Student comment calls on police unions to do their part for accountability reform, revelation of truth

Michelle M.K. Hatfield, an alum of my Torts I-II classes, has published a comment, Can Police Unions Help Change American Policing?  

This comment nicely links the need for police accountability with the right to truth, a theme better known in post-apartheid South Africa than in American policing, and suggests that police unions could do more to stimulate socially constructive reform.  Here is the abstract:

Police unions are part of the problem in American policing. Could police unions also be part of the solution? This Comment begins by putting into practice the dialectic we must achieve at a societal level by detailing the ways in which police and Black Americans have been positioned to be in conflict from the seventeenth century to the present, and by discussing the formation of police unions. American society needs truth-telling about the history and present context that drives police officers into deadly conflict with Black Americans to heal, trust, and effectuate a more perfect system for public safety. This Comment wrestles with the need to understand several truths at once: that police organized into unions in part to protect the rank-and-file from managerial abuse; that the American policing system is in many ways designed and implemented against Black Americans; that police unions organized in the Civil Rights Era to protect police officers from discipline for following orders; and that deep, structural change should include police unions. Less fundamental changes that leave in place the core of American policing, without examining its racist foundations and incentives toward brutality and lethal force, will not serve to bring about lasting reconciliation. This Comment reviews several ways to improve the management of police departments put forth by labor and policing scholars and suggests that the promise of such reforms could motivate participation in a truth process. The conversation about policing reform in the United States has expanded and deepened tremendously in the past year, and it continues to evolve and take on new dimensions. This Comment urges policymakers to create a truth process as part of police reform and suggests that the process be implemented via the police unions because the voices of police organizations that represent rank-and-file officers are a critical ingredient for meaningful change.

Needless to say, police accountability has become a recurring theme and point of student interest in my courses, including Torts and Freedom of Information Law.  Ms. Hatfield gave me and my law-librarian-extraordinaire spouse Misty Peltz-Steele the privilege of feeding back on this article prior to submission for publication, but that's me riding coattails.  Ms. Hatfield prepared this superb paper principally upon her own impressive initiative and in ample fulfillment of the paper requirement of a popular course in labor law taught by my colleague in public policy, Professor Mark Paige.

The comment appears in the UCLA Criminal Justice Law Review, 2021:211.

Skillman offers free intro skills class for law students

All law students are invited to a free presentation, How to Excel in Law School, Professor Nerissa Shklov Skillman, a graduate of Berkeley Law School and the founder of The Skillman Method.

The Zoom presentation on October 2, from 11 a.m. to 1 p.m., will cover time management, case reading and briefing, note-taking, outlining, and feeling comfortable learning the law.  The presentation is co-sponsored by the Association of Black Women Attorneys.

I have known Professor Skillman for more than 15 years.  She is an expert on access to legal education.  I have seen her methods work wonders for students struggling to adjust to the competitive environment of American law school, in which many essential skills are injudiciously taken for granted in new students.

The presentation is free, but pre-registration at Eventbrite is required.  The Skillman Method is a for-profit enterprise; The Savory Tort and I offer our endorsement for no compensation.

FOIA requesters need protection against retaliation; in egregious case, court allows First Amendment theory

Intersection of state highways 42 & 61 in Conyngham Town, Pa.
(2019 photo by Mr. Matté CC BY-SA 3.0)

A bizarre FOIA case decided by the Third Circuit suggests that use of an open records act in the public interest triggers constitutional protection against retaliation under the First Amendment.

A businessperson and landlord in Conyngham, Pennsylvania, John McGee used the state freedom of information act (FOIA), called the Right to Know Act, to investigate his suspicions of financial malfeasance in town government.  A town supervisor then sent to McGee, you read that correctly, a demand for private business information, purportedly issued in the name of the town and under the authority of the FOIA.

McGee asked the board of supervisors for an explanation, and they refused to give any.  In a lawsuit, McGee alleged violation of substantive due process rights and the First Amendment.  He alleged that he did not know that the town's demand was unlawful and unenforceable.

