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Hours into a marathon oral argument on Jan. 10, Judge Amit Mehta of the U.S. District Court for the District of Columbia observed that if there is one thing this hearing has shown it's that this is not an easy case. For nearly five hours Judge Mehta heard arguments about whether former President Donald Trump, Rep. Mo Brooks, Rudy Giuliani and others could be held civilly liable for their role in the Jan. 6 Capitol insurrection. The main lawsuits, brought by Reps. Bennie Thompson and Eric Swalwell, allege violations of 42 U.S.C. 1985(1), a Reconstruction-era statute that created civil liability for conspiracies to prevent public officials from holding any office or discharging any duties.

Addressing issues common to the three lawsuits, Judge Mehta wrestled with formidable defenses raised by Trump and his co-defendants: chiefly that Trump and Books are immune from civil liability for actions taken as part of their official duties, and that the defendants statements leading up to the siege of the Capitol could not satisfy the elements of conspiracy, especially to the extent that the statements were protected speech under the First Amendment.

Immunity

Trump lawyer Jesse Binnall argued for an expansive, highly formalistic vision of presidential immunity, relying on the Supreme Courts ruling in Nixon v. Fitzgerald that presidents are entitled to absolute immunity from civil liability for actions while in office that fall within the outer perimeter of their official responsibility. The crux of Binnalls argument was that the court must entirely ignore the content of Trumps speech on Jan. 6his remarks at the Ellipse and on Twitter over the course of the dayand look only at the presidents conduct to analyze whether he was acting in his official capacity. Because Trump was addressing the American people, Binnall argued, he was acting within his official duties as president and must enjoy immunity, especially since the subject of his speech, electoral integrity, is a matter of immense public concern.

Judge Mehta was skeptical of this all-encompassing vision of the presidents official duties, which potentially would make the president immune from civil liability anytime he opens his mouth. Judge Mehta pushed Binnall on whether there is anything that a president could do or say while in officefor example, as part of a campaignthat would not be immune from liability under his expansive theory of presidential immunity. Binnall said that he could not name an example of anything the president could say that would not fall within his official duties under this theory, but that perhaps signing a lease on a campaign office would not fall within his responsibilities as president.

But if Binnall failed to give Judge Mehta a reasonable standard for the scope of presidential immunity, the plaintiffs struggled to offer one that would withhold immunity in this case while nevertheless being consistent with precedent. The plaintiffs argued that Trump should not enjoy immunity because fomenting an insurrection against Congress was clearly unconstitutional and thus outside his official duties. But as Judge Mehta noted, Fitzgerald held that presidential immunity did not depend on the legality of the presidents action. The plaintiffs were left to argue that Trumps conduct surrounding Jan. 6 was so outrageous that it was clearly beyond the scope of his presidential responsibilities. But where exactly to draw that line remained unclear.

The question of the scope of official duties was also at the center of Brooks claim that he should be immune from liability under the Westfall Act, which requires the government to act as the defendant when federal employees are sued for tort liability for official actions. The Department of Justice joined the plaintiffs in arguing that Brookswho spoke before Trump on Jan. 6 and declared that Todays the day American patriots start taking down names and kicking asswas campaigning and therefore acting outside the scope of his official duties; as a result, Brooks should not be immune from civil liability. But Brooks, who argued on his own behalf, emphasized that his motivation in speaking at the Jan. 6 rally was not simply to support Republican candidates in future elections, but also to convince his fellow congresspeople to vote against the certification of the electoral college votes.

First Amendment

The other major hurdle for the plaintiffs is the First Amendment, which generally protects the sort of political speech that Trump, Brooks and the other rally speakers engaged in (and to that extent cannot serve as the predicate for the plaintiffs conspiracy charges). The plaintiffs emphasized that the defendants could be held liable under even the highly speech-protective standard of Brandenburg v. Ohio, which permits liability for advocacy of the use of force or of law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

In a heated exchange, Binnall, Trumps lawyer, repeatedly pointed to several inflammatory statements that the Democratic plaintiffs had themselves previously made, arguing that if Trumps language was found to be incitement to violence here, but similar language used by others elsewhere was not, the court would be failing to apply the First Amendment equally to Democrats and Republicans. Judge Mehta sharply rebuked Binnall for engaging in whataboutism and for suggesting that he was judging Trump and his co-defendants speech more harshly because of their party.

