"We Need to Go Deeper": Diving Into an Alternate Universe of Supreme Court Criticism

Today, the Supreme Court decided Burwell v. Hobby Lobby Stores. Tom Goldstein (quoted at Legal Theory Blog) concisely summarizes the holding: "Closely held corporations cannot be required to provide contraception coverage."

A great deal of commentary on the case (much of it critical) has already been written. Since I have only a passing knowledge of the case and the law it involves, I will not attempt to explore the merits of the case (although Eugene Volokh has an approachable summary of the ruling here).

Instead, I would like to explore an alternate universe of criticism that the case has inspired. As the Wall Street Journal Law Blog reports here, many people who were upset by the Court's ruling took to Twitter to criticize the Supreme Court. But since the Supreme Court does not have an official Twitter account, critics instead began targeting SCOTUSBlog, a privately-run legal blog that provides exemplary coverage of Supreme Court cases.

Rather than inform critics that it is unaffiliated with the Supreme Court, SCOTUSBlog instead took to responding to critics' tweets as though it were the Supreme Court. Josh Blackman has a collection of some of the earlier responses here. Here are some of the more recent tweets:

(warmer) RT @ktcapes: How is @SCOTUSblog a verified account? There’s no way actual SCOTUS administrative staff are writing these tweets. Lol
— SCOTUSblog (@SCOTUSblog) June 30, 2014

We see what u did there, lulz RT @phylisajoy: #HobbyLobby AND #bufferzone @SCOTUSblog ruling suck so hard. LET FREEDOM nuvaRING!
— SCOTUSblog (@SCOTUSblog) June 30, 2014

Needed a place to put it MT @TheResPublicaBK: Today is the day @SCOTUSblog allowed religion to be above the law. Congratulations
— SCOTUSblog (@SCOTUSblog) June 30, 2014

TL/DR MT @JoshMPlant Shame on you @SCOTUSblog! The highest court in the land, and you rule with your Christian C@cks. F@ck you.
— SCOTUSblog (@SCOTUSblog) June 30, 2014

So far we have a real blog pretending to be the Supreme Court responding to overly-hasty critics who believe the blog is the Court.

Now things get weirder:

Ten Theories of What Noel Canning was About

Last week, the Supreme Court decided National Labor Relations Board v. Noel Canning (formerly known as National Labor Relations Board v. Canning). If you read any legal blogs or news sources, you've probably heard about the case (For coverage reacting to the opinion, see here, here, here, here, here, here, here, here, here, here, here, here, here, and here. For commentary from before the opinion was released, see here, here, here, here, here, here, here, here, here, and here.)

Some people have told me that the Court struck down several presidential appointments because they were made during shorter, intra-session recesses of the Senate, rather than during recesses between sessions. But to me, that seems to be too dull and narrow of an issue to warrant the intensive coverage this case has received. 

To try to account for this case's prominence, here are some of my theories of what the Court really decided in Noel Canning. If your friends ask you what the case was about and you don't want to bore them, feel free to use any or all of these answers.

• Whether Obama can run for a third term as President.
• Whether Congress has the authority under the Commerce Clause to abolish the Rule Against Perpetuities
• Whether Ted Cruz is a natural-born citizen.
• Whether the Department of Education can unilaterally require all public high school students to read Thomas Piketty's Capital in the Twenty-First Century before graduating.
• Whether Marlins fans' intentional infliction of emotional distress lawsuits arising form another fan's extreme and outrageous dance moves are barred by the "baseball rule."
• Whether Justin Bieber should be deported.
• Whether any or all members of the House and Senate leadership are guilty of battery as a result of offensive touching.
• Whether the presence of hipsters on a jury violates the Sixth Amendment.
• Whether John Boehner has standing to sue President Obama.
• Whether courts violate the Second Amendment when they classify firing Howitzers as an abnormally dangerous activity for which defendants are strictly liable.

I'm Now Writing for Techlawgic

Check out my first post over at Techlawgic where I argue for strict liability for drone torts! In that post, I expand on some of my earlier discussion of the issue that I posted last October. After learning more and more about the dumb things people can do with drones, I've grown to favor a legal approach that will hold people liable for harm they cause with drones, even if they claim they operated the drones safely.

My posts on Techlawgic (and on this blog) might not be very frequent this month, since I will be taking the bar exam at the end of July, but I hope to write a few more posts as time permits.

Ramsey on Baude on Posner on Kerr on Riley

Michael Ramsey is here, Will Baude is here, Judge Richard Posner is here, Orin Kerr (quoted in Adam Liptak's New York Times article) is here, and the Supreme Court's opinion in United States v. Riley is here.

This impressive chain of discussion stems from Posner's interestingly snarky criticism of Kerr which I blogged about here. Baude takes Posner to task for claiming that his opinion in United States v. Flores-Lopez was "almost identical" to the Supreme Court's opinion, pointing out that the Court in Riley deviated from Posner's opinion in several notable respects.

But beyond pointing out this other issue with Posner's criticism, my main reason for this post is to continue the chain of people commenting on Riley. I can only hope that somebody cites and discusses this post in order to keep the chain of commentary going.

The Guardian on Robots Replacing Lawyers

From Josh Blackman's Blog, I learned about this article in The Guardian which contemplates the rise of technology and automation in advanced professions, including the practice of medicine and law.

From the article:

"What I often say is that the future of law is not Rumpole of the Bailey, and it's not John Grisham," explains ["legal futurist," Professor Richard] Susskind. "It's not a version of what we have today slightly tweaked. It will be people working in the legal sector but offering legal services and legal help in new ways." It may be the end of the profession as immortalised in courtroom dramas, but as software eats the old jobs it will have to create new ones too. 

. . . 

Five years ago, entrepreneur Charley Moore founded online legal services provider Rocket Lawyer. It now boasts 30 million users. Subscribers pay a monthly fee for instant access to pre‑prepared documents and tutorials, as well as online legal advice from experts at participating firms. The work lawyers on the network do has already begun to resemble the streamlined, one-to-many roles Susskind predicted. 

Moore is optimistic about the revolution computerisation has unleashed in his sector. "I don't think of [software] as consuming the industry, as much as I think of it as supporting the industry. So with software, certainly there are mundane, routine tasks that will become more efficient, but by making those tasks more efficient, lawyers will be able to move up in the food chain and serve millions more legal transactions than they currently can."

I have written previously about whether lawyers could replace robots when it comes to the job of writing motions. I think that machines would not be capable of writing persuasive arguments or statements of fact in legal briefs. But I think that machines could excel at certain aspects of the legal process. Machines may be better than attorneys or judges in the sentencing context, since a failure to state components of a sentence in a ruling may end up invalidating that portion of the sentence. And machines could probably write the procedural history section of briefs due to the formulaic and tedious nature of this particular type of legal writing.

One may reply that good human writers can turn procedural history into an entertaining affair. Consider, for example, the beginning of Justice Roberts' opinion in Stern v. Marshall:

This "suit has, in course of time, become so complicated, that ... no two ... lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it;" and, sadly, the original parties "have died out of it." A "long procession of [judges] has come in and gone out" during that time, and still the suit "drags its weary length before the Court."