The district court dismissed both counts; the Third Circuit reversed and remanded on the First Amendment claim.  The court explained:

In order to prevail on a retaliation claim under the First Amendment, “a plaintiff must … [prove]: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp.... (3d Cir. 2006). There does not appear to be any dispute that McGee engaged in constitutionally protected speech, nor that there was evidence of a causal link between his speech and the Right-to-Know request [supervisor Linda] Tarlecki gave him.

Only the middle prong was at issue on appeal, and the court found sufficient evidence for McGee to fend off summary judgment.  The test for deterrence is objective, the Third Circuit emphasized, so it doesn't really matter whether McGee was deterred as a matter of fact.

What intrigues me about the case is the apparently non-controverted question of element (1).  The Third Circuit opinion is ambiguous on what serves so self-evidently as McGee's constitutionally protected conduct.  McGee previously had been critical, in public testimony, of the board of supervisors for how it managed the housing code, but that doesn't seem to be the impetus for retaliation here.  His FOIA request may be construed as a petition of government or as a precursor to further public criticism.  The court did not specify.

In the law of the United States, at the federal level and in most states, requesting access to information is a statutory privilege, not a constitutional right per se.  There is a strong argument that the distinction is immaterial to attachment of the First Amendment right to petition to a FOIA request.  But de facto, in my work in FOIA advocacy, retaliation against FOIA requesters is a real and serious risk.  When asked for counsel by persons contemplating use of FOIA to investigate government, I warn would-be requesters of the possibility of retaliation.

If the First Amendment affords protection against retaliation, it's not an easily won theory.  First, there are practical problems.  Finding an attorney willing to bring a First Amendment claim against government is neither easy nor cheap.  Civil rights litigation and First Amendment law are both complicated.  Attorneys who practice in civil rights prefer the familiar patterns of discrimination and harassment based on race or gender.  In small legal communities such as Arkansas's, attorneys are loath to sue sugar-daddy government.  The thin possibility of winning attorney fees, even with a multiplier, upon a convincing legal victory is not enough to incentivize counsel.

Second, legal problems loom on the merits.  Usually problematic is the third element, causation.  The conduct here in McGee is unusual in its blatant motive.  Ordinarily, when local officials deny zoning variances, liquor licenses, or other privileges to applicants who happen to be accountability mavens, the causal connection cannot be shown to a constitutionally satisfactory certainty.

Element (1) is often a problem, too, because would-be requesters are also often would-be whistleblowers.  Under the muddled constitutional jurisprudence of the rights of public employees, the First Amendment does not preclude being fired for blowing the whistle on malfeasance in one's government workplace, much less the act of filing a state FOIA request to the same end.

There's a cruel irony of inefficiency in our First Amendment jurisprudence in that public employees are least protected when they speak of what they know best.  The jurisprudence rather favors being a team player in government.  Defectors, however righteous, must seek protection in statute, where there might be none.

When I worked on FOIA advocacy issues in Arkansas, before I moved to Rhode Island in 2011, I aided Reps. Dan Greenberg and Andrea Lea with 2009 H.B. 1052, which amended the state whistleblower protection statute with express protection for the use of FOIA.  Opponents of the bill argued that it was unnecessary, because existing law protected state employees in communicating concerns to elected officials.  My experience suggested that an elected official carelessly chosen was as likely to burn a whistleblower as to facilitate accountability.

More aggressive protection of FOIA requesters should be the norm throughout the United States.  Retaliation should not have to be as overtly wrongful as in McGee to trigger protection, whether statutory or constitutional.

The case is McGee v. Township of Conyngham, No. 20-3229 (3d Cir. Sept. 23, 2021).  U.S. Circuit Judge Kent A. Jordan wrote the opinion of a unanimous panel that also comprised Judges Marjorie Rendell and David J. Porter.  HT @ Prof. Rob Steinbuch and Prof. Eugene Volokh (Volokh Conspiracy).

Legislative privilege shields Raimondo records against trucker subpoena in dormant Commerce Clause case

Toll gantry on a bridge in Washington
(Flickr by Wash. State DOT CC BY-NC-ND 2.0)

The First Circuit has quashed a subpoena against Rhode Island state officials, including now-U.S. Commerce Secretary Gina Raimondo, in a dormant Commerce Clause lawsuit over highway tolls supporting infrastructure.

