gattsuru
17d ago
It’s a convention from role playing communities indicating either out-or-character comments or side discussions not attached to the main thrust of the current discussion.
gattsuru
17d ago
Yeah, the 'homeless person' concern is not the main objection, and I don't think anyone here's going to care what Texas' policies about low-cost IDs are.
That said, I think there are serious privacy and chilling effect concerns regarding this specific implementation and how it interacts with normal website management. The Texas law applies to any website run by a commercial entity (with a tiny number of exceptions), where more than 1/3rd of its content is 'harmful to minors', must do this verification or face sizable fines (up to 10k USD/day, plus 250k USD if a minor sees any banned content). Any web host operating in the United States that serves both adult and non-adult content, or even repeats content from its users, needs to do some pretty serious evaluations.
This wouldn't be too rough if the burden from age verification was tiny -- you take the precautionary principle to the max or divide the website and/or commercial entity -- but that doesn't seem to be the case. The plaintiffs here had a bit of a nut for a lawyer, but his claims that age verification could cost 40k USD for 100k users were plausible enough for a skeptical Texas court to accept it. That's steep but workable for a conventional commercial porn site; HB 1181 does not operate based on being a commercial site selling porn, but on being a commercial entity serving partially adult material. Even if he's off by a 'mere' couple orders of magnitude, there's a lot of websites and services where that's going to bring the risk-reward underwater, or outspend what sort of losses that a hobbyist is willing to lose out on.
gattsuru
17d ago
In this case, the law requires age verification for a web site run by a commercial entity where one third of the content on the site is 'harmful to minors', or the Texas AG can bring 10k USD/day charges even if no minor has visited the website. There's a lot of speech you do have a right to that can fall under that bar.
Maybe it's close enough to the right policy as to be worth that burden, but it needs to at least be considered in the context of what it's actually promoting, not just what the sticker on the front says.
gattsuru
17d ago
Presumably, all sexual material intended to arouse is deemed "harmful to minors"?
In theory, the term's pretty clearly picked to mimic federal obscenity-to-minors jurisprudence from Ginsburg, which... is a clusterfuck, but supposedly trades socially redeeming values against what extent the material is 'patently offensive to prevailing standards of what is appropriate'. In practice, I'd expect the Texas AG's going to act more based on what he thinks he can get away with and who makes particularly good news headlines.
I do not think that viewing PIV sex on video after searching for it is intrinsically harmful. The stuff which is harmful is all the stuff where porn differs from what one would recommend as sex acts for beginners.
There's some good arguments for this policy (and some against: do gay or trans versions of those get commissioned? should it recognize any kink at all, if in very 'correct' ways?). There's even been some, albeit mixed, efforts along those lines (one 'documentary' is very popular among het breeding fans, which... uh, Shinzo Abe meme, but probably not intended). You even get really awkward discussions about what the 'correct' age for this involves, and that's not a fun thing to even consider.
I dunno. I was a late bloomer. I don't think I have a good model for a lot of what'd be best, here, or even what a lot of potential harms would be. There's a lot of motions in both law and psychology about how any exposure to even 'normal' sex early on can cause harm, but then we're relying on a bunch of (mostly 1970s) psych research, and I would prefer not to.
But my suspicion is that the Texas move was never about protecting minors in the first place, it was about getting the filth off the Texan internet by pretending to care about minors seeing boobs and dicks.
I'd expect it's even less good than that: the end result's just going to make the stuff operated by American businesses less profitable and crush smaller actors, and scare straight websites that intermix adult and non-adult content.
gattsuru
17d ago
I think the implication of the proceedings was that this was not true, clearly wasn't true, and the court didn't want to waste time and money on sorting it so used other procedural grounds to close the matter.
But from a due process perspective, that's an abomination. If the problem genuinely was that the court believed TB had a criminal history or other occurrences of mental health breakdown, TB has absolutely no reason, having read the court's public record, to actually go and find proof on those things. There's not even a reference to what better proof would be about.
((Admittedly, because it's quite possible TB presented perfectly adequate proof, given that the expungement process requires petitioners give permission for a full background and mental health record search, and the law requires the court to ask the committing facility. I don't trust New Jersey judges.))
And more critically, it's trivially resolvable. Assuming without evidence that the court would be crippled by asking for criminal records, it costs the judge mere seconds to write out that the plaintiff needed to provide them. Instead, if he doesn't die or run out of money or patience first, TB's going to back to court with a list of his medications in his pocket, proudly mispronounce every single one, and the judge will find some other excuse that doesn't really matter.
