox and Polumbo. "And, TikTok without its algorithm is not really TikTok at all."
• Antitrust warriors come for AI: The Federal Trade Commission is subpoenaing Microsoft over its deal with the artificial intelligence startup Inflection. Meanwhile, the Justice Departments "is poised to investigate Nvidia and its leading position in supplying the high-end semiconductors underpinning AI computing," Politicoreports.
• "When a new technology arises, it matters greatly whether technocrats align themselves with dynamists or with reactionaries," Virginia Postrel tellsMiller's Book Review. "We were lucky in the 1990s that both political parties included people with positive views of the emerging internet, including people with a dynamist understanding of its potential. The opposite is true today. Reactionaries are in ascendance in both parties, and technocrats are listening to them. Plus there are always businesses seeking to use regulation to hinder their competitors. The result is that instead of regarding AI as an exciting potential tool for enhancing human creativity and fostering prosperity, our public discourse tends to frame it as at best a job-destroyer and at worst the Terminator."
• A federal judge has rejected North Carolina's attempt to mandate that abortion pills must be taken in a doctor's office and that their prescription requires an in-person followup visit 72 hours after the medication is taken. The ruling means that women "can again take the medicine mifepristone at home and can obtain the medication from a pharmacy or by mail," WUNC reports.
• "Because 'misinformation' is overwhelmingly identified by focusing on information that contradicts the consensus judgements of experts and elites within society's leading knowledge-generating institutions, the focus on misinformation ignores how such institutions can themselves be deeply dysfunctional and problematic," writes Dan Williams in a very good (and lengthy) post at Conspicuous Cognition. "This includes science, intelligence agencies, mainstream media, and so on."
For nearly a decade, the transit authority in Washington, D.C., has faced controversy over restrictive guidelines governing advertisements in the city's subways and busses. Now, it might have to scrap some of them.
The controversial rules prohibit any ad that is "issues-oriented" or "intended to influence members of the public regarding an issue on which there are varying opinions." The guidelines also single out religious ads, prohibiting "advertisements that promote or oppose any religion, religious practice or belief."
Last month, a D.C. district court ruled in favor of a Christian group seeking to challenge the rules, placing a preliminary injunction on part of the guidelines that ban ads "intended to influence members of the public regarding an issue on which there are varying opinions."
The Washington Metropolitan Area Transit Authority (WMATA) first enacted the controversial rules after an anti-Islam activist attempted to buy an advertisement depicting Muhammad in 2015.
In 2017, the American Civil Liberties Union sued WMATA over the guidelines, joined by plaintiffs ranging from vegan group People for the Ethical Treatment of Animals (PETA) to right-wing provocateur Milo Yiannopoulos. That case is still ongoing. In 2018, however, a D.C. district court ruled against a request for a preliminary injunction against WMATA's rules.
But the ACLU has joined another lawsuit challenging the guidelines on First Amendment grounds—this time, to much better success. This latest lawsuit was filed in December 2023 by WallBuilders, an organization that aims to educate the public "concerning the Godly foundation of our country," according to legal records.
When WallBuilders attempted to purchase ads to go in WMATA busses, reading "Christian? To find out about the faith of our founders, go to wallbuilders.com." WMATA rejected the ads, citing their guidelines. When WallBuilders resubmitted the ads, omitting all text except "visit wallbuilders.com," they were still rejected.
WallBuilders sued. On May 21, Judge Beryl A. Howell of the District Court of D.C. granted WallBuilder's motion for a preliminary injunction, halting enforcement on the part of the guidelines that prohibited advertisements seeking "to influence members of the public regarding an issue on which there are varying opinions."
"WMATA is permitted to retain considerable discretion in evaluating the intent and purpose of an ad…but this discretion must be coupled with objective, workable standards," wrote Howell. "Put simply, the utterly undefined use of the phrase '[a]dvertisements intended to influence . . . regarding an issue on which there are varying opinions,' coupled with the lack of any definitions or official guidance and WMATA's inconsistent application of [the guideline], makes clear that [it] is not a reasonable restriction on speech."
The ruling is a major victory for a whole range of controversial groups who want to buy ads on D.C. buses and subways. It also sends a clear message to WMATA: While it can place some restrictions on the content of ads, its rules have to be well-defined and narrowly tailored.
A man has filed a lawsuit against the town of Sturgeon, Missouri, a little more than a week after a police officer shot and killed his small, blind, and deaf dog.
In a federal lawsuit filed in the U.S. District Court for the Western District of Missouri, Nicholas Hunter alleges that Officer Myron Woodson and the city of Sturgeon violated his Fourth Amendment rights when Woodson killed Teddy, his 13-pound blind and deaf Shih Tzu, shortly after finding the dog wandering in a neighbor's yard on May 19.
"Woodson's warrantless seizure of Teddy was unnecessary, callous, and egregious as it was unwarranted by law and violative of Plaintiff Hunter's most fundamental and guaranteed of constitutional rights," Hunter's lawsuit says. "At no time during the encounter between Teddy and Defendant Woodson did Teddy show any aggression towards Defendant Woodson. Teddy never barked, growled, or even moved towards Defendant Woodson. Instead, the small, blind and deaf dog simply kept trying to walk away, oblivious to the danger that Defendant Woodson posed to him."
The shooting has outraged the town's residents, especially after body camera footage obtained by a local news outlet contradicted the officer and city officials' narrative of events. The mayor of Sturgeon resigned last Saturday evening after defending the shooting for several days, and Woodson has been placed on leave.
The shooting, though, is only an egregious example of a phenomenon that is so common that it has its own tag on Reason's website: "puppycide." No one knows exactly how many dogs police shoot around the country, but every year there are more cases of wanton killings that, besides terrorizing owners, generate huge lawsuits, viral outrage, and in rare instances result in officers being fired, such as the case of an Arkansas officer who casually killed a nine-pound dog.
The incident in Sturgeon started when Teddy dug under Hunter's backyard fence while Hunter was out at dinner and escaped, leaving its collar behind in the process. A neighbor called a county dispatch center to report that the dog had wandered into their yard and to get help finding its owner. According to Hunter's lawsuit, the caller responded, "No, not at all," when asked if the dog was aggressive.
The town of Sturgeon's official Facebook page actually posted an alert on May 19 about the missing dog, along with photos of Teddy: "Do you know this doggie? Joint communications has been notified. The doggie seems in need of medical attention."
Medical attention was not what the doggie received. Woodson arrived on the scene, and a few minutes later he shot Teddy twice.
In the meantime, Hunter had been called and told about the Facebook post. He was on his way to pick up Teddy, but arrived too late.
A day later, the city of Sturgeon posted on Facebook about the incident, defending Woodson's decision: "Based on the behavior exhibited by the dog, believing the dog to be severely injured or infected with rabies, and as the officer feared being bitten and being infected with rabies, the SPD officer felt that his only option was to put the animal down," Sturgeon wrote. "It was later learned that the animal's behavior was because the animal was blind. Unfortunately, the animal's lack of a collar or tags influenced the SPD Officer's decision to put the animal down due to his belief that the animal was injured, sick and abandoned."
Both Hunter and the neighbor filed complaints with the city. "I cannot stress enough that this animal was in no way a threat to others," the neighbor, whose complaint was obtained by local news outlet ABC 17, wrote. "Woodson discharged his firearm multiple times in a residential area without a threat presenting itself, without warning."
ABC 17 also obtained Woodson's body camera footage, which showed that Teddy was never aggressive and didn't bark or growl. Woodson tried to lasso Teddy with a catch pole—a common tool used in animal control—but the dog simply shook its head free of the rope and trotted away. After fumbling the catch pole several times, Woodson drew his gun and killed Teddy. ABC 17 reported that Woodson's entire encounter with Teddy, from exiting his car to putting two bullets in the animal, lasted three minutes and six seconds.
After body camera footage was released, Sturgeon doubled down.
"The City believes that the officer acted within his authority based on the information available to him at the time to protect against possible injury to citizens from what appeared to be an injured, sick, and abandoned dog," Sturgeon posted in a follow-up Facebook post.
Of course, it would have been embarrassing to admit the real reason that the officer resorted to using his gun: He was unable to snare a blind, deaf dog and was too poorly trained to come up with a solution besides shooting a harmless animal.
But police habitually lie about the behavior of dogs that they shoot. Dogs are almost always described in incident reports as snarling, aggressive, or lunging, and because department policies typically allow police to shoot dogs when they feel afraid for their safety, these shootings are almost always deemed justified.
For example, last year in Missouri a police officer shot a family's dog and dumped it in a ditch. Similar to Hunter's case, the dog had gotten loose during a storm, and a neighbor called to report it missing. In another case last year, Detroit cops killed a woman's dog and dumped its body in a trash can. An Arkansas woman also filed a lawsuit after a cop accidentally shot her while trying to kill her Pomeranian—a toy breed that resembles a Koosh ball with legs.
This is the sort of behavior that's flagged as sociopathic when committed by anyone who's not represented by a police union.
