2nd Circuit upholds NY law allowing lawsuits against gun manufacturers

The US Court of Appeals for the Second Circuit upheld a New York law that permits state and private actors to sue gun manufacturers and sellers for contributing to gun violence, reported Jurist.

In its opinion, a three-judge panel rejected arguments that the state’s law is preempted by the federal Protection of Lawful Commerce in Arms Act (PLCAA), which shields gun makers from liability when their products are used unlawfully.

Writing for the majority, Judge Eunice Lee held that New York’s statute fits within PLCAA’s “predicate exception,” which allows liability where gun sellers knowingly violate state or federal laws related to the marketing or sale of firearms. Lee stated that “PLCAA’s text and history therefore do not clearly establish that the statute’s aim was to prevent state legislatures from creating avenues to hold gun manufacturers liable for downstream harms caused by their products.”

The panel also dismissed claims that the law discriminates against interstate commerce or violates the dormant Commerce Clause.

Judge Dennis Jacobs, concurring, called the statute “a broad public nuisance statute,” but agreed it survives a facial challenge under federal law, leaving open the door to narrower as-applied preemption challenges in future cases.

The ruling affirms a 2022 district court decision dismissing the case brought by the National Shooting Sports Foundation (NSSF) and major gun manufacturers, including Glock and Smith & Wesson. NSSF general counsel Lawrence Keane argued that New York’s law “is intended to evade the will of Congress” in its passing of the PLCAA “to prevent baseless litigation from bankrupting an entire industry.”

In a statement, New York Attorney General Letitia James called the decision “a massive victory for public safety and the rule of law” that “will help [New York] continue to fight the scourge of gun violence to keep our communities safe.”

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Utah set to send wheelchair bound man with dementia to firing squad

 A Utah judge set an execution date for a man with dementia who has been on death row for 37 years, even as his lawyers file appeals and argue his condition is worsening, reported The Associated Press.

Ralph Leroy Menzies, 67, is set to be executed Sept. 5 for abducting and killing Utah mother of three Maurine Hunsaker in 1986. When given a choice decades ago, Menzies selected a firing squad as his method of execution. He would become only the sixth U.S. prisoner executed by firing squad since 1977.

Judge Matthew Bates signed the death warrant a month after he ruled Menzies “consistently and rationally” understands why he is facing execution despite recent cognitive decline. Attorneys for Menzies have petitioned the court for a reassessment, but Bates said Wednesday that the pending appeal was not a basis to stop him from setting a date.

Bates did, however, schedule a July 23 hearing to evaluate the new competency petition. Menzies’ attorneys say his dementia has gotten so severe that he uses a wheelchair, is dependent on oxygen and cannot understand his legal case.

“We remain hopeful that the courts or the clemency board will recognize the profound inhumanity of executing a man who is experiencing steep cognitive decline and significant memory loss,” said Lindsey Layer, an attorney for Menzies. “Taking the life of someone with a terminal illness who is no longer a threat to anyone and whose mind and identity have been overtaken by dementia serves neither justice nor human decency.”

The Utah Attorney General’s Office has “full confidence” in the judge’s decision, Assistant Attorney General Daniel Boyer said.

The U.S. Supreme Court has at times spared prisoners with dementia from execution, including an Alabama man in 2019 who had killed a police officer. If a defendant cannot understand why they are being put to death, the high court said, then an execution is not carrying out the retribution that society is seeking.

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SCOTUS complicit in executive branches assault on democracy

On Thursday afternoon, the Supreme Court issued a brief order condemning eight migrants to banishment in South Sudan, where they face the very real possibility of torture and death. None of the eight men had ever set foot in the war-torn African nation, and they had all been expelled from the United States without due process in direct violation of a lower court order, reported Slate. But SCOTUS didn’t care. What mattered to the majority was that Donald Trump’s administration wanted to dump them in South Sudan immediately. And nothing—no federal law or treaty or constitutional guarantee—was going to stop it. Not under the watch of this Supreme Court.