Most principled third parties read about these situations and fear some authoritarian judge taking rights away (which does happen) but the vast majority is "please give me something, anything to work with.....okay I guess you won't."
And if judges want us to believe that, they a) need to actually write it into the public record, and b) have public records giving normal people reason to distrust them.
gattsuru
17d ago
That's fair; it's definitely better than the parade of 'well, you can't kill me this way' or 'oh, but I got bad advice from a defense attorney that I ignored anyway'.
gattsuru
17d ago
I am not a lawyer, nevermind a class action lawsuit lawyer. The federal government's lawyer said that there were questions of typicality and gave a few groups, primarily based on the distinction between whether parents were temporarily permitted into the United States at the time of the birth. If he got his way, this would point to a couple different class actions...
But class action plaintiffs can prove they are typical members of a class by bringing more members into the plaintiff side of the bench; if you have plaintiffs on record as belonging to each of these groups, you defeat a typicality challenge.
This could be an issue for other universal injunctions, but I'm willing to put my money where my mouth is on this one.
gattsuru
17d ago
The law's focus is about pornography to minors. A covered web host can be liable for ten thousand dollars per day even if they're never viewed by a minor, and the only way to host more than 1/3 "harmful to minors" material requires collecting identification proofs of age or collecting financial proofs of age (and a stayed requirement to post giant blocks of text). Likewise, someone wanting to request material from a covered web host must provide identification or financial proof of age, even if they're an adult, and even if they're requesting non-obscene-to-minors material.
Maybe those tradeoffs are worth it, but rational basis review doesn't do any such analysis.
... depends a lot on your definition of 'national injunction' and 'gain value'.
This at Table A-2 provides the most expansive definition of both, in that they were injunctions applying beyond the bounds of a courts jurisdiction and applied for at least some time, though because it measures them by what President was in place when the injunction was applied, not what President's administration started the policy that was enjoined (eg, several 'Biden-era' cases revolve around preliminary injunctions about military prohibitions on HIV-positive membership or joining, Harrison and Wilkins). (Contrast Harvard's 14 injunctions under Biden). Smashing those two lists together and focusing on the Biden admin, I'd count :
- Texas v. United States, 515 F. Supp. 3d 627, Tipton's temporary restraining order and preliminary injunction against Biden's 100-day pause on immigration deportations. I don't think this ever got reviewed before it self-mooted, but I also don't think it actually stopped the admin from just doing it and saying it was enforcement discretion.
- Faust v. Vilsack, 519 F. Supp. 3d 470, Holman v. Vilsack, No. 21-1085-STA-JAY, and Wynn v. Vilsack, 545 F. Supp. 3d 1271, loan forgiveness for racial minority farmers. I think this one held for at least the original program until it was repealed. Biden did work around it by using other programs or having supposedly race-neutral programs that only racial minorities were informed about, though.
- Louisiana v. Biden, 543 F. Supp. 3d 388, ban on new oil drilling leases in public lands, preliminary injunction. Reversed on appeal to give more tailored restrictions, trial court drew it back to thirteen plaintiff states. Also an APA case. It's not clear if it actually worked; the EO in question didn't stop scheduled oil leases, but the plan for future auctions dropped dramatically.
- Texas v. United States, 549 F. Supp. 3d 572, DACA, preliminary injunction on new admissions to the program. APA case, overturned on appeal.
- Texas v. Biden, 554 F. Supp. 3d 818. Termination of Migration Protection Protocols (aka Remain in Mexico). Kinda an APA case? Overturned by SCOTUS and the Biden admin had just made a new memo terminating it anyway beforehand.
- Texas v. United States, 555 F. Supp. 3d 351. Whether "shall" requires the administration to do anything to criminal illegal aliens, preliminary injunction. This is the one I keep yelling at Ben_Garrison about, you know how it ended.
- Arizona v Biden, 40 F.4th 375, second verse, same as above except it was overturned at the circuit level.
- Georgia v. Biden, 574 F. Supp. 3d 1337, federal workers vaccine mandate on the contracting side, preliminary injunct. 11th Circuit scaled it back to just the plaintiff organizations, their members, and the seven plaintiff states.
- Feds for Med. Freedom v. Biden, 581 F. Supp. 3d 826, federal workers vaccine mandate on the employee side, preliminary injunction. Long procedural history, think the injunction was in place when the policy was repealed, mooting the arg.
- Nebraska v. Biden, 52 F.4th 1044. HEROES Act loan forgivness, preliminary injunction by the appeals court. Upheld by SCOTUS.