And it's the sort of behavior that can cost a small town like Sturgeon quite a lot of money, as city officials are surely fretting now. After Sturgeon's mayor resigned last Friday, the acting mayor posted on Sturgeon's Facebook account: "Like you we were just as appalled by what we saw. The actions of the Officer involved are not the values and beliefs of the residents of Sturgeon or the board of Alderman. Currently I have made calls to the Boone County Sheriff to meet and discuss an investigation."
The city of Sturgeon did not immediately respond to a request for comment.
Prosecutors in Texas last week dismissed the criminal case against a journalist who, in 2021, was arrested, strip-searched, and jailed for filming police. But his lengthy legal battle is in some sense just beginning and once again demands we probe the idea that real journalists are entitled to a different set of rights than the public.
That's because Justin Pulliam, the man in question, is a citizen journalist. He is not employed by an outlet. Rather, he publishes his reporting to his YouTube channel, Corruption Report, which, true to its name, is unapologetically skeptical of state power and supportive of transparency.
The Fort Bend County Sheriff's Office (FBSCO) has allegedly been vexed by his audacity. In July 2021, Pulliam was expelled by police from a press conference because they alleged he did not qualify as media, and in December of that same year, he was arrested for videoing police at a mental health call, despite that he had stationed himself about 130 feet away from the interaction. Officer Taylor Rollins demanded Pulliam move back even further, and he obliged, although he continued to film the deputy speaking to other bystanders at the scene (none of whom were arrested).
That didn't end well for Pulliam, who was charged with interfering with police duties. (According to his complaint, Officer Ricky Rodriguez, who assisted with the arrest, told another cop at the jail that the ordeal would teach Pulliam a lesson "for fucking with us.") In April 2023, a jury was not able to reach a verdict in the case, with five jurors wanting to acquit and one urging to convict. It took law enforcement more than a year to decide not to pursue the case further.
One wonders if the Fort Bend government is smartly allocating resources in support of public safety when it doggedly went after a case because someone filmed them. Yet at a deeper level, it's worth asking if law enforcement would have taken the case to trial at all had Pulliam worked for a formal media outlet. My guess is no.
It is difficult to reconcile those two things. Journalism is, after all, an activity, consisting of collecting information and reporting it to the public. That venture is not exclusively available to people working at a full-time newsgathering organization, and the strength of the First Amendment should not hinge on whether or not you are on a media outlet's payroll. Even if Pulliam didn't consider himself a journalist at all—citizen or otherwise—his right to film the government employees he pays with his taxes should remain intact. It certainly shouldn't come at the expense of his freedom.
Whether or not he will be able to make that case before a jury in civil court is yet to be determined. Last June, Judge David Hittner of the U.S. District Court for the Southern District of Texas allowed Pulliam's federal lawsuit to proceed, declining to award the defendants qualified immunity, the legal doctrine that shields state and local government actors from such claims if their alleged misconduct was not already "clearly established" in the law.
"The Individual Defendants assert no case law to support their proposition that an indictment precludes a claim for first amendment infringement," wrote Hittner. "Indeed, based on the facts alleged in the complaint, it appears Pulliam was singled out and arrested for exercising his rights under the First Amendment."
Pulliam, however, is not in the clear. He will next have to convince the U.S. Court of Appeals for the 5th Circuit, which has considered a similar case in recent months: that of Priscilla Villarreal, the citizen journalist in Laredo, Texas, who police arrested in 2017 using an obscure statute criminalizing the solicitation of nonpublic information if there is the "intent to obtain a benefit." If that description sounds a lot like standard journalism—seeking information not yet public—that's because it is. But despite attracting some strange bedfellows in her defense, Villarreal has not fared well in court.
While her case is not identical to Pulliam's, they both raise very similar questions, particularly as it relates to the idea that a certain class of journalists should get more rights than others. "Villarreal and others portray her as a martyr for the sake of journalism," wrote Judge Edith Jones in her majority opinion dismissing Villarreal's suit and giving qualified immunity to the police. "That is inappropriate," according to Jones, because Villarreal, who posts her reporting to her popular Facebook page Lagordiloca, is not a "mainstream, legitimate media outlet." Her free speech rights are suffering as a result.
The job of the prosecutor is to hold the public accountable. But when the tables are turned—when the prosecutor is the one who allegedly flouted the law—it is, paradoxically, enormously difficult for victims to achieve recourse. Lawyers yesterday sparred at the U.S. Court of Appeals for the 5th Circuit over one such barrier preventing someone from suing a former assistant district attorney accused of misconduct so egregious that one judge on the 5th Circuit described it last year as "utterly bonkers."
At the center of the case is Ralph Petty, whose yearslong career included work as both an assistant district attorney and a law clerk—at the same time, for the same judges. In practice, that means his arguments as a prosecutor were sometimes performance art, because, as a law clerk, he had the opportunity to draft the same rulings he sought in court. It doesn't take a lawyer to deduce that the set-up presents troubling implications for due process.
One of Petty's alleged victims, Erma Wilson, would like the opportunity to bring her civil suit against him before a jury. In 2001, she was convicted of cocaine possession after police found a bag of crack on the ground near where she and some friends were gathered. Law enforcement offered to let her off if she implicated the guilty party; she said she didn't know.
Years later, that conviction continues to haunt her. Most notably, it doomed any chance of her fulfilling her lifelong dream of becoming a nurse, because Texas, where she lives, does not approve registered nursing licenses for people found guilty of drug-related crimes.
Wilson's conviction coincided with the beginning of Petty's dual-hat arrangement in Midland County, Texas. Though he was not the lead prosecutor on her case, she alleges he "communicated with and advised fellow prosecutors in the District Attorney's Office" on her prosecution while simultaneously working for Judge John G. Hyde, who presided over her case, giving him "access to documents and information generally unavailable to prosecutors." (Hyde died in 2012.)
"Further undermining confidence in Erma's criminal proceedings, Petty and Judge Hyde engaged in ex parte communications concerning Erma's case," her lawsuit reads. "Consequential motions, such as Erma's motion to suppress, were resolved in the prosecution's favor throughout trial. And despite the weak evidence against her, Erma's motion for a new trial was not granted. Any of these facts by itself undermines the integrity of Erma's trial. Together, these facts eviscerate it."
Typically prosecutors are protected by absolute immunity, which, as its name implies, is an even more robust shield than qualified immunity. But that issue is not before the 5th Circuit, because Wilson must overcome another barrier: Someone who has been convicted of a crime may not sue under Section 1983—the federal statute that permits lawsuits against state and local government employees for alleged constitutional violations—unless "the conviction or sentence has been reversed on appeal or otherwise declared invalid," wrote Judge Don Willett for the 5th Circuit in December. "The wrinkle here is that Petty's conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence."
But Willett—the same judge who characterized Petty's alleged malfeasance as "utterly bonkers"—did not appear happy with his own ruling, which he said came because his hands were tied by precedent. He invited the 5th Circuit to hear the case en banc, where all the judges on the court convene to reconsider an appeal, as opposed to a three-judge panel (the usual format for evaluating cases).
The court accepted. "The defendants say that [Wilson is] forever barred from invoking that federal cause of action or any other federal cause of action unless she first persuades state officials to grant her relief. If they never do, she can never sue," Jaba Tsitsuashvili, an attorney at the Institute for Justice who is representing Wilson, argued yesterday. "In most circuits, that argument would be rejected, and rightly so."
At the center of the case is Heck v. Humphrey (1994), a Supreme Court precedent that, as Willett noted, forecloses Section 1983 relief for plaintiffs alleging unconstitutional convictions if his or her criminal case was not resolved with "favorable termination." The catch: Most federal appeals courts have established that Heck does not apply when federal habeas relief is no longer available, as is the case with Wilson. The 5th Circuit is an exception.
Perhaps soon it won't be. Yet even if the judges agree with Tsitsuashvili's interpretation of the law, Wilson is not in the clear. She will then have to explain why Petty is not entitled to absolute immunity, which inoculates prosecutors from facing such civil suits if their alleged misconduct was carried out in the scope of their prosecutorial duties. It is nearly impossible to overcome. But Petty may not be a candidate for it, because his malfeasance was technically not committed as a prosecutor. It was committed as a law clerk.
Should Wilson be granted the privilege to sue, it will be the first time an alleged victim of Petty's gets a tangible chance at recourse. There was, of course, the fact that he was disbarred, but defendants whose trials were marred by Petty likely take little comfort in that, particularly when considering it came in 2021—two years after he retired.
A federal court yesterday heard arguments in an appeal concerning an area of law that, while niche, has seen a streak of similarly situated plaintiffs pile up in recent years. At stake: When a SWAT team destroys an innocent person's property, should the owner be strapped with the bill?
There is what I would consider a commonsense answer to that question. But in a reminder that common sense does not always guide law and policy, that is not the answer reached by several courts across the U.S., where such victims are sometimes told that "police powers" provide an exception to the Constitution's promise to give just compensation when the government usurps property for public use.
It remains to be seen where the U.S. Court of Appeals for the 6th Circuit will fall as it evaluates the complaint from Mollie and Michael Slaybaugh, who are reportedly on the hook for over $70,000 after a SWAT team destroyed much of their home in Smyrna, Tennessee.