Thursday’s brutal order neatly encapsulates the SCOTUS term that drew to a close less than one week earlier. Aside from a few sporadic attempts to rein in Trump’s most lawless excesses, the court has largely given up policing the president’s power grabs. More frequently, in fact, the conservative supermajority facilitates his abuses of power by expanding executive authority to new heights, sapping strength from Congress and the lower courts in the process. And on the rare occasions when SCOTUS does draw a line, it seems more concerned with preserving its own supremacy than placing meaningful limits on Trump’s authoritarian impulses.

Less than six months into the second Trump administration, the Supreme Court has settled on a posture of complicity toward the executive branch’s assault on civil liberties and democracy itself. The 47th president seeks to restructure the government around his own whims, blasting through any barrier that restrains him as he embarks on a project to illegally freeze spending, end birthright citizenship, and disappear noncitizens to black sites, among other autocratic ambitions. And six Republican-appointed justices are falling over themselves to help him do it.

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CREATORS: The Growing, and Impactful, Phenomenon of True Crime

Matthew T. Mangino
CREATORS
July 8, 2025

Recently, I was scrolling through some news articles and came across this headline, "Nearly 2 in 3 Americans Are Fans of Serial Killer Content." My first thought was, "Is that healthy?"

We'll get to the health impact of true crime, if any, in a moment, but true crime sure is lucrative. If you search the top podcasts, you will find that at least three of the top 10 podcasts are focused on true crime.

America has always had a fascination with crime and criminals. Real-life criminals like John Dillinger, Bonnie and Clyde, Pretty Boy Floyd and Baby Face Nelson were turned into folk heroes by the yellow journalists of the 1920s and 1930s.

Across the pond, there was Sir Author Conan Doyle's Sherlock Holmes and Agatha Christie's Hercule Poirot. Crime dramas were a Hollywood staple. Cinematic jewels like "Anatomy of a Murder" or "12 Angry Men" or television's "Perry Mason", the original "Hawaii 5-0" and" Law and Order" always fascinated viewers.

True crime is different. This phenomenon is not literature, or drama or the making of a myth — true crime is an obsession. According to a 2022 YouGov Poll, half of Americans reported they enjoy true crime content, and one in three say they consume it at least once a week.

According to experts from the University of North Carolina schools of law and journalism, the fascination with true crime stems from several causes. First, "people are drawn to these sensational stories by curiosity about the motivations of the criminals," as well as "concerns about justice and the legal system and the thrill of solving a real-life whodunnit."

For purposes of full disclosure, I occasionally offer an opinion on live trials for Court TV or the Law & Crime Network.

However, if you want to understand the true crime phenomenon, you have to attend CrimeCon, the annual gathering of true crime enthusiasts. Thousands of true crime fans under one roof hanging on every word from the likes of Dateline's Josh Mankiewicz, Court TV's Vinnie Politan and Crime Online's Nancy Grace, among other notable purveyors of true crime.

True crime enthralls millions of people. Two recent trials, one televised every day and the other followed closely, revealed the extent to which true crime has captured the hearts and minds of many across America and abroad.

The first, the trial of Karen Read in Massachusetts. Read was accused of hitting her police officer boyfriend, John O'Keefe, with her car and leaving him to die in the snow.

The Read trial was a spectacle. Every day, she walked to the courthouse like it was the red carpet at the Oscars. Her fans — some extreme like the so-called "Turtleboy" who got charged with intimidating a witness — were enamored with Karen Read. No doubt the relentless support of her admirers had an impact — some jurors said as much after the trial. She was acquitted of all charges except operating while impaired.

Sean "Diddy" Combs' trial was also unique. He was charged federally with racketeering, sex trafficking and transportation for prostitution. The testimony about sex, drugs and violence was salacious. The Combs trial wasn't even televised, but the interest was extraordinary. Combs also beat the most serious charges filed by the government.

Binging on true crime has its drawbacks. The long-term effects of true crime consumption on mental health have not been fully studied. As we've recently observed, this growing genre of media is clearly having an impact on society and the legal system.

