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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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My Writings, Speeches, Media, and other Accomplishments in 2016

December 30th, 2016

I update my C.V. weekly to list all of my new writings, speeches, media appearances, and other items. The document is over 40-pages long. Here is an overview of all of my accomplishments in 2016.

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Oregon Court of Appeals: Motorized Vehicle Is Not a Vehicle

December 30th, 2016

One of the classic chestnuts of law school is how to interpret a sign that says “No vehicles in the park.”(See my previous posts). Once in a while, this question comes before the courts (New York). Yesterday, the Oregon Court of Appeals rejected the government’s supposition that a motorized vehicle is a “vehicle,” and reversed a DUI conviction.

Defendant appeals a judgment of conviction for driv- ing under the influence of intoxicants (DUII), ORS 813.010, assigning error to the trial court’s denial of his motion for a judgment of acquittal.1 Defendant was convicted of DUII for operating his motorized wheelchair in a crosswalk on a city street while intoxicated. He argues that a person crossing a street in a crosswalk in a motorized wheelchair is a pedestrian and not the operator of a vehicle for purposes of the DUII stat- utes. The state responds that the meaning of “vehicle” under ORS 813.010 is broad and applies to a motorized wheelchair, including when the wheelchair is being used to cross a street in a crosswalk and, hence, that defendant was subject to the DUII statutes when he drove his wheelchair on the street. Because we conclude that a person operating a motorized wheelchair in a crosswalk is a pedestrian and not the driver of a vehicle for purposes of the DUII statutes, we reverse.

Here were the arguments adduced at trial:

After the close of the state’s case in a jury trial, defendant moved for a judgment of acquittal, arguing, among other things, that, because he was using his wheelchair in a crosswalk, he was a pedestrian under ORS 801.385 and not subject to the DUII statutes that apply to drivers of motor vehicles.3 According to defendant, had the legislature intended motorized wheelchairs operating in crosswalks to be treated as vehicles, it would have said that explicitly, as it did in enacting ORS 814.500, which treats motorized wheel- chairs as bicycles when they are operated on bicycle lanes or paths.4 The state responded that motorized wheelchairs are vehicles under ORS 801.590,5 and, hence, that defendant was the driver of a vehicle under the DUII statutes when he drove his wheelchair in the crosswalk. The trial court concluded that defendant was subject to the DUII statutes when he was crossing the street in his motorized wheelchair and, accordingly, denied his motion for a judgment of acquittal.

Here is the crux of the court’s analysis:

However, we can discern no legislative intention to treat operators of motor- ized wheelchairs as pedestrians for most purposes in the vehicle code—for example, protecting them from operators of motor vehicles while crossing a street in a crosswalk, ORS 811.028—while also treating them as operators of motor vehicles for purposes of the DUII statutes. ORS 801.385 defines “pedestrian” for purposes of the vehicle code as “any person *** confined in a wheelchair.” (Emphasis added.) Had the legislature intended to treat users of motorized and human-powered wheelchairs differently for purposes of the DUII statutes—the former as vehicle drivers and the latter as pedestrians—it would have made that distinction in treatment explicit. Cf. ORS 814.500 (operators of motorized wheelchairs subject to rights and duties of bicycle rid- ers when motorized wheelchairs are used on bicycle lanes or paths).

The court goes on to analyze the legislative history, which supports their conclusion. (Shocker, right?).

Here is the conclusion:

In the end, we are persuaded that the dichotomy that pervades the vehicle code between pedestrians and operators of vehicles decisively evinces a legislative intention not to subject people in motorized wheelchairs to the DUII statutes when they are traveling as pedestrians in crosswalks. We conclude that a person using a motorized wheelchair under circumstances in which the person is a pedestrian for purposes of the vehicle code is not subject to the DUII statutes.

Here, the evidence viewed in the light most favor- able to the state establishes that defendant left a sidewalk in his motorized wheelchair and travelled in a crosswalk. Accordingly, defendant was a pedestrian and not a driver of a vehicle for purposes of the DUII statutes. Hence, the trial court erred in denying defendant’s motion for a judgment of acquittal.

But what if the defendant rode in the motorized wheelchair in a park?

H/T Howard Bashman

 

Federal Law Permits the AG To Restore Gun Rights. But Congress Has Refused To Fund This Role Since 1993

December 29th, 2016

18 U.S.C. s. 925 provides that the Attorney General has discretion to relieve individuals from any disability imposed by federal firearm prohibitions.

