From U.S. v. California, decided yesterday by Ninth Circuit Judge Mark Bennett, joined by Judges Jacqueline Nguyen and Daniel Collins:

Section 10 [of the California "No Vigilantes Act"] requires any non-uniformed "federal law enforcement officer" operating in California, with narrow exceptions, to "visibly display identification" while performing federal law enforcement duties. Officers who violate the law may be criminally prosecuted by the State.

We previously granted the United States's motion for an injunction pending appeal. As before, we conclude that … § 10 of the No Vigilantes Act attempts [in violation of the Supremacy Clause] to directly regulate the United States in its performance of governmental functions, and Congress has not authorized such regulation. Indeed, we conclude that the United States is certain to succeed….

"[U]nder the intergovernmental immunity component of the Supremacy Clause to the United States Constitution, states may not directly regulate the Federal Government's operations or property." "It is of the very essence of supremacy," the Supreme Court has emphasized, "to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." To that end, "states have no power" to "in any manner control[ ] the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government." And "where 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' 'the federal function must be left free' of regulation" by the States.

Intergovernmental immunity "prohibit[s] state laws that either 'regulat[e] the United States directly or discriminat[e] against the Federal Government or those with whom it deals' (e.g., contractors)." A direct regulation is one that "lays hold of" federal officers "in their specific attempt to obey orders and requires qualifications in addition to those that the [federal] Government has pronounced sufficient." It imposes conditions upon "a function of government," and it regulates "the right to carry on the business" of the federal government. Put another way, a direct regulation regulates the government qua government; it controls how the government conducts specifically governmental functions.

The Supremacy Clause prohibits States from directly regulating federal operations even when regulating state operations in the same manner…. "[E]ven the most unquestionable and most universally applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a marshal of the United States acting under and in pursuance of the laws of the United States." … And critically, "Supreme Court case law compels the rejection of a de minimis exception to the doctrine of intergovernmental immunity." So "[a] state or local law that directly regulates the conduct of the federal government or discriminates against it is invalid, even if it is no more restrictive than federal law."

In sum, if a state law directly regulates the governmental conduct of the United States without congressional authorization, it is void irrespective of whether the regulated activities are essential to federal functions or operations, and irrespective of the degree to which the state law interferes with such functions or operations….

Section 10 of the No Vigilantes Act expressly applies to federal officers. It controls the conduct of those federal officers in performing law enforcement operations. Section 10 explicitly overrides the federal government's power to determine whether, how, and when to publicly identify its officers. And in so doing, it regulates the manner and conditions under which federal agents can enforce federal law. Again, § 10 defines "law enforcement officer" as including "any federal law enforcement officer." And any non-uniformed federal law enforcement officer "operating in California" "shall visibly display identification that includes their agency and either a name or badge number or both name and badge number when performing their enforcement duties."

These provisions "lay[ ] hold of" federal agencies and officers "in their specific attempt to obey orders and require[ ] qualifications in addition to those that the [federal] Government has pronounced sufficient." As a result, § 10 regulates the performance of "governmental action[s]" which are "carried on by the United States itself"—not merely "persons who [a]re acting for themselves and not for the United States." Indeed, it applies only to law enforcement agencies and their officers, including federal law enforcement agencies and federal law enforcement officers. Section 10 thus directly regulates inherently sovereign functions. Because Congress has not authorized such legislation, it is barred by intergovernmental immunity.

The United States has also shown that "no set of circumstances exists under which the Act would be valid." Again, § 10 exclusively regulates quintessentially government conduct: law enforcement. So as applied to federal agencies and federal officers carrying out their duties under federal authority, the statute is invalid in all applications. The United States is therefore likely—indeed, certain—to succeed on the merits of its facial challenge to § 10's constitutionality….

California … advances its view that a state statute constitutes an impermissible direct regulation only when the law "impose[s] substantial burdens on federal operations." … The district court applied, and California urges us to adopt, the standard applicable to States' regulation of federal contractors and third-party employers—not the standard that governs direct regulation of the United States's governmental activities.

"Private contractors do not stand on the same footing as the federal government, so states can impose many laws on federal contractors that they could not apply to the federal government itself." But "where, as here, the governmental action is carried on by the United States itself and Congress does not affirmatively declare its instrumentalities or property subject to regulation or taxation, the inherent freedom [from direct regulation] continues." So the burden of the regulation on federal operations, whether substantial or otherwise, is irrelevant because, as discussed, there is no de minimis exception to the United States's immunity from direct regulation.

To be sure, the Supremacy Clause likely does not "bar[ ] all state regulation which may touch the activities of the Federal Government." For example, in Johnson v. Maryland (1920), the Supreme Court suggested that "when the United States has not spoken," States might be able to impose on federal officers "general rules that might affect incidentally the mode of carrying out the[ir] employment—as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets."

