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PaperclipPerfector  7mo ago (text post)   26292 thread views

Culture War Roundup for the week of September 25, 2023

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The Ninth Circus vs. VanDyke: Collegiality Edition

Duncan v. Bonta ('large' magazine ban) has had another order issued en banc. Like Duncan v. Bonta in 2021, the 9th Circuit has, to the surprise of no one with a pulse, issued a stay against gun rights.

About the only silver lining to that cloud from my perspective is a cheeky VanDyke dissent. And as you can guess when Hurwitz leads by trying to play cleanup and to bash the "rhetoric" of his colleagues (just like in the 2021 Duncan), this one's a doozy.

Where VanDyke's McDougall opinion included predictions of and draft copy for an en banc reversal that would find the Second Amendment covered nothing (which I almost thought would turn out pessimistic given Bruen, until the case was shoved to the lower court decided again that the Second Amendment covered nothing), this is 'just' an administrative stay during appeals, and normally such deep discussion of philosophy of law would be unnecessary and unexpected. Instead, VanDyke looks to the past in today's piece:

Apparently, even summary reversal by the Supreme Court has not tempered the majority’s zeal to grab this case as a comeback, stay the district court’s decision, and make sure they—not the original three-judge panel—get to decide the emergency motion (and ultimately, the eventual merits questions) in favor of the government. I think it is clear enough to everyone that a majority of this en banc panel will relinquish control of this case only when it is pried from its cold, dead fingers. And I think it is clear enough to everyone why...

"Comeback" cases reflect Ninth Circuit Rule 3.6 here. Butamay previously pointed out that he knew of literally no cases before where the 9th Circuit has taken a "comeback" case and made decisions at the en banc for an emergency stay rather than returning it to a normal appeal, and despite the majority's claims this is by-the-book it's also hard to miss that the ink on these books are so fresh. The "comeback" rules date back only to 2016. But that's just normal calvinball. Worse:

But the current irregularities highlighted by Judge Bumatay’s dissent are not the only way this case continues to demonstrate our court’s enduring bellicosity toward the Second Amendment. The irregularities in this case run much deeper— indeed, all the way back to when this case was first called en banc. This en banc panel was born in illegitimacy, and this case should never have been taken en banc in the first place.

After the three-judge panel first issued its opinion in August 2020, one judge on our court requested Rule 5.4(b) notice in three cases (including this one) but then inadvertently missed the deadlines to timely call the cases en banc under our clear rules. That could happen to any judge. But rather than simply accepting the result dictated by our rules, or even deciding as an entire court to waive our rules, we went in a different direction. First, the decision was made by someone— not by the rules, or even the entire court—to allow the respective panels to waive the deadlines on behalf of the entire court. Then, the campaign started: earnest conversations were had, hearts were poured out, tears were shed, and pressure was applied to the panels with mace-like collegiality. And in the end, a discrete collection of judges—again, not the entire court—struck a “compromise,” circumvented our own rules, and allowed the en banc call to move forward. But only in this one case. The agreement was made to call this case but drop the en banc calls in two other cases—_including a death penalty case_. Priorities.

I'd be a little interested to have names, here, but it's not clear even this description gives enough detail to go digging: GO5.4(b) notices aren't covered by courtlistener or the 9th Circuit's website.

We have a process for suspending the rules, upon a vote of the entire court. See 9th Cir. General Order 12.11. But no judge tendered a Rule 12.11 request. Instead, this was handled off the books by a handful of judges. Which makes it even worse. This off-books approach allowed the would-be en banc advocates to pressure the panels to be “collegial,” and simultaneously concealed these conversations from the rest of the court. It also delimited the scope of the question to whether we would “bend the rules” and allow some exceptions in three specific cases, which prevented the entire court from considering the weightier question of whether, as an institution, we should be suspending our settled rules for “particularly important cases.” Such agreement—however procured—does not somehow confer legitimacy.