Like the discussion of presidential immunity, the First Amendment portion of the argument was inconclusive. On the one hand, Trumps words did not explicitly call for violence and were on their face far less inflammatory than what the Supreme Court upheld in Brandenburg and in many cases since. On the other hand, the broader context of Trumps speech, from his months-long campaign to discredit the election to his failure to act after the attack on the Capitol began, suggests, as Mehta noted, that Trumps speech went beyond ordinary political rhetoric, even if it was not the sort of speech that typically qualifies as conspiracy to commit violence.

Ultimately, and despite hours of questioning, Judge Mehta did not tip his hand as to how he will rule on the many complex legal issues that the lawsuits raise. But given the high political and legal stakes, its unlikely that Judge Mehtas decision will be the last word. The parties will almost certainly appeal any outcome to the U.S. Court of Appeals for the D.C. Circuit, and this case may well end up before the Supreme Court, especially on the central issue of presidential immunity.

Read more from the original source:
After Oral Argument, the Future of Thompson v. Trump Remains Unclear - Lawfare

A New Hanover County Board of Education member said a resolution to censure her wont deter her from her mission to hold those on the board, and in the school district, accountable.

The board passed a resolution to censure member Judy Justice in a 5-2 vote Friday afternoonafter Justice was accused of revealing confidential personnel information to someone who was not permitted to have it. Justice said after the meeting she felt the move was personal, and she plans to continue pushing for more transparency from the district going forward.

Im fighting the battles trying to help the district, and when they fight me, theyre in essence fighting against doing good things for the district, Justice said.

Justice and board Vice Chairwoman Stephanie Walker were the only two members to vote against the censure. A censure does not result in any action it's simply a tool to let Justice know the board does not support or agree with her actions.

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Kraybill said after the meeting she was made aware of allegations Justice had violated the code of ethics by disclosing personnel information in the fall. The board previously passed a vote of no confidencein June after then-Chairwoman Stefanie Adams accused Justice of lying during a board meeting.

DuringFriday'smeeting, the board went into a closed session to discuss personnel matters that could not be disclosed to the public. After, Justice was given a chance to address the board and thepublic andbrought forth a list of 10 ways other board members had violated the boards code of ethics that had gone unaddressed.

This witch hunt is personal and everyone on this(board)knows it, Justice said during her statement. It is time we did our job for the people and serve the people, not some peoples individual agendas.

Justice also alleged Superintendent Charles Foust had accused her of harassing him. Attorney Colin Shive interrupted Justice, saying he would advise her to move on from that subject to avoid revealing further personnel information. Kraybillsaid the subject was not germane to the topic at hand.

Justice went on to say it was her first amendment right to bring up the accusation and said she had no intention of bringing up confidential personnel information.

As Justice continued her statement about the alleged harassment, Foust interrupted her, saying he had 275 emails to prove she had harassed him.

I will provide emails if thats what you want, Foust said. You cannot and you will not do that.

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Justice said the emails she sent him had to do with her asking him to do his job. She said after the meetingFoust has not communicated with her in months, though its district policy that the superintendent communicates regularly with members of the board. She alleged he does not respond to her emails or phonecalls, andsaid thats concerning as shewas elected to represent the public before the school district.

Kraybill quickly called the meeting to recess, and she and Foust went to a separate room to speak with Shive. When they returned, Shive called Justice back and spoke with her for several minutes behind closed doors. Walker also went with Justice to speak with Shive.

When Justice returned, she said she felt the censure vote was taking away from important issues going on in the district, like the continued strain on staff and students from the COVID-19 pandemic and decades of sexual abuse allegations against former teachers and administrators.

Several community members attended the meeting as well, holding signs reading I support Judy and attempting to speak with board members while they recessed.

How is this whats best for the kids? one audience member asked theboard, butdid not receive a response.

Kraybill said after the meeting the vote was not personal, and she hopes the board can be unified moving forward to get to those important topics impacting the district.

The community has been very critical of this board, and boards before us about not being transparent, not handling issues in a timely manner," Kraybill said. When I found out that this had occurred, I just said we need to jump on it and get it resolved.

We've got that behind us, and we should be ready to go,shesaid.

Reporter Sydney Hoover can be reached at 910-343-2339 or shoover@gannett.com.

See the original post here:
'This witch hunt is personal': School board votes to censure member in tense New Hanover meeting - StarNewsOnline.com

Alex Zielinski

There was a pain that erupted into violence in our city last night, he told reporters the morning of Saturday, May 30. That is not something we can tolerate.

The curfew, which was extended until the morning of Tuesday, June 2, prohibited Portlanders from traveling anywhere in town from 8 pm to 6 am. The policy exempted people commuting to work, emergency vehicles, and unhoused people.