In January 2022, Mollie Slaybaugh stepped outside her house and was greeted by a police officer with his gun drawn. She was informed that her adult son, James Jackson Conn—who did not live with her but had recently arrived to visit—was wanted for questioning concerning the murder of a police officer, which she says was news to her. Although she offered to speak to Conn and bring him out of her house, law enforcement declined to permit that, or to let her re-enter at all, so she went to stay at her daughter's house nearby.
The next day, police broke down the door and launched dozens of tear gas grenades into the Slaybaughs' home, laying waste to nearly everything in the house. Their insurance declined to assist them, as their policy—like many policies—does not cover damage caused by the government. Yet both Smyrna and Rutherford County said they were immune from helping as well.
But despite Mollie Slaybaugh's offer to coax Conn out sans tear gas, her complaint does not dispute that it was in the best interest of the community for law enforcement to do as they did that day. It merely contests the government's claim that innocent property owners should have to bear the financial burden by themselves when police destroy their homes in pursuit of a suspect.
"Law enforcement is a public good. Through our taxes, we pay for the training, equipment, and salaries of police officers. We pay to incarcerate criminals. We pay for a court system and public defenders," reads her complaint. "When the police destroy private property in the course of enforcing the criminal laws, that is simply another cost of law enforcement. Forcing random, innocent individuals to shoulder that cost alone would be as fair as conducting a lottery to determine who has to pay the police chief's salary each year."
That hypothetical is absurd. And yet the spirit of it is at the heart of several court decisions on the matter. That includes the U.S. District Court for the Middle District of Tennessee, which ruled last year that the Slaybaughs were not entitled to a payout because, in the court's view, the Takings Clause of the Fifth Amendment does not apply when the state seizes and destroys someone's property in the exercise of "police powers."
The Slaybaughs are unfortunately not alone. The notion that "police powers" immunize the government from liability is what doomed Leo Lech's lawsuit, which he filed after a SWAT team did so much damage to his home—in pursuit of a suspect that broke in and had no relation to the family—that it had to be demolished. In 2020, the Supreme Court declined to hear the case.
Similar claims are continuing to accumulate. The city of Los Angeles refused to compensate Carlos Pena after a SWAT team destroyed his North Hollywood print shop in pursuit of a suspect who barricaded himself inside, and the government in McKinney, Texas, turned away Vicki Baker after police ruined her home and much of its contents while, again, trying to catch a fugitive. After a legal odyssey of sorts, Baker was able to secure a judgment from a federal jury—though that was ultimately overturned by the U.S. Court of Appeals for the 5th Circuit, which ruled there was a "necessity" exception to the Takings Clause. Most recently, the local government in South Bend, Indiana, rejected Amy Hadley's pleas for help after police mutilated her home in search of a suspect she'd never met and who'd never been to her home. An officer's botched investigation led law enforcement to her house, and she has been forced to pay the price of that blunder. Accountability should not just be for the little people.
"The plain text of the Just Compensation Clause contains no exemptions for the police power, for public necessity, or for damage done by law enforcement. And the government bears the burden of establishing that any such exception is grounded in our nation's history and tradition," Jeffrey Redfern, an attorney with the Institute for Justice representing the Slaybaughs, told the 6th Circuit yesterday. "But the government hasn't even tried to meet that burden. Instead it asks this court to blindly follow decisions from other jurisdictions—decisions whose reasoning the government isn't really defending."
In some sense, the government is throwing what it can at the wall to see what sticks. And a fair amount of nonadhesive material is successfully latching on—an exception to the laws of nature that few entities other than the government could reasonably hope to enjoy.
Juan Merchan, the judge presiding over Donald Trump's criminal trial in Manhattan, yesterday denied a second defense motion for a mistrial. Trump's lead attorney, Todd Blanche, has objected to aspects of porn star Stormy Daniels' testimony about her purported 2006 sexual encounter with Trump, saying some of the details were legally irrelevant and "so unduly and inappropriately prejudicial" that a mistrial was the only remedy. Merchan rejected that argument on Tuesday and again on Thursday, saying the problem that Blanche perceives was largely a result of the defense team's failures during Daniels' testimony and cross-examination.
Among other things, Blanche cited testimony suggesting, for the first time, that Daniels' alleged encounter with Trump was not fully consensual. This dispute illustrates the risk that the salaciousness of Daniels' account will overshadow the legal issue at the center of the case.
Trump is not charged with adultery or sexual assault. He is not charged with trying to keep Daniels from talking about what she says happened, although Manhattan District Attorney Alvin Bragg has misleadingly suggested that the essence of Trump's crime was keeping that information from voters during his 2016 presidential campaign. Trump is not even charged with instructing his personal lawyer, Michael Cohen, to pay Daniels $130,000 shortly before the election in exchange for her silence. Rather, he is charged with falsifying business records to disguise his 2017 reimbursement of Cohen as payment for legal services.
Proving those 34 charges does not require demonstrating that Daniels is telling the truth at all, let alone that every detail is accurate. Under the prosecution's theory, Trump would be guilty of falsifying business records even if Daniels made the whole thing up. And assuming that Cohen's payment to Daniels amounted to an excessive campaign contribution (a characterization that Cohen accepted when he pleaded guilty to that offense in 2018), Trump's falsification of business records would be a felony if he was trying to conceal that violation of federal campaign finance regulations.
There are several problems with that theory, including the fuzziness of the distinction between personal and campaign expenditures, the question of whether Trump recognized that the Daniels payoff fell into the latter category (assuming that it did), the uncertainty about Trump's involvement in generating the relevant business records and his motive in doing so, and the attempt to convert a 2016 federal campaign finance violation into a state felony via a moribund New York election law that apparently has never been used before. But one thing is clear: Trump's criminal liability in this case has nothing to do with exactly what happened in his Lake Tahoe hotel suite during a celebrity golf tournament in July 2006.
Jurors nevertheless heard a lot about that. For years, Daniels has said she consented to sex with Trump. But during her testimony on Tuesday, she cast doubt on that characterization, saying "I just think I blacked out," although she added that she was not "drunk" or "drugged." She also noted that "there was a bodyguard right outside the door" and said "there was an imbalance of power for sure," since Trump "was bigger and blocking the way," although she conceded that she "was not threatened verbally or physically."
When Blanche complained that Daniels had changed her story, Merchan disagreed. "I disagree with your narrative that there is any new account here," the judge said. "I disagree that there is any changing story." Yet Blanche's complaint is at least partially valid.
It's true that Daniels has mentioned the bodyguard, Keith Schiller, before. He figures prominently in the account she gave in her 2018 memoir Full Disclosure. In that book, she also mentions that Trump did not wear a condom—another detail that Blanche described as irrelevant and prejudicial.
"I was surprised he didn't even mention a condom," Daniels says in Full Disclosure. "I didn't have one with me anyway, because I wasn't meeting him for sex. If I had been, I always brought my own, because I am allergic to latex. Back then I used Avantis"—a brand of nonlatex condoms. While Daniels' testimony on that point was similar, it introduced an element of concern that is not mentioned in the book:
Prosecutor Susan Hoffinger: Was he wearing a condom?
Daniels: No.
Hoffinger: Was that concerning to you?
Daniels: Yes.
Hoffinger: Did you say anything about it?
Daniels: No.
Hoffinger: Why not?
Daniels: I didn't say anything at all.
That exchange, Blanche noted, came after Daniels' testimony that the men with whom she performed in adult films were always required to wear condoms. On Thursday, the defense described the discussion of condoms as "a dog whistle for rape." While that may be an exaggeration, Daniels' testimony that Trump's failure to use a condom worried her certainly reinforced the impression that Daniels was doing something she did not want to do.
Full Disclosure leaves a similar impression—up to a point. After a conversation in which Daniels felt that Trump was treating her respectfully and taking her seriously as a businesswoman, she says, she emerged from a bathroom where she had touched up her makeup to find Trump sitting on a bed in his underwear.
"I had the sense of a vacuum taking all of the air out of the room, and me deflating with it," Daniels writes. "I sighed inwardly, keenly aware of two thoughts in that one moment. There was the simple Oh, fuck. Here we go. But there was also a much more complex, sad feeling that none of what he said was true. He didn't respect me. Everything he said to me was bullshit."
Daniels says she "should have…let him know this wasn't okay." But she didn't. "So, here we go," she writes. "It was an out-of-body experience….I just kind of lay there. A lot of women have been there. He wasn't aggressive, and I know for damn sure I could have outrun him if I tried, but I didn't. I'm someone who doesn't stop thinking, so as he was on top of me I replayed the previous three hours to figure out how I could have avoided this."
In her book, Daniels describes brief, sad, regrettable, and unsatisfying sex, but she emphasizes that it was an experience she easily could have avoided. Although she never quite explains why she decided to go through with it, there is no suggestion that she was incapacitated. But in her testimony, she said "I blacked out," which she suggested explained why "I don't remember" exactly what happened. Blacking out is not the same as "an out-of-body experience," which involves feeling detached from your body while fully conscious.