- Braidwood Mgmt. Inc. v. Becerra, 666 F. Supp. 3d 613. Contraception, abortion, and PReP mandate for ACA insurance coverage, weird procedural history since it's mostly a process question with RFRA stapled on the side, hence why it came up literally yesterday. The RFRA side got an injunction that looks like still applies but isn't universal? And the universal injunction on Appointments/APA was squashed early on appeal down to just the plaintiffs, overturned by SCOTUS.
- Monticello Banking Co. v. Consumer Fin. Prot. Bureau, No. 6:23-CV-00148-KKC and Tex. Bankers Ass'n v. Consumer Fin. Prot. Bureau, No. 7:23-CV-00144. Something about the CFPB being unconstitutional and injunctions against data collection rules. I'm not even sure if these count as real national injunctions rather than just applying to a large organization with a lot of members.
- Nuziard v. Minority Bus. Dev. Agency, 721 F. Supp. 3d 431. Another racially discriminatory aid program, preliminary injunction. I think they just made the discrimination a little more subtle, but technically the injunction applied to the end of the case and the plaintiffs got a result.
- Career Colls. & Sch. of Texas v. U.S. Dep't of Educ., 98 F.4th 220. Higher Education Act loan forgiveness program. Preliminary injunction on appeal, under the APA. Currently at SCOTUS.
- Alaska v. U.S. Dep't of Educ., No. 24-1057-DDC-ADM, SAVE higher education loan forgiveness program. Preliminary injunction, under the APA. Stayed on appeal, though Nebraska effectively covered the same ground eventually.
- Missouri v. Biden, 738 F. Supp. 3d 1113, FEEL higher education loan income-based repayment program. Preliminary injunction, under the APA. I think upheld in 8th Circuit
- Associated Gen. Contractors of America v. U.S. Dep't of Labor, No. 5:23-CV-0272-C. Something really technical about treating truckers like mechanics for 'locally prevailing wages and benefits' rules? Preliminary injunction under the APA, appeals are currently stayed.
- Tennessee v. Becerra, No. 1:24cv161-LG-BWR. Including gender identity to Title IX (and indirectly, the ACA). Preliminary injunction under the APA. Probably mooted by the election.
- Tex. Top Cop Shop, Inc. v. Garland, No. 4:24-CV-478. Corporate Transparency Act beneficial owner rule. Commerce clause challenge, the poor bastards. Stayed by SCOTUS, with Kavanaugh specifically writing this as an example of universal injunctions bad.
- EDIT: All. for Hippocratic Med., 668 F. Supp. 3d at 560. Abortion pill FDA approval under APA, technically a nation-wide stay, but had the effect of an injunction. Got smacked down by SCOTUS./EDIT
Honorable mentions:
- Price v. Barr, 514 F. Supp. 3d 171, permanent injunction against rule requiring permit to film in national parks, reversed on appeal. Not really a red-tribe-blue-tribe thing, at least directly; one of the few places I'd put myself and Merrick Garland on the same side.
- Arizona by and through Brnovich v. Ctrs. for Disease Control & Prevention, 2022 WL 1276141. If you want to find anything on this, look for "Title 42 Immigration Case", or this clusterfuck. The preliminary injunction itself was against a Trump-era rule about immigration under COVID, but Biden hadn't officially stopped it, but Biden was defending or 'defending' it.
So there's a lot of cases, here. How you analyze them's going to depend on what you're looking for. Literally any case with an injunction broader than the plaintiffs that wasn't immediately stayed? I think you get somewhere around 15-17 cases, on about five major topics. Cases where this actually worked, if only until final review, cuts out at least five. In one sense it's damning that some of these injunctions got overturned by higher courts... but does that mean that the lower court got it wrong, the higher court got it wrong, or just that SCOTUS was trying to push the CASA button then?
Cases that would have changed if CASA was decided first? A lot of these are APA challenges that CASA specifically sets aside for future discussion, another handful were already being drilled down to their plaintiff states.
Cases that mattered? I dunno.
gattsuru
17d ago
The specific law here holds that a "commercial entity" (some carveouts for Google) that serves material on the internet "more than one-third of which is sexual material harmful to minors" must use either commercial or government identification of age, or be subject to fines up to 10k USD per day plus 250k if a minor sees it. There's pretty widespread potential to interfere or discourage adult-to-adult speech that is only obscene to minors, or even some speech that isn't obscene at all so long as it comes from one of these companies.