But the Court has never relied on that distinction to uphold a State's direct regulation of federal functions performed by federal officers. And unlike traffic laws which, for example, might require a full stop before a right turn, and which regulate conduct that any ordinary citizen could engage in, § 10 applies exclusively to law enforcement officials and exclusively to their performance of law enforcement operations. Thus, § 10 does not just "incidentally" sweep up the conduct of federal officers carrying out their duties. So even if we were to read Johnson as carving out an exception to intergovernmental immunity for laws of general applicability that affect federal operations in incidental ways—an issue that we need not and do not resolve today—such a putative exception would not apply here because § 10 is neither generally applicable nor its effect on federal officers "incidental."

Taking a different tack, California argues that the Supremacy Clause "provides a case-specific defense that confers immunity on federal officers who can show that they held an 'honest and reasonable belief' that the charged conduct was 'necessary in the performance of [their] duty.'" From there, the State contends that the United States's facial challenge must fail because there is no "reason to believe that in all (or nearly all) cases where [§ 10] might apply, the federal officer would be covered by the case-specific defense."

We agree that federal officers are immune from state criminal prosecution under state laws regulating conduct of members of the general public "only when [their] acts are both (1) authorized by the laws of the United States and (2) necessary and proper to the execution of [their] responsibilities." And under this standard, an officer need not "show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be."

The immunity at issue here, however, belongs to the United States, which enjoys a distinct form of immunity under the Supremacy Clause: intergovernmental immunity. Thus, whether any officer would hold an honest and reasonable belief that the charged conduct was necessary to perform his or her duty is irrelevant to whether the United States, or an agent exercising quintessentially governmental authority of the United States, is entitled to complete and total immunity from regulation of the type embodied in § 10. To reiterate, § 10, by its explicit terms, expressly regulates the conduct of federal officers while those officers are discharging law enforcement duties under federal authority. So an individual officer would be entitled to a Supremacy Clause defense against any prosecution brought under the statute….

Andrew M. Bernie, Mark R. Freeman, Daniel Tenny, and Eric D. McArthur represent the federal government.

The post California Law Generally Requiring Federal Law Enforcement Officers to Display ID Violates Supremacy Clause appeared first on Reason Magazine.

From Doe v. Sacred Heart Univ., Inc., decided last week by Bridgeport (Conn.) Superior Court Judge Robert Golger:

The plaintiff, Jane Doe, instituted the present action seeking a Bill of Discovery from defendant Sacred Heart University (Sacred Heart), The national Chapter of Phi Sigma Sigma Fraternity, Inc., and The IOTA NU Chapter of the Phi Sigma Sigma Fraternity. The plaintiff's complaint alleges that in the Fall of 2025 she was involved in an incident with an underclassman during pledge week in which she was video recorded encouraging a Phi Sigma Sigma Fraternity pledge to drink alcohol (the hazing incident). The incident is detailed at paragraphs 11-15 of her complaint. The video was subsequently circulated around campus.

The plaintiff alleges that she became the subject of harassment and cyberbullying as a result of the publication of the hazing incident and that the defendants failed to conduct any meaningful investigation into her complaints. The plaintiff also alleges that she became the subject of improper disciplinary hearings and was left with no choice but to withdraw from Sacred Heart. The plaintiff seeks records related to the defendants' investigation into the hazing incident and the retaliation (which consisted of anonymous cyber bullying) which led to her "constructive expulsion" from the school.

The plaintiff further alleges that as a result of this retaliation, she began to suffer from severe anxiety and depression. The plaintiff seeks to proceed with her action for a Bill of Discovery by using a Pseudonym.

The plaintiff's request to proceed using a Pseudonym was initially granted on an ex parte basis. The defendants have objected to the plaintiff's continued use of a Pseudonym. The plaintiff has responded that the continued use of the Pseudonym is necessary. The plaintiff has submitted affidavits in support of her claims detailing the harassment and threats she has received and the effects they have had on her physical and emotional health.

The standard for the granting of Pseudonym status can be found in Practice Book § 11–20A(h)(1) which provides in pertinent part: "Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in knowing the name of the party or parties."

"The principle of openness of judicial proceedings includes the question of whether one may proceed anonymously therein, because the question of who is using the judicial system is ordinarily as much a part of that principle as why it is being used." For this reason, our Supreme Court has stated that "[t]he privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest."

"The presumption of openness of court proceedings … is a fundamental principle of our judicial system." This policy of openness is not to be abridged lightly.

"The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." "A [party's] desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity." "The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party's] identity…. There must be a strong social interest in concealing the identity of the [party]….["]

The court has reviewed the affidavits submitted by the plaintiff associated with her treatment and is aware of the scope of her alleged harm and fears. However, what the court must determine here is the appropriateness of shielding the identity of someone who has victimized another. A review of the relevant caselaw concerning applications for the use of Pseudonym status does not reveal any cases where an initial wrongdoer was allowed to proceed with a Pseudonym because of alleged harm incurred in retaliation for their wrongdoing.

The court has determined that after balancing the interests of the parties in this matter, the plaintiff's personal privacy interests do not outweigh the public's interest in the continued openness of these judicial proceedings. The defendants' objection to the continued use of a Pseudonym is therefore sustained.

James M. Sconzo and Marc G. Bernatchez (Carlton Fields, P.C.) represent the University.

The post No Pseudonymity for Apparent Hazer Suing University for Supposedly Improper Actions Against Her appeared first on Reason Magazine.

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