All posts by DanielAHorwitz

Eighth Amendment Challenge Filed Against Tennessee’s “Drug Free School Zone” Law

Constitutional Law, Criminal Law, ,

Nashville, Tennessee—A groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.”  The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t.  A recent poll of 531 registered voters in Tennessee indicated that 84% of Tennesseans support reforming the law, including 90% of Democrats and 80% of Republicans.  Among other things, the law operates to punish first-time, non-violent drug offenders more severely than defendants who are convicted of violent crimes like Rape and Second Degree Murder.

Calvin Bryant is a beloved former Hillsboro High School football star, a former Tennessee State University student, and a former Tennessean employee.  A decade ago, witnesses described him as a “model citizen” who had “impeccable” character, was “loving toward his family,” “took a great interest in the people who live[d] in his neighborhood,” and was “very generous” with the elderly.  In 2008, however, Mr. Bryant was indicted for selling ecstasy pills to an aggressive government informant who had contacted him repeatedly, reminded Mr. Bryant that “he had helped raise him,” insisted that he needed drugs to earn money to feed his family, and pleaded with Mr. Bryant to help him get some.

The government’s informant had thirty-nine (39) separate convictions on his record in Davidson County alone at the time of the drug sales at issue—many of them violent felonies.  Even so, the informant was paid more than $1,000 in taxpayer money and avoided jailtime in exchange for helping secure Mr. Bryant’s conviction.  Mr. Bryant’s first trial ended in a hung jury after several jurors concluded that Mr. Bryant had been entrapped.  After his second trial, however, Mr. Bryant was convicted of selling drugs.

Even though it was a first-time, non-violent offense—Mr. Bryant had no other criminal history of any kind—because Mr. Bryant’s residence was located within 1,000 feet of a school, Mr. Bryant received a mandatory minimum sentence of seventeen (17) years in prison.  As a result, Mr. Bryant received a considerably longer sentence for committing a first-time, non-violent drug offense than he would have received if he had committed a severe, violent crime such as Rape, Second Degree Murder, Aggravated Robbery, Aggravated Vehicular Homicide, or Attempted First Degree Murder.  Mr. Bryant has been incarcerated for the past decade.  He has at least six years in prison left to serve.

Given the extraordinary circumstances of his prosecution, Mr. Bryant has filed a novel constitutional challenge to the application of Tennessee’s intensely punitive Drug Free School Zone law to his case.  Notably, even the District Attorney who prosecuted Mr. Bryant has submitted an affidavit supporting his early release, stating that: “I fail to see how an additional six years of incarceration will improve Mr. Bryant’s amenability to correction or would be required to maintain public safety.  I additionally fail to see how his release at a time earlier than 2023—and after over nine years of incarceration—will deprecate the seriousness of the offenses for which he was convicted or significantly imperil public safety.”

Tennessee’s intensely punitive Drug Free School Zone law was designed to keep drugs away from children.  Nobody disputes that this is a laudable goal.  However, many people, including several elected officials and judges in Tennessee, have disputed whether the law was ever intended to apply to drug sales between adults inside an adult’s residence and outside of school hours—especially when a government informant has set up a drug transaction inside a school zone on purpose.  As one Tennessee judge has explained, for example:

I simply do not believe that the Tennessee legislature intended the scope of the Act to include drugs brought into the protected school zone by law enforcement’s own design. This concept of luring, which commonly takes the form of an undercover sting operation, is inconsistent with the legislative intent of the Act and defeats the overall purpose of “creat[ing] a drug-free school zone to reduce the occurrence of illegal drug activity in and around school facilities in order to enhance the learning environment.”

Mr. Bryant’s petition paints a heartbreaking picture of a law that was never intended for cases like his but which applied to him anyway.  In Davidson County, he notes, so-called “drug free” zones “cover[] almost every habitable portion of Nashville and [nearly] all of its urban core.”  As a result, based solely on a prosecutor’s discretion, the law can be applied “to virtually every drug sale that takes place in Nashville.”  Even so, in the approximately two decades since the law was enacted, only 62 defendants have ever been punished with the school zone sentencing enhancement in Davidson County, which upgrades a defendant’s conviction by a full felony class and renders defendants ineligible for parole for decades.  Although, as a general matter, the law has been used sparingly to punish dangerous or repeat offenders, Mr. Bryant’s petition notes that he has “the dubious distinction of being the only defendant in the history of this jurisdiction to receive Tenn. Code Ann. § 39-17-432’s sentencing enhancement for a first-time offense.”

