Boots & Sabers

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Category: Law

Court Rules in Favor of 1st Amendment Despite Pandemic

From Wisconsin Spotlight. It is rather unsettling that a decision like this would ever be in doubt.

MADISON — The First Amendment cannot be constrained in the name of a pandemic.


That’s the ruling of a federal judge who finds Marquette County law enforcement officials violated the speech rights of a teen when they threatened to arrest her after she posted on Instagram that she had COVID-19 in the opening months of the pandemic.


“The First Amendment is not a game setting for the government to toggle off and on. It applies in times of tranquility and times of strife,” wrote U.S. District Court Judge Brett Ludwig in his decision, “While Defendants in this case may have believed their actions served the greater good, that belief cannot insulate them. Demanding a 16-year-old remove protected speech from her Instagram account is a First Amendment violation.”


Ludwig granted Amyiah Cohoon, at the time a sophomore from Oxford, and her parents summary judgment. And the defendants, Sheriff Joseph Konrath and Sergeant Cameron Klump, cannot escape liability by invoking probable cause or qualified immunity, the judge wrote.


As Empower Wisconsin reported, on March 27, 2020, Klump threatened to cite or jail Amyiah or her parents if she did not remove the social network post indicating she was recovering from COVID-19, according to the lawsuit.

Wisconsin Backs Down On Onerous Regulations for Swimply

Good. Government should get out of the way of innovation.

MADISON, Wis. (AP) — Wisconsin regulators have backed down on demands that operators of a startup that allows private homeowners to rent their swimming pools by the hour said would kill their business.


Wisconsin regulators told Swimply in April that pools offered for rent would have to be treated the same as large, public swimming pools. That meant a pool’s owner would have to obtain a license and meet tougher construction requirements.

But on Friday, the Wisconsin Department of Agriculture, Trade and Consumer Protection notified attorneys for Swimply that most pools offered for rent would not have to meet those higher standards.


Wisconsin was the first state to push back against Swimply, which started in 2018 with four pools in New Jersey but has taken off during the pandemic.

Nirvana Baby Sues Alleging Child Pornography

Someone wants a pay day. The age of great album covers has been over since the advent of online media, but this was one of the most iconic (although, the music was terrible).

Spencer Elden, the man who was photographed as a baby on the album cover for Nirvana’s Nevermind, is suing the band alleging sexual exploitation.

The cover depicts Elden as a four-month-old in a swimming pool, grasping for a dollar bill that’s being dangled in front of him on a fishing line.


Now 30, Elden says his parents never signed a release authorising the use of his image on the album.


He also alleges the nude image constitutes child pornography.


“The images exposed Spencer’s intimate body part and lasciviously displayed Spencer’s genitals from the time he was an infant to the present day,” legal papers filed in California claim.

Non-sexualised photos of infants are generally not considered child pornography under US law.

Beware of governments that keep lists

Here is my full column that ran in the Washington County Daily News earlier this week.

Last year, Wisconsin Manufacturers & Commerce sued Governor Tony Evers to stop the wholesale release of the names of businesses where employees had COVID-19 or been exposed to someone who did. Last week, the Wisconsin Supreme Court agreed to take up the case.


At issue is the public disclosure of private information that the government has been collecting during the pandemic. In this case, the state government, through medical disclosures and contract tracing efforts, has kept a list of the businesses whose employees contracted COVID-19 or came into contact with someone who did.


After first saying that such information should not be made public, Governor Evers reversed himself and agreed to release the information to news outlets. WMC sued to stop the release, obtained an injunction to that effect, and now the case is headed to the state Supreme Court.


Wisconsin’s Open Records Laws are generally very strong and favor the release of all information held by government unless there is a compelling reason to not do so. In this case, there are several reasons to deny public release. The release of the information would unfairly damage Wisconsin’s small businesses and potentially damage the effort to combat this and future pandemics.


The public disclosure of businesses where employees have had COVID-19 or have been exposed to someone who did would cause undue harm to those businesses. The mere disclosure of the information gives the false impression that somehow the businesses were at fault, or at least complicit, for the spread of COVID-19, but no such connection can rationally be made. The employees might have contracted COVID-19 anywhere, but only their employers would be listed.