Now, nearly two years after Wheeler instituted his police-enforced curfew, a Multnomah County defense attorney is challenging the constitutionality of the sweeping policy. Her argument centers on a familiar question in Portland: What authority does the mayor have to limit or restrict demonstrations?

In the process of answering that question, Wheeler may have to testify in court.

The challenge has sprung from a criminal case thats headed to trial next week, after spending months winding through the county court system.

In the early morning hours of Tuesday, June 2, 2020, Portland police officers arrested 23-year-old Tommy Pak as he was walking to his car in Southeast Portland with his girlfriend, following the evenings demonstrations. Officers claimed his arrest was for violating Wheelers curfew (or, refusal to obey executive order) and for interfering with a police officer (by failing to follow an order to disperse). The officers proceeded to search Pak for weapons, and found a gun in his front pocket. That left Pak with two additional charges: unlawful possession of a firearm and possession of a loaded firearm in a public place.

Paks public defender, Emma McDermott, has challenged all four charges in court. Most notably, however, is her multifaceted argument disputing the validity of Paks arrest based on the curfew order.

In a January 11 memo, McDermott contends that Wheelers emergency curfew order didn't give officers permission to arrest anyone who violates it.

A violation of [Wheelers order] is exactly thata violation, McDermott writes. It is not a misdemeanor. It is not a felony.

McDermott referenced an Oregon law which prohibits law enforcement from arresting someone who has committed a violation. State law instead directs officers to issue citations to those who make violations.

Yet this delineation wasnt made in Wheelers order, which read: Law enforcement has been delegated the authority to enforce the Mayors emergency order. Refusal to obey this order may result in citation or arrest.

The Mayors office does not have the legal authority to do this, writes McDermott.

Even if police were allowed to arrest people for violating the curfew, McDermott said Wheelers order remains wholly unconstitutional, as it restricted free speech.

[The curfew] directly targeted political demonstrations, unreasonably restricting legitimate exercise of citizens First Amendment rights, writes McDermott. She suggests that Wheeler used this curfew as a pretext to broadly arrest people participating in the protest who were not breaking the law.

In their response to McDermotts memo, Multnomah County Deputy District Attorneys Sydney Tumble and William Garms contend that Wheelers curfew was constitutional because it was an emergency curfew which, according to the prosecutors, doesnt require free speech protections. The attorneys based this argument on other court cases outside of Oregon that upheld city curfews during an emergency to prevent civil disorder. The prosecutors note that the curfew didnt limit people from demonstrating during daylight hours.

The only restriction was on one form of expression (public gathering) during nighttime hours, their response reads. Given the riotous behavior that had escalated in the city during the previous nights, this was a completely reasonable restriction.

Prosecutors also argue that Wheeler was allowed to threaten those who violated the curfew with arrest, because violating a city codelike a mayor's emergency orderis considered a criminal offense.

Pak wasnt the only person charged with disobeying Wheelers curfew on June 2. County court records show that five other people were charged with refusal to obey executive order the same day. Four of those people were simply given a written citation from an officer, and prosecutors later dismissed the violation. The other individual, Andrew Morris, is facing additional charges identical to Pak.

Like Pak, Morris was initially stopped for disobeying the curfew on June 2, but was then discovered to be illegally carrying a gun after an officers search. Morris lawyer contends that, because this search was conducted without a warrant, it was unconstitutional. McDermott has posed the same argument in Paks case.

McDermott will argue to dismiss Paks charges in court next week. Paks trial is scheduled to begin on January 18, and is expected to last three days.

On Thursday, McDermott sent a subpoena to Wheeler, requesting his appearance in court next week.

Wheeler's office did not respond to the Mercury's request for comment.

This isnt the first time Wheeler has been accused of bending First Amendment rights to restrict public demonstrations. In November 2018, Wheeler attempted to pass a city policy that would have allowed the city to restrict the location and time of two opposing protests. After hearing from civil rights attorneys that this policy would restrict the free speech of non-violent protesters, City Council voted to keep Wheelers ordinance from moving forward. So where does this leave us?" Wheeler asked after the council vote. I'll continue to work with anybody who has a good idea."

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Mayor Wheeler Subpoenaed Over 2020 Curfew Policy - Blogtown - The Portland Mercury

From Valadez v. St. Joseph the Worker Catholic Church, 2021 WL 6128567, decided Sept. 24, 2021 by Judge Audra Mori (L.A. Superior Court),

Plaintiff, Flavia Valadez filed this action against Defendant, St. Joseph The Worker Catholic Church alleging causes of action for negligence and premises liability. The complaint alleges Defendant caused Plaintiff to fall due to unsafe conditions in and around an unlit staircase at Defendant's property. Defendant now moves for summary judgment. "The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence."