There's also a compelled speech problem in the original bill, 14-point font inclusion of a substance addiction help line level. This is currently blocked, though it had a weird period where that block was under an administrative stay for nearly six months.
gattsuru
17d ago
Basically credit card transactions or services using those transactions. It might allow MindGeek-like auth, but the US doesn’t really have that. Presumably with a good faith effort to validate that the credit card holder’s name is above 18, though it didn’t come up in any args I could see.
gattsuru
17d ago
Problem in this case is that it's possible that any DNA under the victim's fingernails match one of the Gutierrez's compatriots, and Gutierrez still entered the trailer and participated in the murder -- just without being scratched. Indeed, because one of his compatriots lived with the victim and had 'found' the victim's body, some of the samples should be reasonably expected to be not-Gutierrez's even if he was totally guilty as can be.
There's been fact-based determinations before focusing on guilt (even, rarely, ones that raised serious nontrivial questions of guilt: McCollum is pretty embarrassing to Scalia). I'm hard-pressed to see how that'd happen here.
Free Speech Coalition, Inc. v. Paxton - Pornography 6-3 conservative opinion, Thomas. First Amendment does not prohibit Texas from requiring age-verification for pornographic websites. Kagan writes the dissent.
This one's weird.
The law is probably reasonable enough or close to reasonable enough (if not necessarily my idea of well-designed), but the lower court just set it against rational basis review. Previous SCOTUS decisions either put restrictions on adult content either fully in strict scrutiny (Ashcroft I and II, where restrictions were on the basis of the content's adult nature) or rational basis (obscenity to minors, movie theatres). And strict scrutiny, at least in a free speech context, is ruinously hard to achieve, in ways that even Thomas probably doesn't want to water down. The closest obvious parallel in previous law was adult theatres, which was admittedly a pretty jank decision of its own by pretending it was separating the effects of the content from the content to justify rational basis review. But that'd be the same as no review at all.
I guess this case didn't fall close enough to the commercial speech restriction cases for the adult theatre side to be even remotely palatable? But it's Thomas, and his willingness to go to the bat for bizarrely aggressive paternalism (eg, en loco parentis) is one of the bits that's long been a go to, for better or worse. Instead, he reaches (through BSA v. Dale for some reason) to the draft-card burning regulations from US v. O'Brien, saying restrictions on speech here are incidental to restrictions on behavior, so intermediate scrutiny. From that view, it's not unreasonable.
Then Thomas differentiates it from the strict scrutiny CDA cases by saying those "effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive”. But the analysis is just limited to privacy concerns and stigma (aka, more privacy concerns). Yet these restrictions have potentially massive costs to speakers, not just receivers, on adult-content sites or even mixed-content that don't go up to that mark. Likewise, he tries to distinguish the CDA as regulating noncommercial sites that would not readily take up credit card processing, but HB1181 applies to all commercial entities, not just commercial sites. Burden can't drive level of scrutiny up, but this sort of perfunctory analysis gives little idea of what the actual analysis is, especially since intermediate review is a little ad hoc to start with.
Some of that burden review is probably because the Free Speech Coalition advocate comes across as kinda a nutcase during oral args. He mentions costs to site managers once in oral arguments and it's a stunning 40k USD per 100k users, and then spends much more of his time ranting about the motivations of anti-porn people. But then intermediate scrutiny's biggest bite is specifically in the prong of the O'Brien test that asks if the government interest is tied to the suppression of information, which is where the whole anti-porn thing rises anyway.
It rounds out to normal -- Thomas does everything short of wink-and-nod to say that pretextual restrictions on obscenity-to-minors that try to cover restrictions on adults are invalid -- but it's just such a bizarre way of getting there, and it's going to invite a lot of mess from lower courts.
Gutierrez v. Saenz - ... My read: SCOTUS lets a death-row inmate file a doomed, pointless post-conviction motion that doesn't have any hope of success but will probably delay his execution for a few more years
Yeah, probably. I'm really skeptical that a DNA test with no return of Gutierrez's DNA from the few samples available would factually demonstrate that he was outside of the trailer (or for a positive result to have his advocates want him in the chair), and while I could kinda see the arguments for allowing it anyway, it's hard to care. There's a chance Texas will just punt on killing him, but it's Texas, so that's a real far outlier. The process and procedural stuff might matter for other cases, perhaps? The court just didn't like the lower courts ignoring past dicta?
gattsuru
17d ago
Given that we could end up in situations where newborns in certain states acquire citizenship and other newborns don't, I would've thought the Supreme Court would issue a decision on birthright citizenship within the present term. Is it just that there's not enough time?
