Author: TSA Press

Last
night,
Sixth
Circuit
Judge
Chad
Readler
appeared
at
an
American
University
Washington
College
of
Law
event.
The
former
acting
chief
of
the
DOJ
Civil
Division
spoke
to
Federalist
Society
students
about
the
role
of
DOJ
in
“Defending
Presidential
Priorities.”
It’s
a
subject
he
can
certainly
speak
to
based
on
his
experience
—
even
if
the
first
Trump
administration
maintained
the

appearance
of
a
Justice
Department
beholden
to
the
government
and
the
Constitution
as
opposed
to
its

now
explicit
mission
as
Trump’s
personal
lawyers.
But
SHOULD
a
sitting
federal
judge
be
speaking
to
this
subject?

Probably
not.
On
the
other
hand,
it’s
nice
to
get
a
little
transparency.
He’s
writing
the
same
opinion
either
way.
If
he
wants
to
create
a
paper
trail
to
undermine
America’s
flagging
faith
in
judicial
independence
so
he
can
enjoy
a
weekend
in
D.C.,
then
have
at
it.

But
that’s
not
what
we’re
here
to
talk
about
today.
Come
on
FedSoc…
it’s
time
to
let
go
of
the
Chick-fil-A
thing.

Every.
Single.
Time.

Look,
we
get
it.
You’re
unrepentant
bigots
and
you
want
to
make
that
as
obvious
as
possible.
It
gnaws
at
you
that
liberal
groups
can
signal
their
sympathies
by
offering
cuisine
from
one
of
the
countless
cultures
your
intellectual
heroes
work
so
hard
to
demonize.
Chick-fil-A
has
given
you
so
many
golden
moments
to
“own
the
libs”
at
the
expense
of
functional
arteries.

But
it’s
time
to
face
reality.
Chick-fil-A’s
turn
as
the
go-to
gay
bashing
totem
was
like,
13
years
ago.
The
history
is
a
little
more
complex,
but
essentially
the
company’s
leadership
expressed
their
opposition
to
gay
rights,
Mike
Huckabee
made
it
a
rallying
cry
for
conservatives
to
flock
to
the
fast
food
joint
as
the
world’s
goofiest
performative
protest
against
equality,
and
right-wingers
have
—
literally
and
figuratively
—
eaten
it
up
ever
since.

Indeed,
we’re
11
years
removed
from
a
post

on
this
very
site
about
the
Federalist
Society
going
all
in
on
Chick-fil-A.
Over
a
decade
ago,
there
remained
a
modestly
colorable
defense
that
students
weren’t
trolling.

I
didn’t
buy
this
argument
even
then:

It
is
true
that
marriage
equality
is
probably
coming
sooner
rather
than
later.
But
just
like
winning
the
Civil
War
or
winning
WWII
didn’t
rob
the
symbols
of
the
opposing
ideologies
of
their
power,
marriage
equality
doesn’t
make
it
cool
to
gin
up
business
by
embracing
anti-gay
populace
who
rally
around
your
product.

Again,
eating
Chick-fil-A
is
a
political
statement
—
even
if
it’s
a
statement
that
you’ve
decided
not
to
care.
Sometimes
there
are
issues
bigger
than
whether
or
not
something
is
tasty.

The
problem
with
running
the
same
joke
into
the
ground
is
that
it’s
lost
most
of
its
punch.
It’s
predictable
to
the
point
it
often
passes
without
comment
and
half
the
liberals
you’re
trying
to
own
only
know
the
chain
from
its
“our
customers
have
DISTURBINGLY
close
relationships
with
our
drive-through
tellers”
commercials.

Would
you
delegate
the
watershed
moment
of
your
life
to
Burger
King?
I
THINK
NOT!
What
about
handing
your
pregnancy
over
to
Five
Guys?
Wait…
maybe
don’t
answer
that
one.

It
just
smacks
of
pathetically
clinging
to
a
conservative
cultural
moment
that
happened
when
you
were
in
third
grade.

Hell,
a
Chick-fil-A
order
isn’t
even
a
right-wing
purity
test
anymore!
MIKE
HUCKABEE
—
who
started
all
this
—

hates
Chick-fil-A
now
because
the
company
embraced
the
verboten
“DEI”
concept.
Apparently
its
disdain
doesn’t
carry
over
to
a
large
enough
cohort
of
minorities
for
some.