Mr. Bryant’s petition also highlights the fact that “Davidson County’s own Grand Jury has observed that the [District Attorney’s] previous application of the school zone enhancement was arbitrary and capricious,” having formerly been applied in a way that turned substantially on a defendant’s poverty.  It explains:

“[G]iven the location-based nature of the sentencing enhancement at issue, Mr. Bryant’s sentence was also enhanced dramatically based on his poverty alone.  If, for example, Mr. Bryant had lived in a wealthy, residentially-zoned suburb like Belle Meade, then he likely would have been eligible for release after serving just two years and five months in prison for the exact same conduct.  Because Mr. Bryant lived in the Edgehill Housing Projects, however, Mr. Bryant must serve a mandatory minimum sentence of at least fifteen (15) years before he even becomes eligible for parole.”

Further, Mr. Bryant’s petition notes that before the new District Attorney reformed his office’s use of the school zone sentencing enhancement in 2014, “Davidson County’s application of Tenn. Code Ann. § 39-17-432 was unmistakably race-based.”  “Although there is abundant evidence that people of all races in Nashville use and sell drugs at roughly equal rates,” his petition explains, fully “87% of defendants in this jurisdiction who received enhanced sentences under Tenn. Code Ann. § 39-17-432 were people of color.”

Most importantly, however, Mr. Bryant notes that in the time since his conviction, Tenn. Code Ann. § 39-17-432 has been reformed both judicially and operationally to avoid precisely the type of strict liability penalty that applied in his case.  Consequently, if Mr. Bryant had committed the exact same offense today, then he would likely have been subject to a maximum sentence of between two and eight years in prison, rather than seventeen years.  Further, given his status as a first-time, non-violent offender, Mr. Bryant may well have avoided prison time at all.

Mr. Bryant has asked Davidson County Criminal Court Judge Steve Dozier to declare his sentence unconstitutional as applied to the unique circumstances of Mr. Bryant’s case, arguing that these circumstances render his sentence excessive under both the Eighth Amendment and Article 1, Section 16 of the Tennessee Constitution.  Mr. Bryant has also petitioned Judge Dozier for release while he submits an application for a pardon or commutation.  More than a dozen supporters—including Mr. Bryant’s own prosecutor, local politicians, business owners, friends, family members, and civil rights activists—have also filed affidavits in support of Mr. Bryant’s early release.  A hearing on Mr. Bryant’s petition is set for December 15, 2017 in Davidson County Criminal Court, Division 1.

“The fact that Tennessee law punishes first-time, non-violent drug sales more harshly than rape and murder is insane,” said attorney Daniel Horwitz, who is representing Mr. Bryant.  “Mr. Bryant was a promising young college student and a pillar of his community at the time of his conviction, and he made a single mistake that has already cost him a full decade of his life behind bars.  Mr. Bryant has more than paid his debt to society, and he deserves to be released.  This is the most unfair sentence I have ever seen.”

Read Mr. Bryant’s Verified Petition for Sentencing Relief here.

Selected Media Coverage

-Patch:  Nashville Case Highlights Drug-Free School Zone Reform Efforts

-Reason: How a Drug-Free School Zone Sent a Tennessee College Student to Prison For 17 Years

-Nashville Scene:  Council Members Petition Judge Over Drug-Free School Zone Case

-The Tennessean:  He got 17 years for selling drugs near school. Now 12 Nashville officials are fighting on his behalf

Selected Case Filings

–Calvin Bryant Petition for Sentencing Relief

–Appendix

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White County Judge Acknowledges Sterilization-For-Jailtime Deal Still Active; Plaintiffs Seek to Terminate the Program

Constitutional Law,

After a furious national uproar in response to an inmate sterilization program instituted by White County General Sessions Judge Sam Benningfield, in late July of this year, Judge Benningfield publicly announced that he had formally rescinded his previous standing order instituting the sterilization program, which had been compared to eugenics.  Although dozens of inmates had been surgically sterilized by the time the order was “rescinded,” news coverage of the scandal subsided immediately, permitting the fallout from the sterilization program to continue virtually uncovered.

In a recent filing, however, Judge Benningfield and White County Sheriff Oddie Shoupe—who are currently being sued over the sterilization program—acknowledged that the order purporting to rescind the program actually “did not renege on the offer of a 30-day reduction in the jail sentence[s]” of inmates who agreed to be sterilized after all.  This concession confirms concerns that had been raised by the attorney for the inmates who have sued over the program, whose lawsuit alleged that:

“Despite claiming to be an ‘Order Rescinding [his May 15, 2017] Standing Order,’ however, Defendant Benningfield’s July 26, 2017 Supplemental Order states unequivocally that inmates who fail to ‘demonstrate[] to the court their desire to improve their situations and take serious and considered steps toward their rehabilitation by having the [specified long-term surgical sterilization] procedures or agreeing to have same’ will still be incarcerated for 30 days longer than similarly situated inmates who do acquiesce to surgical sterilization.”