Those words were not written about this case, see C. Dickens, Bleak House, in 1 Works of Charles Dickens 4-5 (1891), but they could have been. This is the second time we have had occasion to weigh in on this long-running dispute between Vickie Lynn Marshall and E. Pierce Marshall over the fortune of J. Howard Marshall II, a man believed to have been one of the richest people in Texas. The Marshalls' litigation has worked its way through state and federal courts in Louisiana, Texas, and California, and two of those courts—a Texas state probate court and the Bankruptcy Court for the Central District of California—have reached contrary decisions on its merits. The Court of Appeals below held that the Texas state decision controlled, after concluding that the Bankruptcy Court lacked the authority to enter final judgment on a counterclaim that Vickie brought against Pierce in her bankruptcy proceeding.[1] To determine whether the Court of Appeals was correct in that regard, we must resolve two issues: (1) whether the Bankruptcy Court had the statutory authority under 28 U.S.C. § 157(b) to issue a final judgment on Vickie's counterclaim; and (2) if so, whether conferring that authority on the Bankruptcy Court is constitutional.

Justice Roberts certainly shows us a nice way to lighten up discussion of complicated procedural history. But the proponent of robot-writers could argue that a computer could achieve a similar result. For instance, a programmer could simply add a layer of code providing that if the computer's rendition of a case's procedural history is a certain number of lines or longer, then the computer should insert a pre-programmed, quoted selection from the first chapter Bleak House before the statement of procedural history.

Will robots replace lawyers? In some areas of the law, probably not. But I would not be surprised if the passage of time and the resilience of ingenuity eventually produced machines that could outperform humans in some of the more mechanical areas of the legal process.

Richard Posner Gets Sassy; Scholars Bemused

Over at Slate, Judge Richard Posner writes about the Supreme Court's opinion in Riley v. California, where the Court held that police need a warrant before they can search a cell phone incident to arrest. Posner makes some interesting points about the history of the Fourth Amendment. But his discussion begins on an odd note:

The second case I want to discuss is Wednesday’s decision in Riley v. California, the cellphone case. The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

I noticed a citation in the court’s opinion to a case from my court, United States v. Lopez-Flores, the name of which rang a bell. It was an opinion of mine issued in 2012, and when I reread it I realized it is almost identical to the Supreme Court’s opinion.

Posner is laying on some pretty heavy snark in the first paragraph, and it only escalates as the second paragraph begins. Orin Kerr, the professor quoted by Adam Liptak in the article Posner references, seems to think that the commentary may be a bit off the mark. He notes on Twitter, ":) In the context of the conversation w/Liptak, there was an implied limitation of 'at the Supreme Court.'"

That's it for the cute part of this post. Now, I'd like to say a little bit more about the legal substance of Posner's commentary.

ABA Ethics Committee: Lawyers May Look at Jurors' Social Media Pages

The Washington Post reports:

Lawyers are now allowed to look at the “Internet presence” of a juror or a potential juror, according to the American Bar Association’s committee on ethics and responsibility. Your likes and your faves are now up for review when you are being considered for jury duty or even when you’re already part of a jury. The ABA committee announced its decision in a formal opinion issued in April, noting that in the modern world, “the line … between properly investigating jurors and improperly communicating with them” is blurred. The same is true of what separates our selves from our avatars.

. . .

The determination: Lawyers cannot send a Facebook friend request or, say, ask to follow a private Twitter or Instagram account. Lawyers canpassively review a juror’s social media postings, with idly checking a person’s public Twitter page no different than driving down a person’s street to see if anything jumps out, the ABA says. But actively reviewing a person’s social media life — say, sending a friend request, which is compared by the ABA to driving to a person’s home, knocking on the door and asking for permission to snoop around — that’s a no-no. (Judges, meanwhile, are advised to tell jurors that their backgrounds — Internet presence and all — may be investigated by the lawyers in the case.)

The full text of that formal opinion, which was released in April 2014, is available here.

This seems to be a sensible decision, although I am surprised that it has taken so long for an opinion like this to be released. Attorneys would do well to know the inclinations of potential jurors, and opinions that jurors are willing to share on publicly accessible Facebook or Twitter pages should be fair game for attorneys who want to know which of the jurors are more likely to be impartial.

While this decision makes learning about jurors less of an ethical gray area for lawyers, the decision notes that with great power, comes great responsibility. Lawyers who look over the social media pages of jurors may have an obligation to report juror misconduct to the court. From the opinion:

By passively viewing juror Internet presence, a lawyer may become aware of a juror’s conduct that is criminal or fraudulent, in which case, Model Rule 3.3(b) requires the lawyer to take remedial measures including, if necessary, reporting the matter to the court. But the lawyer may also become aware of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, and Rule 3.3(b) does not prescribe what the lawyer must do in that situation. While considerations of questions of law are outside the scope of the Committee’s authority, applicable law might treat such juror activity as conduct that triggers a lawyer’s duty to take remedial action including, if necessary, reporting the juror’s conduct to the court under current Model Rule 3.3(b).

It is good to know that lawyers have the ABA's blessing to look over jurors' publicly available social media information. Hopefully this information does not get out to too many potential jurors, however, since those who are less inclined towards jury duty may begin publishing "strategically-worded" posts in order to prompt lawyers to challenge them.

"Being Injured by Sluggerrr’s Hotdog Toss is Not a Risk Inherent in Watching Royals Baseball"

So holds the Missouri Supreme Court. Back in 2009, John Coomer was injured by a flying hot dog thrown by the Kansas City Royals mascot, Sluggerrr. Yesterday, the Missouri Supreme Court overturned the trial court's dismissal of Coomer's lawsuit and held that Coomer can sue the team for negligence. The full opinion of the court is available here, and the Kansas City Star's report on the ruling is available here (H/T: Howard Bashman's How Appealing)

I blogged about this case last November, where I noted that this case presented the question of whether the Coomer's injury resulted from a risk inherent in watching a baseball game. Under the "baseball rule," courts hold that fans who are injured by stray baseballs or bat fragments have assumed the risk of these injuries by attending the game, since foul balls and flying bats are an unavoidable risk of the game. Because fans assume the risk, they cannot sue the team for negligence.

Here are some excerpts of the Court's analysis on why the baseball rule does not Coomer's lawsuit. It's a long quote, but I think its approachable language and no-nonsense treatment of the baseball rule makes it worth posting:

The Royals admit that, “[s]trictly speaking, this is not a baseball rule case” because Coomer does not claim he was injured by a foul ball or loose bat. But, because it claims the Hotdog Launch is a “common sense” activity, the Royals contend that the same implied primary assumption of the risk rationale should apply and bar all recovery by Coomer. According to the Royals, the risk to a spectator of being injured by Sluggerrr’s hotdog toss shares the same essential characteristics as the other risks that this Court (and many others) determined long ago were inherent in watching a baseball gamein person, i.e., risks that a spectator will be injured by a flying ball or bat. The Court disagrees.


The rationale for barring recovery for injuries from risks that are inherent in watching a particular sport under implied primary assumption of the risk is that the defendant team owner cannot remove such risks without materially altering either the sport that the spectators come to see or the spectator’s enjoyment of it. No such argument applies to Sluggerrr’s hotdog toss. Millions of fans have watched the Royals (and its forebears in professional baseball) play the National Pastime for the better part of a century before Sluggerrr began tossing hotdogs, and millions more people watch professional baseball every year in stadiums all across this country without the benefit of such antics.

. . .


The Hotdog Launch is not an inherent part of the game; it is what the Royals do to entertain baseball fans when there is no game for them to watch. Sluggerrr may make breaks in the game more fun, but Coomer and his 12,000 rain-soaked fellow spectators were not there to watch Sluggerrr toss hotdogs; they were there to watch the Royals play baseball.

. . .

