Litigation Nation

Welcome to Litigation Nation.

I'm your host, Jack Sanker.

Today's stories.

The homelessness crisis hits the courts as homeless people, business people, homeowners, and municipalities are asking judges and juries to solve of their respective problems.

The Louisiana Supreme Court expands liability for protest organizers, which could potentially have a chilling effect on free speech.

And after making a lot of promises, many law firms are slow to divest from their Russian clients.

As the war and Ukraine and US sanctions make it harder and harder to justify all that more.

first.

Homelessness is a major problem in most American cities and towns.

It's not uncommon to see parks and overpasses packed with tents and makeshift housing.

And there's a lot of reasons for this crisis.

Speaking personally, as someone who is trying to buy a house in Chicago right now, it's a miracle that the problem isn't even worse than it is with housing prices as absurd as they are.

It's a complicated issue, and people impacted by it include obviously homeless citizens themselves, but also business owners and municipalities.

As the crisis gets worse and it is getting worse, municipalities have been cracking down on encampments, which is causing homeless citizens to bring lawsuits against those municipalities.

Business owners and other concerned citizens think that the municipalities aren't doing enough, so they're suing local governments as well.

According to a Law 360 report on the subject, about 72% of 187 cities surveyed had at least one law on the books against camping in public.

So, yes, people are suing over this.

The Law 360 report touches on all sides of the issue.

For example, Tristia Baum and senior attorney with the National Homeless Law Center, says that as homelessness has worsened, enforcement of laws against public camping loitering, things like that has ramped up.

The lawsuits typically arise on constitutional grounds, especially on the West Coast.

In the 9th Circuit, the suits make a variety of constitutional claims, including that ordinances violate plaintiff's rights to due process and free speech, as well as protections against unlawful property seizure.

According to the organization, one of the most common allegations is that these laws run afoul of the 8th Amendment's prohibition against cruel and unusual punishment.

Under the 9th Circuit precedent, statutes against sleeping outside constitute cruel and unusual punishment if there are more unsheltered people than available shelter beds, explained Robert Newman, general counsel for the Western Center on Law and Poverty, who represented the plaintiffs in some of those cases.

Reading now from the 9th Circuit case of Martin v.

Boise, which sets out this President, quote, as long as there is no option of sleeping indoors, the government cannot criminalize intelligent homeless people for sleeping outdoors on public property on the false premise that they had a choice in the matter.

The piece goes on to list examples of these lawsuits.

One case filed by unsheltered Los Angeles residents resulted in a 2019 settlement preventing police from confiscating the possessions of homeless people in the city's skid row area.

In January, lawsuits that led to the city's agreement not to enforce its anticamping and other ordinances until it builds emergency housing.

About 60% of the legal challenges to camping bans and the dismantling of tent encampments have resulted in favorable outcomes for the plaintiffs, according to the National Homelessness Law Center report.

That the Law 360 piece sites.

Now, what about business owners private citizens whose lives and livelihoods may also be impacted by these homeless encampments? There are more creative legal theories being used here.

In addition to claims of negligence and nuisance.

They allege that the city and local municipalities are violating the Americans with Disabilities Act by failing to maintain accessible sidewalks.

And the Constitutions do cross and equal protection clauses.

For example, if sidewalks are covered by homeless encampments, disabled individuals cannot use them.

One important constitutional issue involves in these lawsuits involves a doctrine of state created danger under which it can be a violation of due process.

If a state actor puts someone in danger.

Quote There are several decisions that the city and the county clearly have made on the issue of home assist that have made people less safe and put people at greater risk, an attorney representing certain businesses in Los Angeles is quoted in the Law 360 piece.

Some of these cases are also succeeding.

A case against San Francisco over conditions in its tenderloin district resulted in a 2020 settlement in which the city agreed to offer hotel rooms to unhouse people and establish safe sleeping villages.

A federal judge issued a preliminary injunction in a lawsuit in Los Angeles ordering the city and county to provide shelter for skid rows homeless population within 180 days and to set aside 1 billion to address the issue, among other steps.

Now, the 9th Circuit has vacated that injunction, but the case is in court ordered settlement talks nonetheless.

So, yeah, the issue is complicated, and I don't mean to dunk on La or California for this as California takes a beating in the media enough without me piling on.

And Chicago, New York, smaller cities like my hometown of Pittsburgh are all trying to deal with this to varying degrees.