Some experts argue, too much true crime can be harmful. Chivonna Childs, PhD, a psychologist with the Cleveland Clinic, recently suggested, "It (true crime) can increase our anxiety because we become hypervigilant. We're always looking for the bad person. Every white van becomes the van of a killer or murderer."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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CREATORS: Courts Not Compelled to Accept 'Obviously Absurd' Presidential Directive

Matthew T. Mangino
CREATORS
July 1, 2025

The Ninth Circuit Court of Appeals granted a stay of a temporary restraining order (TRO) granted to California Governor Gavin Newsom and the State of California, enjoining the president from federalizing the California National Guard.

At first blush, it appears to be a resounding victory for the Trump administration. However, this matter is far from over.

First, seeking a TRO is only the first step in California's challenge. A TRO imposes temporary relief to a party pending a trial on the underlying challenge. It is intended to maintain the status quo during the pendency of a lawsuit.

In this case, the underlying issue is whether the president has the constitutional, or statutory, authority to call into federal service the California National Guard.

Federal District Court Judge Charles Breyer, following a hearing, granted Governor Newsom a TRO finding that California had suffered irreparable harm because mobilization of the National Guard, "inflames tensions with protesters" and "deprives the state of the use of its troops for two months."

That was the order that the Trump administration appealed. Although the TRO is stayed, the underlying claim does not go away. The Ninth Circuit granted Trump's request to stay the TRO. But in doing so, the court made clear, "We disagree with Defendants' primary argument that the President's decision to federalize members of the California National Guard under 10 U.S.C. Section 12406 is completely insulated from judicial review."

That is extremely important. The Trump administration had argued that Section 12406 "completely precludes judicial review." The Court was sure to point out, "(W)e disagree with Defendants' contention that Section 12406 completely precludes judicial review of the President's determination that a statutory precondition exists."

The Court of Appeals provided a detailed history of Section 12406. Congress first delegated its constitutional power to activate state militias to the president through the Militia Act of 1792. Congress renewed that delegation of authority in the Militia Act of 1795. The 1795 Act was a precursor to the Militia Act of 1903. Like Section 12406, the 1795 Act contained a predicate "invasion" condition: "(W)henever the United States shall be invaded, or be in imminent danger of invasion ... it shall be lawful for the President of the United States to call forth such number of the militia ... as he may judge necessary to repel such invasion."

The Supreme Court interpreted the Militia Act of 1795 in an 1827 case known as Martin v. Mott. The case arose out of President James Madison's decision to call the New York militia into federal service during the War of 1812.

Jacob Mott, a New York militiaman, refused to turn up for service. He was court-martialed and fined, and the State seized his property to satisfy the debt. Mott then brought an action for the return of his property in state court, arguing that the seizure was illegal because former President James Madison's order federalizing the militia was invalid.

The U.S. Supreme Court rejected that argument. The Court began by explaining that the Constitution gave the authority to use the militia to Congress, but Congress gave the power to the president when the "exigency" of an invasion had arisen." The Court recognized that the delegated power was, "in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion."

"The Supreme Court refused to entertain the (militia) member's contention that the President had misjudged the danger of such an invasion, explaining that 'the authority to decide whether the exigency has arisen belongs exclusively to the president,' whose decision 'is conclusive upon all other persons.'"

The decision in Martin does not compel the current Supreme Court to accept the federal government's position that President Trump could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was "obviously absurd" or "made in bad faith."

The Court concluded that it could not be compelled to support every decision of the president.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Further proof of this administration's conception of the 'imperial presidency'

Thanks to a Freedom of Information Act (FOIA) release, we now have the letters that Attorney General Pam Bondi sent to major tech companies like Apple, Google, and Oracle regarding their continued business with TikTok, reported Lawfare. These letters provide a legal rationale (if it can be called that) for the Trump administration’s commitment not to enforce the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA), the divestment-or-ban law that the Supreme Court upheld in January. The letters make two central claims, both of which are astonishing in their breadth and implications for executive power.

First, in some of the letters, the Justice Department purports to be “irrevocably relinquishing any claims” against the companies for violating PAFACAA during the non-enforcement periods declared by President Trump. As I’ve written before, such promises of non-enforcement are on shaky legal ground and represent a risky bet for the companies relying on them. A future administration would likely not be bound by these pronouncements, regardless of the Justice Department's assertion of its "plenary authority" over PAFACAA to enter into such settlements.