Accordingly, the Court holds as a matter of law that the risk of injury from Sluggerrr’s hotdog toss is not one of the risks inherent in watching the Royals play baseball that Coomer assumed merely by attending a game at Kauffman Stadium. This risk can be increased, decreased or eliminated altogether with no impact on the game or the spectators’ enjoyment of it. As a result, Sluggerrr (and, therefore, the Royals) owe the fans a duty to use reasonable care in conducting the Hotdog Launch and can be held liable for damages caused by a breach of that duty.

As I predicted in my earlier post on the case, the Court relied on Lowe v. California League of Professional Baseball to conclude that the risk Coomer faced was not a risk inherent to the sport of baseball. The Court acknowledged that flying balls and bat fragments are unavoidable risks fans face at a baseball game. And hot dogs have been associated with the game for time immemorial. But combining these two essential features of baseball creates a risk that fans do not assume.

Riley v. California: Police Need a Warrant to Search a Cell Phone Incident to Arrest

The Supreme Court ruled today that police need to get a warrant before searching the cell phone of somebody they have arrested. The opinion is available here. Orin Kerr of the Volokh Conspiracy has some preliminary coverage of the case here.

I've only had the chance to skim the opinion, and I will be heading off to an all day practice Multistate Bar Exam in just a few minutes, but I thought that the second-to-last paragraph of the opinion was particularly notable:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of  life,” Boyd, supra, at 630. The fact that technology now  allows an individual to carry such information in his hand  does not make the information any less worthy of the protection for which the Founders fought. Our answer to  the question of what police must do before searching a cell  phone seized incident to an arrest is accordingly simple—get a warrant.

This is an extremely important opinion, both in terms of the practical effect it will have on law enforcement practices and what it may signal regarding the Court's willingness to apply constitutional protection to people's digital information in future cases.

UPDATE: I've updated the title of this post

Did Florida Really Just Expand Its "Stand Your Ground" Law?

Nicole Flatow of ThinkProgress thinks so, writing:

The bill to expand Florida’s notorious Stand Your Ground law became law Friday, after Gov. Rick Scott (R) signed a measure that immunizes individuals who fire or point a gun in self-defense or as a “warning” from criminal penalty. 

The National Rifle Association-backed bill extends Stand Your Ground-like protections to those who point a gun at an attacker or fire a gun as a self-defense threat or warning, expanding the scope of the discretion judges and juries retain to exempt shooters from criminal charges for gun violence. The bill gained traction after Republicans exploited the outrage over the 20-year prison sentence for Marissa Alexander, who fired a warning shot during an altercation with her abusive husband. The bill was then dubbed the “warning shot” bill, because a judge rejected Alexander’s move to invoke the law. But opponents were quick to point out that injustice in Alexander’s case hinged in large part on a draconian mandatory minimum sentence that required the 20-year prison term, insensitivity to domestic violence, and racial disparities that are already baked into the existing Stand Your Ground law.

The law is likely to expand immunity for violent conduct in as vague and sweeping a manner as Florida’s existing Stand Your Ground law, and could represent the newest mechanism for encouraging even more vigilantism.

I don't think that the law has the effect that Flatow claims it does. First, Florida law already held that pointing or firing guns as a warning was covered by existing self-defense law. And second, even if the law expanded the scope of what people can do when acting in self-defense, this expansion should probably be welcomed by those who want to see fewer injuries or deaths resulting from self-defense.

Campus Gun Control and the Second Amendment

From Nancy Leong's blog, I learned about an article in the Boston Review by Evan DeFilippis entitled Campus Gun Control Works. In his article, DeFilippis notes that while the United States has suffered more school shootings than other countries, people in schools or on college campuses are much less likely to be victims of gun crime than people in other locations.

DeFilippis focuses much of his article on college campuses, and notes that permitting firearm possession on campuses is a bad idea. From the article:

In a recent editorial in the Chronicle of Higher Education, former Idaho State University Provost Gary Olson spoke to the realities of firearms on campus, their limited potential to improve safety, and the near certainty that they would have the opposite effect. “There is no recorded incident in which a victim—or spectator—of a violent crime on a campus has prevented that crime by brandishing a weapon,” Olson wrote. “In fact, campus police officers report that increasing the number of guns on a campus would increase police problems exponentially, especially in ‘active shooter’ situations.” Ninety-five percent of university presidents share his opposition to concealed carrying on campus. 

If we take a sober assessment—one that will be sorely lacking at college keggers—it is not difficult to imagine the ramifications of widespread gun ownership at colleges. Alcohol abuse, bullying and hazing, high population density, and academic stressors are all predictive of violence—and all are ubiquitous on college campuses.

DeFilippis raises a number of arguments in favor of campus gun control. I think that most of DeFilippis's arguments are on solid constitutional ground, and in this post I explore why that is the case. But I also want to point out that there may be limits to the restrictions colleges and universities can place on firearm possession, and if policies extend too far, they may end up violating the Second Amendment.

Alternative Rankings for Law Schools and Some Thoughts on the Impact of Scandals

Over at The Faculty Lounge, Alfred Brophy has a post where he discusses his paper, Ranking Law Schools with Lsats, Employment Outcomes, and Law Review Citations, which was recently posted on SSRN. Here is the abstract:

This paper returns to the perennially favorite topic of ranking law schools. Where U.S. News & World Report includes a wide variety of factors – some of which are criticized as irrelevant to what prospective students care about (or should care about) -- this paper looks to three variables. They are median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at 9 months following graduation at full-time, JD required jobs; and the number of citations to each school’s main law review. This paper rank orders each of those variables, then averages those ranks to obtain a new ranking; then it compares those new rankings to the U.S. News & World Report rankings.

Brophy includes a reorganized list of schools' rankings and indicates which schools are affected the most by the new ranking system. However, since Brophy's focus on the gains and losses is based only on the raw numbers of how the ranks of the school shifted, the biggest ranking shifts that result from the metrics change do not include schools that rank very highly on the US News Rankings. But there are a few noteworthy shifts that Brophy's approach causes among schools that rank highly in the US News Rankings. Under Brophy's ranking system, Columbia jumps to first from tied for fourth on the US News rankings. Georgetown ties for 8th rather than 13th. And Chicago suffers a notable drop from being tied at 4th in the US News rankings to tied for 10th in the new rankings.

West Virginia High Court: Statutory Prohibition on Alienation of Affections Lawsuits Bars Adultery, Criminal Conversation Torts

The Wall Street Journal Law Blog reports on the case, Golden v. Kaufman:

The dispute before the West Virginia Supreme Court of Appeals centered around a cuckolded husband who accused an insurance salesman of having an affair with his wife to induce her into purchasing an annuity. He sought over $500,000 in damages. 

The issue before the justices had to do with the distinction between two types of matrimonial tort claims — criminal conversation and alienation of affections. Both are common-law causes of action that allow an aggrieved spouse to sue somebody for wrecking a marriage. 

But while criminal conversation involves claims of adultery, the latter one doesn’t necessarily entail extramarital sex. Claims of alienation of affections can be brought against anybody — including family members — who maliciously caused a happy marriage to unravel. 

. . . 

In a 4-1 ruling on Monday, which was reported by the Charleston Gazette, justices concluded that despite the law’s silence, the statute could still be interpreted as having abolished the adultery tort, leaving the plaintiff with no grounds to sue the man he blames for his divorce.

The majority opinion is available here, and the dissenting opinion is available here.