"I was not drugged," Daniels said. "I never insinuated that I was on drugs. I was not drunk. I never said anything of that sort." In a sidebar discussion, defense attorney Susan Necheles nevertheless objected that "she is making it sound like she was drugged." Hoffinger suggested that Daniels merely meant that she was "dizzy," possibly because she was hungry for the dinner that was promised but never materialized—a point she emphasizes in her book and mentioned in her testimony.
Merchan sustained Necheles' objection. But that did not stop the jury from hearing Daniels imply that she was not fully aware of what was happening that night. Combined with Daniels' references to the bodyguard and the "imbalance of power," that description strongly suggested her consent was not only passive and unenthusiastic but the product of pressure and incapacity.
Daniels strengthened that impression by saying she could not "remember how your clothes got off." There was Trump in his underwear, she said, and "the next thing I know" she was "on the bed," naked. Hoffinger asked whether she "remember[ed] anything other than the fact that you had sex on the bed." Not really, Daniels implied: "I was staring at the ceiling. I didn't know how I got there. I made note, like I was trying to think about anything other than what was happening there." That also prompted an objection from Hoffinger, which Merchan sustained.
In Full Disclosure, by contrast, Daniels recounts the sex in considerable detail, calling Trump "a terrible kisser," quoting what he said to her, describing the position he used, recalling the size and "unusual" shape of his penis, and remarking on his crotch hair. While these are just the sort of details that the defense (and Merchan) would deem out of bounds, they contradict the idea that Daniels was just "staring at the ceiling," that she didn't know "how I got there," or that she was only dimly aware of "what was happening there."
What does all this have to do with Trump's alleged falsification of business records? "All of this has nothing to do with this case," Blanche told Merchan on Tuesday. "The only reason why the government asked those questions, aside from pure embarrassment, is to inflame this jury to not look at the evidence that matters." He noted that Daniels "has testified today about consent, about danger," which is "not the point of this case."
The prosecution argues that the details of Daniels' story matter because they rebut Trump's contention that she invented the whole episode, which in turn goes to his motivation in arranging her nondisclosure agreement and in trying to keep it a secret with phony invoices, mislabeled checks, and fraudulent ledger entries. "Her account completes the narrative of the events that precipitated the falsification of business records," Hoffinger told Merchan. "Her account is highly probative of the defendant's intent, his intent and his motive in paying this off, and making sure that the American public did not hear this before the election. It is precisely what the defendant did not want to become public."
Merchan agreed with Blanche that "there were some things that would probably have been better left unsaid." But he said the fault for that lay partly with Trump's attorneys. "The objections, for the most part, were sustained," he said. "Where there was a motion to strike testimony, for the most part, that motion was granted as well. I will also note that I was surprised that there were not more objections at various times during the testimony….So when you say that, you know, the bell has been rung, the defense has to take some responsibility for that."
Merchan was less patient on Thursday, when the defense again moved for a mistrial. "There were many times when you could have objected but didn't," he told Necheles. She objected when Daniels testified that she "touch[ed] his skin" and when she said "we were in the missionary position," for example, but did not object during the condom exchange, which Blanche later argued was prejudicial and irrelevant. Nor did Necheles object when Daniels described the "imbalance of power" or when she noted that Trump was "definitely several inches taller and much larger" than her. And Necheles' objection to "I just think I blacked out" came late, five sentences after Daniels said it.
Merchan also "chided Mr. Trump's lawyers for missteps during their cross-examination of Ms. Daniels," The New York Timesnotes, "and suggested that the former president's insistence on entirely denying any sexual encounter with Ms. Daniels had opened the door for the prosecution to introduce specific—and graphic—evidence that the encounter did occur." The judge conceded that some details of Daniels' testimony were so needlessly prejudicial that he would have sustained objections to them if the defense had made them. At the same time, he said Daniels could "corroborate her account" by describing details of the encounter because a truthful story "increases the motivation to silence her."
That rationale seems like a stretch, especially since the prosecution has argued that Trump was eager to suppress negative stories even when they were not true. According to testimony that prosecutors presented to establish that pattern, Cohen arranged for the National Enquirer to pay former Trump Tower doorman Dino Sajudin $30,000 for exclusive rights to his story, which alleged that Trump had fathered a child with a woman hired to clean the building. Although the Enquirer investigated that story and determined that it was not true, prosecutors say, Trump was still keen to stop Sajudin from telling it. That suggests Trump would have wanted to silence Daniels even if her story was equally fictitious, making all the quibbling about the details of that story irrelevant.
In December 2022, Reasonreported that both state and federal wildlife agents routinely trespass onto private land and plant cameras. Two Tennessee homeowners successfully sued the state over the practice, and a three-judge panel ruled in their favor. The state appealed the decision, and this week the court of appeals ruled in the homeowners' favor.
At issue is a state law allowing officers of the Tennessee Wildlife Resource Agency (TWRA) to "go upon any property, outside of buildings, posted or otherwise," in order to "enforce all laws relating to wildlife." In the case of Terry Rainwaters and Hunter Hollingsworth, TWRA officers not only entered their respective properties but also installed trail cameras to look for hunting violations, all without a warrant and ignoring "No Trespassing" signs. A lawsuit filed by the Institute for Justice (I.J.) on behalf of Rainwaters and Hollingsworth asked the court to declare the law unconstitutional and issue an injunction against the TWRA, barring it from carrying out any further unwarranted intrusions.
Under the "open-fields doctrine," Supreme Court precedent dating back to Prohibition holds that undeveloped land on someone's property lacks the same rigorous Fourth Amendment protections as their home and the "curtilage," the area immediately surrounding the home.
In March 2022, a three-judge panel from the Benton County Circuit Court ruled in the homeowners' favor, finding that the state constitution provided more protections than the Fourth Amendment. It determined that the state law allowing the TWRA practice created an "intolerable risk" of abuse and was "facially unconstitutional," but it stopped short of issuing an injunction. The state appealed the decision the following month.
In a hearing before the Tennessee Court of Appeals Western Section on June 20, 2023, I.J. attorney Josh Windham argued that the state law is unconstitutionally broad. "It allows TWRA officers to enter and roam around private land, fishing for evidence of crime," Windham said. "It doesn't require consent. It doesn't require warrants. It doesn't require probable cause….It's a blank check for officers to invade private land whenever and however they please."
Amanda Jordan argued for the Tennessee Attorney General's office that the statute was not unconstitutional and that the policy was necessary for the TWRA to do its job. She argued that "it's the particular purpose and function of the TWRA which makes such warrantless entry reasonable."
Judge Jeffrey Usman asked Jordan why, if the state would need a warrant in order to enter someone's property to look for criminal violations, it should not also need a warrant to do the same for civil violations of hunting laws. Jordan agreed that "while normal law enforcement officers would not be able to enter" without a warrant, "you have to look at the state's interest in furthering its duty of protecting and preserving" Tennessee's wildlife.
But Usman pressed further, asking whether the state has "an even stronger interest in protecting persons than wildlife." Further, he asked, "If you can't enter to investigate a crime being committed against a person…why is the interest greater to enter to protect wildlife?"
In a decision issued Thursday, the court of appeals ruled in favor of the property owners. The TWRA claimed that the homeowners' claims of injury were "speculative" as "TWRA agents have not entered the Plaintiffs' lands since September 2018." The court disagreed: Writing for a unanimous court, Usman noted in the decision,
Even if the TWRA has not entered the Plaintiffs' properties since 2018, it continues to assert its power to do so. The TWRA has asserted a continuing right to enter upon the Plaintiffs' properties. At oral argument, the TWRA suggested that if the Plaintiffs want to keep the TWRA off of their land in the future that they should desist in hunting.
"At the most foundational level," the court determined, "the statute is facially constitutional because there are applications of the statute that are constitutionally permissible," including "wild waste land areas." But in this specific scenario, where wildlife agents planted cameras on homeowners' land without ever even pursuing a warrant, the court found the TWRA's actions unconstitutional as applied.
"The TWRA's contention is a disturbing assertion of power on behalf of the government that stands contrary to the foundations of the search protections against arbitrary governmental intrusions in the American legal tradition, generally, and in Tennessee, specifically," Usman wrote. "What the TWRA claims is reasonable is not."
"Our entire theory of the case was vindicated by this decision," Windham tells Reason. "The part that goes against the trial court ruling [says] that the statute can be constitutionally applied to land where people haven't taken any steps to exert control or exert their privacy, which is a rule we don't particularly object to."
In 2021, Whittier, California, police arrested Victor Manuel Martinez Wario on an outstanding warrant related to a 2012 child molestation conviction. The only problem? Police had arrested the wrong person. However, despite Wario frequently telling police he didn't have any warrants out for his arrest, they didn't bother to check—leaving Wario imprisoned for five days.
Now, Wario is suing, claiming that police negligence amounted to a violation of his Fourth Amendment rights against unreasonable search and seizure. The officer's actions caused Wario to suffer "emotional and mental trauma," according to the suit. "He also missed time at work, and was unable to provide care to his disabled fiancée."
In March 2021, Wario was pulled over by several Whittier police officers for a minor traffic violation. During the stop, police mistakenly found that he had an active warrant out for his arrest. Even though Wario denied that he had any active warrants, he was still arrested and booked into a nearby jail.