They don't have a current case on it; almost everything is early in preliminary process at the district or appeals level. The oral args brought up cases in the First, Fourth, and Ninth Circuit, there's no chance of the feds winning the 9th Circuit barring pod people, and the feds committed to requesting cert if they lost (for whatever a lawyer's promise is worth, lol). Bondi's statement, charitably, would involve a fast resolution to one of those cases, an October term hearing, and decisions months after that. This timeline might not give us an answer until Spring or Summer 2026 (although I think it'd be obvious before then).
But I don't think CASA prohibits all preliminary protections. The majority opinion openly invites class certification and class-wide relief, and the extent that the feds tried to argue against class certification during oral args was kinda a joke:
KAVANAUGH: If you were to oppose it, on what basis would you plausibly oppose [classwide certification]?
GENERAL SAUER: There may be problems of commonality and typicality, for example. For -- for example, there's two different sets of groups that are affected by the Executive Order. There are those where the mothers are temporarily present and those where the mother are illegally present, and in both cases, the father is neither a citizen nor a lawful permanent resident. So there might be issues of typicality. Adequacy of representation might very well be an issue. So there would have to be that rigorous application of those criteria. Now the argument may be this is a case that is a natural candidate for a Rule 23(b)(2) certification. That may well be true. The government hasn't taken a position on that. Our position is not that class certification will necessarily be granted.
((I'm increasingly thinking SCOTUS picked such a broad case because the more grounded alternatives for preliminary relief are fairly straightforward.))
What are the chances that the Supreme Court actually strikes down birthright citizenship? My impression from the start was that this was always going to be a losing case given how far back the precedent goes, but I'm far from an expert.
It's pretty low. The legal arguments aren't as obviously wrong as at first glance, but they're still a long reach, and mixing that, the reliance interests, the seeing-as-a-state problems, everything like that... I don't want to say zero, because zero isn't a probability, but it's low low. I'd honestly consider 9-0 more likely than 6-3 or 7-2.
gattsuru
17d ago
Trump v. CASA is very specifically about universal injunctions; none of the majority really delves into the likelihood of success in the merits, and I'm extremely skeptical that it could get more than two votes max on the merits of the underlying lawsuit.
I'm skeptical the EO will even avoid pretrial mass relief: the majority openly invites state-wide injunctions or class action lawsuits, and this would be one of the cleanest Rule 23 class actions possible. I'd be willing to bet 100 USD to a charity of your choice that there are at least three circuits where almost all children of illegal immigrants are covered by an injunction before the end of the year, and I'm only going that low because of friction effects.
I hate to break it to you, but the same applies to any other area of the law, including whether the state can revoke your own liberty for a period of years. Yes, there's the added protection in that case that you will be entitled to an attorney if you can't afford to pay for one, which attorney will probably do an adequate job but might not, but in any event, all the other concerns you raise still apply.
And the additional due process rights, and numerous opportunities to seek freedom, and the burden of proof falling on the government, and the burden of proof being much harsher on the government, yada yada.
As a side note, while that attorney was on record for the appeal, it isn't clear that the guy was represented at the initial hearing. Based on the available record, I'm inclined to believe that he wasn't.
It's possible, but a) we don't know and b) there's absolutely a lot of well-represented and reasonable clients that just don't present well to judges, especially when you're talking 80-year-olds.
There are attorneys in Pennsylvania who specialize in this sort of thing and no, it isn't cheap, but it's what you have to do.
Yeah, that this is "what you have to do" is a good part of my objection. Access to justice and civil rights dependent on thousands or tens of thousands of dollars is a right denied. (The other part is that it's far from clear that would be enough.)
But they're not; this is the case of someone who was already adjudicated ineligible to purchase firearms based on a separate proceeding, at which the right to own firearms was collateral to the determination.... The procedural posture here is no different than that of a convicted felon petitioning the court for an expungement so he can buy a gun legally.
Yes, the procedural posture here treat someone who had a mental health commitment like a convicted felon. Is that proceeding to issue a mental health commitment equivalent to the conviction of a felon?
I can't find the process New Jersey used in 1980, since a 1987 revision to state law was noteworthy for requiring a finding of dangerousness and mental illness, but the current law still allows initial holds for 72 hours without ever seeing or hearing from a judge, and an intermediate period up to 20 days with a court order under reduced requirements. Even assuming that T.B. had something more serious than a rubber stamp in 1980, it still had nowhere near the burden of proof, clear notice of law he was violating, or any similar due process right. (He near-certainly wouldn't have had access to an attorney, even had he seen a courtroom, and might have even been ex parte for the court hearing given the state of laws in other nearby jurisdictions at the time.)
