Open Thread

We haven’t had an open thread in a long time. So here’s one, for our commenters.

And have a safe and happy New Year from all of us at the Volokh Conspiracy.

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On Ted Cruz and the ‘neocons’

Sen. Ted Cruz (R-Tex.): “If you look at President Barack Obama and Hillary Clinton, and for that matter some of the more aggressive Washington neocons, they have consistently misperceived the threat of radical Islamic terrorism and have advocated military adventurism that has had the effect of benefiting radical Islamic terrorists.”

This led some neocons to not-so-subtly accuse Cruz of anti-Semitism. Danielle Pletka, the vice president of the American Enterprise Institute, wrote, “I’m not sure where the neo-cons wish us to invade (left my decoder ring at the last Elders of Zion meeting), but what exactly does this would be Commander in Chief wish us to do?”

Nonsense. “Neocon” can certainly be used as an anti-Semitic slur, for example when it’s used to attack Jews who are not in fact neocons in any ideological sense. For example, Glenn Greenwald once referred to me as a “neocon” like Jeffrey Goldberg. As I wrote at the time, “the only relevant things Jeffrey Goldberg and I–a moderate and a libertarian, respectively–have in common, and therefore the only reason to refer to us as ‘neocons,’ is that we are both Jews who are far more favorably inclined toward Israel than is Greenwald.”

But there is, in fact, such a thing as “neocons” (short for neoconservatives); it’s shorthand for intellectuals (many, but far from all of whom, are Jewish) who believe both that the goal of U.S. foreign policy should be to export liberal democracy to the world and that the U.S. should not be terribly hesitant to use force to achieve that goal. They are especially, and not unfairly, associated with supporting the overthrow of Saddam Hussein’s regime in Iraq, and wildly optimistic (and in retrospect utterly naive) projections of what would emerge from that intervention.

I’ve been critical of that ideology myself, and in the emerging dispute between Cruz and Rubio (who has many neoconservative foreign policy advisers) over nation-building, the use of ground forces against the Islamic State, and the like, I tend to side with Cruz (and against Rand Paul’s more stringent non-interventionism). Regardless, it’s a debate worth having, and baseless accusations of prejudice don’t help.

Disclosure: Ted Cruz wrote the foreword to my new book, “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.”

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The Missouri Islamic Center had been defaced with pro-gay-rights slogans

Looking into the “Man pleads guilty to defacing Islamic Center and burning the Qur’an” story, I noticed an aspect that wasn’t mentioned in the Justice Department press release. The press release describes the graffiti painted on the Islamic Center this way:

The graffiti included explicit and offensive language in addition to such statements as “Bash Back,” “Now is our time!” and “You bash us in Pakistan we bash here.”

But the plea agreement reports that the graffiti, put up in early 2011, contained “the following statements”:

(i) “Allahu Fuckbar;” (ii) “Queer insurrection;” (iii) “It’s okay to be gay!” (iv) “Now is our time!” (v) “Bash Back;” (vi) “You bash us in Pakistan we bash here;” (vii) “Allah was gay;” (viii) “[illegible] unite;” (ix) “Satanic trans” (with circle around Star of David above); (x) “Fuck straights;” and (xi) “Bash Back lives.”

And once one sees “Queer insurrection,” “It’s okay to be gay!,” “Allah was gay,” “Satanic trans,” and “Fuck straights,” this puts a different cast on the graffiti that the press release did quote — at least two and possibly all three of those statements also appear to be pro-gay-rights.

“Bash back!,” as discussed in Mount Hope Church v. Bash Back! (9th Cir. 2012), turns out to be a “national anarchist group …, which has described itself as largely composed of gay, lesbian, transgendered, bisexual, and queer activists.” In the Mount Hope Church case, Bash Back! disrupted a church service in Michigan by shouting “It’s OK to be gay” (which also appeared in the Islamic Center graffiti) and “Jesus was a homo” (again, compare “Allah was gay”) “while flinging pamphlets, glitter, and condoms into the air.” See also this story about the settlement of the civil suit arising out of the protest.

“Bash back” also seems to be a phrase more broadly used by people speaking out against what they see as gay-bashing. See, for instance, this 2015 news story about a different “bash back” incident:

A business owner who sparked controversy by posting opinions on Facebook about refusing to serve certain groups, including gay customers, has been the target of vandalism….

[The business owner] posted … photos on his business Facebook page showing a red pick-up truck with the words “bash back” sprayed on the windshield and a garage door. Other photos showed a rock thrown through a window.