But the primary, and more constitutionally audacious, argument advanced in the letters is a claim of sweeping Article II power. According to Bondi, the president determined that an “abrupt shutdown” of TikTok would “interfere with the execution of the President’s constitutional duties to take care of the national security and foreign affairs of the United States.” On this basis, the attorney general “concluded that [PAFACAA] is properly read not to infringe upon such core Presidential national security and foreign affairs powers.”

Let’s be clear: The executive branch is asserting that if a president determines that a duly enacted statute is inconvenient for the conduct of foreign affairs—and that’s assuming this is about a good-faith view of foreign policy, and not, say, the financial interests of a major campaign donor with a massive stake in TikTok’s parent company—he can simply set it aside. This interpretation effectively creates a foreign-affairs exception to the President’s duty to “take Care that the Laws be faithfully executed.”

This argument conveniently ignores that Congress has its own significant, constitutionally enumerated powers in the realm of foreign affairs. The authority to enact PAFACAA falls squarely within Congress’s power to “regulate Commerce with foreign Nations,” a core legislative function under Article I. The logic of Bondi’s letters suggests that this power exists only at the sufferance of the president. Whenever a president finds a congressional commercial regulation to be an obstacle to his foreign policy goals, he can, by this reasoning, simply ignore it. Today it’s a social media app; tomorrow it could be any number of sanctions, trade, or immigration provisions that a president unilaterally decides to ignore based on some generic assertion of foreign affairs authority.

To be sure, there are rare circumstances where the president’s exclusive Article II foreign affairs powers can overcome a contrary congressional statute. The key modern precedent is Zivotofsky v. Kerry, where the Supreme Court held that the president has the exclusive power to recognize international borders and that Congress could not, via a passport statute, force him to contradict his recognition policy regarding the disputed status of Jerusalem.

But Zivotofsky’s holding was a narrow one. The Court took pains to emphasize that the case was “confined solely to the exclusive power of the President to control recognition determinations” and did not “question the substantial powers of Congress over foreign affairs.” It certainly did not anoint the president as the “sole organ” of American foreign policy, free to disregard any law he deems inconvenient.

The letters also deploy a disingenuous constitutional avoidance argument. They claim PAFACAA is “properly read” to include an exception for the president’s core foreign affairs powers. But the canon of constitutional avoidance only applies when a statute is ambiguous, allowing a court to choose a plausible interpretation that avoids a constitutional problem. That is not the case here. PAFACAA is crystal clear. It provides a specific, narrow 90-day extension mechanism contingent on a divestment process; it cannot plausibly be read to authorize a free-floating presidential power to suspend the law for foreign policy reasons. The Justice Department isn’t interpreting PAFACAA; it’s vetoing it after the fact.

The battle over TikTok is a major rule-of-law crisis in its own right. But its greatest significance may be how starkly it illustrates this administration's imperial conception of itself.

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An American concentration camp--Alligator Alcatraz and the decline of democracy

What were you doing the day the president attended the opening of an American concentration camp in the Everglades? Dubbed “Alligator Alcatraz” by Republican officials because of the predators living in the surrounding swampland, it has been built to cage thousands of people rounded up by ICE and allied law enforcement agencies as part of President Trump’s mass deportations. “‘Alligator Alcatraz’ is a concentration camp,” Andrea Pitzer, author of One Long Night, a history of concentration camps, told The New Republic.

That morning, Trump attended the camp’s opening in Ochopee, Florida, along with Homeland Security Secretary Kristi Noem and Florida Governor Ron DeSantis. “We’d like to see them in many states,” Trump said at a press conference there. “And at some point, they might morph into a system where you’re going to keep it for a long time.” He complained about the cost of building jails and prisons, then complimented his team, who “did this in less than a week.”