Defendant asserts the incident occurred on April 5, 2017, during a Catholic faith tradition known as the Service of the Light (the "Service") at Defendant's church. In keeping with the tradition, the church was in darkness intentionally at the time of the incident. Prior to the incident, Plaintiff attended the Service since 1997. When Plaintiff entered the church, it was already dark, and when Plaintiff was unable to find a seat in the lower level of the church, Plaintiff went upstairs to find a seat in the balcony, which she had been to five or six times previously. When Plaintiff reached the balcony, it was still dark, as there was only one overhead light shining on the altar. The balcony has four levels or landings on which seats are available. Plaintiff proceeded to a seat, and as she took a step thinking she had reached the last landing, she fell because there was actually one more landing Plaintiff had missed. Defendant avers the only dangerous condition Plaintiff claims caused her fall is the darkness in the church, which prevented her from seeing the landing.

The court rejected the Church's defense that the danger was "open and obvious": Under California law, the court concluded, "if it is foreseeable that a condition may cause injury despite its obvious nature, a duty to correct the danger may exist, and a breach of that duty may form the basis for liability if it proximately causes the injury." But the court concluded that the Church was protected by the "primary assumption of risk" doctrine:

Where, "by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury," the assumption of risk "operate[s] as a complete bar to the plaintiffs recovery." {[F]or example in the context of sports, [p]laintiffs assume risks inherent in a sport by participating, and defendants generally owe no duty to protect plaintiffs from such risks but owe a duty not to increase the risks beyond those inherent in the sport.}

The doctrine of assumption of risk is not limited to sports. It applies to activities involving an inherent risk of injury to voluntary participants where the risk cannot be eliminated without altering the fundamental nature of the activity. (Beninati v. Black Rock City, LLC (Cal. App. 2009) [affirming application of assumption of risk doctrine where Plaintiff was burned by remnants of Burning Man effigy while at Burning Man Festival].)

Plaintiff does not dispute attending the Service since 1997 or otherwise being aware darkness was involved in the Service. The church was dark from the time Plaintiff entered the church and went to the balcony where the incident occurred. Nonetheless, Plaintiff chose to participate in the Service, and thus, chose to engage in an activity in which darkness was an inherent part. The risk to persons who voluntarily decide to take part in the Service is self-evident, as participants who attend will be inside the church while it is dark. The risk of falling inside the church while walking or moving around inside while it is dark is an obvious and inherent risk to participating in the Service.

[T]he evidence shows that Plaintiff knowingly chose to walk up to the balcony in the darkness and encounter the subject landings, of which Plaintiff was aware. The darkness was inherent and necessary to the event, and the risk of falling on the balcony while there in the darkness was obvious. It was within the contemplation of the activity.

Furthermore, although Plaintiff contends Defendant increased the risk the darkness posed, Plaintiff does not identify any conduct by Defendant other than the darkness that caused Plaintiff's injuries. Plaintiff argues the darkness together with the faulty stairs caused Plaintiff to fall. However, Plaintiff merely provides the balcony riser where Plaintiff fell presented a height differential of 7-1/4 inches, the subject landing ranged between 33-5/8 and 85 inches in length, and the area features varying tread lengths, but Plaintiff does not submit any admissible evidence explaining why these factors made the balcony dangerous or increased the risk of the darkness. Similarly, Plaintiff does not explain how the other factors Plaintiff identifies increased the inherent risk of the Service, especially whereas here, Plaintiff was aware of the balcony landings. There is no evidence that any action or inaction by Defendant increased the risk of harm to Plaintiff.

Therefore, the doctrine of primary assumption of the risk applies to the activity engaged in by Plaintiff, and accordingly, Defendant owed no duty to Plaintiff to prevent Plaintiff's injuries. The court needs not address the remaining issues.

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The First Amendment Right to Religious Darkness - Reason

Enlarge / A Navy nurse prepares a syringe.

Getty Images | petesphotography

US Navy Seals who objected to COVID vaccination on religious grounds yesterday won a preliminary injunction that prohibits the Navy from enforcing its vaccine mandate.