One can see the same in the Bash Back “queer mafia” comic, and the Wikipedia page about the Bash Back! group. Moreover, “now is our time” and our time is now” (see also here) also appear to be associated with gay rights, especially in this context, though I wouldn’t have noticed that if I hadn’t seen the other graffiti mentioned in the plea agreement. (“Now is our time” can also be used generically, but associated with “bash back,” “bash back lives,” and the other slogans, it seems likely to be a pro-gay-rights slogan.) Likewise, the reference to “you bash us in Pakistan” may refer to hostility to gays in Pakistan, though that is not entirely clear.

Of course, vandalism and threats of violence (more on that in the original post) are crimes regardless of the vandal’s motivation. People who view a religious or political ideology as oppressive are free to speak out against it, but not free to damage its buildings or threaten its adherents. But if you’re interested in the details of the crime, it looks like the message of the graffiti might be more complex than a quick read of the press release might suggest.

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A misleading headline about a burned Koran

A Justice Department news release headline from Tuesday reads:

Former Springfield, Missouri, Man Pleads Guilty to Defacing Islamic Center and Burning the Qur’an

Unsurprisingly, the headline has been picked up in other places, such as this UPI story.

But wait: How can someone be charged for burning a Koran? Nor was there any indication that he burned one of the Islamic Center’s own Korans (which would be vandalism, like the defacing of the Islamic Center). Wouldn’t burning a Koran be protected by the First Amendment, like burning an American flag?

Well, yes, it would be, and it looks like the guilty plea isn’t to burning a Koran as such — it’s essentially to threatening people in a note accompanying the burned Koran. The man (Adam David Smock) was charged with “participating in a conspiracy to oppress, threaten and intimidate worshippers at the Islamic Center of Springfield in the free exercise and enjoyment of their constitutional right to the free exercise of their religious beliefs.” The “oppress” doesn’t have much independent meaning in this context; rather, the charge is that he was threatening worshippers with violence — as the plea agreement says, “[t]he defendant … admits” that he acted “to threaten and intimidate worshippers.”

And there were indeed statements that could well be threats accompanying the burned Korans:

Smock also admitted that on April 10, 2011, he and the same two individuals partially burned two copies of the Qur’an, the Muslim holy book, and Smock left the burned Qur’ans directly in front of the main doors to the Islamic Center, approximately 30 feet away from the building, where a co-conspirator also left a computer-printed note that contained the image of a goat’s or ram’s head, and the following text:

“To: Sincere Followers of Allah,

“Today, we show the Muslim Nation that its oppressive religion won’t go without a fight, not from soldiers, but from average citizens willing to fight for America — for there are three (sic) burned Qur’ans that lay spread in the driveway. For we grow tired of Anti-Zionism. The Islamification of Europe. Terroristic regimes. And worst of all, the membership of 1.5 billion Muslims that stain the earth. And we vow one thing: Islam will not survive.

“Death to Islam!”

A reasonable person might well see “Death to Islam,” in the context of “Muslims” “stain[ing] the earth,” coupled with the vandalism of the mosque, as a threat of death (or some violence) to Muslims as people and not just to Islam as an ideology. And recall that Smock in the plea agreement admitted that he had the intent to threaten.

So it’s not the burning of the Korans that was the crime: it was the threatening speech, which would have been criminal threats even if it had just accompanied the vandalism, with no burned Korans left on the scene. The prosecution seems sound, but the headline on the news release strikes me as misleading. Consider as an analogy, for instance, a release saying “Man pleads guilty to defacing U.S. Army recruiting office and burning the American flag,” where in fact the man pleaded guilty to trying to threaten violence against recruiters in a note accompanying the burned flag (and in the defacement of the recruiting office).

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Hamburger vs. Vermeule, round 2

Columbia legal historian Phil Hamburger wrote an erudite, interesting book called “Is Administrative Law Unlawful?” that challenges many of the tropes that have dominated administrative law scholarship for decades. Harvard professor Adrian Vermeule responded with an unusually nasty (and to my mind unpersuasive) review that in essence accused Hamburger of being an extremist know-nothing. Hamburger, who is about as mild-mannered a fellow as one meets in the legal academy, has now responded with a rather sharp response of his own, accusing Vermeule, among other things, of grossly mischaracterizing his arguments.

The response to Hamburger’s book reminds me of the response to Richard Epstein’s book “Takings” back in the mid-1980s. Both books were written by outsiders to the fields in question, both books were hailed as breakthroughs by conservative and libertarian lawyers, and both books were viciously denounced by establishment figures in the respective fields.

Epstein’s book went on to have great influence; when I was interviewing for judicial clerkships, five of six Reagan-appointed judges I interviewed with asked me what I thought of “Takings” (the exception, ironically, was Clarence Thomas, whom Joe Biden later attacked as a possible fan of “Takings”). Meanwhile, when I asked why my property professor didn’t mention “Takings” in his discussion of the Takings Clause, he responded that “no one takes ‘Takings’ seriously.”