We
understand
that
it’s
a
point
of
personal
pride
(oops,
wrong
word
for
you
all…
“honor”)
to
make
these
little
jabs
in
all
your
announcements,
but
Chick-fil-A
isn’t
where
it’s
at
anymore.
Try
something
new
that
gets
the
same
point
across.
Like:

I
mean,
come
on!
Get
creative!
There
are
so
many
patently
offensive
options
you
can
try
that
are
sure
to
keep
you

ostracized
by
polite
law
school
society.
Hand
out
MAGA
hats
or
something.
It’s
far
more
culturally
relevant
to
2025
than
rehashing
2012’s
dankest
Fox
News
memes.

Or
you
could
try
being
normal
for
a
change.

Earlier:

Is
It
Ever
OK
To
Serve
Chick-Fil-A?
An
ATL
Debate

Yale
Law
Students:
‘Maybe
Don’t
Invite
FedSoc
To
Parties.’
Right
Wing:
‘Doxx
‘Em
And
Snitch
To
Employers’

---

Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of

Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or

Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a

Managing
Director
at
RPN
Executive
Search.

Hooboy!
Disgraced
former
Ninth
Circuit
judge

Alex
Kozinski
is
back.
He’s

written
a
piece
in
the
Wall
Street
Journal
asserting
—
with
little
more
then
naked
conjecture
—
that
the
United
States’
elections
could
be
canceled.
The
piece
is
very
short,
shockingly
devoid
of
context,
and
lacking
any
semblance
of
intellectual
rigor.

Kozinski
spends
a
solid
half
of
the
article
telling
an
anecdote
about
the
cancelation
of
the
elections
in
his
native
Romania.
He
uses
that
as
a
springboard
to
speculate
about
American
elections.
But
to
get
there,
he
first
has
to
throw
out
some
right-wing
talking
points
about
free
speech.

As
the
Fifth
U.S.
Circuit
Court
of
Appeals
detailed
in Missouri
v.
Biden, our
government
exerted
considerable
pressure,
even
coercion,
to
extirpate
ideas
from
social
media.
Certain
topics—such
as
Covid’s
origin,
remedies
and
vaccine
safety,
transgenderism,
climate
change
and
the
legitimacy
of
the
2020
election—were
deemed
nondebatable.
Many
who
expressed
views
contrary
to
the
official
position
were
canceled.

Listen,

there
are
some

genuine
problems
with

free
speech
in

this
country.
But
exactly
ZERO
of
them
are
anything
in

Missouri
v.
Biden
(later

Murthy
v.
Missouri).
And
it
is
very
telling
that
Kozinski
references
the
Fifth’s
Circuit’s
take
on
the
case
—
because
they
were

reversed
by
the
Supreme
Court
(you
know
the
Supreme
Court
that
has
a
6-3
conservative
majority).
There
is
no
free
speech
problem
there.

The
ex-jurist
is

already
on
record
defending
wild
conspiracy
theories
about
the
COVID-19
vaccine
and
the
2020
election
as
“correct
or
at
least
debatable.”
Which,
no,
they
aren’t.
But
advancing
far-right
theories
is
part
of
Kozinski’s

path
back
to
relevance
since
he
left
the
bench
under
a
cloud
of
scandal.
But
this
is
some
truly
out-of-pocket
shit.

The
former
judge’s
fall
from
grace
happened
in
2017. Kozinski
retired amid
a sexual
harassment
scandal that
rocked
the
legal
world.
While
the
jurist
was somewhat
famous in
legal
circles
for
his
bawdy
sense
of
humor,
the extent
of
the
alleged
harassment —
asking
women
clerks
to
view
pornography
with
him
in
his
chambers,
making
inappropriate
sexual
comments,
and
verbal
abuse
heaped
on
females
working
in
his
chambers
—
was
more
hidden.
However,
an
exposé
on
the
judge
sparked
an
avalanche
of
over
a
dozen
women
coming
forward
to
share
their
experiences
with
the
judge.
But
his
retirement

short-circuited
any
investigation
into
the
allegations.