While not a fair conclusion, Wisconsin’s small businesses that show up on that list might lose potential patrons who think that the businesses are unclean, infection-spreading, hot spots. This lumps in businesses who followed every rule or advice issued from health agencies (however wrong they were) with those businesses that took little or no precautions. The fact that one employee contracted COVID-19 or encountered someone who did puts all of those businesses on the same unfair list.


Furthermore, employment is fluid. There is no guarantee that an employee with COVID-19 last May still works at the same employer. All the list would show is that an employee had COVID-19 sometime in the past. It is not current or actionable data. Wisconsin’s small businesses have suffered enough and do not deserve one more hit from Governor Evers by having their names thrown into the public space.


There is also the potential that the public disclosure of the list of businesses will impede future pandemic mitigation efforts. The collection of the data, at least in the early days of the pandemic before it became widespread, was a useful tool to identify hot spots and focus our efforts. If business owners or employees are fearful that sharing information with public health officials may one day be released to the public, they will be less likely to do so in the future. It is always good advice to tell your government as little about yourself as possible and the threat of public shaming only supports aggressive privacy.


Against these serious negative consequences from a public disclosure, Evers must balance any positive reasons to release the information. Evers has a strong history of only releasing public information when absolutely necessary or when it might damage a political opponent, so why is he so adamant to release this information? What compelling public interest does it serve that would outweigh the damage done to Wisconsin’s businesses and efforts to fight future pandemics? Why is Evers so intent on releasing the information despite his earlier attestations that the information should not be made public? What changed? Other than a deliberate attack on Wisconsin’s businesses to appease Evers’ radical supporters, there does not seem to be any rational reason.


Governor Evers should have the common sense to keep this information out of the public space, but since he does not, hopefully Wisconsin’s Supreme Court will right this attempted wrong.

Madison to be Sued Over Racial Quotas

By definition, this is racist.

A conservative law firm plans to file a lawsuit against the city in federal court Wednesday over Madison’s new police civilian oversight board.

The Wisconsin Institute for Law and Liberty argues that Madison’s decision to reserve seats on the board for Black, Asian, Latinx and Native American people constitutes a racial quota and is unconstitutional.

“Racial quotas and classifications — enshrined in this city law and the official policy of the city — are unconstitutional, offensive, and repugnant to basic American values,” the law firm said in a statement. “The city of Madison has not identified a compelling government interest that would justify racial quotas.”

The 13-member civilian oversight board was created last year in a years-in-the-making decision meant to bring more accountability to the Madison Police Department. In addition to hiring an independent police monitor, the board will conduct an annual review of the police chief and make policy recommendations to police, among other responsibilities. Most recently, the oversight board finalized the job description for the police monitor position.

Wisconsin Supreme Court Punts on Another Important Ruling

Hagedorn is the Souter of the Wisconsin Supreme Court.

The Wisconsin Supreme Court on Friday tossed out an election lawsuit brought by a conservative businessman in an effort to halt the use of absentee ballot boxes in future elections.

The 4-3 decision is another decided by conservative Justice Brian Hagedorn’s swing vote. Hagedorn joined liberal justices in declining to hear the lawsuit filed in March against the Wisconsin Elections Commission, Madison, Milwaukee and others by Jere Fabick, a prominent Republican donor and president of Fabick Cat, the Caterpillar equipment and engine dealer.

Justices in the majority relied upon procedural reasons not to hear the case over concerns from a minority of conservative justices that the state’s highest court is avoiding taking on important cases.

SCOTUS Signals Intent to Weigh in on Race Considerations in Higher Education

Racism, even if well intentioned, is still racism.

The Supreme Court on Monday called for President Joe Biden’s Department of Justice to weigh in on a pending case over affirmative action at Harvard University, signaling the court’s interest in a dispute that could scale back the widespread use of race in higher education admissions.


In an unsigned order, the justices requested a brief from acting Solicitor General Elizabeth Prelogar expressing “the views of the United States.” Such a move is often a prelude to the court ultimately deciding to hear a case, though not always.