As I explain in much more detail here, torts of alienation of affections and torts for adultery and criminal conversation can be distinguished since alienation of affections actions does not necessarily need to involve sexual conduct between the defendant and the plaintiff's spouse. West Virginia's law of alienation of affections was no exception to the rule. The majority briefly describes the elements of the tort:

A cause of action for alienation of affections consists of three elements: wrongful conduct of defendant, plaintiff’s loss of affection or consortium with the other spouse, and causal connection between such conduct and loss. W.Va. Code, 56-3-2a, abolishes all such suits for alienation of affections.

As an aside, I am a bit hesitant to quote the Court's statement of the elements since the Court points out that it is quoting this selection from a syllabus note in an earlier decision. I have been told that one should never do this in writing a brief, and I thought that the same rule applied to opinion writing. And I'm not sure why the Court would quote a syllabus note rather than the portion of the earlier case that discusses the elements. But that's all beside the point.

The Court here holds that alienation of affections and criminal conversation and adultery actions are substantially similar, and that the statute prohibiting alienation of affections lawsuits should be read to cover criminal conversation and adultery. I take issue with this conclusion, since the torts do involve different elements. For example, a plaintiff can successfully sue for alienation of affections but not for criminal conversation if the defendant wrongfully caused the the plaintiff's spouse to leave, say through talking down the plaintiff or bribing the other spouse. A plaintiff could succeed in a criminal conversation action if the defendant had sex with the plaintiff's spouse, even if the plaintiff's spouse did not leave the plaintiff.

The Court argues that criminal conversation is "inexorably linked" to alienation of affections in this part of its analysis:

In support of his argument that criminal conversation and alienation of affections are not substantially similar and should be treated differently, Mr. Miller relies on this Court’s statement in Kuhn, supra, that there is a slight distinction between the two torts. The Court in Kuhn noted that criminal conversation requires adultery to be shown. 141 W.Va. at 42, 87 S.E.2d at 536. However, the Court also stated that “in an action for criminal conversation a physical debauchment of plaintiff’s spouse is a necessary element and the alienation of affections thereby resulting is merely a matter of aggravation.” Id. (emphasis added). Thus, the two torts are inexorably linked: a plaintiff attempting to prove criminal conversation is doing so to demonstrate the alienation of his/her spouse’s affections that resulted from the adulterous act.

Here, the Court mischaracterizes what it said in Kuhn v. Cooper, and it even quotes the passage from Kuhn that hints that its interpretation is a mischaracterization. Here the full selection from Kuhn which juxtaposes alienation of affections and criminal conversation:

Alienation of affections is distinguished from an action for criminal conversation. In an alienation of affections action, if only enticement or artifice is shown, malice must be proved to warrant a recovery. But, if adultery is proved, such proof dispenses with the necessity for proving malice. Alex v. Strickland, 111 Okl. 267, 239 P. 596. 

In an action for criminal conversation a physical debauchment of plaintiff's spouse is a necessary element, and the alienation of affections thereby resulting is merely a matter of aggravation. Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808.

By indicating that alienation of affections is "merely" a matter of aggravation, the Court is noting that criminal conversation only requires proof of sexual conduct, and that alienation of affections is not a necessary element of the tort. A plaintiff may well desire to prove alienation of affections, since this would probably help the plaintiff get more damages, but a plaintiff doesn't need to show alienation of affections in order to have a prima facie case for criminal conversation.

I think I have made it pretty clear in previous posts here and here, that I think that alienation of affections laws are archaic and harmful. I think that the Court does an admirable job of explaining this and detailing the gradual decline of the tort in most states. But while I agree with the result of the case, I think that the Court arrived at its conclusions through strained reasoning.

A South African Company is Selling Armed, "Riot Control" Drones

The BBC reports:

The maker of a drone that fires pepper spray bullets says it has received its first order for the machine. 

South Africa-based Desert Wolf told the BBC it had secured the sale of 25 units to a mining company after showing off the tech at a trade show. 

It is marketing the device as a "riot control copter" that can tackle crowds "without endangering the lives of security staff". 

. . .

Desert Wolf's website states that its Skunk octacopter drone is fitted with four high-capacity paintball barrels, each capable of firing up to 20 bullets per second. 

In addition to pepper-spray ammunition, the firm says it can also be armed with dye-marker balls and solid plastic balls. 

The machine can carry up to 4,000 bullets at a time as well as "blinding lasers" and on-board speakers that can communicate warnings to a crowd.

Would drone regulations in the United States permit the use of such drones?

Most states that have enacted or are proposing drone regulations include provisions that broadly ban the use of weaponized drones. For example, Oregon's recently enacted drone laws criminalize the use of weaponized drones. Proposed laws in California (here, and here), Massachusetts, and Rhode Island contain similar restrictions.

These restrictions would almost certainly criminalize the use of these riot control drones. Even if the weapons on the drones are designed to be non-lethal, the prohibitions on weaponized drones are usually broadly stated, and prohibit the addition of devices that allow a drone to cause harm beyond the usual risk of it colliding with somebody. The broad language of restrictions on weaponized drones would probably also require legislators to revise drone laws to permit these otherwise illegal tactics by police officers and other government officials.

When I first saw state laws permitting the use of weaponized drones, I didn't think that they were a bad idea, but I thought that they would have little practical impact. But with companies like Desert Wolf getting into the business of armed drones, perhaps these laws are more important than I initially thought.

Virginia Man Agrees to Get Vasectomy as Part of Plea Deal

A while ago I blogged about a case where an Ohio court upheld a court order that a man was prohibited from fathering any children while he was on probation for five years (unless he paid off about $100,000 in overdue child support). Virginia just took this practice to the next level. From the North Virginia Daily:

An Edinburg man will undergo a vasectomy as part of an agreement in which he pleaded guilty to child endangerment, hit and run driving and driving on a suspended license.
. . . 

The agreement calls for Herald to undergo the vasectomy within a year of his release from prison. The agreement also requires that Herald not reverse the vasectomy while he is on probation. 

. . .

[Assistant Commonwealth's Attorney, Ilona ] White said her motivation in offering the vasectomy option to Herald stemmed from concerns raised at sentencing hearings in earlier cases about how many children have been traced to him from different women. 

"It was primarily due to the fact he had seven or eight children, all by different women, and we felt it might be in the commonwealth's interest for that to be part of the plea agreement," White said of the vasectomy provision.

This is hardly the first Virginia case concerning sterilization. Virginia is the origin of the infamous Buck v. Bell case -- where the Supreme Court affirmed a judgment compelling the sterilization of a woman who had been deemed "feebleminded." From Justice Holmes' opinion:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.

While the Virginia law permitting compulsory sterilization was later overturned, Buck has never been formally overruled. But if I were an attorney trying to convince an appellate court (or anybody) to agree with my legal argument, I would hesitate to cite Buck v. Bell. And if Buck v. Bell were the best support for my case, I would certainly have some second thoughts regarding the merits and desirability of my position.

Sixth Circuit Reverses Defamation Judgment Against TheDirty.com

I blogged about this case, Jones v. Dirty World Entertainment, last November when the Eastern District of Kentucky held that a plaintiff who had been defamed by posters on the defendant's website could sue the website's owner. Following this holding, a jury found in favor of plaintiff, and the defendant appealed. Yesterday the Sixth Circuit vacated the judgment and held that the plaintiff's lawsuit was barred as a matter of law. The Sixth Circuit's opinion is available here.