Back in the 2010s, under the leadership of then-Governor Gina Raimondo (I'm a fan), my home state of Rhode Island was looking for cash to help with infrastructure needs.  The smallest state and an essential throughway for road and rail traffic in the vital I-95 corridor of America's Atlantic coast, "Ocean State" Rhode Island bears a burden in maintaining highway and bridge infrastructure that is disproportionately larger than the state's tax base.  The Raimondo administration installed a network of electronic truck tolls to beef up coffers.

My family travels often up and down the east coast to visit relatives, and the parade of tolls through the Atlantic states adds up to a significant expense.  But there are no passenger-car tolls in Rhode Island.  States that wish to impose tolls on federal highways had to strike a sort of deal with the devil, the devil being Uncle Sam, and Rhode Island, exemplifying founder Roger Williams's independent streak, opted out.  We held ourselves clear of Uncle Sam's sticky fingers, but then we found ourselves undermined by potholes and overrun with decaying bridges.

So when I heard about the Raimondo truck-toll plan, I admit, it sounded great to me.  The possible dormant Commerce Clause issue did gather in the dark recesses of my mind.  Anyone who tells you that we Rhode Islanders were not keen to have through-trucks pay their fair share for wear and tear on our roads and nerves as we circulate on our congested connectors is lying.  If the boon could be had without adding to my family's toll bills, I was willing to suppress any nagging concern I might have otherwise about a made-up constitutional rule.

Lawyers for the trade industry in trucking were not so generous of mind or pocket, and, after the tolls went live in 2018, they sued.  The plaintiffs argue violation of the dormant Commerce Clause, the constitutional theory that implies a federal prohibition on state action that excessively burdens interstate commerce even when Congress has not legislated a prohibition under its Article I power.

The First Circuit explained, "the Supreme Court has recently reiterated that the dormant Commerce Clause 'reflect[s] a "central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation"'" (quoting 2005 and 2019 precedents).

Flickr by Taber Andrew Bain CC BY 2.0

If the truckers can show that Rhode Island officials calculated the tolling program to burden out-of-state payers while sparing Rhode Islanders, the showing will strengthen—but significantly, not dispositively prove—the plaintiff position in the dormant Commerce Clause analysis.  I've kind of already admitted that burdening through-traffic was my reason for liking the toll program, but I'm just a taxpayer.  Unfortunately, there are some public statements by state officials indicating that they viewed the tolls the same way.

The plaintiff-truckers understandably want to dig deeper.  So they sent subpoenas to state officials, including the Office of the Governer and legislators, and to CDM Smith, a key private consultant to the state in the toll program, "RhodeWorks."  The First Circuit enumerated:

Specifically, the subpoenas sought materials relating to: (1) any efforts to mitigate the economic impact on Rhode Island citizens; (2) the expected or actual impact of the toll caps on in-state vs. out-of-state truckers; (3) the expected or actual impact of tolling only certain classes of trucks on in-state vs. out-of-state truckers; (4) the potential impact on interstate commerce; (5) alternative methods for raising funds; (6) drafts of RhodeWorks and related, failed bills, including mark-ups, comments, red-lines, revisions, etc.; (7) communications between the former Governor and legislators regarding RhodeWorks or other methods of raising funds; and (8) the public statements made by the movants and others.

State officials argued that legislative privilege required quashing of the subpoenas.  The district court was willing to override the privileges, ruling that the discovery interest outweighed officials' need of confidentiality in deliberative process.  On interlocutory appeal, the First Circuit disagreed and reversed.

The First Circuit began its discussion with the Speech or Debate Clause of the federal Constitution.  That's interesting, because the D.C. Circuit just recently applied the clause to thwart the efforts of Judicial Watch to probe the congressional investigation of the Trump Administration.  That decision made waves in the FOI community not so much for the result, but for a passionate concurrence in which U.S. Circuit Judge Karen LeCraft Henderson thoughtfully indulged the potential scope of common law access to the legislature.