Monday’s move also has the potential to delay the litigation, even if the court eventually votes to consider the case. If the court agrees to hear it in its term beginning in October, a decision would be likely by June 2022. If the court doesn’t hear the case until the term after that, the decision may not appear until the summer of 2023. It requires the votes of four justices to take up a case.


The dispute, known as Students for Fair Admissions v. President and Fellows of Harvard, No. 20-1199, was brought by a group led by the anti-affirmative action activist Edward Blum. Students for Fair Admissions said that Harvard’s limited consideration of the race of its applicants discriminates against Asian applicants in favor of white applicants. That runs afoul of Title VI of the Civil Rights Act of 1964, they argue.


A federal appeals court rejected the group’s arguments in November, finding that its “limited use of race in its admissions process in order to achieve diversity” was consistent with Supreme Court precedents. In February, Students for Fair Admissions filed a petition with the Supreme Court asking the justices to hear its appeal of that decision.

Racism, even if well-intentioned, is still racism

Good. Let’s hope this racist policy dies for good.

A federal judge has halted Joe Biden‘s ‘unconstitutional’ $4 billion program to pay up to 120 percent of black, Hispanic, Asian or Native American farmers’ debt, after 12 white farmers sued claiming it discriminated against them.


Wisconsin Judge William Griesbach issued a temporary restraining order Thursday blocking the loan forgiveness program Biden put in place after saying he wanted to tackle longstanding inequalities for farmers of color.


Judge Griesbach said the plan failed to provide adequate examples of recent hardships imposed on farmers from minority backgrounds. He also claimed that in trying to end one type of discrimination, the program ended up creating another.

Biden’s $1.9 trillion American Rescue Plan set aside $4 billion to the US Department of Agriculture (USDA) for loan forgiveness for socially disadvantaged farmers and ranchers.


The money would be used to pay up to 120 percent of direct or guaranteed farm loan balances for black, American Indian, Hispanic, Asian American or Pacific Islander farmers.

Wisconsin Supreme Court Strikes Down Dane County School Closings

Huzzah, huzzah. Hopefully the overreaches of government during the pandemic will be pushed back by the courts and at the ballot box.

The Wisconsin Supreme Court on Friday sided with private school parents and students in striking down a Dane County order from last August that sought to close all schools to most students to limit the spread of COVID-19.

The 4-3 decision — with all four of the court’s conservatives in the majority — comes with the school year essentially over and as rising vaccination rates appear to have virus in abeyance. The court in September had also placed a temporary hold on the order, meaning religious schools were free to conduct in-person classes for almost the entire 2020-21 school year, as many did.

But the court’s decision could resonate if there’s a resurgence of a virus variant or a completely new pandemic in the future.

The order by Public Health Madison and Dane County barred schools from offering in-person instruction for grades 3 through 12 until the county met certain benchmarks showing the coronavirus is better contained. In effect, it would have applied almost exclusively to private schools because public schools in Dane County had already decided to start the year online for almost all students in almost every grade.

Judge Strikes Down California’s Ban on Scary Black Guns

It only took 30 years for the gears of justice to turn.

A federal judge has overturned California´s three-decade-old ban on assault weapons, ruling that it violates the constitutional right to bear arms.


U.S. District Judge Roger Benitez of San Diego ruled Friday that the state´s definition of illegal military-style rifles unlawfully deprives law-abiding Californians of weapons commonly allowed in most other states.


He handed down the two page ruling in response to a lawsuit filed against the State of California by James Miller, Patrick Russ, Ryan Peterson and the the San Diego County Gun Owners Political Action Committee.


The plaintiffs successfully argued that California’s use of the term ‘assault weapons’ was ‘a politically-concocted pejorative term designed to suggest that there is an inherently unlawful or illegitimate basis for owning otherwise common firearms protected by the Second Amendment.’


They added that California banned guns which should have been lawful to own by designating them assault weapons using faulty rationales, such as a rifle’s ammunition capacity.

