Fourth Circuit Judge Pamela Harris wrote the opinion on behalf of the unanimous panel.

Franklin Savage alleges that he was subjected to unlawful discrimination and retaliation while he was employed by the Pocomoke City Police Department and on detail to the Worcester County Criminal Enforcement Team (“CET”), a multijurisdictional drug interdiction task force led by the Worcester County Sheriff’s Office. He and two co-plaintiffs, all African Americans and former Pocomoke City police officers, filed a suit against multiple state and local agencies and their employees, alleging widespread race-based employment discrimination and retaliation.

A cop alleging a Title VII hostile work environment doesn’t happen every day, but this case raised a peculiar twist. Continue reading →

Politicians have always been accused of lying to win, but in our ancient history, we trusted the institution of the Fourth Estate to tell us the facts, without fear or favor. The core of this belief was that news reporting, journalism, was above partisanship and could be trusted.

Both sides of this equation have changed over the past generation. For the young, who have had the misfortune to come of political age for the last election, it may seem as if this is an entirely new phenomenon, but politics was vicious and false at the inception of this country and, with occasional calm, has remained so.

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He was in the mob. No, not “our thing,” but the other mob.

In my previous life, I was a self-righteous social justice crusader. I would use my mid-sized Twitter and Facebook platforms to signal my wokeness on topics such as LGBT rights, rape culture, and racial injustice. Many of the opinions I held then are still opinions that I hold today. But I now realize that my social-media hyperactivity was, in reality, doing more harm than good.

This isn’t an entirely new phenomenon. For one thing, people regularly come to epiphanies about themselves, their actions, after the feces splatters all over them. For another, this isn’t the first made man to find himself the target of his own kind. Brett Weinstein, the Evergreen College  biology prof who dared to propose the slightest tweak to Inquisition suffered the same fate. Weinstein, too, became an evangelist of reason, but only after his escape. Continue reading →

The announcement by Special Counsel Robert Mueller of the indictment of 12 Russian GRU officers for hacking brought the usual cheers and jeers. That this was an affront to the United States isn’t, or at least shouldn’t be, controversial at all, any more than the Russians planting a spy in our State Department or military. That they hacked us is certainly a terrible thing from our perspective, but it does little to inform us as to why this is a crime.

After raising this question, following disclosure of the indictment, there were numerous responses that reminded me that people really have no grasp of criminal law, and that included lawyers who replied with some exceptionally dumb reactions.

This “crime” involved Russian military officers physically located in Russia hacking servers in the United States. So outrageous that they would interfere in our elections, even if we’ve been doing that to others for decades. But we’re us, so the Exceptionalism Exception applies and we’re only accountable for what we do to the extent we choose to be. But that’s an aside to the legal question of whether the elements of a crime exist. Continue reading →

The ABA’s attempt to impose its social justice speech code on the legal profession by way of Model Rule 8.4(g) was ugly enough, with only one state, Vermont, having embraced it. Of course, it wasn’t an ethics rule at all, but an effort by a progressive political organization to dictate ideology to its members. As a result, its members fled.

The notion of restricting professional speech had been an accepted restriction on the First Amendment, that by voluntarily becoming a member of a regulated profession, one chose to accept certain restrictions on speech. For example, lawyers were ethically prohibited from deceiving their clients, even though the deception involved nothing more than speech. Then again, such deception could also be deemed unprotected under the crime/fraud exception as well. Continue reading →

The headline suggests that the Third Circuit Court of Appeals affirmative immunized employees of the Transportation Safety Administration from suit, but it’s not really true. The TSA didn’t quite “win” immunity, and the court didn’t quite give it to them. And nobody is unaware that it leaves the worst-trained, least-educated, most ubiquitously offense government agency essentially untouchable.

This question, one of first impression among the Courts of Appeals, arises because Appellant Nadine Pellegrino has asserted intentional tort claims against TSA screeners. Although under the FTCA the United States generally enjoys sovereign immunity for intentional torts committed by federal employees, this rule is subject to an exception known as the “law enforcement proviso,” which waives immunity for a subset of intentional torts committed by employees who qualify as “investigative or law enforcement officers.” 28 U.S.C. § 2680(h). Pellegrino’s claims may proceed only if TSA screeners fall into this category

Spoiler alert: Nadine Pelligrino lost, but before going further, there is another crack here into which this case unfortunately falls. Continue reading →

He was 92 years old. Ninety two.* What sort of violent animal would harm a man of such advanced age? ICE thugs? Nazis? Racist cops? Surely it had to be one of them, as the narrative demands. Yet it wasn’t.

An eyewitness later told The Washington Post that Rodriguez had accidentally bumped into a young girl while walking on the sidewalk. The child’s mother — a black woman — then pushed the elderly man to the ground and repeatedly bashed him in the face with a concrete brick while yelling, “Go back to your country,” the eyewitness said.

It wasn’t merely an “incident,” where one person yelled “violent words” at another for a perceived fault. She bashed him in the face with a brick. Continue reading →

Lawprof and member of the United States Civil Rights Commission Gail Heriot is no greater fan of the School to Prison pipeline than anyone else. And yet, her approach comes from a direction that few consider, and fewer still find acceptable.

During the Obama Administration, one of the Department of Education’s primary missions was to stop schools from suspending or otherwise disciplining African American students at higher rates than white or Asian American students:

… One of its primary strategies would be for its Office for Civil Rights (OCR) to pore over statistical evidence from every school district, looking for evidence of racial disparate impact in discipline. When a school district was found to be disciplining African-American students at a significantly higher rate than Asian or white students, the school district could expect to be subjected to an investigation. As one media report put it, rather than waiting for “cases [to] come in the door,” the Obama Administration “plans to use data to go find [civil rights] problems.”

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Michelle Carter, the 17-year-old Massachusetts women who urged her 18-year-old boyfriend to “do” the suicide he was contemplating, was convicted of involuntary manslaughter. Her case is now on appeal, and Robby Soave at Reason reiterates the First Amendment argument against her conviction for speech.

But is she a killer? As I wrote in an op-ed for The New York Times a year ago, her conviction runs afoul of the First Amendment:

Ms. Carter’s conduct was morally reprehensible. But—at least until today’s ruling—it was clearly legal. While some states criminalize the act of convincing people to commit suicide, Massachusetts has no such law. Moreover, speech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection. While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling someone they should kill themselves is not the same as holding a gun to their head and pulling the trigger.

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Yale lawprof Akhil Reed Amar argues that liberals shouldn’t fear the newest nominee for the Supreme Court. University of Calfornia at Irvine lawprof Leah Litman argues that he will be terrible, but takes an entirely new tack from her voluminous writings about how everything that relates to Trump in any way is the Apocalypse.

The courts were never going to save our constitutional democracy, but that doesn’t mean they are unimportant.

Up until the point where Kennedy retired, the Supreme Court’s one job was to protect her personal flavor of vulnerable no matter what the law provided. You know, women win, men lose. Corporations lose, workers prevail. Subject matter be damned. Reasoning is for kids. Law? Only haters cared about law, provided it didn’t produce her desired goals. When it did, she loved the law. Continue reading →