In sum, not only is our court treating this case “special” now, but the process that brought this case en banc in the first place was illegitimate from the start. This demonstrates and perpetuates this court’s anti-Second Amendment posture, rewards the weaponization of (one-sided) collegiality, and damages the internal and external integrity of the court. How are we to uphold the rule of law, and reassure the public we are doing so, when we disregard our own rules and make questionable decisions like this behind closed doors?

To tl;dr: the 9th Circuit has broken its own rules on a case, of the exact sort of behavior normally considered a right-wing conspiracy theory, in order to more expediently fuck over the rights of American citizens, and this was not revealed for nearly three years.

Hurwitz's concurrence does not even contest this claim. Nor does any other part of the court.

I'm not going to make predictions, here. We are talking the same judges as the 2021 appeal and its effervescent logic -- judges willing to play so heavy-handed with the balancing test then will just as easily find historical relevance in their tea leaves -- but in turn there are some fun tactical considerations that might slow them. But on the gripping hand, the nature of this matter as an interlocutory review, leaves a lot of ways to diddle the schedule. There is no meaningful procedural appeal for a federal circuit court of appeals breaking its own rules, especially since the case has already gone back up and down from SCOTUS since. And there's no tort for being a rules-violating judge, even were judges not completely immune to lawsuit for their actions related to their jobs.

But one could understand why I'm very skeptical that Hurwitz's pretense this is 'just' an emergency stay will age well. And more broadly, to find that not only have the people in change of arbitrating the rules not only put a thumb on the scales -- long common knowledge -- but have broken and hidden the breaks from their own claimed process leaves serious doubt whether any one procedure in the 9th Circuit is available equally to all comers.

Well, that's just one court, albeit one covering more than a fifth of the country's populace.

New York v. FFLs

There's an interesting case going up to SCOTUS named Gazolla v Hochul, which was previously so far off everyone's radar that gun lawyers didn't spot it until Hochul wrote a vague and panicked tweet. It's not going to go anywhere -- it's a complicated mess asking for extraordinary relief of the sort SCOTUS never provides, while also being a bit nutty even by the standards of pro-gun legal buffs still trying to operate in New York after what happened to the NRA.

And while it's kinda funny in hindsight to see a nutty complaint allege a morass of problems amounting to infringement of the right to keep arms that ended up already coming true before the Court even reviewed the case, to which the state's response rests heavily on the claim that "The plain text of the Second Amendment does not cover the right to sell arms", that too is a little too common to be interesting and mostly a repeat of the Californian version back in Rhode v. Becerra.

To add insult to injury, Nigrelli did not even bother to issue state law required certification of the operational status of the ammunition background check system. NY PEN §400.02(2). The NYSP never did has not issued any ammunition background check form this entire past year, nor produce regulations for any administrative appeals process for denials of a firearm or ammunition background check. NY PEN §§400.03(2) and (6) and NY EXE §228(4)(a). The defendants repeatedly and persistently fail to comply with their own laws since the bills passed in June/July 2022 – an argument we repeatedly spell out. It defies logic that no judge, to date, has held the defendants to the limits and requirements of their own 2022 laws. [...]

The suit also alleges that the strict text of the law only allows Hochul and Nigrelli to put non-federal-firearms items through the state NICS system, leaving federal-firearms to direct FFL-to-NICS discussion, while Nigrelli and the FBI have cut all direct FFL access through the state to NICS. There's just a litany of this stuff: the laws required concealed carry permit holders to get training from certified courses where the course did not exist, for those wanting to buy a semiautomatic rifle to apply for a permit that did not exist, so on. In several cases, state police provided e-mails to individual FFLs or to the NSSF claiming they would not enforce the laws until relevant guidance was available, even as statutory deadlines were long-past, and while not provided that information consistently to all those covered, sometimes in contradictory ways.