SCOTUS Rules that Warrantless Home Gun Confiscation Violates 4th Amendment


On Monday, the Supreme Court released its opinion in Caniglia v. Strom, which unanimously held that a lower court’s extension of Cady v. Dombrowski’s “community caretaking” exception into the home defied the logic and holding of Cady, as well as violated the Fourth Amendment’s warrant requirement. With the court’s unanimity in Caniglia, the home remains the most sacred space under the Fourth Amendment; its sanctity literally houses its privilege. Sans warrant, exigency or consent, governmental search and seizure within it is unconstitutional.




A pithy four pages “long,” the opinion was unanimous and unambiguous: If police do not have the homeowner’s consent, an “exigent” circumstance, or a judicial warrant authorizing a search, then no version of Cady’s car exception applies to police entry into the home under the Fourth Amendment. “What is reasonable for vehicles is different from what is reasonable for homes,” Thomas wrote.


As always with realty – and, per Caniglia, the court’s Fourth Amendment jurisprudence — location matters. Specifically, the location of Cady’s warrantless search and seizure – a post-accident, routine search of an intoxicated, off-duty officer’s damaged and impounded car — simply cannot compare to a search of and seizure within a home. Governmental searches of vehicles regularly occur via exceptions to the Fourth Amendment’s warrant requirement; a myriad of decisions have constitutionalized warrantless searches of vehicles, their compartments, their containers and even their occupants. Not one of these warrantless exceptions is available for the home.


Accordingly, caretaking under Cady is not carte blanche for police to search or seize within the home, nor do their “caretaking” duties create a “standalone doctrine that justifies warrantless searches and seizures in the home,” Thomas wrote. Cady, itself, he noted, drew an “unmistakable distinction between vehicles and homes,” constitutionally embedding the exception outside the home.

Biden Supports Violating Intellectual Property Rights and Patents

I guess the pharmaceutical companies will have less motivation to develop vaccines and treatments for the next pandemic.

President Biden’s trade representative released a statement saying the White House would support a waiver on the intellectual property rights owned by the makers of Covid-19 vaccines during the pandemic.


The campaign for this has been going on amongst NGOs, some US Congressional Democrats and some developing countries such as India and South Africa. And as recently as March the US, the UK and the EU were resisting the moves in negotiations at the WTO in Geneva.

Wisconsin Supreme Court Continues to Reestablish Normal Order


MADISON, Wis. (AP) — The Wisconsin Supreme Court on Wednesday ruled that Gov. Tony Evers’ administration does not have the authority to issue capacity limits on bars, restaurants and other businesses without approval of the Legislature, a ruling that comes two weeks after the conservative-controlled court struck down the state’s mask mandate.

The Supreme Court ruled 4-3 Wednesday that the order issued by Evers’ Department of Health Services meets the definition of a rule, which by law must go through the Legislature.
Once again, what should have been a 7-0 ruling had three dissenters who are perfectly fine with the Executive exercising arbitrary power over all of Wisconsin. We are one Justice away…

Citizens Sue City of Green Bay Over Elections

The evidence is pretty clear that city officials ceded the management of the election to a private interest group.

The complaint alleges that the Center for Tech and Civic Life illegally dictated how Green Bay ran its election when it provided the city with $1.6 million to facilitate voting during the coronavirus pandemic. Minneapolis attorney Erick Kaardal cited a grant agreement that broadly required Green Bay to use the funds for “the public purpose of planning and operationalizing safe and secure election administration.”

“We want people to accept election results, and that requires fair and transparent elections,” Kaardal said during a news conference at the Brown County Courthouse.

Evers’ abuse of power stopped by state Supreme Court

My column for the Washington County Daily News is online. Here’s a part:

The court acted with good reason, for if a governor were permitted to rule in a permanent state of emergency, then the state Constitution is meaningless, and elections no longer matter. Governor Evers disagreed with the policy decisions of the Legislature, so he resorted to continually reissuing emergency declarations to enact his policy choices. In this case, Governor Evers was acting from behind the mask of compassion and claiming that only he knows the “science” that will save us all.


Despots, however, never rise to power by telling the people that they will strip them of their civil liberties and crush them under the boot of oppression. Despots always rise to power with the promise to protect the people from something like a foreign aggressor, internal strife, or, in this case, a disease. Despots claim that normal government is not sufficient to respond to this unprecedented apocalyptic crisis, so normal government must be suspended in favor of the nimble and extensive power of autocratic rule.