For the event, Trump wore one of his signature red ball caps, this one reading “Gulf of America,” his jingoistic name for the nearby Gulf of Mexico; Noem wore a white “Make America Great Again” ball cap with gold stitching. The flimsy camp offered them some shelter from the punishing humidity, which would later give way to a downpour. A C-Span camera followed them into one of the massive tents, where rows of chain-link cages contained numerous bunk beds—for the moment, empty. Photographers raced ahead of Trump and Noem to get shots of them entering, taking in the cells, pausing to ask inaudible questions. DeSantis stood as if he did not know where to put his hands. “They’re going to sweep this six times to make sure there’s nothing that could be used as contraband, as weapons,” DeSantis told Trump a bit too brightly, “before the detainees come in.” He smiled as he told reporters about how soon their prisoners would “check in.”

The American concentration camp on view Tuesday was erected within the Big Cypress National Preserve, traditional Miccosukee land. The tribe was not consulted, said Betty Osceola, a member and activist who lives a few miles from the camp’s entrance. She was one of hundreds of people protesting on the road outside the camp over the last several days as massive trucks streamed into the site. “People should be concerned about the secrecy of this,” Osceola told the Fort Myers News-Press. “It’s a big deal. Our ancestors were laid to rest in this area, and they talk about it like it’s a vast wasteland. It’s not.”

The site of the camp is also public-owned land, most recently occupied by the Dade-Collier Training and Transition Airport, “a remote facility for promising pilots to practice their touch-and-goes amid disinterested herons and alligators,” according to The Palm Beach Post. An executive order issued by DeSantis cited a nonexistent “emergency” to get around the legal process for building on the site.

Two environmental groups working in the area, Friends of the Everglades and the Center for Biological Diversity, filed a lawsuit Friday “to halt the unlawful construction of a mass federal detention facility for up to 5,000 noncitizen detainees.” Friends of the Everglades noted that their group was founded in part to stop construction of a major jetport on the same site. Members of the Miccosukee and Seminole tribes fought against the jetport too—generations ago. The state of Florida contended in court on Monday that the “risks” of not locking up immigrants on the site (on this expedited pseudo-emergency basis) “overwhelm any incidental environmental harm.” They also claimed the site was “temporary.”

There is no reason to believe any of the claims from the Florida and federal governments. The same day the concentration camp opened, ABC News reported that despite Trump’s campaign refrain that his mass deportations would target “criminals,” “new data shows a recent shift toward also arresting those who have not been accused of crimes.” This was foretold by Tom Homan, Trump’s “immigration czar,” who was the face of the mass deportation plan long before Trump returned to the White House. “No one’s off the table,” Homan said at the Republican National Convention last summer. “The bottom line is: Every illegal alien is a criminal. They enter the country in violation of federal law. It’s a crime to enter this country illegally.” Every immigrant—every person the Trump administration said was an immigrant—was a target from the beginning.

On Monday, a reporter asked Homan about an ailing 75-year-old Cuban man who died in ICE custody recently. His response: “People die in ICE custody.” He complained, “The questions should be, how many lives has ICE saved?” He challenged reporters to look into ICE’s detention standards. Last week, Wired reported on a chilling pattern of apparent neglect inside immigrant detention centers, based on nearly 400 calls made to 911 from the 10 largest ICE facilities. Incidents included seizures, self-harm, and sexual abuse. Some calls were made by the people caged inside, desperate for help.

At his press conference at the concentration camp, Trump learned that his massive budget bill had passed the Senate. The funding in the bill will make ICE the largest jailer in the world, with $200 billion at its disposal. As Felipe De La Hoz wrote last month for TNR, the bill “would take everything we’ve seen so far”—the targeting of activists for their speech, masked agents grabbing people off the street, sudden flights to Guantánamo or out of the country, ramping up detentions—and crank it to 11.”

A storm blew through the concentration camp during the press tour. Florida reporter Jason Delgado captured videos showing a layer of rainwater blowing across the floor of the cells, while the soft roof of one tent rippled in the wind. Water pooled at the base of the American and Florida state flags and around extension cords for lights. “The state says the sites here are rated to withstand a category two hurricane,” he posted on X. Two stronger hurricanes that made landfall last year —Helene and Milton—brought flooding and tornadoes to the area. People in jails and prisons in Florida were not evacuated.

Outside the concentration camp, when the storm hit, the protesters were still there. Some had been there for days. No one can say, years from now, that nobody knew about the camp, or that no one pushed back.

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