Fine, he who makes the rules decides who has to obey them, anyone paying attention to this game knows that. Most states that have established mandatory time limits for background checks, as a similar matter, have often simply flat-out ignored them. What's new?

The state makes an error of federal law in this provision. There is no federal ammunition background check requirement or system. 18 U.S.C. §922(t) specifically and only relates to the transfer of “a firearm,” as that term is defined at federal law. It is illegal for a state to use or attempt to use the NICS federal background check system for an ammunition background check. 28 CFR §25.11. This point is briefed throughout our record.

Federal law specifically prohibits "state or local agencies', FFLs', or individuals' purposefully using the system to perform a check for unauthorized purposes" and gives punishment of "a fine not to exceed $10,000 and subject to cancellation of NICS inquiry privileges." Even to the extent state-run queries can be more expansive, as soon as they contact the FBI's NICS they must be limited to only firearms-as-defined-by-federal law (or explosives-as-defined-by-federal-law, in a way not relevant here). This was a hard-fought limit to the system, because gunnie groups (rightly!) feared that the early NICS would be misused; with marginal FFLs putting people they'd never sell a gun to through the system to trawl for embarrassing information, or to require people face daily NICS checks.

Now, Hochul claims that "the State Police are authorized to use state databases to conduct background checks for ammunition purchases, Penal Law § 400.02(2), and there is no reason to believe they will do otherwise." And she's right: even were the New York background check system's operators violating federal law, it's very far from clear how anyone could find evidence of it before summary judgement on the matter of ammunition. Except there's a few classes of guns that are not firearms by FFL/NICS rules but must receive a background check under New York law, and the web interface, the only working interface for the New York background check system, does not have a way to distinguish them. That's not proof, still -- given how poorly the system's worked so far, it's certainly possible that the New York background check system has forgotten to pass a lot of its requests to NICS! -- but while it might not be enough to it's certainly matched the low standards needed to push federal investigations in the past.

Except that it doesn't particularly matter. Even in an ideal case, this is the sort of thing that gets brushed over, simply because the rules aren't written for it. And it's very far from an ideal case, for one very blatant reason: federal law is the domain of attorneys general and the federal Department of Justice, whose lead is a man who previously reinterpreted the laws mandating destruction of certain NICS records to instead allow retention. He doesn't care.

Texas v. Ruger v. WellsFargo

Okay, well, no one would mess with Texas, would they? There's an interesting letter from Ruger today:

As you know, §2274.002 requires that any company who wishes to enter into a contract with a Texas governmental entity submit a written verification that it “(1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity.” On September 29, 2021, Wells Fargo provided such a written verification to the Office of the Attorney General of Texas. When this came to our attention, I wrote to Texas Attorney General Ken Paxton questioning the verification.”

As detailed in my letter, Ruger began working with Wells Fargo in September 2018. Our business relationship included a credit facility and banking operations (operating accounts, share repurchases, credit cards, etc.). However, in July 2021, less than three years after our relationship with Wells Fargo began—and just two months before Wells Fargo provided the AG's office with its verification — our local contact at Wells Fargo informed our Chief Financial Officer that ‘Wells Fargo would not extend any new credit to us and therefore would not renew our credit line. (due to expire in September) due to “reputational and headline risk” related to our industry. ‘When pressed about these “concerns,” our Wells Fargo contact cited our manufacture of modern sporting rifles as a “red flag.” ...

Well, perhaps there was some other, more serious cause?

As a result of my letter, the Attorney General's office asked Wells Fargo to provide further explanation in support of its verification, which Wells Fargo did not share with us. Ruger ultimately filed a Texas Public Information Act request to learn of Wells Fargo’s ‘explanation, which prompted the Texas AG to notify Wells Fargo of the request and invite a response. Wells Fargo, through counsel, objected to production of its explanatory letter, claiming that is rationale for refusing to renew Ruger’s credit facility constituted “trade Secrets” and “confidential commercial or financial information .. the release of which would cause Wells Fargo substantial competitive harm.”