In
the
WSJ
article,
Kozinski
pivots
from
individuals
getting
colloquially
“canceled”
to
the
actual
cancellation
of
U.S.
elections
with
all
the
grace
of
a
panda
learning
to
ice
skate.

Could
American
elections
be
canceled
next?
Some
states
came
close
in
2024
by
attempting
to
remove
from
their
ballots
the
candidate
who
eventually
won
the
presidency.
There
was
no
uproar;
the
Supreme
Court
had
to
intervene.
During
the
pandemic,
Americans
put
up
with
unprecedented
and
draconian
restrictions
on
their
freedom
of
movement,
school
closures,
destruction
of
businesses
and
interference
with
doctor-patient
relationships.
Much
of
this
met
with
little
resistance,
in
large
part
because
authorities
in
government
and
media
suppressed
discussion
and
debate.
If
enough
panic
is
stirred
up,
canceling
elections
isn’t
inconceivable.

This
is
actually
head-smackingly
dumb.
Litigating
the
application
of
the
14th
Amendment’s
prohibition
on
insurrectionists
holding
office
is
actually
a
point
in
favor
of
the
rule
of
law.
It’s
not
like
political
animus
was
the
motivation
behind
some
states
trying
to
keep
Donald
Trump
off
the
ballot,
it
was
an
attempt
to
hold
fealty
to
the
Constitution.
The
final
authority
on
the
Constitution
weighed
in.
I
don’t
even
much
like
the
result
in
the
case
and
can
concede
that
is
how
our
system
is
designed
to
work.
And,
good
grief
with
the
COVID
victimization
trope
again!
Listen,
it
was
a
pandemic.
Our
laws
are
able
to
respond
to
extraordinary
circumstances,
and
good
faith
efforts
to
keep
people
alive
were
even

struck
down
when
courts
found
the
measures
impeded
rights.
This
is
all
a
demonstration
of
how
an
actual
functional
government
works.
From
these
examples,
rushing
to
a
conclusion
that
American
elections
could
be
canceled
because
of
vibes
is
whiplash
inducing.

Finally,
Kozinski
holds
up
JD
Vance’s

much
maligned
speech
at
the
Munich
Security
Conference,
where
the
vice
president
tried
to
pick
a
fight
with
some
of
America’s
strongest
allies,
as
a
sort
of
bellwether
of
freedom.

Our
legacy
media
have
greeted
Mr.
Vance’s
speech
largely
with
disdain
and
horror.
They
are
wrong.
The
speech
is
epic.
It
reminds
Europeans
and
Americans
that
the
values
of
the
Enlightenment,
as
captured
in
our
Constitution—not
least
the
right
to
think,
speak
and
debate
freely—are
the
glue
that
binds
us
together.
If
we
don’t
defend
those
values,
there
isn’t
much
left
worth
defending.

This
bit
right
here
makes
me
want
to
scream.
You
want
to
take
about
“the
right
to
think,
speak
and
debate
freely”?
Look
at
what
side
is

banning
books.
And

erasing
vital
parts
of
the
history
of
Stonewall.
And

memory-holing
the
reason
we
had
to
guarantee
birthright
citizenship.
And

trying
to
impeach
judges
just
because
they
don’t
like

how
they
ruled.
And

investigating
members
of
Congress
because
they
called
Elon
Musk
a
“dick”
on
TV.

And.

And.

And.

And.

And.

And.

The
article
is
so
wildly
disingenuous
for
a
legal
mind
that
was
one
considered
a

bright
star.
It’s
almost
like
there’s
something
else
afoot.

Oh.
OH.
Oh.
Canceling
elections
is
certainly
one
way
to
get
around
the

pesky
problem
of
the
22nd
Amendment.

---

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1 or
Mastodon

@[email protected].

In
this
episode,
I
chat
with

Rebecca
Haw
Allensworth,
a
Vanderbilt
Law
School
professor
and
author
of
“The
Licensing
Racket.”
Discover
the
untold
stories
behind
professional
licensing,
the
unexpected
impact
on
various
careers,
and
why
these
regulations
might
not
always
serve
the
public.
Rebecca’s
firsthand
research
brings
intriguing
insights
into
how
licensing
affects
professions
from
barbers
to
doctors
and
potential
reforms.
Don’t
miss
this
chance
to
rethink
the
system
that
shapes
many
of
our
careers!