Undeniably, “Takings” has greatly influenced discussion of the eminent domain power. It remains to be seen whether “Is Administrative Law Unlawful?” will be similarly influential.

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Palestinian Bar Association grants honorary degree to terrorist who murdered two Israelis

On Oct. 3, 2015, Palestinian terrorist Muhannad Halabi stabbed to death Israeli civilian Aharon Bennet and Nehamia Lavi, who attempted to aid Bennet and his family. Halabi also wounded Bennet’s wife and 2-year-old son before he was subdued. Halabi was apparently a law student, and on October 10, 2015, the PBA council voted to posthumously award him an honorary LL.D. “They also decided that the next swearing-in ceremony of Palestinian lawyers would be named for him. After the meeting council members paid a condolence call on the Halabi family, because, they claimed, he had excelled in his law studies.”

This is old news, but I didn’t get the chance to blog about it at the time, and I haven’t seen it picked up in mainstream media sources, including in the newspaper that hosts this blog. I think it deserves more attention. Glorification of brutal terrorist murderers is hardly uncommon in the Palestinian territories; indeed, it’s official government policy in both the West Bank and Gaza. But to have the bar association do it seems especially noteworthy.

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No, a federal judge did not rule that drinking tea and shopping at a gardening store amounts to probable cause

Radley Balko is getting a lot of attention for his provocative post “Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home.” It sounds crazy, right? Why would a federal judge think that drinking tea and shopping at a gardening store amounts to probable cause?

Fortunately, there was no such ruling.

Yes, there was a legal decision, but it had nothing to do with visiting gardening stores or the culpability of drinking tea. Instead, the issue in the case was when the police can rely on positive field tests for THC, the active ingredient in marijuana. The judge ruled that officers cannot be held personally liable for searching a home with a warrant based on two positive field tests for marijuana, a week apart, from plant materials found in the suspect’s discarded trash, at least when the officers did not know about the risks that the field tests results were false positives.

Here’s what happened. As the affidavit in support of the warrant explains, officers placed a suspect under surveillance after the suspect made a purchase at a particular hydroponics store that officers believed was largely used by those growing marijuana. A few months later, officers searched the trash from the suspect’s house and found some plant material that in the lead investigator’s view “appeared to be wet marijuana plant material (leaves and stems).” Based on the officer’s “law enforcement training and experience,” it appeared as though it had been saturated through a liquid to extract THC, the active ingredient in marijuana. The officer field tested the plant material, and it tested positive for THC.

The next week, the officers searched the trash again. Again, the officers found plant material that tested positive for THC. The affidavit describes the plant material found the second time as “1/4 cup saturated marijuana plant material (leaves and stems)” that was “consistent” with that found the previous time.

The lead agent drafted a warrant to search the house based on this information. Before submitting the warrant to the judge, the agent asked an assistant district attorney to review the warrant. The prosecutor agreed that the warrant was proper. The lead agent then submitted the warrant application to a judge, who signed the warrant to search the house.

But it turned out to all be a mistake. The “plant material” was just loose-leaf tea. The field test results were false positives. The visit to the hydroponics store was to buy supplies for an indoor hydroponic vegetable garden.

With the benefit of hindsight, all the suspect did was drink tea and buy supplies to grow vegetables. That explains Balko’s headline.

The homeowners sued the officers, among others, claiming a violation of their Fourth Amendment rights. Their complaint raises a lot of issues. But let’s focus on the one that Balko’s headline addresses, the entering of the house. Should the officers be liable for entering the house with a warrant not based on probable cause?

Importantly, the constitutional question is whether the agents had probable cause to believe there was marijuana in the house before the search occured, not whether they turned out to be correct with the benefit of hindsight. And because this a case seeking money damages from the officers who participated in the search, the case involves the qualified immunity doctrine. That means that the question is more deferential: Could a reasonable officer believe he had probable cause?

In his opinion, Judge Lungstrum concludes that having two positive field tests for THC, at different times, is enough evidence to avoid personal liability for the officers. Even if there was no other evidence at all, those two positive test results were enough: “The fact that Deputy Burns’ affidavit states that the material found in the Hartes’ trash on two consecutive weeks field-tested positive for the presence of THC,” the judge writes, “is a hurdle that is all but impossible for plaintiffs to overcome.”

In his blog post, Balko argues that the problem with relying on field test results is that the field tests used in this case were very unreliable.

That raises an important question: Just how accurate are drug field tests, and how much should the police be allowed to rely on them to get warrants? Maybe courts should scrutinize field test results more, much like some lower courts did for dog sniffs before the Supreme Court largely put the kibosh on that scrutiny in Florida v. Harris.