Perhaps Wells Fargo was only discriminating two months before issuing a letter to the Texas AG:

The problems with this assertion are many, beginning first with Wells Fargo’s own publication confirming its policy of discrimination. In its Environmental and Social Risk Management Framework published in 2022, Wells Fargo outlines its then-new ESRM policy, which specifically targets “{t]hose making, selling, or distributing arms or armaments that require licensing”. Wells Fargo’s ESRM Framework further explains: We conduct additional environmental and social due diligence on clients who manufacture, distribute, or sell arms and armaments. Through this due diligence, we assess various factors which may include relevant licensing and regulatory compliance, types of product offerings, operating procedures, reputation risk incidents, human rights issues, relevant international compliance, and implementation of risk mitigation practices

Who would expect WellsFargo, of all people, to just straight-up lie to regulators and customers, in order to receive material benefits?... Uh, other than anyone who was paying attention in 2016.

Is the problem here that Ken Paxton is insufficiently prone to using state power for political ends? That Texas does not have conservative legal actors or groups? That some review at some level would prevent the state from enforcing this law, after decades of heavily-enforced policy by other states? I would perhaps believe that such regulations only operate with a large supply of inside-industry whistleblowers, except this example is visible to the naked eye, and many left-leaning equivalents have hit fields facing as or more extreme political filtering against them.

The cynical answer’s that quantity can be a quality all of its own, and one made easier when it's other people's money. As a result, a government hoping to use this pressure must be willing to risk serious harm to its own citizens.

(But, again, Ken Paxton.)

The more cynical option is that it’s a paper tiger; the threat has no value in this context but to make a group Harvel Their Greengrocer, and that only to the extent writing the paperwork is cheaper and easier than defying the law outright. But whether those reasons are specific to progressive goals or universal, that’s a lesson one would hope people were in less a hurry to teach.

I feel like this kind of interstate lawfare is exactly what the interstate commerce provisions in the US constitution were meant to prevent.

But we are in a weird situation where the commerce clause covers everything, and states can also regulate anything and everything. Obviously there are going to be conflicting laws.

Interstate companies will be the first victims of this interstate tom-foolery. But make no mistake, they will not be the last victims. Large corporations are unsympathetic, who cares if wells fargo gets in legal trouble? As you pointed out they already committed mass fraud against their own consumers.

At some point more and more individuals will be caught up in interstate lawfare wars. Trump is just the tip of the iceberg. Something illegal in one state might be required in another state. And a company CEO operating in both locations will be an easy target.

By the time the courts really need the credibility to shore up these problems they will have burned it all on stupid political fights.

At some point more and more individuals will be caught up in interstate lawfare wars. Trump is just the tip of the iceberg.

Trump isn't a victim of this kind of interstate lawfare. All his legal problems relate to behaviour which (if he did it) is illegal everywhere, and the claims of jurisdiction are pretty clear-cut.

Trump's current legal troubles are:

  • Federal cases with a clear federal cause of action (the Mar-a-Lago documents, the federal Jan 6 case)
  • New York cases where jurisdiction is proper because NY is the Trump Org's principal place of business (the Stormy Daniels payoff, the bank fraud case) or the behaviour alleged took place in New York (the E Jean Carroll rape and defamation lawsuits)
  • A Georgia case relating to interference with a Georgia election.

"This kind of lawfare" strictu sensu - i.e. seeking to regulate the worldwide behaviour of businesses outside your jurisdiction on the basis that they did some business inside the jurisdiction - has been SOP in the US for a very long time. From my perspective as someone who has spent most of my career working in non-US multinationals, the biggest issue is random insane civil verdicts in US state courts, but there are a number of federal policies which are also objectionable - especially sanctions on Cuba and the law attempting to punish companies for participating in the Arab boycott of Israel. Countries other than the US do not do this - for example the UK only attempts to regulate British companies and British-based activity of foreign companies. In general, countries other than the US take the view that, as applied to international trade in goods, this kind of behaviour violates the WTO treaty, which says that countries can only discriminate between identical goods based on whether or not they have a trade deal with the country they were made in, not on who made them.