The ACLU described the facts of the case shortly following the lower court's verdict:

TheDirty.com is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs. TheDirty.com’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

Dirty World argued that it could not be sued since the defamatory content had been posted by third parties on the website. Under Section 230 of the Communications Decency Act (CDA), website owners are typically not liable for defamatory statements posted by third parties. The Eastern District of Kentucky ruled that The Dirty and Richie were not entitled to immunity under section 230.

From the Sixth Circuit's opinion:

Under the CDA, Richie and  Dirty World were neither the creators nor the developers of the challenged defamatory content  that was published on the website. Jones’s tort claims are grounded on the statements of another content provider yet seek to impose liability on Dirty World and Richie as if they were the  publishers or speakers of those statements. Section 230(c)(1) therefore bars Jones’s claims.

The court admitted that sometimes a website owner may be found liable for content posted on the website if the owner takes its own steps to "develop" the offending content in a manner that materially contributes to that content's illegality. The court emphasized that this exception to 230 immunity was narrow, noting that a website owner's "encouragement" of users to post information that may end up being defamatory was not enough remove section 230 immunity from a website owner. The court also held that Richie's comments on the site did not subject him to liability:

A website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc. To be sure, a website operator’s previous comments on prior postings could encourage subsequent invidious postings, but that loose understanding of responsibility collapses into the encouragement measure of “development,” which we reject.

The court further noted that Richie's statements about the defamatory content were not the ones the plaintiff argued were defamatory, and held that Richie's statements did not materially contribute to the illegality of the original statements.

In reaching its holding, the Sixth Circuit follows a general trend of treating CDA, section 230 as granting very broad immunity for websites. Most notably, the court refused to hold that a website owner's posted reaction and approval of defamatory comments subjected the owner to liability by materially contributing to those comments' illegality. This means that plaintiffs will almost never succeed in a lawsuit against a website containing actionable third-party content, even if the owner of that website posts positive reactions to that content.

Second Circuit Holds That Fourth Amendment Limits Government's Retention of Computer Files

So holds the court today in United States v. Ganias. In this case, Stavros Ganias, an accountant for two companies, IPM and American Boiler, whom the IRS suspected of theft and other crimes. 

In November, 2003, Army investigators obtained a search warrant to search Ganias's accounting business. The agents carrying out the search did not take the computers, but they copied the hard drives of each of Ganias's computers. The court noted that the files copied included information beyond the scope of the warrant, which was limited to files related to the "financial and accounting operations of [IPM] and American Boiler . . . ."

In 2004, the IRS began to suspect that Ganias was misreporting his own income. After further investigations revealed Ganias was misreporting the income of his clients, in February, 2006, the IRS sought to obtain Ganias's personal files that were contained in the data seized in 2003. After Ganias did not reply, the government obtained a new warrant and searched the files it had seized in 2003. The court emphasized that the government had retained these files for two and a half years since the initial seizure.

The Second Circuit concluded that this 2006 search of the files violated Ganias's Fourth Amendment rights. From the court's analysis:

[W]e consider a more limited question: whether the Fourth Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations. We hold that it does not.  

If the 2003 warrant authorized the Government to retain all the data on Ganias's computers on the off-chance the information would become relevant to a subsequent criminal investigation, it would be the equivalent of a general warrant. The Government's retention of copies of Ganias's personal computer records for two-and-a-half years deprived him of exclusive control over those files for an unreasonable amount of time. This combination of circumstances enabled the Government to possess indefinitely personal records of Ganias that were beyond the scope of the warrant while it looked for other evidence to give it probable cause to search the files. This was a meaningful interference with Ganias's possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment.

The court then addressed the government's arguments for the constitutionality of keeping the information. Following its dismissal of each argument, the court concluded:

Because the Government has demonstrated no legal basis for retaining the non-responsive documents, its retention and subsequent search of those documents were unconstitutional. The Fourth Amendment was intended to prevent the Government from entering individuals' homes and indiscriminately seizing all their papers in the hopes of discovering evidence about previously unknown crimes. . . . Yet this is exactly what the Government claims it may do when it executes a warrant calling for the seizure of particular electronic data relevant to a different crime. Perhaps the "wholesale removal" of intermingled computer records is permissible where off-site sorting is necessary and reasonable, . . . but this accommodation does not somehow authorize the Government to retain all non-responsive documents indefinitely, for possible use in future criminal investigations. (citations omitted).

Notably, this case involves the seizure and retention of personal computer files that were beyond the scope of the initial warrant. The court does not explicitly address situations where files that are within the scope of the original warrant are held for a long period of time, and end up being relevant in another case against the defendant. And the court's repeated reliance in its arguments on the non-responsive nature of the computer files means that this case could be distinguished from situations where responsive files are seized and retained.

The logic of the opinion, however, lends itself to situations where law enforcement officers seize files that are within the scope of a warrant. Even if officers have a warrant to seize particular files, by retaining electronic copies of the files, the officers could probably be characterized as depriving the defendant of "exclusive control over those files," to use the Second Circuit's language. And if interference with this exclusive control for an unreasonable amount of time causes the government's conduct to amount to a search, there seems to be no reason why the Fourth Amendment wouldn't apply to any information the government copies and retains.

In United States v. Elonis, The Supreme Court Will Address the Complex Issue of Online Threats

Last September, I blogged about the Third Circuit case, United States v. Elonis, where the Third Circuit upheld Anthony Elonis' conviction under 18 U.S.C. § 875(c) making it a crime to "transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." In that post, I suggested that it was unlikely that the Court would take up Elonis' case.

I was wrong. Today, the Supreme Court announced that it will hear the case.

The Wall Street Journal Law Blog reports on the Court's announcement and summarizes the details of Elonis' conduct:

After his wife obtained a protection-from-abuse order, defendant Anthony Elonis took to Facebook and wrote on his page, "Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?" 

In another post, Mr. Elonis wrote, "Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined." And after an FBI agent visited his residence, Mr. Elonis said that law-enforcement officers should bring an explosives expert on their next visit, "Cause little did y'all know, I was strapped wit' a bomb."

SCOTUSBlog's page on the case is available here, and it includes the text of the issue the Supreme Court will examine:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

While the requirement that a defendant simply hold a subjective intent to threaten somebody is accepted by most courts as sufficient for conviction under this statute, the cases that have most recently challenged the subjective approach involve statements made over the Internet. In Elonis, the defendant was convicted for statements made on his Facebook page. In another case, Jeffries v. United States, which I blogged about
here and here, the Sixth Circuit held that the defendant, Franklin Jeffries, violated the threat statute when he posted a video to Youtube where he sang about killing the judge overseeing his custody dispute. The Supreme Court rejected Jeffries' petition for certiorari last October.

North Carolina Judge Rules that Alienation of Affections Law is Unconstitutional

Through Howard Bashman's How Appealing blog, I learned of this article in the Winston-Salem Journal on a recent North Carolina Superior Court decision. The article begins:

North Carolina’s law allowing people to sue their spouse’s lover and collect damages violates constitutional protections on free speech and free expression and serves no legitimate state interest, a Forsyth County judge ruled Wednesday in dismissing a lawsuit.

It marks the first time that a Superior Court judge in North Carolina has directly challenged the constitutionality of the state’s alienation of affection and criminal conversation laws, a legal expert in family law at Wake Forest University said.

The article notes that only six states, including North Carolina, allow for alienation of affections lawsuits. I have written previously about North Carolina's law on alienation of affections here, and on Illinois's similar law here.