There's a reason that this overlaps closer to the GVRO or various Red Flag laws -- but those processes are intentionally supposed to be temporary! The federal laws here apply even to mental health episodes that happened before the GCA1968 was even passed, and they chase a person to their grave unless specifically expunged.
Is the action here similar? Felons can be disarmed because being a felon is a long-lasting indicator of propensity to act violently outside the law (although even that's kinda marginal given how broad modern 'felonies' have become). Was T.B.'s issue in 1980 some long-lasting inherent problem that would likely recur? Or was it one time event? We don't know. T.B. provided some evidence that he had no current mental illness. No one on the court provides any evidence against that, they just woolgathered about how it wasn't trustworthy enough in some vague ways that their guts didn't like. The judge specifically said that these gutchecks pointed "not that he’s dangerous".
In any event, it's hard to see what the court did wrong here. The guy has the burden of proof to show he should get an expungement, and he provided very little evidence beyond "I'm not nuts and you should take my work for it".
From a statutory perspective, the petitioner is only required to prove that their illness is in remission or substantially improved; the court (and the original medical director) are the ones to "find" if the petitioner "will not likely act in a manner dangerous to the public safety and finds that the grant of relief is not contrary to the public interest" based on "the circumstances of why the commitment or determination was imposed upon the petitioner, the petitioner's mental health record and criminal history, and the petitioner's reputation in the community". The petitioner demonstrated that their condition was substantially improved, and provided some evidence that they were not likely to act in a matter dangerous to public safety. And the judge, rather than pointing to some part of the petitioner's mental health record, or reputation in the community, or circumstances of their original commitment, said that they didn't like some of the evidence the petitioner provided or the petitioner's demeanor, and then the case is done, caput, do not pass go, do not collect your rights or your 200 USD.
I frankly have no idea how the judge in question here can honestly take a look at a forty-year period with no criminal history or further interactions with the mental health system or criminal justice system, a commitment that the judge found was motivated by the man attempting to strangle his wife, and say "I don’t know if that means that his condition is substantially improved or in substantial remission." I don't have high opinions of New Jersey cops! But I don't have that low an opinion, either.
That would just be annoying in other contexts. I'd like a lot more due process and a lot less 'whatever some jerkoff judge thought was good policy between ranting in their chambers', but I'm not optimistic about matters as simple as ['maybe judges shouldn't hear trials on laws that they pledge specifically to support'.
Here, we are talking a constitutional right, a petitioner who has never been convicted of a crime and may never have seen the inside of a court room before this appeal, and a judge who has rewritten the law until his or her only guiding star is 'what can I imagine' and only boundaries are 'could impact the public interest', in a jurisdiction that has spent literal generations and has extant caselaw demanding "the citizen acts at his peril" in this context. It is a problem when there is an unclear burden on the petitioner to fight any evidence that any judge may ever want or make up, in a hearing that becomes an adversarial hearing against that judge, and where there is no further opportunity or discussion before trial about what the judge decided was the magic words beyond 'hire the best and most specialized lawyer possible'.
T.B. here might well (maybe even likely would) fail an honest analysis of dangerousness, but we didn't get that. T.B. might well (maybe even likely would) fail an honest analysis of improvement in mental health condition. We don't even get a judiciary interest in that. At best, you can argue that this complied with the statute, as long as you put a heavy thumb on judicial interpretation of the 'well, it doesn't say we can't' sort. The courts could have subpeona'd medical records, or written that the petitioner refused to provide access. The courts could speak to a criminal record or lack thereof. The courts could have pointed to some critical issue in the original commitment hearing, if any existed, pointing to likely repetition or recurrence. They could have asked his wife or coworkers or doctors if he was strangling them. They didn't. Nor, for that matter did the judges comment on a lack of submissions on these points from the petition’s side.
They tea-leafed whether a guy could remember a name of a medication while speaking extemporaneously, or whether he might forget to use a safety. They announced that he needs some time working in the mental health system to prove to them he had gotten better (how long? why would that matter to an 80-year old?). And then they washed their hands of any questions of whether he was a danger to the community or mentally ill or what say you.
To treat this as in the interest of justice because you, personally, can smell a rat, in a case you couldn't be bothered to look at the first sheet before writing about?
gattsuru
18d ago
Yeah, they're not even subtle about it.
gattsuru
18d ago
Also, 2A rights are still largely intact? Some states can screw with you a bit or place some minor restrictions on firearms, but none have been able to ban them outright.
gattsuru
18d ago
To Rightists with daughters reading this: are you concerned that they might encounter "natural family planning" on the internet and really f*** up their life?