What Texas is doing is something slightly different in that it ties the requirement to doing business with the Texas government, not to operating in Texas. This is less objectionable from a jurisdictional comity perspective, because the Texan government is acting as a market participant, not a sovereign, and has the right to choose who it does business with in the same way as any other entity (FWIW, I have no idea if the Equal Protection Clause of the 14th amendment does or should regulate States as market participants). This kind of behaviour used to be rare except for mission-driven organisations like charities and political parties - normal people care about what they are buying, may care about how it was made, but do not care about the general ethical record of the people making it. The idea that public sector customers should take an interest as customers in the out-of-jurisdiction activities of the companies they do business with is new - AFAIK it dates back to left-wing campaigns about corporate tax compliance in the noughties.

It will be interesting to see how Texas's attempts to enforce this against Wells Fargo pan out. If this was a term in a contract "Wells Fargo will not discriminate against a firearms entity" then at common law it would probably be unenforceable as a restraint of trade and/or a contract to break the law in a (legally) friendly jurisdiction. But making it a pre-contract enquiry means that Wells Fargo are pretty clearly guilty of a fraudulent misrepresentation.

I feel like this kind of interstate lawfare is exactly what the interstate commerce provisions in the US constitution were meant to prevent.

This is the important point - a world in which every jurisdiction tries to regulate activity outside its territory - particularly if that regulation is driven by idiosyncratic local politics rather than being an attempt to enforce widely-shared norms - is very bad from the point of view of making it legal for normal people to do business normally.

New York cases where jurisdiction is proper because NY is the Trump Org's principal place of business

Do you think those cases would have happened if Trump had not made himself a target by being a republican president? Or in an alternate dimension where Trump is democrat president and New York likes him, would they have found a way to bury those legal issues?

"This kind of lawfare" strictu sensu - i.e. seeking to regulate the worldwide behaviour of businesses outside your jurisdiction on the basis that they did some business inside the jurisdiction - has been SOP in the US for a very long time. From my perspective as someone who has spent most of my career working in non-US multinationals, the biggest issue is random insane civil verdicts in US state courts, but there are a number of federal policies which are also objectionable - especially sanctions on Cuba and the law attempting to punish companies for participating in the Arab boycott of Israel. Countries other than the US do not do this - for example the UK only attempts to regulate British companies and British-based activity of foreign companies. In general, countries other than the US take the view that, as applied to international trade in goods, this kind of behaviour violates the WTO treaty, which says that countries can only discriminate between identical goods based on whether or not they have a trade deal with the country they were made in, not on who made them.

Is the EU starting to step into this territory? GDPR explicitly says it applies to EU residents. But it has ended up impacting most websites, since it is too easy to be an EU resident browsing a US website. There has also been recent multinational company mergers. I don't understand what happens when say the US approves microsoft and activision merger, but another country says 'no you cant merge'.

This is the important point - a world in which every jurisdiction tries to regulate activity outside its territory - particularly if that regulation is driven by idiosyncratic local politics rather than being an attempt to enforce widely-shared norms - is very bad from the point of view of making it legal for normal people to do business normally.

I think even regulating certain things inside your territory can have basically the same effect. California regulations have certainly reached a point of ridiculousness, where a bunch of products now have silly labels like "known to cause cancer in the state of California" as if cancer has some kind of geotagged activation key.

Also internet sales taxes, which quietly went away as an issue as soon as Amazon embraced them as a way to build a moat against competitors.

I’m with MadMonzer, for the most part. The political calculus for bringing anti-Trump cases does not change the legal jurisdiction.