If homeless policy is being set by judge and jury, however, it does feel like a failure of the elected officials in those cities.

Judges and juries are inherently myopic addressing things on a case by case basis.

If anyone is going to seriously address the homeless crisis, it's going to require comprehensive policy from our elected officials and not from the judicial system.

Up next, the organizer of a protest that got out of hand and resulted in injuries to responding police officers can be sued personally for organizing the protest, says Louisiana Supreme Court Darrell McKesson was named individually in a lawsuit filed by the Baton Rouge Police Department for injuries to a police officer in a 2016 protest.

The specific allegations were that individuals at the protests threw water bottles and then rocks and bricks at police officers who were making arrests.

The protests were part of a larger set of demonstrations.

After the police shot and killed Anton Sterling, a police officer was struck in the face, losing some teeth and sustaining a head injury.

And that's the basis for the lawsuit.

Derek McKesson organized the protests that eventually turned violent.

Importantly, however, McKesson was not even at the protests, and the lawsuit itself does not even allege that he was present.

So let's back up and talk about why this is important, and I'm getting most of this from a recent write up in Vox.

Duray McKesson is a fairly well known activist.

He's a fellow podcaster, and he helped organize a protest after the Alison Sterling shooting.

Watch the body Cam footage of that shooting and form your own opinion.

We're not going to litigate that on the show, but I do think that anyone who watches the video can understand why at least some people felt like it might be worth protesting, as is their First Amendment right.

The original complaint named McKesson in Black Lives Matter as defendants.

Some people might disagree, but Black Lives Matter, I don't think at least, is a cognizant organized corporate entity.

It's more like a social movement, at least as far as I can tell.

The Vox article makes the analogy that naming BLM in a suit is a bit like naming Make America Great Again as a defendant.

That's not like a thing that can be sued.

It's a political movement.

So at some point, the lawyers for Baton Rouge police tried naming the Twitter hashtag Black Lives Matter as it offended, according to Vox.

Now, the reason that this lawsuit itself is significant is that there is US Supreme Court decisions on this issue that holds organizers of protests cannot be liable for the individual actions of protesters.

In the case of the NAACP versus Clayborn Hardware decided 1982, SCOTUS ruled that, quote, Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence unquote.

Now, there are exceptions to that rule.

One, when a protest leader's public speeches were likely to incite lawless action, two, if a leader gave specific instructions to carry out violent acts, or three, if a leader authorized, directed, or ratified the act.

Now, the Fifth Circuit in this case had the case for a while before it got kicked back to Louisiana State Court.

And Invictus stated that the Baton Rouge police, quote, have not pled facts that would allow a jury to conclude that McKesson colluded with the unknown assailant to attack the officer known of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.

So I'll quote the Vox piece on the next part.

In short, had the Fifth Circuit follow the Supreme Court's binding precedent in Clayborn, it would have dismissed the case against McKesson.

Instead, the court invented a new exception to the First Amendment to sue McKesson.

Judge E.

Grady Jolly wrote, the plaintiff police officer was merely required to quote Plausibly alleged that his injuries were one of the consequences of torture's activity, which itself was authorized, directed, or ratified by McKesson in violation of his duty of care.

That is, if McKesson led protesters to commit any illegal acts, he risked being stripped of his First Amendment rights and held viable for subsequent illegal activity.

That results.

So I'm not necessarily going to take my legal analysis from Vox at face value, but it does seem like the ruling in the McKesson case is a pretty decent departure from available precedent.

More importantly, the expansion of prohibited activities can extend to a number of other things.

Going back to Fox again, recall that under the Fifth Circuit's opinion, a protest leader is potentially stripped of their constitutional rights if they authorize, direct, or ratify any illegal activity by protesters.

This could be illegal activity central to the act of civil disobedience say protesters who oppose mass bandaids enter a government building massless in defiance of local ordinance.

Or it could potentially be something only tangentially related.

A protest leader could potentially lose their First Amendment rights if they advise a bus carrying protesters to drive slightly above the speed limit in order to make it to the protest on time, or if they advise a protester to park their car in a no parking zone, unquote.

So I guess the wider implication here is that First Amendment rights can potentially be limited by tort law.

And we all know that First Amendment or the Second Amendment, for that matter, and generally all personal liabilities are limited by how the exercise thereof impacts other people.

This discussion makes me think of the quote that is often falsely attributed to Abraham Lincoln, Your right to swing your arms ends where the other man's face begins.