Funny story: typical use of condoms is about as effective as typical use of natural family planning (which in turn is about as effective as the pull-out method). In general, there's a lot of good arguments against overlapping multiple different methods if you aren't using an IUD, but a lot of the 'herp derp they hate birth control' stuff is a lot more workable than most people expect.
((I don't have a daughter (or son), but especially given the chances my preferences are genetic I'd be more concerned about the other consequences of sex, like bad relationship fallout.))
As far as I can understand it, the timeline is:
-
In 1983, T.B. was involuntarily committed in Ancora. There's some skepticism over exactly what degree of behavior this involved (ie, TB says he was violent pre-admission and then some time later was released after questioning, Ancora wrote that he was violent after admission), but T.B. does not claim that the commitment was illegitimate or trolling.
-
In 2022, T.B. went to LifeStream for outpatient treatment claiming interest in treatment for anxiety (and depression?), but really wanting to get a 'I'm not crazy-crazy' note. Neither anxiety nor depression would be disqualifying for firearms purchase even if he did have them (probably. NJ's a little arbitrary here).
T.B. was not trying to undo the LifeStream visit, but to remove the records about the Ancora commitment. The court held that the standard was not just that " their illness has either "substantially improved" or is in "substantial remission" since their discharge from a mental health facility" -- which it clearly had -- but that T.B. had to actively prove that the expungement of his Ancora record was in the public interest, and as a result it was not sufficient to demonstrate he was not actively dangerous. They had evidence that the man's mental health had improved, and none that it had not, and decided that this left the question unanswered and unanswerable. They had evidence that the man was not dangerous (literally "speaks volumes about not that he’s dangerous to the public safety"); the judge ducked it because the judge determined on his own that TB might forget a safety maybe.
It's possible (even more-likely-than-not) that the courts would have been able to withhold expungement under a more serious standard focusing on dangerousness or on continuing mental illness. But the issue is that they didn't have to actually interact with that more serious standard or any standard at all, and Rov_Scam's jumping in to inform us that it's tots reasonable anyway.
EDIT: you are correct that there was no 2A analysis involved.
For the purpose of federal law, unless theres' been intervening changes to the law or caselaw, 302s don't count, because they're not adversarial or judicial hearings and often run ex parte. They do count for state law, though.
The mental defective side of the bar has been used very widely, if not consistently. And some places will ingest someone who comes to them voluntarily as if they weren't willing (or even treat a voluntary admission as involuntary without undergoing the normal procedures), though thankfully that's one of the few places that courts have been willing to push back on.
But otherwise, yes; federal regulations require that it be involuntary.
I will caveat that many states have separate rules that trigger on voluntary commitment, or don't even require commitment at all (hey, Hawaii!). New Jersey is one such state; applications for a purchase permit require applicants to complete a consent to mental health record search form. While the statute only specifically prohibits giving permits to people with a voluntary or involuntary current committment (no, I don't know why), both state courts and police generally treat it as a blanket prohibition, along with many inpatient procedures. T.B. here isn't even getting to that point, so he can't challenge it, either.
gattsuru
18d ago
[disclaimer: IANAL]
The rule is that all administrative remedies must be exhausted before a lawsuit can be filed (successfully).
This has actually historically had some awkward results. For the VA example below, there was a VA-internal administrative appeals system required by the NIAA, but it would routinely sit on appeals for years. NICS itself has an ATF Relief From Disability program authorized by statute that has been defunded since 1993 and wasn't fast before that. Sometimes this precluded judicial review entirely, other times required demonstrating constructive denial.
That said, this court case here is the lawsuit after exhaustion of administrative appeals. You aren't required to (and are actively discouraged from) bring each matter individually. There's actually a bunch of really complex res judicata rules about bringing a lawsuit over the same legal matter without having a different underlying act, though I don't know them well enough to be absolutely confident that they'd preclude a second lawsuit here.
That said, there's basically zero chance of a successful Second Amendment lawsuit on this matter. SCOTUS has already had fairly sympathetic plaintiffs available, such as Mai v. United States; they've punted. Most successful lawsuits have depended entirely on process or statutory definitions regarding who counts as disqualified to start with. The one exception is the Sixth Circuit, notably distant from New Jersey, and that case depended on the government completely disavowing any current finding of dangerousness or similarity to currently-mentally-ill people.