"Thirty-five Navy Special Warfare service members allege that the military's mandatory vaccination policy violates their religious freedoms under the First Amendment and Religious Freedom Restoration Act," Judge Reed O'Connor wrote in the ruling out of US District Court for the Northern District of Texas. "The Navy provides a religious accommodation process, but by all accounts, it is theater. The Navy has not granted a religious exemption to any vaccine in recent memory. It merely rubber stamps each denial."

O'Connor, who was nominated by President Bush in 2007, found that the Navy service members are likely to win the case on the merits. He granted the injunction prohibiting the Navy from enforcing its mandate against the plaintiffs and "from taking any adverse action against Plaintiffs on the basis of Plaintiffs' requests for religious accommodation."

"The Navy service members in this case seek to vindicate the very freedoms they have sacrificed so much to protect," O'Connor wrote. "The COVID-19 pandemic provides the government no license to abrogate those freedoms. There is no COVID-19 exception to the First Amendment. There is no military exclusion from our Constitution."

The 35 plaintiffs include 26 Navy SEALs, five SpecialWarfare Combatant Craft Crewmen, three Navy Divers, and one Explosive Ordinance Disposal Technician. They sued President Biden, Secretary of DefenseLloyd Austin, the Department of Defense, and Secretary of the Navy Carlos Del Toro. O'Connor dismissed Biden from the lawsuit because the court has no declaratory or injunctive power against the president.

The Department of Defense and Navy can appeal the preliminary injunction ruling to the US Court of Appeals for the Fifth Circuit. In a December 2021 brief opposing the preliminary injunction, the Department of Justice said the motion "ask[s] this Court to intrude into the management of the military by forcing the Navy to considerPlaintiffs medically qualified for continued service in a special warfare unit, eligible for combatmissions, and world-wide deployable. Plaintiffs cite no case that has ever granted such extraordinary relief in the military context, and in fact, they provide no authority supporting the reviewability of military decisions."

"[T]he Navy has a vital interest in maximizing the effectiveness of Naval Special Warfare operations against US enemies and minimizing the risk of error in these critical operations," the US also argued. "The Government's interest in 'maximum efficiency' of Navy SEAL special operations and ensuring their maximum capacity 'of easily and quickly responding to continually changing circumstances' is paramount. The Navy cannot accept any Naval Special Warfare operating conditions that place its success in combat against enemies of the United States at risk of failure."

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While 99.4 percent of active-duty Navy service members were fully vaccinated by early November, the plaintiffs are among the remaining 0.6 percent and belong to the Catholic, Eastern Orthodox, and Protestant branches of Christianity. The plaintiffs' religious beliefs include "(1) opposition to abortion and the use of aborted fetal cell lines in development of the vaccine; (2) belief that modifying one's body is an afront [sic] to the Creator; (3) direct, divine instruction not to receive the vaccine; and (4) opposition to injecting trace amounts of animal cells into one's body," O'Connor wrote.

The Navy has so far denied at least 29 of the 35 exemption requests, has never granted a religious exemption request for the COVID-19 vaccine, and has not granted any religious exemptions for any vaccine in the past seven years, O'Connor wrote. "Several Plaintiffs have been directly told by their chains of command that 'the senior leadership of Naval Special Warfare has no patience or tolerance for service members who refuse COVID-19 vaccination for religious reasons and wants them out of the SEAL community,'" the ruling said.

O'Connor criticized the Navy's 50-step process for evaluating religious exemption requests, writing that "the first fifteen steps require an administrator to update a prepared disapproval template with the requester's name and rank. In essence, the Plaintiffs' requests are denied the moment they begin."

After that, a tentative disapproval letter is "sent to seven offices for review," religious exemption requests from multiple service members are packaged together, and the administrator "prepares an internal memo to Vice Admiral John Nowell, asking him to 'sign... letters disapproving immunization waiver requests based on sincerely held religious beliefs.'" O'Connor continued:

Then, at step thirty-five of the process, the administrator is toldfor the first timeto read through the religious accommodation request. At that point, the disapproval letter has already been written, the religious accommodation request and related documents has already been reviewed by several offices, the disapproval has already been packaged with similar requests, and an internal memo has already been drafted requesting that Vice Admiral Nowell disapprove the religious accommodation request. The administrator is then tasked with reading the request and recording any pertinent information in a spreadsheet. At no point in the process is the administrator given the opportunity to recommend anything other than disapproval. The materials are then sent to Vice Admiral Nowell. The entire process belies the manual's assertion that "[e]ach request is evaluated on a case by case basis."

Read more:
Judge blocks Navy vaccine rule: No COVID-19 exception to the First Amendment - Ars Technica