While I unfortunately cannot find a version of the Superior Court's ruling [UPDATE: the link to the decision is at the end of this post], the Journal quotes what seems to be the crux of the decision:

Judge John O. Craig said in a written order that the state’s alienation of affection laws infringed on people’s rights under the First and 14 th amendments of the U.S. Constitution. He rejected arguments that the state had a legitimate interest in protecting the sanctity of marriage and argued that people use these laws to blackmail their spouses.

“Here, no compelling state interest exists in protecting the marital relationship that can justify AA’s (alienation of affection) suppression of a right as fundamental as free speech,” Craig writes in his order. “Moreover, assuming that a compelling state interest might exist, AA’s practical effect is to chill by speech by not setting clear limits on what speech is actionable and what is protected.”

I think that Judge Craig's decision is correct as far as the alienation of affections cause of action is concerned, but do not think that the same logic applies to the tort of criminal conversation. In this post, I will first explain the legal background of North Carolina's alienation of affections and criminal conversation torts. I will then explain why a First Amendment challenge to the alienation of affections cause of action may succeed, but why a similar challenge to a criminal conversation cause of action will probably fail.

Kerr on the Irrelevance of Subjective Expectations of Privacy in Fourth Amendment Jurisprudence

Over at the Volokh Conspiracy, Orin Kerr blogs about his forthcoming essay in the University of Chicago Law Review entitled, Katz Has Only One Step: The Irrelevance of Subjective Expectations. Here is the abstract:

This Article argues that the “subjective expectation of privacy” test is a phantom doctrine. The test exists on paper but has no impact on case outcomes. An empirical study of cases decided in 2012 indicates that majority of judicial opinions applying Katz do not even mention the subjective expectations test; opinions that mention the test usually do not apply it; and when courts apply it, the test makes no difference to the results.

The subjective test acts as a phantom doctrine because of an overlooked doctrinal shift. A close reading of Justice Harlan’s Katz concurrence suggests that it was originally intended to restate the holdings of the Supreme Court’s caselaw on invited exposure. Under those cases, an individual waived Fourth Amendment rights by inviting others to observe their protected Fourth Amendment spaces. In later cases, however, the Supreme Court misunderstood this original design and recast those holdings as part of the objective prong of the test instead of the subjective test. This doctrinal shift quietly eliminated the role of the subjective test. The Supreme Court should abolish the subjective expectations test to clarify and simplify Fourth Amendment law.

I blogged about this aspect of Fourth Amendment law previously, where I discussed how footnote five of the Court's opinion in Smith v. Maryland indicates that defendants who expect that their privacy will be invaded by an overly intrusive government may still have Fourth Amendment protection from government searches. This is notable, because the first prong of the traditional Katz test for determining whether a Fourth Amendment search has occurred requires the government to infringe on a person's subjective expectation.

While this may usually seem to be a sensible requirement, the subjective test of privacy loses its appeal in scenarios where those being searched are overly paranoid and irrationally expect that they are being monitored by the government at all times. Kerr also notes that the government could get around this test by simply announcing  to the public that it will be monitoring everybody. (22-23).

In light of how subjective expectations of privacy can be manipulated, the Court seemed to try and limit the influence of this part of the Katz test in the Smith decision. In footnote five of Smith, the Court wrote:

Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.

Kerr addresses this footnote in his paper:

This footnote is rather ironic. After misconstruing the subjective test to ask a purely subjective question, the footnote announces that the subjective test should be ignored in precisely those cases when the misconstrued test would make a difference to outcomes. (23)

Kerr concludes that the subjective expectation of privacy test has become a "phantom doctrine." In light of the Court's decisions following Katz, I am inclined to agree.

Duane on the Pronunciation of "Certiorari"

In the Spring 2014 issue of The Green Bag 2d, James Duane asks a question that many lawyers and law students are too afraid to ask: what is the proper pronunciation of "certiorari?" Parties file writs of certiorari when they want their case heard by the Supreme Court. While hundreds of these writs are filed every year, Duane reveals that there is a "surprising" six-way split on how modern Supreme Court Justices pronounce the word.

Those pronunciations are:

(1) “ser-shee-or-RAHR-ee,” (Stevens, Thomas, Alito) (although Thomas has his own "sertz-ee" variation); 

(2) "ser-shee-or-RARE-eye," (Roberts, Scalia, Breyer); 

(3) "ser-shee-or-RARE-ee," (Rehnquist, O'Connor, Souter); 

(4) “ser-shee-or-ARR-eye,” (Kennedy); 

(5) “ser-shee-ARR-ee,” (Sotomayor); and 

(6) "Cert." (or, phonetically, "sert") (Ginsburg, Kagan) (both of whom have simply chosen to avoid using the term in full).

The lists covers most of the variations that I have heard, although one of my professors at the University of Iowa taught me to pronounce "certiorari" as "ser-shee-AIR-ee." While I was never criticized for using this unique pronunciation, I became more self-conscious about how I used the term once I came to law school and found the word to be a bit more commonplace.

Now, when I find myself in a situation where I must say "certiorari" aloud, I take the third approach that Rehnquist, O'Connor, and Souter adopted. Unfortunately, all the justices who have used this pronunciation have left the court, and Duane points out that the pronunciation disappeared from Garner's Dictionary of Legal Usage following Souter's retirement.

During the first year of law school, one of my professors told my classmates and me that uncommon words or pronunciations should be avoided when possible, even if they are correct. Using uncommon, but correct, terms may lead to an unfavorable judgment by the listener, even if that listener turns out to be mistaken. With this lesson in mind, it seems that the ideal approach to take when pronouncing "certiorari," is to take Ginsburg and Kagan's approach and simply avoid saying the full term.

Hall on the Continuing Importance of Oratory

I came across E. Connor Hall's essay, Oratory and the Lawyer, in the Green Bag (22 Green Bag 332 (1910)). There, Hall argues that the art of oratory is generally ridiculed as no longer being of any use to lawyers. Hall ties this to phenomena of the time which, he argues, are leading to a general decline in oratory. He notes that newspapers and the rise in writing may be to blame for the decline in the focus on oration, and he also points out that the greatest of speeches tend to come in times of crisis, but there had been no crises "of supreme importance since the settlement of the slavery controversy," (remember, the essay was written in 1910).

Hall also notes that the term "oratory" had fallen into disrepute, and that it was often taken to mean "windy, holiday, and schoolboy speeches, or the high flown peroration, often tacked on without logical connection, after the main speech is ended." Despite these developments, Hall argues that oratory remains a uniquely effective mode of communication, and a mechanism of persuasion that lawyers should still seek to master.

While Hall was writing in 1910, it is interesting to consider the merits of his arguments in light of modern technology and trends in legal practice. Hall would probably disapprove of the low level of influence the spoken word has in the digital world. On the Internet, writing remains the dominant means of persuasion. When speeches are used to persuade, advocates tend to clip short sound bites from the speech, or they resort to using the awful practice of sending each other pictures with words on them.

Legal practice has also changed since Hall wrote his essay. Trials are extremely rare, so the skill of persuading a jury seems virtually irrelevant to a modern practitioner. Courts' schedules are packed, so what are the odds that they will be persuaded by an effective oral presentation when they have dozens of similar motions to get through?

While Hall would have more of an uphill battle arguing for the importance of oratory today, it is a battle that he could still win. Confidence and persuasiveness in face-to-face situations is a skill that can cut through the haze of online nonsense. And while trials are rare, motions still need to be argued in court -- and may be even more important than ever -- since an overburdened judge who has not read the briefs may end up being convinced by a persuasive advocate.