The National Instant Criminal Background Check Systems (NICS) is a 90s-era system that (almost) all buyers of firearms have to undergo every time they buy (almost) any firearm. Despite its name, it checks not just criminal history, but also every other category under the 1968 GCA that disqualifies a person from owning (almost any) firearm, where the disqualifying incident has been reported to the FBI. While most people notice this only when buying a firearm, those who get a DQ result from NICS are on notice that they can not legally own (almost) any firearms, no matter what conditions they received them.
One lesser-known disqualification is that of those who are 'adjudicated as a mental defective or has been committed to any mental institution', which is the prong T.B. in this New Jersey case failed. However, the exact edges of those definitions are fuzzy. Most jurisdictions require some level of adversarial hearing or multiple doctors reviewing the commitment, but neither rule is part of the statute and neither have bright-line across-the-US caselaw.
While the Department of Veteran's Affairs had long held the ability to report 'mental defectives' since the 1993 establishment of NICS, and Clinton made some acts on this road, the Obama administration held that the Department of Veterans Affairs could use existing records to determine what veterans were 'mental defectives' and should do so automatically and categorically. To do so, they relied on determinations of what veterans had a fiduciary appointed to help manage their financial affairs, a process that had very low standards of evidence, a presumption of incompetence against the veteran, no due process rights to representation, did not require any qualifications or training for the administrative staff making the determination -- and, of course, did not give adequate preliminary notice that the act would strip away any Second Amendment rights. 95%+ of all "adjudicated as a mental defective" submissions to NICS from federal agencies were coming from the VA in 2013 and 2014. This ended up including hundreds of thousands of submissions.
((Continuing on a certain theme, the Obama administration based this policy's authorization on the bipartisan NICS Improvement Amendments Act of 2007.))
Most critically, veterans could and often did receive or even actively request fiduciaries solely to assist with financial affairs, not because they were dangerous or actually incompetent, such as if they wanted their spouse to have easier access to their records or VA fund. This could mean dementia or severe suicidal ideation, but because the VA was also getting eaten by paperwork in the same time period, this also could just be a matter of who in the family had the time or the patience to deal with the bullshit or, again, who could balance a checkbook.
Ostensibly, the policy was meant to reduce veteran suicide. To be charitable to the point of foolishness, I’m sure the proponents were absolutely sure that they were reducing firearms suicides (or lost guns) by making them less available to some vets. But given the near-complete disinterest in whether these disarmed vets were particularly likely to commit suicide, that’s about the best you can get, and then we’re back to the federal government treated arbitrary restrictions on a constitutional right as an unalloyed good, and these people targeted because they’d be less able to challenge it.
The Obama administration later proposed a federal regulation applying the same sort of system to Social Security and was expected to hit at least 75,000 people; this was blocked under the CRA in 2017. Some appropriations riders in 2024 and 2025 blocked the VA from using funds to submit records to NICS except where a finding of dangerousness or a court order was involved, though the last rider I'm aware of expired in March.
gattsuru
18d ago
The first trouble is that, even assuming these things are all true, this conditions the availability of a constitutional right on knowing exactly how to frame a matter for the tastes of whatever judge or judges he was unlucky enough to pick months or years before seeing the court room, having the funds to hire lawyers (and since the guy isn't pro se, instead being represented by this guy, having the funds and knowledge to hire 'competent' lawyers), having the capabilities to act well as an effective witness at trial, and come off nicely-enough presented while sitting in court for a New Jersey judge to like him, (and don't know about a community services organization offering low-cost outpatient services). Few of these matters could be verified without a time machine; none are in the public record to even make sure that the judges are properly summarizing it.
The second trouble is that, especially when coming from someone that says "that seem onerous but that's the point" when it comes to this class of regulation, there's a lot of 'oh, my personal experience makes this seem a whole lot more reasonable' depends on things that the rest of us can't know.
The third's that assuming enough round up to true requires a lot of faith in the New Jersey appellate courts, and there's reason to believe judicial bias here older than most people writing on this site in general, and for at least one of the two judges here.
The deep problem is that these don't apply to the all or even a majority of the cases you're supposedly focused on, and could easily apply to the harmless. The "can't remember the name of their medication" test is a frustratingly close mirror to the Obama administration's 'fiduciary' test, which was quite broadly applied to people whose sole sin was having difficultly dealing with a checkbook. That's not only non-theoretical, it's a decade-old.
They have to get rid of "content harmful to minors". That's theoretically less expansive in many ways, but in practice it's far broader than all but the softest-core definition of porn.
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