According to the lawsuit, during the booking process, police told Wario that the warrant originated from Wario's failure to register as a sex offender and "check in with the probation department" after a 2012 conviction for child molestation. Wario again "adamantly told them that they had the wrong person," the complaint reads. But, again, no one decided to double-check that the police had arrested the correct person.
Two days later, Wario was transferred to another jail. This time, "he was assigned special housing for custodies with child molestation cases, given a specially colored jumpsuit indicating his status as a sex offender, and a wristband was placed on his wrist also showing that his case involved child molestation," the suit reads. "Because of his perceived status as a convicted child molester, Mr. Wario was in serious jeopardy of being attacked by fellow inmates."
That day, he was taken to be arraigned. During a brief discussion with his attorney, he again insisted that he was the wrong person. However, when the attorney relayed this to Judge Mary Lou Villar, she set a $30,000 bail and refused to release Wario.
"She ordered a fingerprints expert to appear in court the following week to take his fingerprints and verify his identity," the suit reads.
However, the following day, someone finally took basic measures to check Wario's claims. According to the suit, "the Deputy District Attorney assigned to the case obtained the booking photo of the actual defendant in the case and determined that it was not Mr. Wario."
It took another day for Wario to be released—five days after his arrest.
On Tuesday, Wario filed a lawsuit against the Whittier Police Department, claiming that his false arrest was a violation of his Fourth Amendment rights, arguing that police had no reasonable basis for arresting and jailing him.
"No reasonable conclusion could be drawn that such an arrest and confinement was reasonable," his suit reads. "No objective facts readily available and known to Defendants could have reasonably led them to conclude that Plaintiff was a fugitive from justice stemming from a 2012 child molestation case."
In February, police officer John Barton arrested Twyla Stallworth in Andalusia, Alabama, because she refused to give him her photo identification. The only problem? Barton had no legal basis to demand Stallworth fork over her I.D.
Stallworth's arrest is just the latest in a series of false arrests in Alabama that have stemmed from a misinterpretation of the state's 2006 "stop and identify law," which allows police, when they have reasonable suspicion that a crime is taking place, to demand individuals provide their name, address, and an explanation of their actions—but not their photo I.D.
It's not entirely clear how Barton ended up at Stallworth's home on February 23. A lawsuit filed by Stallworth earlier this month does not provide background on the incident, and video filmed by Stallworth's 18-year-old son Jermari starts after Barton had come to Stallworth's door. According to USA Today, Stallworth's lawyers say that the confrontation started when she called to complain about a neighbor's loud music.
However, even if Barton had some reason to believe Stallworth might have been committing a crime—something that is possible but seems unlikely given Stallworth was in her own home—he still wouldn't have been able to demand her I.D.
"Give me an I.D. or go to jail," Barton told Stallworth, who incredulously responded, "I'm going to jail for not providing my I.D."
In the video of the incident, Barton is seen pushing Jermari away and attempting to handcuff Stallworth.
"Don't push my son! What's wrong with you? You will not push my son!" Stallworth yelled.
A struggle ensued, during which Barton "physically assaulted Ms. Stallworth by shoving her down on a couch," according to the lawsuit.
After Stallworth had been arrested, video shows Jermari asking Barton to see the statute he claims Stallworth violated: "I actually want to see this law in play," he says.
The statute, which Barton pulled up on his phone, allows police to "stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions."
"I don't see where it says anything about an I.D.," Jermari says. "It says your name, address, and an explanation."
"She failed to identify," Barton replied.
"I mean it doesn't specifically, you know, say an I.D.," Jermari added before Barton cut in: "I know, but I'm not going to argue with you either."
Despite Stallworth's son pointing out the obvious—that Stallworth hadn't broken the Alabama identification law—she was still charged with "obstruction, resisting arrest, and eluding," according to the lawsuit. The charges have since been dropped.
On March 8, Mayor of Andalusia Earl Johnson issued a formal apology to Stallworth, saying, "I would like to apologize to Twyla Stallworth for her arrest in February. All charges against Ms. Stallworth are being dropped." Johnson noted that Barton "has been disciplined for failing in his duty to know the law."
This is far from the first time that Alabama cops have misinterpreted the state's "stop and identify" law, wrongfully arresting individuals for not forking over their photo identifications. A man who was watering his neighbor's plants was arrested after refusing to give an officer his I.D. in May 2022. Last October, a federal court refused to grant qualified immunity to police officers who arrested a mechanic who refused to provide a government I.D. in 2019.
"The police are free to ask questions, and the public is free to ignore them," wrote 11th Circuit Court of Appeals Judge Charles R. Wilson in that last case. "Any legal obligation to speak to the police and answer their questions arises as a matter of state law."
Several inmates in an Oklahoma prison say they were locked in filthy shower stalls, some as small as 2 feet by 2 feet,* for days on end. In a lawsuit filed last week, the inmates claim that this treatment caused "severe physical and emotional suffering," and was an obvious violation of their Eighth Amendment rights.
According to the suit, staff at the Great Plains Correctional Center locked several inmates in small shower stalls for extended periods, without access to basic amenities like adequate food and water. Most were placed in 3-foot by 3-foot shower cells, though at least one was confined in an even smaller space. Confinement periods listed in the suit ranged from 24 hours to four days.
The suit describes harrowing conditions for inmates held in the shower stalls. They allege they were placed in stalls filled with human feces and deprived of bathroom breaks. Additionally, several inmates say the only water they had access to was scalding hot shower water.
One prisoner confined in the shower stalls says he was repeatedly pepper sprayed during his detention in the ad hoc solitary cell. Another inmate claims that he was left without clothing, and had to borrow a shirt from an inmate in an adjoining stall—a shirt he later used to attempt suicide. That same inmate claims that he wasn't confined for any formal disciplinary infraction, but instead because guards knew that he was a sex offender.
"This systemic practice, akin to an unofficial custom, involved the use of shower stalls for extended confinement, often without even a bucket for defecating or any drinking water save scalding water from the shower," the suit reads. "The conditions were recognized by some members of the prison staff as violations of civil and human rights…some sympathetic staff members attempted to address these harsh conditions but faced internal conflict."
According to the suit, the state of Oklahoma launched an investigation into prisoner treatment at the facility in August 2023—around the same time as many of the alleged confinements. Shockingly, this investigation found that several different Oklahoma facilities regularly locked inmates in shower stalls.
While the state's investigation eventually led to the end of shower cell confinement, the suit argues that inmates are still owed unspecified damages.
"The Plaintiffs were subject to prolonged confinement in feces-laden shower cells, under conditions lacking basic amenities like restroom facilities, proper bedding, a space to sit or lie down, drinking water, as well as basic humane treatment, which amounted to cruel and unusual punishment," the suit reads. "Despite the obvious and egregious nature of these conditions, the Defendants showed deliberate indifference to the Plaintiffs' health, safety, and basic human rights."
*CORRECTION: This piece previously misstated the size of the shower stalls.
A San Marcos, Texas, couple would like to remove a reference to a Ku Klux Klan supporter from the front of their home, but the local historic preservation board has said no dice.
The reference in question is a large metal "Z" bolted to a wrought iron Juliette balcony on the front of Kristy Kay Money and Rolf Jacob Sraubhaar's house in San Marcos' Burleson Historic District.
That "Z" is the initial of the home's owner and builder, Frank Zimmerman, a prominent local businessman and owner of the city's downtown historic theater who served as San Marcos mayor from 1949 to 1951.
Zimmerman also has ties to the Ku Klux Klan. His theater hosted Ku Klux Klan days and screenings of Birth of a Nation.
Given this legacy, Money and Sraubhaar decided they wanted to remove the balcony and its large "Z" from the front of their home.
But because their home is in a historic district, although not a historic structure itself, the couple needed to get the sign-off of San Marcos' Historic Preservation Commission to alter its façade. In May 2023 the commission voted unanimously to deny their application to remove the balcony from the front of the house.
In response, Money and Sraubhaar sued San Marcos in federal court, arguing that the city's refusal to let them remove the balcony and initial is an uncompensated physical taking in violation of the Fifth and 14th Amendments and an unconstitutional exercise of police powers under the Texas Constitution.
"It's an occupation of property for a public benefit. It's for an alleged public purpose, in this case, the people on the design review board want to look at it. So, we think that's a taking," says Chance Weldon, a lawyer with the Texas Public Policy Foundation, which is representing the couple.
In response, San Marcos filed a motion to dismiss the case, primarily arguing that Money and Sraubhaar should first have to appeal their case to the city's Zoning Board of Adjustment before taking their case to court.
The U.S. District Court for the Western District of Texas Austin Division is currently considering the case.
"We think it's wholly un-American that if you want to change something to the aesthetic of your property, you have to get sign-off from a board of unelected bureaucrats based on what they think looks right," Weldon tells Reason.
A 78-year-old woman whose home was mistakenly raided by a Denver SWAT team will now receive a nearly $3.8 million payout. The large sum comes as a result of a 2020 Colorado law that banned qualified immunity protections for police officers in the state, making civil rights lawsuits against police significantly more likely to succeed.