And for those lucky few people who will have the chance to take their cases before juries, this selection from Hall may be worth reading:

[A] bare recital of the testimony favorable to his cause does not comprehend the duty of the advocate. He must go further and explain the relation of the circumstances of the case to each other, as well as their relation to extraneous facts. He must examine every bit of testimony, testing it by other parts of the testimony, and pointing out its significance in the light of the whole case. The facts in his case are not things by themselves, unrelated to other facts of life. His case is not isolated in the world of experience. And before a just and proper judgment can be reached, his cause must be weighed according to standards of conduct in general. To thus correlate the facts of a case, and explain their meaning in relation to one another, and to human experience in general -- to do this well, is oratory.

Texas Man Inadvertently Demonstrates Wrong Ways to Use Drones

Several local news sources report on a Texas man who lost a drone on the roof of AT&T Stadium in Arlington, Texas. KHOU.com and Fox 4 both report on the story. Most of their information comes from this video that the drone operator posted:

At around 47 seconds into the video, the man says that he lost another one of his drones on the roof of the stadium because he let the stadium get in between him and the drone. This resulted in his losing the signal, causing the drone to fall onto the roof or balcony (at the time of the video, the man isn't sure where the drone is). Workers at the stadium later returned the man's drone from the roof.

This gets us to our first way to get in trouble while operating a drone: fly the drone in such a manner that you lose its signal, causing it to fall from the sky in a populated area. Nobody was hurt by this man's drone in this incident. But as his video demonstrates, he is willing to fly his drone carelessly in populated areas, and it is only a matter of time before he ends up hurting a bystander. Moreover, the man's tendency to fly his drones in highly populated areas may get him into trouble with the Federal Aviation Administration (FAA). The FAA, in an advisory circular on model aircraft use urges aircraft operators to avoid flying model aircraft in "populated areas." The FAA seems to imply here and here that this circular applies to drone use, since it lists the circular requirements when discussing drone operation guidelines.

At 3:26 in the video, the man says that he needs to take his drone to a height of about 700 feet in order to get the whole stadium in his shot. After saying this, the drone climbs higher and higher until the entire stadium is in the camera's shot. At 3:42, he says that the height of the stadium is "400 feet or so."

The FAA advisory circular states, "Do not fly model aircraft higher than 400 feet above the surface." Throughout the entire video, the man is almost certainly flying his drone much higher than the 400-foot ceiling recommended by the FAA This is the second way this man demonstrates you can get in trouble for flying a drone: take the drone far beyond the 400-foot ceiling recommended by the FAA and, as a bonus, say out loud that you've taken it hundreds of feet beyond that ceiling.

At 3:49, while the drone is rotating, a shadow of a plane appears in the upper right corner of the shot. While the camera never shows the plane itself, the shadow's path reveals that the plane is traveling close to the drone, and the shadow appears when the drone is at its highest point during its filming of the stadium.

Back to that FAA advisory circular! It states: "Give right of way to, and avoid flying in the proximity of, full-scale aircraft." This raises the third way to get in trouble for flying a drone: take the drone beyond the FAA's recommended ceiling in the proximity of full-sized aircraft.

In the background of this entire discussion lurks a fourth way to get in trouble: videotape your dangerous drone-flying habits, record your commentary, and share it with the public on Youtube.

Admittedly, the FAA's advisory circular is not law -- it is a series of recommendations for the use of model aircraft that most likely applies to drones. As I have blogged previously, the National Transportation Safety Board recently ruled that the FAA has not enacted any enforceable regulations against the use of drones. The FAA is appealing that ruling, and questions remain as to whether the advisory circular can be used to interpret the FAA's existing regulations that prohibit the careless or reckless operation of aircraft (Federal Aviation Regulations Part 91, Section 91.13(a)).

While the law may be unsettled, if the courts end up deciding that the FAA's flight regulations are enforceable against drones and are to be interpreted in light of its advisory circular, the man in this video could be in quite a bit of trouble. Federal law aside, a video like this would be excellent evidence in a tort claim if the man's drone ended up falling and causing damage.

Drones can be fun. But using them in a clearly dangerous manner and posting the video online is a pretty foolish thing to do.

California's Proposed Drone Laws Part Three: Policy, Statutory, and Constitutional Concerns

In Parts One and Two of my discussion of California's proposed drone laws I described the content of California's two proposed bills for the regulation of drones, SB 15 and AB 1327. Here, I evaluate those two bills and discuss whether they are good policy, and whether they will run into any statutory or constitutional issues.

The Bills' Impacts on Law Enforcement Abilities and Individual Privacy

Both of California's proposed drone laws purport to protect the privacy of California citizens from the intrusive use of drones. And both laws contain restrictions on the use of drones by law enforcement officers and private citizens.

SB 15 requires that law enforcement officers obtain a warrant before using drones in a manner that would infringe on people's reasonable expectations of privacy. While this may sound like a regulation that respects privacy, this bill would have no practical impact on the scope of what law enforcement officers can do. When officers act in a manner that intrudes on a reasonable expectation of privacy, they are engaging in a Fourth Amendment search. This means that they need a warrant, or there must be some exception to the warrant requirement, like exigent circumstances (which is also an exception to SB 15's warrant requirement).

Because of SB 15's permissive language, its restrictions on law enforcement's use of drones don't seem to add anything to existing Fourth Amendment protections.

AB 1327 has broader language than SB 15. AB 1327 requires a warrant for law enforcement's use of drones unless one of several potential exceptions apply, including an emergency situation or a disaster response scenario. While this bill certainly imposes more of a restriction on law enforcement than SB 15, the restriction also prevents officers from using drones in useful situations that would not typically be viewed as invading privacy, such as for convenient, speedy diagramming of traffic accidents.

In terms of the bills' restrictions on private use of drones, they are almost identical. Both prohibit the use of drones in manners that would invade privacy in violation of California's criminal laws. SB 15 goes a little bit farther and adds the use of drones to California's statute that provides a civil action for violations of privacy.

But I don't think that including drone-specific language in invasion of privacy statutes will criminalize any activity that wouldn't already violate the laws. Under current laws, if somebody uses drones in an offensive manner to spy on somebody in violation of their protected privacy interests, current statutes will likely criminalize this activity. The statutes prohibit invasive surveillance that involves visual and auditory enhancing devices, and a drone with a camera or microphone will probably be interpreted to be one of these enhancing devices.

In sum, SB 15 does not seem to add any meaningful restrictions on law enforcement's use of drones. AB 1327 does make a difference, but the restrictions may restrict some beneficial uses of drones.

The Lack of a Statutory Exclusionary Rule: Interpretive and Constitutional Issues

A technical problem with both of these bills is that they do not contain provisions restricting the use of evidence collected through the use of drones once that information has been collected. While the bills detail when warrants are required and exceptions to the warrant requirements, the bills are almost entirely silent on what the government can do with information once it is collected. Most state restrictions on drones that require law enforcement to get a warrant before collecting information also contain provisions that information collected without a warrant is inadmissible at trial.

The bills' failure to mention the exclusion of evidence seized without a warrant is not particularly surprising, since Penal Code section 1538.5 gives defendants the mechanism to move for the suppression of evidence that has been seized without a warrant. Those sponsoring the drone regulations probably think that the exclusionary rule of section 1538.5 applies to the warrant requirements in the drone regulations. But section 1538.5 only calls for the exclusion of evidence seized without a warrant when the warrantless search or seizure is unreasonable. This would probably be consistent with SB 15, which requires warrants for government drone use in situations where the defendant does not have a reasonable expectation of privacy

But the seemingly broader restriction in AB 1327 may run into interpretive and constitutional problems. On the statutory level, AB 1327 does not restrict itself to "unreasonable" searches, so it is not clear that the exclusionary rule of Penal Code 1538.5 would apply to AB 1327's warrant requirement.