However, the First Circuit opined:

Assertions of legislative immunity and privilege by state lawmakers stand on different footing. For starters, they are governed by federal common law rather than the Speech or Debate Clause, which by its terms applies only to federal legislators.... And the common-law legislative immunity and privilege are less protective than their constitutional counterparts....  That is because the separation-of-powers rationale underpinning the Speech or Debate Clause does not apply when it is a state lawmaker claiming legislative immunity or privilege.

In other words, the court recognized a constitutional constraint in horizontal separation of powers, but not, here, in vertical separation of powers, or federalism.  Nevertheless, the court reasoned that "federal common law" was constrained by the principle of comity, "[a]nd the interests in legislative independence served by the Speech or Debate Clause remain relevant."

The court was not impressed with the truckers' assertion that a federal interest in dormant Commerce Clause enforcement bolstered the private cause of action.

[Plaintiff's] argument suggests a broad exception overriding the important comity considerations that undergird the assertion of a legislative privilege by state lawmakers. Many cases in federal courts assert violations of federal law by state legislators who are not joined as parties to the litigation. Were we to find the mere assertion of a federal claim sufficient, even one that addresses a central concern of the Framers, the privilege would be pretty much unavailable largely whenever it is needed.

Here it mattered that the Governor's and lawmakers' alleged discriminatory intentions would not be dispositive of the constitutional question.  Rather, the court opined, the Supreme Court has emphasized the primacy of discriminatory effect over discriminatory purpose in dormant Commerce Clause analysis.  Intentions would prove only the latter and not necessarily amount to a constitutional offense.  Moreover, the court recited a familiar conundrum in the construction of legislative intent, that individual motives do not necessarily reveal the purpose of "the legislature as a whole."

In sum, even assuming that a state's legislative privilege might yield in a civil suit brought by a private party in the face of an important federal interest, the need for the discovery requested here is simply too little to justify such a breach of comity. At base, this is a case in which the proof is very likely in the eating, and not in the cook's intentions.

The court refused, however, to quash the subpoena against the private consultant, CDM Smith, even if state records might be revealed.  The provision of state records to a third party diminished the claim of privilege, the court reasoned, and thus rendered the question unripe for interlocutory appeal.

The case is American Trucking Associations, Inc. v. Alviti, No. 20-2120 (1st Cir. Sept. 21, 2021).  U.S. Circuit Judge William Kayatta wrote the opinion for a unanimous panel that also comprised U.S. Circuit Judge O. Rogeriee Thompson, a Rhode Islander, and, sitting by designation, U.S. District of Massachusetts Judge Douglas P. Woodlock.

Latest installment of Trump family litigation saga includes tortious interference claim against media

A leaked Trump 1040 from 2005

Former President Donald Trump has sued his niece, Mary Trump, and The New York Times Co. in the latest installment of intrafamilial litigation related to Mary's 2020 book, Too Much and Never Enough.

Filed yesterday in Dutchess County, New York, this latest lawsuit (complaint at CNS; Times's own coverage) mainly alleges breach of contract in the earlier settlement of litigation by Mary against Donald over the handling of the estate of Donald's father, Fred, who died in 1999.  I wrote on the course blog for my Trump Litigation Seminar in 2020 about another lawsuit, which is ongoing, by Mary against Donald over the estate of her father, Fred, Jr.; and about a suit by Donald's brother Robert, who died in 2020, which failed to enjoin publication of Mary's book.

The instant complaint alleges that Mary Trump was the source of Trump tax records published by The New York Times in its 2020 exposé.  The bits that interest me are counts of tortious interference with contract and of "aiding and abetting" tortious interference—or the civil equivalent of aiding and abetting, more accurately described as "providing substantial assistance or encouragement"—against the Times.  The complaint alleges that the Times "relentlessly" encouraged Mary to leak the tax records while knowing full well that doing so would breach her confidentiality agreement.

An intentional tort, tortious interference is not confined to business or media, though it's often classified as a "business tort," its usual injury being economic loss.  And it's often included in mass comm law treatments as a "media tort," because it's sometimes deployed against news media.