On January 4th, 2022, Ruby Johnson, a retired postal worker, was sitting in her Denver home when she heard a police airhorn loudly commanding that she leave her home with her hands up. Johnson, who had recently showered and was only wearing a bathrobe, left her house to find a Denver SWAT team gathered outside her door.
The SWAT team had been sent to Johnson's home as part of an effort to recover a vehicle that had been stolen the previous day. According to Johnson's lawsuit, the stolen car had an iPhone inside, and the Find My app feature indicated that the phone was near Johnson's house.
While the police officers had obtained a warrant to search Johnson's home, they did so using an affidavit that allegedly provided "false characterization" of how reliable the Find My app is, overstating how sure the police could be that the iPhone—and the truck—would be at Johnson's house.
According to Johnson's lawsuit, after receiving this warrant, the SWAT team aggressively searched her home, causing considerable damage to her belongings. Making matters worse, even though Johnson gave police her garage door openerand told them how to enter the garage's front door, police used a battering ram to enter the garage, destroying the door and door frame. Ultimately, the SWAT team found no sign of the truck or any other criminal activity. The officers left and later told Johnson's children that the department wouldn't pay Johnson for the considerable damage caused to her home.
Johnson filed a lawsuit with the American Civil Liberties Union (ACLU) of Colorado in December 2022, alleging that the search was unlawful under the Colorado Constitution.
"Officers combed through Ms. Johnson's home for hours and found no evidence of anything even remotely connected to any criminal activity. The illegal search succeeded only in leaving the innocent Ms. Johnson traumatized," the complaint states. "Ms. Johnson's privacy, sense of safety, and peace in her home have been shattered since her house became the scene of a militarized criminal investigation. This illegal search has destroyed Ms. Johnson's sense of safety and security in the home that has been her castle for forty years."
On Monday, the ACLU of Colorado announced that Johnson had been awarded $3.76 million, including $1.26 million in compensatory damages and $2.5 million in punitive damages. In a press release, the ACLU largely credited the passage of a 2020 lawthat revoked police qualified immunity protections—which typically prevent law enforcement from being sued for Constitutional violations—for the victory.
"This is a small step toward justice for Ms. Johnson, but it is a critical case under our state's Constitution, for the first time affirming that police can be held accountable for invading someone's home without probable cause," Tim Macdonald, ACLU of Colorado Legal Director said on Monday. "The ACLU worked hard in the summer of 2020, with lots of other stakeholders, to create a right to sue for violations of the state Constitution."
For the price of $77 to $224,Pennsylvania residents can get a personalized license plate that "contain[s] a combination of up to seven letters and/or numbers," per the state's Department of Transportation (PennDOT).
That is unless your application for a vanity plate is among the 2,872 rejected over the years.
The department keeps a "Do Not Issue" list, effectively banning thousands of "unacceptable configurations"that they interpret as euphemisms, epithets, or obstructions to law enforcement.
These restrictions are backed by PennDot's loosely defined list of 16 criteria, which the department's staff strictly adheres to, using internet slang dictionaries to check if the acronyms pass.
To be fair, it's not the entire list that raises eyebrows. Restrictions on libel or slander—as well as text that meddles with the license plates' primary purpose "to provide a State-issued, visible, and unique alpha-numeric identification mark for display in a uniform manner"—make sense.
But then you have "words which inflict injury or tend to incite an immediate breach of the peace." What does that include, exactly? It includes what the department staff says it includes.
Also not allowed are acronyms that suggest sexual innuendo, like BLOWME, or contain profane or obscene intent, like DZZNUTZ. Don't even think about references to excretory functions.
Pennsylvania is far from the only state that has banned acronyms from vanity plates. New York doesn't allow NOTPOLCE or, for whatever reason, AY000000. Tennessee banned ILVTOFU back in 2014 for a vegan application. In 2017, Georgia banned Donald Trump's infamous COVFEFE gaffe. Kentucky said no to KARMA.
The examples don't end there; a list of banned personalized plates is commonplace across the U.S. But the constitutionality of the matter is not necessarily settled.
In 2015, a Texas nonprofit argued that displaying the Confederate flag on the organization's special license plate was their First Amendment right. In a 5-4 vote, the court disagreed.
"In our view, specialty license plates issued pursuant to Texas's statutory scheme convey government speech," former Justice Stephen Breyer wrote for the majority. "Were the Free Speech Clause interpreted otherwise, government would not work."
The dissent argued that most people do not recognize speech on a license plate as government policy. "The Court's decision passes off private speech as government speech," wrote Justice Samuel Alito, "and, in doing so, establishes a precedent that threatens private speech that government finds displeasing."
The Court's ruling, however, applied to special plates with names and logos, not personalized plates. There is thus no official ruling at a national level as to whether vanity plates are private or government speech. This leaves plenty of room for state officials to interpret the propriety of applications for approval, and even to rescind vanity plates to address complaints.
Without an official distinction, however, there have been many instances of successful lawsuits to reverse rejections, from striking down Kentucky's rejection of IM GOD to stopping California's crackdown against messages "offensive to good taste and decency."
Eugene Volokh, a professor of law at the University of California Los Angeles School of Law, wrote that lower courts, upon petition, have typically recognized the design of the plate as government speech, but not the text itself. But until there's an official distinction by the Supreme Court, rejected applicants who are upset can try suing. Otherwise, the next-best option is taking it up to the department.
And though PennDOT is willing to discuss rejections with applicants, they have a disclaimer: "PennDOT reserves the right to limit or reject certain requests."
Pennsylvania police officers have reached a settlement with a woman who says she underwent an unnecessary and humiliating strip-search after she was pulled over for a minor traffic violation.
According to a lawsuit filed in 2021, Holly Elish was traveling through Bentlyville, Pennsylvania, on her way home from work when she was pulled over by local police officer Brian Rousseau.
When Rousseau pulled Elish over, he quickly asked for consent to search her vehicle, which Elish denied. According to the lawsuit, Rousseau responded that "he had the right to search her vehicle." Soon after, a second police officer arrived on the scene. The two men again asked to search Elish's vehicle, telling her that even more officers would soon arrive.
"Fearing for her safety and knowing that the police did not have justification to search her vehicle yet were insistent and intimidating in attempting to do so, Ms. Elish allowed the vehicle search to occur under duress and coercion," the complaint states.
The officers searched Elish's car but found no sign of drugs, illegal weapons, or other contraband. However, that wasn't enough for the officers to let Elish go. A female police officer—unnamed in the suit—had arrived on the scene, and after having a brief conversation with the other officers began to strip-search Elish.
The officer "began the strip search by physically and visually inspecting Ms. Elish's breasts," according to the complaint. Elish then had "to remove her pants and underwear to her ankles and 'squat' to the ground, during which she bent down to the ground with one knee and performed a visual cavity inspection."
The complaint further states that the female police officer "began to put gloves on her hands stating to Ms. Elish, 'I'm sorry. This is the worst part of my job.'" However, the suit states that, just before physically searching Elish, she asked her "Do you know why they want me to do this?" Elish responded that she didn't know and that she was "simply on her way home from work to pick up her child."
Following this interaction, the female officer refused to search Elish. She was eventually allowed to leave, though Rousseau did later write Elish a citation for driving five miles per hour over the speed limit. That citation was dropped, though, when Rousseau failed to appear at the hearing.
Elish filed a lawsuit against the two male officers in November 2021. After a more than three-year legal battle, including a civil trial, a settlement was reached in the case, though the exact terms of the settlement have not yet been revealed.
"This warrantless search culminated in a minor traffic violation for driving five miles per hour over the posted speed limit, for which Ms. Elish was subsequently found not guilty," the complaint read. "As a direct and proximate cause of this search, Ms. Elish suffered mental anguish, embarrassment, and [humiliation]."
Fraudster George Santos is suing Jimmy Kimmel and the Walt Disney Company for fraud, demanding $750,000 in damages. The disgraced ex-Congressman is upset that Kimmel ordered Cameo videos from Santos using ridiculous scripts that Santos fell for and broadcast them on TV. — Read the rest
John Cheeks of Washington, D.C., is suing the Powerball lottery after a website error led him to believe he had won a massive $340 million jackpot, according to NPR. The issue began in January 2023 when Cheeks observed that the winning numbers listed on the DC Lottery website matched those of his ticket, which were based on his family's birthdates and other personal numbers. — Read the rest
Frozen embryos are "children" under Alabama law, the state's Supreme Court says. Its decision could have major implications for the future of fertility treatments in the state.
Frozen embryos are "unborn children" and "unborn children are 'children,'" Justice Jay Mitchell wrote in the court's main opinion. Only two of nine justices dissented from the holding that an 1872 wrongful death statute applies to the destruction of frozen embryos.
The ruling seems to represent a turn toward judicial activism among members of Alabama's Supreme Court, which for a long time held that the law's text could not justify reading it to include "unborn children"—let alone frozen embryos.