Highlights

• English
  vs.
  Law:
  Career
  advice.
• Antitrust:
  Economical
  dominance.
• Licensing
  paper:
  Supreme
  Court
  citation.
• Licensing
  board
  meetings
  investigation.
• Self-regulation
  across
  professions.
• Over-regulation:
  Haircuts
  vs.
  law
  degrees.
• Professional
  licenses
  as
  American
  Dream.
• Legal
  profession
  self-dealing.
• Cross-disciplinary
  board
  potential.
• Federalism
  complicates
  licensing
  reform.
• Hope
  for
  future
  board
  reforms.

The
Jabot
podcast
is
an
offshoot
of
the
Above
the
Law
brand
focused
on
the
challenges
women,
people
of
color,
LGBTQIA,
and
other
diverse
populations
face
in
the
legal
industry.
Our
name
comes
from
none
other
than
the
Notorious
Ruth
Bader
Ginsburg
and
the
jabot
(decorative
collar)
she
wore
when
delivering
dissents
from
the
bench.
It’s
a
reminder
that
even
when
we
aren’t
winning,
we’re
still
a
powerful
force
to
be
reckoned
with.

Happy
listening!

---

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1 or
Mastodon

@[email protected].

The
Department
of
Education’s

recent
“Dear
Colleague”
letter
threatened
all
schools
that
fail
to
whitewash
their
curricula
with
having
federal
funding
snatched
from
them.
And
while
it’s
nice
to
see
schools
take
stands
for
diversity,
being
on
the
right
side
of
history
usually
doesn’t
pay
the
bills
quite
like
falling
in
line.
Law
schools
have
already
begun
scrubbing
mentions
of
diversity,
equity
and
inclusion
(DEI)
from
their
websites
to
stay
in
the
federal
funding
running.

Bloomberg
Law
has
coverage:

Law
schools
including
Cornell
Law
School,
Vanderbilt
Law
School,
and
the
University
of
Virginia
School
of
Law
have
axed
the
word
“diversity”
from
their
community-focused
webpages.
The
Antonin
Scalia
Law
School
took
down
its
diversity
page
entirely.
…
Schools
are
facing
a
Feb.
28
deadline
to
ensure
their
DEI
policies,
initiatives
and
programs
do
not
violate
federal
law
or
risk
their
federal
funding,
according
to
a

Feb.
14
letter
from
Craig
Trainor,
the
acting
assistant
secretary
for
Civil
Rights
at
the
Education
Department.

Now
that
is
a
photo-finish
deadline
—
it’s
the
classy
way
of
saying
“get
this
diversity
shit
wrapped
up
before
Black
History
Month
ends.”

We
will
see
varied
approaches
to
the
government’s
DEI
ban
over
time.
It
may
live
on
under
different
names;
for
example,
what
was
once
Vanderbilt’s
“Office
of
Diversity,
Equity
and
Community”
is
now
their
“Office
of
Culture
and
Community.”
Is
culture
their
tongue-in-cheek
nod
to
diversity
and
equity,
or
will
the
modus
operandi
change
with
the
name?
If
the
former,
good
luck
with
getting
grants.
If
there
is
an
actual
change,
how
will
Vandy’s
culture
and
community
change
over
time?
If
it
continues
to
look
how
it
does,
will
they
risk
the
proxy
suits
the
DOE
was
teasing?
Time
will
tell.

Law
Schools
Are
Dropping
‘Diversity’
From
Their
DEI
Branding
[Bloomberg
Law]

Earlier:

The
Department
Of
Education
Finally
Dropped
The
‘No
DEI
By
Proxy’
Shoe
We
Were
All
Waiting
For

---

Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.

Ed.
Note:

A
weekly
roundup
of
just
a
few
items
from
Howard
Bashman’s

How
Appealing
blog,
the
Web’s
first
blog
devoted
to
appellate
litigation.
Check
out
these
stories
and
more
at
How
Appealing.

“Trump
comes
close
to
the
red
line
of
openly
defying
judges,
experts
say;
Faced
with
judges’
orders
to
block
certain
initiatives,
the
Trump
administration
has
found
ways
to
tell
courts
it
still
has
the
authority
to
act”: Justin
Jouvenal,
Leo
Sands,
and
Ann
E.
Marimow
of
The
Washington
Post
have this
report.