For the record, I looked it up, and actually no one knows where that quote came from, but it's a great one.

In this case, the civil tort of trespass, which in a vacuum has little to no damages and generally is a victimless crime, is being used as the justification for what is probably an erosion of First Amendment rights for a protest organizer like McKesson.

According to the opinion, because he encouraged people to block a public street, which is a common protest tactic as old as protesting in this country itself.

Because he encouraged the blocking of the street, he has encouraged an illegal act, and therefore any damages that come after that fact are his legal responsibility.

Now, to be clear, blocking traffic is illegal with good reason.

But breaking the law a little bit is kind of the point of protesting, right? If you protest in an empty public park, no one sees you or can be persuaded by your message, which is the point of protesting this space in front of the White House, for example, has near constant protest, and it's a public street and a public sidewalk.

It's just kind of the point of that space at this point, frankly.

So at least as I understand it, the ruling is a departure from norms.

If the organizer of a protest endorses any illegal activity such as trespass, any tort that comes after the fact as part of that process can be hung on the organizer, it would seem to greatly increase the risk that protest organizers might face.

They will be on the hook for whatever happens at an inherently chaotic experience which, assuming protest organizers are rational actors, and that is an assumption, this ruling will have a chilling effect on speech.

If someone is liable for whatever the actions of individuals at the protests do, they won't organize protests, which means less protests, and I'm sure many people would like that, but it could also lead to less organized protests and more disorganized protests.

So be careful what you ask for, and we don't do the culture war on the show, but this is a political issue.

I would say that if you're thinking that creating a legal framework for limiting the speech of Black Lives Matter is a good thing for your personal political goals, consider that it will immediately be adopted by the quote unquote other side and will be wielded against anti lockdown protests, anti mask protests, the folks that show up at school board meetings upset about critical race theory, whatever.

The point is that the right to free speech applies to your political enemies as much as it applies to you.

So when the speech of BLM is constricted, it constricts all speech.

So again, be careful what you ask for.

Our last story is an update on how US and UK big law firms have handled the Russia and Ukraine conflict.

This is from Slate.

Roughly 20 AmLaw 100 firms had offices in Russia at the time of the invasion in Ukraine, and a large amount of UK firms did as well.

Since the invasion, many US firms have committed to withdrawing their representation and withdrawing services from their Russian based clients.

Most have not.

However, according to a report from Stanford Law, only about ten Amla 100 firms have publicly pledged to wind down or withdraw representation of Russian clients.

The Slate piece mentions a few other firms that are still billing Russian clients, at least as far as can be gleaned from available evidence.

The summary here is that most firms that had Russian corporate clients still do, despite US sanctions and the war in Ukraine.

Now, under the Aba Model Rules of Professional Conduct, the rules that with some variation and subject to certain exceptions, government lawyers licensed in the United States is clear that law firms are free to halt retention of new US clients.

It's also clear that firms can donate all proceeds they generate from Russian clients to support those in Ukraine or the millions of refugees who have fled the horrific Russian onslaught in their home country.

Now lawyers can withdraw in circumstances where, according to the Aba model rules, quote, the client insists on taking action that the lawyer considers repugnant or when the lawyer has a, quote, fundamental disagreement with the client.

That all being said it does seem like law firms are dragging their feet here in divesting from the Russian market.

There are plenty of nonlaw firms and other American companies still working in Russia.

However, whether lawyers ought to cut their clients off is a difficult question one that probably is going to have to be figured out on a case by case basis.

our last little bit here we covered Galen Maxwell's trial and sentencing way back in episode four as well as the issues around the juror who may have potentially perjured himself on the jury questionnaire leading up to trial and are pleased to report that Maxwell's verdict will be upheld at least at this point.

The jury was questioned under oath recently and the presiding judge held that whatever miss statements he made on the jury questionnaire were mistakes, not intentional lies and that the jury was not improperly biased such that the verdict should be thrown out.

Go back and list it to episode four if you want the details on how juror number 50 almost blew the conviction of an international sex trafficker.

All right, everyone, that's the show.

Thanks for listening this has been a lot of fun over the past couple of months we've been doing this now for about three and a half months this is episode number 16 I believe it's a lot of work but it's also a lot of fun and for those of you that of listening to the beginning we really appreciate that as always you can find us on Google Spotify Apple podcasts wherever you get your shows you can find us every Tuesday you know where and we'll talk to you next week.

Bye.