It also portends a creeping Christian conservatism into court decisions, with Alabama Supreme Court Justice Tom Parker citing the Bible in his legal reasoning. In a concurring opinion, Parker justifies prohibitions on murder not by invoking classical liberal principles, like natural rights, but rather on the basis of "Man's creation in God's image" and the "you shall not murder" edict of the Sixth Commandment. "Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself," Parker writes.
Embryos Destroyed
The decision stems from suits brought by former patients of the Center for Reproductive Medicine in Mobile, Alabama. These patients—couples James and Emily LePage, William and Caroline Fonde, and Felicia Burdick-Aysenne and Scott Aysenne—had used in vitro fertilization (IVF) to successfully have several children and still had some embryos stored in the Center's "cryogenic nursery." In December 2020, a patient at the Mobile Infirmary Medical Center (which the Center was a part of) entered the cryogenic nursery unauthorized and proceeded to remove and then drop some of their frozen embryos, destroying them.
The couples sued the fertility clinic and the hospital, citing Alabama's Wrongful Death of a Minor Act. This 1872 law lets parents sue for monetary damages "when the death of a minor child is caused by the wrongful act, omission, or negligence of any person."
The LePages and the Fondes brought a joint lawsuit, and a separate suit was filed by the Aysennes. Both suits alleged negligence and the Aysenne suit also alleged wantonness and breach-of-contract.
A trial court granted the Center's motion to dismiss all but the breach-of-contract claim. "The cryopreserved, in vitro embryos involved in this case do not fit within the definition of a 'person'" or "'child,'" the lower court held.
The three couples appealed, and their suits were consolidated for Supreme Court purposes.
No Exceptions for "Extrauterine Children"
In a first-of-its-kind decision, the Alabama Supreme Court decided that frozen embryos are, indeed, children, rejecting the lower court's dismissal of the couples' wrongful death claims.
In the court's main opinion, Justice Jay Mitchell referred to frozen embryos in turn as "embryonic children" and "extrauterine children."
While the state's Wrongful Death of a Minor statute doesn't explicitly include "unborn children"—let alone "extrauterine children"—in its purview, "the ordinary meaning of 'child' includes children who have not yet been born," asserted Mitchell.
Furthermore, Alabama's Supreme Court "has long held that unborn children are 'children' for purposes of Alabama's that law," he wrote. The central question in this case, said Mitchell, is "whether the Act contains an unwritten exception to that rule for extrauterine children—that is, unborn children who are located outside of a biological uterus at the time they are killed."
The couples in this case raised some truly ridiculous arguments for why such an "exception" shouldn't exist. They argued that a finding that the Wrongful Death of a Minor Act doesn't apply to unborn children (including frozen embryos) would mean partial-birth abortions are legal, since the baby would no longer be in utero but would also not be fully born. They also suggested it would OK murdering hypothetical toddlers entirely gestated in artificial wombs, since such children—no matter how old they got—would not technically have been born.
Amazingly, the majority lent credence to these crazy arguments. They are "weighty concerns," wrote Mitchell, albeit ones that needn't be resolved at this time since "neither the text of the Wrongful Death of a Minor Act nor this Court's precedents exclude extrauterine children from the Act's coverage."
Dissent, Dissent, Dissent
Not all of the justices agreed with the majority's logic, and some offered quite scathing rebukes of it.
For instance, Justice Brady E. Mendheim—who concurred with the result of the main opinion but disagreed with some of its reasoning—doesn't think that it's so clear cut that "child" includes frozen embryos. For one thing, the wrongful death statute in question was written a century before IVF was even a scientific possibility. Furthermore, other parts of Alabama law, including the 2019 Human Life Protection Act, explicitly define an unborn child as a human being in utero.
Justice Will Sellers also rejected the idea that this is an easy and obvious call. "Any sequence of linguistic gymnastics, cannot yield the conclusion that embryos developed through in vitro fertilization were intended by the legislature to be included in the definition of 'person,' much less the definition of 'minor child,'" he wrote. Rather, the inclusion of in utero children in certain statutes was there to allow for punishment of violence perpetrated against pregnant women. "To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain," Sellers added.
Meanwhile, Justice Greg Cook—who dissented in full from the main opinion—rejects the idea that the 1872 law meant to include fetuses and zygotes in its definition of children, even when they are in utero.
The main opinion suggested that the "leading dictionary of that time defined the word 'child' as 'the immediate progeny of parents' and indicated that this term encompassed children in the womb," notes Cook. But if you look at the full entry in the cited dictionary, it indicates the opposite, saying "the term is applied to infants from their birth."
Furthermore, interpreting the Wrongful Death Act to include unborn children is a recent phenomenon. "There is no doubt that the common law [in 1872] did not consider an unborn infant to be a child capable of being killed for the purpose of civil liability or criminal-homicide liability," wrote Cook. "In fact, for 100 years after the passage of the Wrongful Death Act, our caselaw did not allow a claim for the death of an unborn infant, confirming that the common law in 1872 did not recognize that an unborn infant (much less a frozen embryo) was a 'minor child' who could be killed."
Thus, applying the wrongful death act to the loss of frozen embryos runs counter to the philosophy of originalism (the idea, common among libertarians and conservatives, that laws should be interpreted only as they were originally intended) and closer to the progressive idea of a malleable "living Constitution," suggests Cook. And he's not a fan. "It is not our role to expand the reach of a statute and "breathe life" into it by updating or amending it," Cook writes. If the legislature thinks the law needs expanding, it can do so.
Cook and Mendheim both object to characterizing the defense's position as seeking an "exception" for frozen embryos, because to declare it an exception to the state's protection of minor children assumes that embryos are minor children—a point that's far from a given. And they both pan the tacit acceptance of the out-there hypotheticals offered by the patients.
"The main opinion ignores the fact that it is not now—or for the foreseeable future—scientifically possible to develop a child in an artificial womb so that such a scenario could somehow unfold," writes Mendheim. Should that become possible, "the answer to this futuristic hypothetical is simple," writes Cook: "the Legislature can address future technologies and can do so far better than this Court."
Bibles and Broad Reach
Pointing out that no other state has interpreted wrongful death laws this way—and a number have specifically rejected it—Cook suggests that being "the sole outlier" should "cause us to carefully reexamine our conclusions."
He concludes the decision could end IVF in Alabama, since "no rational medical provider would continue to provide services for creating and maintaining frozen embryos knowing that they must continue to maintain such frozen embryos forever or risk the penalty of a Wrongful Death Act claim for punitive damages."
This fear was echoed by the defendants in this case, who told the court a finding that the statute includes frozen embryos could make IVF prohibitively expensive.
Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, called the court's decision "terrifying" for people "who need in-vitro fertilization to build their families."
Chief Justice Parker's opinion suggests that their fears are not unfounded.
His opinion is chilling in the way is showcases the theocratic underpinnings on which he sees Alabama governance resting. Pointing to a 2018 amendment declaring it "the public policy of this state to recognize and support the sanctity of unborn life," he notes that the term sanctity can be defined as "holiness of life and character," godliness, and "the quality or state of being holy or sacred." He goes on to cite the King James Bible, noting that in Genesis man's creation was described as being "in the image of God." Its on these foundations that the legal treatment of frozen embryos should rest, he suggests.
According to Parker, this would not mean the end of IVF in Alabama. But it could mean changes that would seriously upend the IVF process.
In IVF, the process of preparing the body for ovulation and harvesting eggs can be extremely taxing on women's bodies, as well as time-consuming and expensive. After this, not all of the eggs collected may be successfully fertilized. And when viable embryos are created, it may take multiple tries at transferring one into a woman's body before implantation is successful. For all of these reasons, it makes sense for doctors to collect myriad eggs at one time, fertilize these eggs, and then freeze the viable embryos for later transfer, rather than harvesting eggs and creating a single new embryo for each transfer. (This also helps people who may want to create embryos when they are younger to use when they are somewhat older, or who may face illness that will impede their future fertility.) And to maximize the chances of success, doctors sometimes transfer two or more embryos at once.
Treating embryos as having the full legal rights of children could imperil all of these practices.
In Italy, "cryopreservation of embryos" is banned "except when a bona fide health risk or force majeure prevented the embryos from being transferred immediately after their creation," writes Parker. He also points approvingly to countries with other stringent regulations, such as a rule limiting the number of embryos that can be transferred at a time.
"These regulations adopted by other countries seem much more likely to comport with upholding the sanctity of life," Parker concludes, writing that "certain changes to the IVF industry's current creation and handling of embryos in Alabama will result from this decision."
Even if the ruling doesn't end IVF in Alabama, it could pave the way for changes that make fertility treatments more difficult, time-consuming, expensive, and impractical.
The day after The New York Times sued OpenAI for copyright infringement, the author and systems architect Daniel Jeffries wrote an essay-length tweet arguing that the Times “has a near zero probability of winning” its lawsuit. As we write this, it has been retweeted 288 times and received 885,000 views.
“Trying to get everyone to license training data is not going to work because that's not what copyright is about,” Jeffries wrote. “Copyright law is about preventing people from producing exact copies or near exact copies of content and posting it for commercial gain. Period. Anyone who tells you otherwise is lying or simply does not understand how copyright works.”