The paradigmatic case of an interference tort leveled against news media is the threat of Brown & Williamson Tobacco to sue CBS for its 1995 60 Minutes interview with whistleblower-scientist Jeffrey Wigand in violation of Wigand's non-disclosure agreement.  There is a classic scene in the feature film about the matter, The Insider, in which CBS producer Lowell Bergman (Al Pacino) loses his marbles upon admonition by CBS counsel Helen Caperelli (Gina Gershon) that truth is not a defense to interference, rather is an aggravating factor.  "What is this, Alice in Wonderland?" Bergman wonders aloud.  The instant Trump case is compelling for its similarity to the Insider facts.  

Interference as a media tort in the public imagination, or at least the lawyer-public imagination, surfaces periodically.  I wrote about the issue in 2011 when Wikileaks for a while threatened to spill the secrets of big banks.  (That fizzled.)  The high incidence of non-disclosure agreements in settlements of Me Too matters, and the former President's enthusiasm for NDAs combined to fuel another spurtive engagement with the issue in recent years. 

The issue prompts sky-is-falling missives from media because the role of, or any role for, the First Amendment as a defense to tortious interference is fuzzy.  In reality, the problem rarely gets that far.  Without unpacking the nitty gritty, it suffices to say that tortious interference has public policy built into its rigorous heuristic.  It is prohibitively difficult to press the tort against a publisher operating with at least a gloss of public interest.

The Trump complaint tries to circumnavigate that problem by accusing the Times of profit motive in its pursuit and publication of the tax records.  But the history of tort litigation against mass media is littered with failed attempts to drive the stake of profit-making through the heart of the journalistic mission.  Whatever degradations have afflicted mass media in our age of misinformation, no court is going to buy the argument against the Times on that score, at least not on these facts—cf. Palin v. N.Y. Times (N.Y. Times), in which the alleged editorial misconduct is substantially more egregious.

The case is Trump v. Trump, Index No. 2021-53963 (N.Y. Sup. Ct. filed Sept. 21, 2021).

Court sentences 'Hotel Rwanda' activist to 25 years; U.S. plaintiffs serve Greek airline in civil action

Paul Rusesabagina

(NDLA: Creator: Erik Mårtensson/TT | Credit: TT Nyhetsbyrån CC BY-NC-SA 4.0)

Real-life "Hotel Rwanda" protagonist Paul Rusesabagina was sentenced in Kigali to 25 years' imprisonment on terrorism and related charges.

PRI The World's Marco Werman has an interview with journalist and author Michela Wrong about the latest in the case.  I wrote about the case in February.

Besides the concerning criminal proceeding in Kigali, the luring in 2020 of Rusesabagina, a Belgian citizen and U.S. resident, from his San Antonio, Texas, home to his abduction on a Dubai flight purportedly bound for Burundi spawned a lawsuit in the United States.  Claiming under the alien tort statute (ATS) and Torture Victim Protection Act (TVPA), Rusesabagina's family sued GainJet, the Athens-based airline that conveyed Rusesabagina in his abduction to Kigali, and Constantin Niyomwungere, who the complaint alleges was a Rwandan agent pretending to be a pastor conveying Rusesabagina to speak in Burundi.

Upon news of the criminal conviction, I thought it time to check the docket in Rusesabagina v. GainJet Aviation S.A. (Court Listener; see also family statement on conviction and more at Rusesabagina Foundation).  Regrettably, there is little of substance to report.  As one might expect, the plaintiffs have struggled with service of process.

The complaint was filed in the Western District of Texas in December 2020.  In May, plaintiffs reported to the court their intention to drop Niyomwungere from the lawsuit.  Plaintiffs wrote that Niyomungere "gave statements to the Rwanda Investigation Bureau in February and August of 2020 admitting that he had helped to kidnap Mr. Rusesabagina."  However, plaintiffs wrote, Niyomwungere is believed to reside in Burundi, and Burundi is not a signatory to the Hague Service Convention.

Meanwhile, plaintiffs had had service on alleged "co-conspirator" GainJet translated into Greek and delivered to Greek authorities under the Hague convention.  In the latest docket entries, in late August, GainJet returned a waiver of service of summons without waiving any defense of jurisdiction or venue.