First, the Supreme Court waited far too long to issue its ruling. The original petition happened on October 15, 2020, and oral arguments were heard on November 16, 2020. The court waited until March 31, 2021 to issue its ruling. That is almost half a year between the petition of the court and the court’s ruling. In a case in which the state Constitution has been suspended while a rogue governor issues orders from behind a permanent state of emergency, the people of Wisconsin have a right to expect more expeditious action from their elected Supreme Court justices. They are elected to make rulings on important issues facing the state and their sloth smacks of snobbery.


Second, the ruling was decided by a single vote with four justices voting in the majority and three in the minority. The law is crystal clear in this case and yet three of Wisconsin’s Supreme Court justices supported the governor being able to suspend normal government forever by continually issuing emergency declarations. Wisconsin is on the razor’s edge of slipping into autocracy with almost half the court cheering for it. That should keep every freedom-loving Wisconsinite up at night.

SCOTUS Considers 2nd Amendment Case

The New York law is clearly unconstitutional.

The court has largely dodged the issue since issuing two landmark opinions in 2008 and 2010, when it held for the first time that the Second Amendment protects an individual’s right to keep and bear arms at home for self- defense.


Gun rights advocates and even some of the justices themselves have expressed frustration that the court has declined to further define the scope of the right as lower courts across the country have upheld restrictions.


Three years ago, for example, Justice Clarence Thomas charged that the “Second Amendment is a disfavored right in this court.”




The new case concerns a New York law governing licenses to carry concealed handguns in public. It requires residents to show they have what the state calls an “actual and articulable” need to do so.




“The law is consistent with the historical scope of the Second Amendment and directly advances New York’s compelling interests in public safety and crime prevention,” New York Attorney General Letitia James wrote in court papers.

No other Constitutional right requires the citizen to declare an affirmative need – subject to review by a government official – in order to exercise it. Imagine if you had to declare a “need” before being allowed to speak, or practice your religion, or assemble, or get a jury trial, or petition your government, or get a lawyer… and if some government official decided that your “need” did not meet his or her ambiguous threshold, you wouldn’t be allowed to do it.

Nuts, right?


So why would that standard apply to the rights protected in the 2nd Amendment if it wouldn’t to those protected by the 1st?

SCOTUS Allows Free Speech Lawsuit to Continue


Washington (CNN)The Supreme Court on Monday revived a lawsuit brought by a former student seeking to hold his state university accountable for violating his First Amendment rights when it barred him from speaking about his religion and distributing religious literature.

Justice Clarence Thomas, writing for an 8-1 majority, allowed the lawsuit to continue even though the student, Chike Uzuegbunam, who has since graduated, was only asking for $1 in damages and the school’s policy has changed.
Thomas wrote that it was “undisputed” that Uzuegbunam’s rights were violated and that he could proceed with the case even though he was only seeking nominal damages.
In 2016, Uzuegbunam, an evangelical Christian who was a student at Georgia Gwinnett College, was standing on a stool in a “speech area” at his school, talking about his religion and passing out religious literature. He had followed the school’s direction and reserved a spot designated by the school as a “speech zone.”
But he was approached by campus police who said there had been complaints about his speech. The officer said the space did not allow “open air speaking” and that he had violated the school’s code of conduct because his speech constituted disorderly conduct.

Dane County Reduces COVID Fines Against Dance Studio


The News: Dane County attorneys, on behalf of Public Health Madison and Dane County, have significantly reduced the fines they are seeking from A Leap Above dance studio in Oregon, Wisconsin. WILL is representing A Leap Above after the health department fined the dance studio for what it misleadingly characterized as a “performance” of the Nutcracker on December 13, 2020. The initial complaint sought nearly $24,000 in fines.

WILL attorneys got the City of Madison to dismiss the initial enforcement action because the Dane County health department illegally enlisted City attorneys to enforce a county ordinance. WILL attorneys also noted that the initial filing’s legal theory—one count per person allegedly at the studio—was inconsistent with both the order and ordinance. Dane County attorneys refiled the action on Friday, but dropped most of the counts.



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