“Judge
asks
if
‘unadulterated
animus’
is
driving
Trump’s
trans
troop
ban;
In
a
sometimes-fiery
hearing,
a
federal
judge
said
that
the
Trump
administration’s
assertion
that
troops’
pronouns
are
harming
military
readiness
is
‘frankly
ridiculous’”: Casey
Parks
of
The
Washington
Post
has this
report.

“Pivotal
Trial
Begins
in
Texas:
Will
Johnson
&
Johnson’s
Third
Talc
Bankruptcy
Survive?
U.S.
Bankruptcy
Judge
Christopher
Lopez
heard
opening
statements
on
Tuesday
in
a
two-week
trial
over
the
fate
of
Johnson
&
Johnson’s
third
talcum
powder
bankruptcy.” Amanda
Bronstad
has this
report online
at
Texas
Lawyer.

“Justice
Dept.
Official
Suggests
That
Aiding
Trump
Outweighs
Prosecutions;
Emil
Bove
III,
the
acting
deputy
attorney
general,
tried
to
persuade
a
judge
to
let
him
drop
a
corruption
case
against
Mayor
Eric
Adams;
He
said
the
mayor
was
crucial
to
the
president’s
agenda”: Jonah
E.
Bromwich,
Benjamin
Weiser,
Hurubie
Meko,
and
William
K.
Rashbaum
of
The
New
York
Times
have this
report.

“Missouri
Clinics
Resume
Abortions,
Following
Abortion
Rights
Referendum;
Abortion
opponents
had
tried
to
block,
or
severely
limit,
the
procedure,
against
the
will
of
voters
who
in
November
enshrined
abortion
rights
in
the
state
constitution”: Kate
Zernike
of
The
New
York
Times
has this
report.

“Lawyer
asks
federal
judge
to
recuse
himself
due
to
pronoun
policy
in
courtroom;
Judge
S.
Kato
Crews
is
one
of
six
judges
on
Colorado’s
US
District
Court
requiring
parties
to
use
others’
‘applicable
pronouns’
in
their
courtrooms”: Michael
Karlik
of
Colorado
Politics
has this
report.

The
phrase
“no
harm,
no
foul”
doesn’t
apply
to
law
enforcement
personnel,
whether
they’re
patrol
officers
or
the
chief
local
prosecutor.
Instead
—
thanks
to
the qualified
immunity
doctrine —
the
phrase
is:
“whatever
amount
of
harm,
no
foul.”

As
long
as
the
harm
isn’t
something specifically covered
by
precedent,
the
general
feeling
of
courts
is
that
law
enforcement
shouldn’t
be
punished
for
rights
violations
they
can
plausibly
(at
least
under
precedent)
claim
they had
no
idea were
rights
violations,
no
matter
how
immediately
egregious
those
rights
violations
were.

And
so
it
is
here,
even
if
this
case
was
last
reviewed
by
the
appeals
court least
likely
to
cut
cops
slack:
the
Ninth
Circuit
Court
of
Appeals.

Here’s
the
background
of
the
case,
which
shows
just
how
routinely
awful
law
enforcement
can
be,
especially
when
they
know
they’ll
rarely
be
required
to
face
a
jury,
much
less
face
any
internal
discipline
for
abusing
people’s
trust,
if
not
their
constitutional
rights.

An
Oregon
woman’s
nude
photos
ended
up
the
topic
of
conversation
in
her
small
town
after
a
prosecutor
looked
through
her
sensitive
cellphone
data
and
told
the
county
sheriff
what
he
found
despite
no
warrant,
no
consent
and
no
suspicion
that
she
had
committed
a
crime.

[Sad
trombone]:

But
the
district
attorney
involved
won’t
face
legal
consequences
under
a
federal
appeals
court
ruling
released
Monday.

Here’s
more
of
the
story,
via Oregon
Live’s
reporting.
The
plaintiff,
Haley
Olson,
ran
a
(legal)
marijuana
shop
in
Oregon.
She
was
pulled
over
in
Idaho
(where
recreation
use/possession
isn’t
legal)
and
charged
with
possession.
During
the
search
of
her
vehicle,
Idaho
State
troopers
found
a
business
card
belonging
to
her
boyfriend,
Grant
County
(OR)
deputy
Tyler
Smith.