But more significantly, if AB 1327 seeks to exclude evidence beyond those exclusions that are required by the Fourth Amendment to the U.S. Constitution, the bill might run afoul of Article I, section 28 of California's Constitution (or the "Truth in Evidence" rule). The Truth in Evidence rule requires a 2/3 vote of the legislature for any law that would expand rules excluding the use of evidence in trials beyond U.S. constitutional protections (See, e.g., People v. Robinson, 47 Cal. 4th 1104, 1119 (2010)). If the warrant requirement in AB 1327 is to be read to exclude evidence beyond existing Fourth Amendment protections, both branches of the California legislature will need to pass this law by a 2/3 margin or more in order to get past this constitutional hurdle.

In short, it is not clear whether AB 1327 can be feasibly interpreted as calling for the exclusion of evidence that is collected by drones without a warrant. And if the bill is interpreted as requiring exclusion in situations where those monitored by drones do not have a reasonable expectation of privacy, then the bill will need to be passed by a 2/3 margin or more in both branches of California's legislature in order to get around California's Truth in Evidence requirements.

Conclusions

SB 15 may be more likely to pass, since it does not require more evidence to be excluded in trial proceedings than is already required by existing Fourth Amendment precedent. AB 1327 be more appealing to privacy advocates since its restrictions are more meaningful, but unless the law is passed in accordance with California's Truth in Evidence rule, the law will either be struck down by the courts, or interpreted in a manner that does not require the exclusion of evidence obtained through the use of drones.

Even Supreme Court Justices Need Hunting Licenses

Today's Green Bag Lunchtime Law Quiz asked about a Supreme Court Justice who once ran into trouble with a game warden:

Which Justice of the U.S. Supreme Court, about to set out on a duck-hunting excursion, was stopped by a game warden who discovered the Justice lacked the proper license?

Unfortunately, I came across the quiz too late to participate (though I have added a note on future quizzes to my calendar from next week until the end of time). But some quick Google searching led me to what seems to be the answer: Justice Willis Van Devanter.

Here is the link to the 1937 Reading Eagle article where I found the story of this "embarrassing" event. My favorite passage is:

"I explained all about the stamp and the purpose of the law and Justice Van DeVanter promised to get one right away," [federal game warden, George E.] King said.

FAA Authorizes Commercial Use of Drones for the First Time

So reports this press release from the Federal Aviation Administration:

The U.S. Department of Transportation’s Federal Aviation Administration has given approval for energy corporation BP and unmanned aircraft systems (UAS) manufacturer AeroVironment to fly an AeroVironment Puma AE for aerial surveys in Alaska—the first time the FAA has authorized a commercial UAS operation over land.

Other coverage of this approval is available at the Wall Street Journal, Los Angeles Times, and CNN.

While the FAA permits the use of drones by hobbyists, this is the first time the agency has permitted the commercial use of drone technology. The Wall Street Journal notes while many private entrepreneurs have begun using drones without FAA permission, BP is "one of the first major companies to invest in the technology for its operations."

California's Proposed Drone Laws Part Two: The Text of AB 1327

This is Part Two in a series of posts where I discuss California's proposed drone laws. In Part One, I described SB 15. Here, I describe AB 1327. In Part Three, I will evaluate these two bills.

AB 1327 has gotten more recent attention from the legislature, with the last amendment to the bill taking place on May 5, 2014 (the last amendment to SB 15 took place on August 6, 2013).

The Warrant Requirement for Law Enforcement

Like SB 15, AB 1327 would add a Title 14 to the California Penal Code, which would be devoted to regulating the use of drones. The bulk of Title 14 is devoted to regulating the government's use of drones. Section 14350 states:

(a) A public agency shall not use an unmanned aircraft system, or contract for the use of an unmanned aircraft system, except as provided in this title. This title shall apply to all public and private entities when contracting with a public agency for the use of an unmanned aircraft system. 

(b) A law enforcement agency may use an unmanned aircraft system if it has obtained a warrant based on probable cause pursuant to this code. 

(c) (1) A law enforcement agency, without obtaining a warrant, may use an unmanned aircraft system in emergency situations if there is an imminent threat to life or of great bodily harm, including, but not limited to, fires, hostage crises, “hot pursuit” situations if reasonably necessary to prevent harm to law enforcement officers or others, and search and rescue operations on land or water. 

(2) A law enforcement agency, without obtaining a warrant, may use an unmanned aircraft system to assess the necessity of first responders in situations relating to traffic accidents, to inspect state parks and wilderness areas for illegal vegetation, or fires. 

(d) (1) A public agency other than a law enforcement agency may use an unmanned aircraft system, or contract for the use of an unmanned aircraft system, to achieve the core mission of the agency provided that the purpose is unrelated to the gathering of criminal intelligence. 

(2) Except as permitted by this title and when a law enforcement agency is not required to obtain a warrant as specified in this title, data collected pursuant to this subdivision shall not be disseminated to a law enforcement agency unless the agency has obtained a warrant for the data based on probable cause pursuant to this code.

Notably, this bill does not include the "reasonable expectation of privacy" language from SB 15, which states that warrants must be obtained to collect information on people when they have a reasonable expectation of privacy. This means that AB 1327 would prohibit the collection of information through drones even when people lack a reasonable expectation of privacy in that information -- unless the collection falls into the enumerated exceptions.

Additional Restrictions: Weaponization, Information Collection, and Limits on Private Use of Drones

Section 1452 would require that information collected by drones be destroyed after one year unless the information is involved in pending litigation or a filed claim, or if the information was collected pursuant to a warrant.

Section 1453 would prohibit people from attaching weapons to drones. Specifically, the bill prohibits the attachment of "a weapon or other device that may be carried by or launched from an unmanned aircraft system and that is intended to cause bodily injury or death, or damage to, or the destruction of, real or personal property."

The bill also calls for alterations to the government code to classify certain information collected by drones as public records subject to disclosure.

It is also nice to see that the bill recognizes that federal regulations may one day exist that would trump California laws, and the bill states in section 14355 that the bill is not meant to trump federal law on the subject. But subsection (b) of section 14355 leaves open the possibility that California's restrictions on drone use will be more restrictive than the federal regulations.

Lastly, the bill includes a section which states:

14357. The surveillance restrictions on electronic devices pursuant to Chapter 1.5 (commencing with Section 630) of Title 15 of Part 1 shall apply to unmanned aircraft systems.

This seems to carry out the same function as the sections of SB 15 which went through a line-by-line iteration of the Penal Code restrictions on invasion of privacy with added drone language. AB 1327 is less restrictive than SB 15 when it comes to invasion of privacy because this section only states that Penal Code restrictions on invasion of privacy will apply to unmanned aircraft systems. Beyond these criminal laws, SB 15 stated that the civil tort of invasion of privacy would apply to unmanned aircraft systems.

The main takeaway from this discussion is that AB 1327 is more restrictive than SB 15 when it comes to the government's use of drones to collect evidence. In my third post on California's proposed drone laws, I will discuss the benefits and disadvantages of these bills, and whether they will run into any problems of statutory interpretation or constitutional law.