Plaintiffs re-alleged in the May report that GainJet told Rusesabagina he was aboard a flight to Burundi.  Then "Gainjet’s pilot and flight crew stood idly by and watched as Mr. Rusesabagina was tied up by the hands and legs, his eyes covered, and his mouth gagged," plaintiffs further alleged, and GainJet accepted payment from the Rwandan government.

A private charter service, GainJet does fly to the United States.  In 2019, the U.S. Soccer Women's National Team flew home from the World Cup in France on a GainJet 757 to New York.  But I've not been able to identify any GainJet office or assets in the United States.  That bodes ill for having a federal district court in Texas exercise jurisdiction.

At the same time, GainJet holds itself out worldwide, and in English, as a luxury charter service.  Ongoing association with the Rusesabagina case can't be good for business amid the jet set.

A defense response in the case is due in late October.

Can 'inclusive capitalism' pull us back from the brink?

1957 U.S. propaganda poster (NARA)

"Welcome to late-stage capitalism!," DeepKarma tweeted @me earlier this month.

The exclamation was a response to my tweeted complaint that Hertz rental car quoted me a higher price when logged in as a "Gold Plus Rewards Member" than when I compared rates in an anonymous browser.  Dynamic pricing is a known feature of online retailing that rubs people the wrong way yet pours through America's dysfunctional consumer protection sieve.  I did not expect it to be a feature of Hertz's so-called "loyalty program."

Pushing the button of my angst over corporatocracy, DeepKarma's term intrigued me. My subconscience might have remembered Annie Lowrey's "Why the Phrase 'Late Capitalism' Is Suddenly Everywhere" in The Atlantic in 2017, subtitle: "An investigation into a term that seems to perfectly capture the indignities and absurdities of the modern economy."

The term dates to early 20th-century German economist Werner Sombart. Twentieth-century socialists mispredicting the demise of capitalism were fond of the term, which in turn made it unwelcome in polite democratic company.  Now our feverish commitment to deregulation, dismantling of social safety net, and bottom-line-driven abuse of human capital, etc., resulting in, inter alia, an enormous wealth gap and aforementioned charade of consumer protection regulation, have brought the term back into fashion.  I'm an economic conservative, by the way, but there is no free market if people are not free to enter into it and make free choices once they're there.

Coincidentally, I recently mentioned the work (and kind support for my work) of Syracuse law professor Robert Ashford.  It happens that Ashford is a leader of a community of scholars who have for decades been advocating, often screaming into the wind, for economic policy solutions to come from economics itself.

More often than not, the field of economics posits only descriptive research or resorts to classical norms such as laissez-faire regulatory policy without critical introspection.  Ashford is the founder of interdisciplinary "socio-economics," which strives for "inclusive capitalism": in my words, to use economic science to actually make life better for everyone, rather than for some at the expense of others.

A short but steep learning curve is required before one digs into the potential of socio-economics, in the vision of Ashford and colleagues.  Here is an introductory kit:

• Martin Walls, Professor Robert Ashford’s "Inclusive Capitalism" Gains International Support, Syr. Univ. News (Sept. 27, 2017).
• Letter, Economists Endorse Professor Robert Ashford’s Inclusive Capitalism, Apr. 14, 2021.
• Nicholas A. Ashford, Robert Ashford, & Ralph P. Hall, Broadening Capital Acquisition with the Earnings of Capital as a Means of Sustainable Growth and Environmental Sustainability, Eur. Fin. Rev., Oct.-Nov. 2012, at 70.
• Ralph P. Hall, Robert Ashford, Nicholas A. Ashford, & Johan Arango-Quiroga, Universal Basic Income and Inclusive Capitalism: Consequences for Sustainability, 11:16 Sustainability 4481 (2019).

As these titles indicate, the interdisciplinary nature of socio-economics and inclusive capitalism make the sub-field accessible to scholars, for both understanding and participation, in a range of disciplines, both soft and hard sciences, besides law and economics, and also understandable to anyone.  Professor Ashford is always willing to invest time and energy to help potential believers come up to speed, and he is a captivating speaker for conferences and classes.