Those are really interesting issues. But based on my reading of the plaintiffs’ memorandum opposing the defendant’s motion for summary judgment, the plaintiffs didn’t squarely ask the court to get into them. The most relevant part seems to be on page 62, where the plaintiffs argue that the problem is that the agents must have known that their affidavit was misleading. The problem with the warrant isn’t that the judge signed it, they argue, but that the authors knowingly left out the really important information that would have demonstrated to the judge that probable cause was lacking:

Had the search warrant affidavit not been littered with misleading statements and material omissions – including the fact that the field test has a very high false-positive rate and yields false positives for common kitchen herbs, spices, and caffeine – the affidavit would have been insufficient to establish probable cause. These misrepresentations and omissions show reckless disregard. An officer does not act reasonably when he knows the information he is acting on is false. See Wilkins v. DeReyes, 528 F.3d 790, 805 (10th Cir. 1990)

The plaintiffs are relying on Franks v. Delaware, a Supreme Court case that arose in the context of motions to suppress. In Franks, the Court held that a criminal defendant can attack a facially valid warrant based on knowingly or recklessly false statements contained in the affidavit. If a defendant can establish that the warrant was based on knowingly or recklessly false statements that created the probable cause, then those statements are subtracted from the considerations of probable cause when reviewing if the warrant was valid. Franks has been extended by lower courts to material omissions; the idea is that leaving something important out is as big a problem as adding in something false.

The plaintiffs in this case accepted that Franks also applies to civil suits. They also accepted that they have the burden of showing that the officers knowingly or recklessly omitted material facts that could have shown why there was no probable cause. With the case so framed, Judge Lungstrum ruled that the legal standard wasn’t satisfied on the facts:

While the court does not doubt that a judge would have wanted to know that the field test kits that Deputy Burns and Deputy Blake were using tended to yield false positive results “at a high rate,” there is simply no evidence that Deputy Burns or Deputy Blake had any knowledge of that information.

In fact, as plaintiffs point out in their submissions, Deputy Burns testified that, at the time he tested the plant material he discovered in plaintiffs’ trash, he had no knowledge that anything other than marijuana could test positive on a marijuana field test kit and that he was “not aware” of the possible occurrence of false positive test results. Deputy Blake’s testimony on those issues is substantially the same. Moreover, Sheriff Denning testified that, since he came to the Johnson County Sheriff’s Office in 1978, the Office has conducted “thousands” of field tests and the only false positive results of which he is aware are the results at issue in this case.

There is no basis to conclude, then, that Deputy Burns or Deputy Blake should have known that the field test kits they were using tended to yield false positive results. And even assuming that Deputy Burns or Deputy Blake should have known, as plaintiffs suggest, that a false positive is at least a theoretical possibility, plaintiffs have not shown that Deputy Burns recklessly omitted that information from the affidavit, where he clearly stated on two occasions that the rest result was “presumptive” but “not conclusive” for the presence of marijuana and neither Deputy Burns nor Deputy Blake had any particularized knowledge concerning the likelihood of obtaining a false positive under the circumstances presented. See Molina ex rel. Molina, 325 F.3d at 971 (rejecting argument that officer should have discussed in the search warrant affidavit the fact that field tests were unreliable; plaintiffs presented no evidence that officer had reason to know that field tests were unreliable when he applied for the warrant).

For all of these reasons, then, plaintiffs cannot establish that Deputy Burns recklessly failed to disclose that the field test kit utilized by Deputy Burns and Deputy Blake tended to yield false positive results at a high rate. See United States v. Comer, 565 Fed. Appx. 729, 731-32 (10th Cir. 2014) (record did not support finding that investigator recklessly omitted informant’s criminal history from warrant affidavit where there was no evidence that investigator had knowledge of informant’s criminal history).

There are some interesting civil procedure issues here about who should have the burden of proof and how much evidence should be satisfied at this stage of the litigation. Perhaps they will be addressed more fully in the expected appeal.

But whatever the answer to those questions should be, note that the judge’s ruling doesn’t have anything to do with whether visiting a gardening store or drinking tea amounts to probable cause. It also doesn’t get into the false positive rates of field tests, as the legal issue as accepted by the plaintiffs didn’t require the court to get there. Instead, this part of the case was just about whether the officers knew enough about the false positive rates of field tests to challenge the warrant based on the absence of that information in the affidavit.

Maybe it’s right, maybe it’s wrong. But it’s a pretty technical Fourth Amendment issue that seems pretty far removed from what you would imagine from reading Balko’s post — and especially his headline.

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