Bragg is applying “falsifying documents” laws which are very clearly about documents within the state of NY. And which he has applied to other cases with non-Presidents. The novel, suspicious bit is making it a felony charge despite the apparent lack of a second crime. Not a jurisdictional problem, but an equitability one.

Surely the proper legal jurisdiction for deciding with whom the State of Texas should do business is in fact the State of Texas, though?

It's kind of identical -- NY would probably not be going after Trump if not for his annoying persistence in wanting to be President, and there would be no problem with Wells Fargo banking Texas if not for their (mostly non-Texas) actions against Ruger. The fact that both actions are taking place in the appropriate venues does not delete the fact that the States in question are using the venues to influence things within a wider jurisdiction. (and I'd suggest humbly that "who can run for President" is a more consequential thing than "who can bank with Wells-Fargo")

I’m confused.

  • Texas regulating with whom it will do business—fine. This is normal contractual stuff.
  • Texas regulating businesses entirely within Texas—also fine.
  • Texas regulating businesses outside but selling to Texans—probably fine. Even though it is affecting interstate commerce, it’s only restricting it with regards to its own jurisdiction. Also, I’m pretty sure this is how “dry counties” and similar alcohol laws work. I can see the abuse potential, but…
  • Feds regulating businesses outside Texas, selling to Texans, is obviously fine. Central example of interstate commerce. And my naive assumption is that such regulation supersedes whatever Texas says. Congress should be able to legislate “no state shall forbid such-and-such.” If this isn’t true…then I have no idea how the ATF or FDA are supposed to work

In other words, I feel like Texas is allowed to regulate what products Texans may purchase unless preempted by federal law. I also assume that this has already happened somewhere in the US Code. I recognize that I may be completely off base, especially if this is one of those “gentleman’s agreement” situations we’ve been tearing down, lately. Maybe in five years North Carolina decides to cancel the FDA.

Also, I’m pretty sure this is how “dry counties” and similar alcohol laws work.

Alcohol is generally treated as special because of the powers given by section 2 of the 21st amendment - if a state constitution grants counties the authority to declare themselves dry, that would be a pretty clear application of section 2. But given that SCOTUS has ruled that the dormant commerce clause still applies to alcohol notwithstanding the 21st amendment (e.g. Granholm v. Heald (2005) 544 U.S. 460 and Tennessee Wine and Spirits Retailers Association v. Thomas (2019) 588 U.S. ----) there's probably some wrinkles here that I'm missing.

Small point, but I wouldn't say New York is going after Trump for "wanting to be president".

Just "wanting to make him suffer" is more accurate. Had he announced he wouldn't be seeking re-election after 2020, I'm fairly confident these cases would have proceeded regardless.

Well maybe sub "for presuming to have been president" -- I'm not convinced that he would have been pursued with such vigour if not for the clear and present danger that he might become president again, but either way it's pretty bad -- and a clear example of a state trying to influence national politics using state law. "Pour encourages les autres" in your scenario -- but I thought the really hinkey part of this was trying to have Trump banned from running again on the basis of some vague linkage between this NY civil action and a novel interpretation of some eligibility law? Or was that the Stormy situation, I can't keep track?

I think this is probably true. Most of the things he’s being charged with now happened decades ago. He didn’t recently try to take out a loan with inflated net worth. These events happened years ago, without comment, and without charges being filed. In fact if I recall correctly there was some concern in one of the cases that the statute of limitations would run out before the charges were filed. That’s not an evenhanded application of the law, and in fact is pretty good evidence that had Trump never been elected President, he would not be facing charges.

As far as ballot acces, I think Trump or his supporters would have a pretty strong argument that this is restraint on democracy in the sense that we’re essentially looking at a situation where one of the two major party candidates simply won’t appear on the ballot. Which means that essentially Joe Biden or the Democratic nominee if they need to put him in a care home, is simply handed the electors from any state that removes Trump with little recourse for republicans who will almost certainly nominate Trump.

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