This article is written by two authors. One of us is a journalist who has been on the copyright beat for nearly 20 years. The other is a law professor who has taught dozens of courses on IP and Internet law. We’re pretty sure we understand how copyright works. And we’re here to warn the AI community that it needs to take these lawsuits seriously.
Every year, thousands of New York City families are subjected to invasive home searches as part of child abuse and neglect investigations. While less than 7 percent of these investigations lead the agency to file claims of abuse or neglect, a new lawsuit alleges that the city's Administration for Children's Services (ACS) workers often make misleading—or outright false—threats to coerce parents to allow ACS to conduct warrantless searches of their homes.
According to the lawsuit, which was filed on Tuesday, ACS employs a widespread policy of coercing families under investigation to allow case workers into their homes. ACS workers allegedly often tell families that they "must" or "have to" let them search their homes, insist that they do not need a warrant for the search, and even threaten to take noncompliant parents' children away.
Even though ACS workers are technically legally required to obtain a warrant to search homes, the agency very rarely seeks them. According to the suit, of the almost 53,000 investigations conducted by ACS in 2023, it only sought 222 court orders to search families' homes.
"Even assuming ACS completed only one home search during each investigation (it typically conducts several), ACS sought court orders for just 0.4% of home entries," the suit states. "This means over 99.5% of home searches that ACS conducts are 'presumptively unreasonable' under the Fourth Amendment."
Once inside a family's home, the suit claims that ACS workers engage in incredibly invasive tactics, looking "inside medicine cabinets, under beds, in closets and dresser drawers, in the refrigerator, and in cupboards." Even more troubling, strip searches of children are common, with workers demanding that children lift up their shirts or pull down their pants. Over the course of an investigation—the average length is 60 days—families are typically subjected to these searches more than once.
The agency itself seems self-aware about the impact of these coercive techniques. According to one 2020 report by the National Innovation Service, ACS policy "incentivizes [staff] to be invasive and not tell parents their rights." The report noted how "the experience of an investigation, even when an allegation is ultimately determined to be unfounded, too often traumatizes parents and children."
Further, agency leadership has also acknowledged that many reports of child abuse and neglect are completely unfounded, as individuals are allowed to make anonymous reports. A 2023 letter from the New York City Bar went so far as to state that a "significant percentage of" child abuse hotline callers "make false reports, for the purpose of harassment."
In all, the suit argues that ACS' policy of using coercive tactics to enter families' homes without a warrant constitutes a violation of their Fourth Amendment rights, arguing that the agency's "failure to adequately train or supervise ACS caseworkers regarding the protection of parents' Fourth Amendment rights" has directly led ACS workers to use manipulative, false tactics to persuade families to allow them to "conduct warrantless, non-exigent searches of Plaintiffs' and class members' homes."
Is it a crime to learn something by reading a copyrighted book? What if you later summarize that book to a friend or write a description of it online? Of course, these things are perfectly legal when a person does them. But does that change when it's an artificial intelligence system doing the reading, learning, and summarizing?
Sarah Silverman, comedian and author of the book The Bedwetter, seems to think it does. She and several other authors are suing OpenAI, the tech company behind the popular AI chatbot ChatGPT, through which users submit text prompts and receive back AI-generated answers.
Last week, a federal judge largely rejected their claims.
The ruling is certainly good news for OpenAI and for ChatGPT users. It's also good news for the future of AI technology more broadly. AI tools could be completely hamstrung by the expansive vision of copyright law that Silverman and the other authors in this case envision.
The Authors' Complaints and OpenAI's Response
Teaching AI to communicate and "think" like a human takes a lot of text. To this end, OpenAI used a massive dataset of books to train the language models that power its artificial intelligence. ("It is the volume of text used, more than any particular selection of text, that really matters," OpenAI explained in its motion to dismiss.)
Silverman and the others say this violates federal copyright law.
Authors Paul Tremblay and Mona Awad filed a class-action complaint to this effect against OpenAI last June. Silverman and authors Christopher Golden and Richard Kadrey filed a class-action complaint against OpenAI in July. The threesome also filed a similar lawsuit against Meta. In all three cases, the lead lawyer was antitrust attorney Joseph Saveri.
"As with all too many class action lawyers, the goal is generally enriching the class action lawyers, rather than actually stopping any actual wrong," suggestedTechdirt Editor in Chief Mike Masnick when the suits were first filed. "Saveri is not a copyright expert, and the lawsuits…show that. There are a ton of assumptions about how Saveri seems to think copyright law works, which is entirely inconsistent with how it actually works."
In both complaints against OpenAI, Saveri claims that copyrighted works—including books by the authors in this suit—"were copied by OpenAI without consent, without credit, and without compensation."
This is a really weird way to characterize how AI training datasets work. Yes, the AI tools "read" the works in question in order to learn, but they don't need to copy the works in question. It's also a weird understanding of copyright infringement—akin to arguing that someone reading a book in order to learn about a subject for a presentation is infringing on the work or that search engines are infringing when they scan webpages to index them.
The authors in these cases also object to ChatGPT spitting out summaries of their books, among other things. "When ChatGPT was prompted to summarize books written by each of the Plaintiffs, it generated very accurate summaries," states the Silverman et al. complaint.
Again, putting this in any other context shows how silly it is. Are book reviewers infringing on the copyrights of the books they review? Is someone who reads a book and tweets about the plot violating copyright law?
It would be different if ChatGPT reproduced copies of books in their entirety or spit out large, verbatim passages from them. But the activity the authors allege in their complaints is not that.
The copyright claims in this case "misconceive the scope of copyright, failing to take into account the limitations and exceptions (including fair use) that properly leave room for innovations like the large language models now at the forefront of artificial intelligence," OpenAI argued in its motion to dismiss some of the claims.
It suggested that the doctrine of fair use—designed in recognition of the fact "that the use of copyrighted materials by innovators in transformative ways does not violate copyright"—applies in this case and the case of "countless artificial intelligence products [that] have been developed by a wide array of technology companies."
The Court Weighs In
The authors prevailing here could seriously hamper the creation of AI language learning models. Fortunately, the court isn't buying a lot of their arguments. In a February 12 ruling, Judge Araceli Martínez-Olguín of the U.S. District Court for the Northern District of California dismissed most of the authors' claims against OpenAI.
This included the claims that OpenAI engaged in "vicarious copyright infringement," that it violated the Digital Millennium Copyright Act (DMCA), and that it was guilty of negligence and unjust enrichment. The judge also partially rejected a claim of unfair competition under California law while allowing the authors to proceed with that claim in part (largely because California's understanding of "unfair competition" here is so broad).
Silverman and the other authors in these cases "have not alleged that the ChatGPT outputs contain direct copies of the copyrighted books," Martínez-Olguín noted. And they "fail to explain what the outputs entail or allege that any particular output is substantially similar – or similar at all — to their books."
The judge also rejected the idea that OpenAI removed or altered copyright management information (as prohibited by Section 1202(b) of the DMCA). "Plaintiffs provide no facts supporting this assertion," wrote Martínez-Olguín. "Indeed, the Complaints include excerpts of ChatGPT outputs that include multiple references to [the authors'] names."
And if OpenAI didn't violate the DMCA, then other claims based on that alleged violation—like that OpenAI distributed works with copyright management information removed or engaged in unlawful or fraudulent business practices—fail too.
More AI/Copyright Battles To Come
This isn't the end of the authors vs. OpenAI debate. The judge did not yet rule on their direct copyright infringement claim because OpenAI did not seek yet to dismiss it. (The company said it will try to resolve that later in the case.)
The judge also will allow the parties to file an amended complaint if they want to.
Given the lameness of their legal arguments, and the judge's dismissal of some of the claims, "it's difficult to see how any of the cases will survive," writes Masnick. (See his post for a more detailed look at the claims involved here and why a judge dismissed them.)
Unfortunately, we're almost certain to keep seeing people sue AI companies—language models, image generators, etc.—on dubious grounds, because America is in the midst of a growing AI tech panic. And every time a new tech panic takes hold, we see people trying to make money and/or a name for themselves by flinging a bunch of flimsy accusations in lawsuit form. We've seen this with social media companies and Section 230, social media and alleged mental health harms to teens, all sorts of popular tech companies and antitrust law.
Now that artificial intelligence is the darling of tech exuberance and hysteria alike, a lot of folks—from bureaucrats at the Federal Trade Commission to enterprising lawyers to all sorts of traditional media creators and purveyors—are seeking to extract money for themselves from these technologies.
"I understand why media companies don't like people training on their documents, but believe that just as humans are allowed to read documents on the open internet, learn from them, and synthesize brand new ideas, AI should be allowed to do so too," commented Andrew Ng, co-founder of Coursera and an adjunct professor at Stanford. "I would like to see training on the public internet covered under fair use—society will be better off this way—though whether it actually is will ultimately be up to legislators and the courts."
Unlike many people who write about technology, I don't foresee major disruptions, good or bad, coming from AI anytime soon. But there are many smaller benefits and efficiencies that AI can bring us—if we can keep people from hampering its development with a maximalist reading of copyright law.
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