Olson
consented
to
a
search
of
her
cell
phone.
(Folks,
please never do
this.)
The
state
police
performed
a
forensic
extraction
of
her
phone’s
contents.
Shortly
thereafter,
state
prosecutors
dropped
the
charges
against
Olson.

But
Idaho
law
enforcement
still
had
a
copy
of
Olson’s
phone
data.
Suddenly,
that
was
of
some
interest
to
her
boyfriend’s
employer,
the
Grant
County
sheriff’s
department.

But Glenn
Palmer,
the
Grant
County
sheriff
at
the
time,
had
called
the
Idaho
trooper
who
handled
Olson’s
case
shortly
after
her
arrest.
Palmer
had
apparently
heard
about
the
arrest
from
another
sheriff’s
office
employee
and
was
“curious”
about
whether
Olson’s
phone
might
reveal
misconduct
on
Smith’s
part,
the
appellate
court
wrote.

Palmer
learned
during
the
conversation
that
the
deputy’s
card
had
been
discovered
in
Olson’s
car
and
asked
the
Idaho
trooper
to
share
the
contents
of
Olson’s
phone,
but
Idaho
authorities
rejected
his
request,
according
to
the
opinion.

That
should
have
ended
that.
And
I
don’t
really
have
an
objection
to
a
deputy’s
employer
wanting
to
see
if
their
employee
might
be
involved
in
things
an
officer
shouldn’t
be,
even
if
that
thing
was
only
assisting
with
the
sale
of
a
now-legal
drug.

But
it
didn’t
end
there.
After
being
rejected
by
the
Idaho
State
Police,
Sheriff
Palmer
approached
district
attorney
Jim
Carpenter
and
encouraged
him
to
obtain
a
copy
of
Olson’s
phone
contents
and
review
them.
Carpenter
did.
He
sent
an
email
to
Idaho
prosecutors
requesting
a
copy
and
promising
it
was
for
“internal
review
only”
and
wouldn’t
be
shared
with
anyone
outside
of
his
office.

Of
course,
that’s
not
what
happened.

Carpenter
immediately
violated
his
pledge
to
Idaho
police
and
asked
detectives
from
two
outside
agencies,
the
Oregon
State
Police
and
the
Deschutes
County
Sheriff’s
Office,
to
review
the
flash
drive
material,
according
to
the
appellate
opinion.

Both
agencies
declined,
because
it
wasn’t
tied
to
a
criminal
investigation,
the
opinion
said.

Carpenter
reviewed
the
phone
contents
himself
in
April
2019,
found
nude
photos
of
both
Olson
and
Smith
and
contacted
the
sheriff
to
tell
him
that
the
phone
showed
evidence
of
an
intimate
relationship
between
Smith
and
Olson,
the
ruling
said.

Carpenter
also
added
that
he
had
seen
nothing
that
indicated
anything
improper
was
happening.
Nonetheless,
he
seemed
extremely
insistent
that
the
sheriff
view
the
contents
of
the
phone,
referring
not-all-that-cryptically
to
content
“that
couldn’t
be
unseen”
once
viewed.
At
some
point,
the
sheriff
finally
gave
in.

And
then,
according
the
lawsuit,
he
began
handing
this
content
out.

Olson
said
a
Grant
County
deputy
whom
she
didn’t
know
came
into
her
marijuana
store
and
told
her
that
he
had
heard
“there’s
some
pretty
smokin’
pictures
of
you
going
around
the
sheriff’s
office,”
the
appeals
court
wrote.

Another
witness
reported
observing
two
sheriff’s
employees
looking
at
nude
photos
of
Olson
on
a
phone,
according
to
the
opinion.

Nothing’s
going
to
happen
to
the
DA,
who
—
despite
declaring
there
was
nothing
of
(criminal)
interest
on
Olson’s
phone
—
felt
compelled
to
share
the
stuff
of
(prurient)
interest
with
the
sheriff.
And,
apparently
(or
allegedly,
if
you
prefer),
the
sheriff
felt
compelled
to
share
that
with
his
employees.

The
end
result
is
the
dismissal
of
the
prosecutor
from
this
lawsuit,
despite
the
Ninth
Circuit
making
this
statement
early
on
in
its decision [PDF]:

We
have
no
difficulty
concluding
that
Carpenter’s
search
was
unreasonable.