(c) A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

However, since 1993, Congress has refused to fund the Bureau of Alcohol, Tobacco, and Firearms from providing such relief. The Congressional Research Service offered this analysis (pp. 21-22):

For FY1993 and every year thereafter, Congress included a proviso in the ATF S&E appropriations language that prevents that agency from using appropriations to consider applications for disabilities relief (i.e., reinstatement of an applicant’s right to gun ownership) from individuals who are otherwise ineligible to be transferred a firearm.61 In the 102nd Congress, House report language (H.R. 5488; H.Rept. 102-618) included the following justification: “the Committee believes that the $3.75 million and the 40 man-years annually spent investigating and acting upon these applications for relief would be better utilized by ATF in fighting violent crime.” Senate and Conference report language were silent on this issue. The language of this proviso is as follows:

Provided further, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).

For FY2015, this proviso was included in the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235). For FY2016, the Senate Committee on Appropriations included identical language in its reported CJS appropriations bill (H.R. 2578, as amended). The House-passed version of H.R. 2578, however, reflected a floor amendment (H.Amdt. 302) that would have required ATF to process disability relief applications for individuals. The Consolidated Appropriations Act, 2016 (P.L. 114-113), however, did not include this amended provision. Instead, it included and maintained the appropriations limitation described above. Both the Senate and House FY2017 CJS Appropriations bills (S. 2837 and H.R. 5393) included identical provisions.

Judge Gibson (for whom I clerked) flagged this issue in a recent decision from the Western District of Pennsylvania.

Federal law does contain a provision, codified at 18 U.S.C. § 925(c), equivalent to Pennsylvania’s relief statute. Under § 925(c), a person prohibited from owning a firearm under federal law may apply to the Attorney General for relief. The ATF has promulgated a rule, 27 C.F.R. § 478.114, setting forth the procedures for such an application for relief. In practice, however, both 18 U.S.C. § 925(c) and 27 C.F.R. § 478.114 are meaningless; Congress has denied any funding “to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).” Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 2130, 2187 (2015). Thus, 18 U.S.C. § 925(c) does not provide an actual avenue of relief.

Franklin v. Lynch, No. 3:16-CV-36, 2016 WL 6879265 (W.D. Pa. Nov. 21, 2016).

Why on earth would Congress expressly vest the AG with this discretion–which amounts to the restoration of a constitutional right–and then refuse to fund him from exercising it?

Even more perverse, because the AG lacks this discretion, the second part of 925(c)–providing for judicial review– becomes meaningless:

Any person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter, who makes application for relief from the disabilities incurred under this chapter, shall not be barred by such disability from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Attorney General grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor.

The Supreme Court held, unanimously, in United States v. Bean that because the AG cannot take actions, district courts lack the authority to restore gun rights.

The absence of an actual denial by ATF of a felon’s petition precludes judicial review under § 925(c). The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain preconditions are met, and an applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investigate or act upon the applications. Section 925(c)’s text and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction.

This should change.

 

Personally Persuasive

December 29th, 2016

When I write about legal issues, I try very hard not to make it personal.  That is, I want my arguments to stand by themselves, regardless of who I am, where I was born, who my ancestors are, where I pray, how much money I earn, who I love, etc. None of that should matter. Alas, for many people it does. I’ve heard more times than I can count that because of my “privilege,” I lack the “agency” to write about a host of hot-button social issues. Whether or not the “privilege” argument has any merit on its own, if taken seriously, the result is silence: I can’t speak about a topic unless I have the agency to do so. Part of a broader culture of political correctness, these censorious policies are inimical to academic freedom, and more broadly, the freedom of speech.

It is against this backdrop that I came across a series of tweets from Josh Block this morning. Block criticized a post by Eugene Volokh about the University of Oregon’s punishment of a professor who wore blackface at a private party. (I’ve written about this case at some length, and Eugene quotes me in his post). Block argued that arguments about free speech are less persuasive when the speaker only uses examples he does not “personally find offensive.” Alluding to some Jewish writer, Block suggests that a hypothetical should be about a “prof invites Jewish students to party and dresses as Shylock or Jew w/horns.” (Volokh is Jewish). This would show “evenhandedness.” Block goes on to state that “1A defenders need to show they defend speech they [personally] find offensive, not just speech they think others wrongly find offensive.” Whether or not Volokh “defends other speech,” because “other people may justifiably be offended undercuts [his] argument.” It was his last tweet that raised my hackles: “When ppl who are white, male, & not LGBT make 1A args, you can’t persuade if you only discuss what offends minorities, women, & LGBT ppl.”