Even
before
reaching
the
question
about
the
unauthorized
sharing
of
the
unreasonably
searched
data,
the
court
has
already
found
the
original
search
was
unlawful.
It
goes
on
to
dismantle
the
DA’s
justifications
for
his
search:

Compared
to
those
weighty
privacy
interests,
the
two
asserted
government
interests
are
unavailing.
Palmer
was
“curious”
about
whether
Olson’s
phone
might
reveal
misconduct
on
Smith’s
part.
Carpenter
was
interested
in
reviewing
the
phone
for
possible
Brady
material
in
cases
where
Smith
might
testify.
Olson
was
arrested
in
Idaho
for
the
possession
of
marijuana,
which
is
not
illegal
in
Oregon,
and
there
was
no
reason
for
Palmer
or
Carpenter
to
suspect
that
Smith
had
taken
part
in
criminal
activity.
Not
surprisingly,
Carpenter
was
never
able
to
articulate
which
cases
he
was
concerned
that
Smith
would
testify
in,
and
for
which
any
Brady
material
regarding
this
incident
would
be
relevant.
No
precedent
supports
invoking
a
hypothetical
Brady
concern
to
overcome
the
warrant
requirement.

Not
obvious
enough
of
a
rights
violation,
says
the
Appeals
Court.

Although
we
conclude
that
Carpenter’s
warrantless
search
of
Olson’s
cell
phone
constituted
a
Fourth
Amendment
violation,
the
law
was
not
clearly
established
at
the
time
of
the
search.

The
DA
walks
away
from
this
lawsuit.
As
disappointing
as
that
is,
at
least
the
Ninth
Circuit
goes
where
most
appellate
level
courts
won’t:
it
establishes
precedent
so
the
next
fucker
who
tries
this
shit
won’t
get
away
with
it.

Because
it
is
important
to
lay
down
a
marker
for
future
cases,
we
heed
the
Court’s
call
in
Pearson
to
develop
constitutional
precedent
and
conclude
that
Carpenter’s
search
infringed
on
Olson’s
Fourth
Amendment
rights.

And
that,
as
sad
as
it
is
to
say,
is way better
than
the
nothing
courts
often
content
themselves
with
doing
in
cases
dealing
with
obvious
and
egregious
rights
violations.
So,
of
course,
there’s
a
concurrence
(this
one
written
by Federalist
Society
member
Judge
Daniel
Bress)
that
says
he
agrees
the
DA
should
get
away
with
this
but
that
the
court
went
too
far
by
establishing
precedent:

I
join
only
Parts
I
and
II.B
of
the
court’s
opinion.
Because
Carpenter
is
entitled
to
qualified
immunity
based
on
the
lack
of
clearly
established
law,
it
is
not
necessary
to
decide
whether
Carpenter
violated
the
Fourth
Amendment.
There
may
be
instances
in
which
it
is
helpful
to
the
development
of
the
law
to
answer
the
underlying
constitutional
question
even
when
the
defendant
prevails
on
qualified
immunity
grounds.
But
this
is
not
such
a
case.

Of
course
“this
is
not
such
a
case.”
It
would
probably
be
difficult-to-impossible
to
find
a
case Trump
appointee
Judge
Bress (he
replaced
Alex
Kozinski)
might
find
worthy
of
establishing
precedent
when
it
comes
to
law
enforcement
and
civil
rights
violations.
Maybe
he’ll
get
to
handle
a
J6
case
(what’s
left
of
them
after
Trump’s
mass
pardoning)
that
may
force
him
to
see
rights-violating
cops
as
being
on
the
wrong
side
of
the
law.
But
today
isn’t
the
day.

As
it
stands
now,
the
DA
gets
to
walk
but
DAs
who
follow
in
his
footsteps
won’t.
That’s
the
only
positive
outcome
of
this
decision
—
yet
another
one
that
lets
cops
and
their
accomplices
know
there’s
almost
nothing
to
fear
when
they
get
sued
for
violating
rights.

Court
Grants
Immunity
To
DA
Who
Shared
Nude
Photos
From
A
Searched
Phone
With
Local
Law
Enforcement

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