I replied:

Perhaps illustrating Trevor’s Axiom, I received a torrent of tweets from people other than Block, arguing that I misstated Block’s position, and that he spoke about “persuasive” arguments, rather than “acceptable” arguments. Allow me to explain.

Block’s argument, by necessity, requires assessing what the speaker finds, or likely finds, personally offensive. If the speaker is Jewish, then there is the presumption that he will find offensive a professors wearing horns. If the speaker is Catholic, then there is the presumption that he will find offensive a professor dunking a crucifix in urine. If the speaker is Irish, then there is the presumption that he will find offensive a professor dressing up like the Notre Dame mascot. You get my drift. Unless a speaker offers such “evenhandedness” his argument is less “persuasive.” Or as I phrased it in my tweet, the argument is not as acceptable, because some other people–who are not privileged–find the argument undercut.

What a person personally finds offensive is irrelevant to the persuasiveness of an argument. I have no idea what Eugene finds offensive. I almost never get offended because of the internet. It’s dulled me to virtually everything. Why presume that I would find any of these scenarios offensive? I think the professor who does these things acts like an idiot, but so what.

If someone wants to find my arguments unpersuasive, let them do it based on the logic and reasoning in the work–not based on their perception of who I am, or what I find offensive.

This is a philosophical disagreement that I don’t think we will resolve, by tweet, or blog post.

 

Texas AG Opposes Texas State Bar’s Quota System, Urges It To Become “Private Entity”

December 29th, 2016

The Texas Star Bar (I am not a member) imposes a straight-up quota for members of its board, explicitly reserving the seat for a “minority director,” defined as “female, African-American, Hispanic-American, Native American, or Asian-American.” White males need not apply. The Project on Fair Representation (Ed Blum’s organization) brought suit on behalf of an Austin attorney, who is a white male, alleging that the quota was unconstitutional. In most cases, the Attorney General of Texas would defend suits brought against the state institution. But not here.

General Paxton filed an amicus brief in support of the plaintiffs’ motion for a preliminary injunction. The brief argues that the quota is “patently unconstitutional.”

The State Bar has chosen the wrong tool to achieve the benefits of diversity. Instead of trust- ing its membership to vote for the most qualified candidates to collectively represent their interests, it has chosen to enforce strict racial and sex-based quotas for its leadership. But the State Bar is a government agency, and governmental quotas on race and sex are anathema to equal protection under the law. Quotas make bare the indignity of a naked racial and sex-based classification, because they define an individual’s sole worth based on an immutable trait. In the eyes of the State Bar, you either are or are not a minority member, and that single quality defines whether you can or cannot serve in a specific government role. These quotas are utterly unjustified and patently unconstitutional.

Even more suggests, the brief suggests that if the Bar wants to discriminate, it should become a “private entity.” Doing so would alleviate the antitrust issues raised in NC State Board of Dental Examiners v. FTC, as well as the proposed Model Rule 8.4(g).

If the State Bar wishes to continue to utilize race and sex-based quotas in selecting their leadership—unwise though that policy may be—it could push to become a private, voluntary bar association, like the American Bar Association. As a private entity, the State Bar would not be subject to the Equal Protection Clause scrutiny that dooms their quota system in this case. In- deed, transitioning from a governmental body to a private bar association would solve many of the serious problems that potentially exist with the State Bar.1

See, e.g., N. Carolina State Bd. of Dental Exam’rs v. F.T.C., 135 S. Ct. 1101, 1110-15 (2015) (“The Court holds today that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal’s active supervision requirement in order to invoke state-action antitrust immunity.”); Tex. Att’y Gen. Op. No. KP-0123 (2016) (explaining that, if the State Bar adopted a rule of professional conduct recently proposed by the American Bar Association, it would be violating attorneys’ rights to free speech, free association, and free exercise of religion).

This is not an idle point. As Mark Pulliam notes in a recent WSJ Op-Ed, the legislation authorizing the State Bar will sunset in September 2017.