Judge Benningfield and Sheriff Shoupe, who have both been named as defendants in the lawsuit over the sterilization program, have asked a federal judge to dismiss the lawsuit against them.  In response to their concession that the inmate sterilization offer is still active, however, on Monday, the Plaintiffs sought an immediate declaratory judgment that Judge Benningfield’s ongoing sterilization program is unconstitutional.  “This program is outrageous, it is morally indefensible, and it’s illegal,” attorney Daniel Horwitz, who is representing the inmates, stated at the outset of the lawsuit.  Selected documents from the case are available below:

Selected Case Documents:

–Plaintiff’s Amended Complaint for Injunctive and Declaratory Relief

–Defendants’ Notice of Removal

–Defendants’ Motion to Dismiss

–Plaintiffs’ Response in Opposition to Motion to Dismiss

–Plaintiffs’ Motion to Certify State Law Claims

–Plaintiffs’ Motion for Partial Summary Judgment

–Plaintiffs’ Motion for Estoppel Based on Defendant Benningfield’s Public Reprimand

–Defendants’ Response in Opposition to Estoppel Based on Defendant Benningfield’s Public Reprimand

–Defendants’ Response in Opposition to Partial Summary Judgment

–Plaintiffs’ Reply to Defendants’ Response in Opposition to Partial Summary Judgment

Selected Media Coverage:

-The Washington Post: Tennessee judge reprimanded for offering reduced jail time in exchange for sterilization

-The Tennessean: 2nd lawsuit challenges Tennessee county’s inmate birth control practice

-WSMV Channel 4: Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-BBC News: ‘We were guinea pigs’: Jailed inmates agreed to birth control

-ScotBlog: Lawsuit Seeks to End White County’s Ongoing Sterilization Program

 

Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers.

Constitutional Law, First Amendment, , ,

By Daniel A. Horwitz:

Late last month, the Supreme Court announced that it would hear Janus v. AFSCME, a case that challenges public-sector unions’ right to collect fees from nonmembers. Such “fair share” fees have been a legal bedrock of labor unions since the Supreme Court’s 1977 ruling in Abood v. Detroit Board of Education.  In Abood, the court held that unions could lawfully charge fees to non–union members to help offset the costs of “collective bargaining, contract administration, and grievance adjustment” from which all employees benefit, as long as the union does not use such fees for political purposes.  Continue reading Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers. →

Lawsuit Seeks to End White County’s Ongoing Sterilization Program

Constitutional Law, ,

An inmate in White County, Tennessee, has filed a lawsuit in White County Chancery Court seeking to put an end to an ongoing sterilization program instituted by White County General Sessions Judge Sam Benningfield.  Under the program, White County inmates who refuse to submit to long-term surgical sterilization are required to serve jail sentences that are 30 days longer than similarly situated inmates who agree to be sterilized.  The lawsuit—filed directly against Judge Benningfield and the White County Sheriff—asks the Chancery Court to declare Judge Benningfield’s sterilization program unconstitutional and prevent the Sheriff from enforcing it.

“This program is outrageous, it is morally indefensible, and it’s illegal,” said attorney Daniel Horwitz, who is representing the inmate.  “We fully expect the Chancery Court to put an end to this abusive and reprehensible program and ensure that it never returns again.”

“Eugenics is illegal in Tennessee and across the United States,” the lawsuit reads.  “Tennessee law provides absolutely no authority to institute or enforce such a program, and both the Tennessee Constitution and the United States Constitution forbid it.  From mass sterilizations in Nazi Germany to eugenics experimentation in Tuskegee, Alabama, eugenics is anathema to any conception of morality and represents one of the most disturbing chapters in the dark history of human cruelty.  Judge Benningfield’s eugenics program should be—and must be—declared illegal and permanently enjoined as a result.”

Judge Benningfield’s sterilization program gained national attention after White County District Attorney Bryant Dunaway expressed concerns about the program’s rank illegality and immorality to a reporter in July 2017.  Thereafter, Judge Benningfield partially rescinded his standing order in response to national outcry.  Because Judge Benningfield’s supplemental order still provides that inmates who refuse to be sterilized must serve sentences that are 30 days longer than those who agree to surgical sterilization, however, the program is still ongoing.

In addition to asking the Court to declare the program unconstitutional, the lawsuit seeks to “[e]njoin the Defendants from subjecting the Plaintiff to an additional 30 days of incarceration for exercising his constitutional right to reproductive freedom.”  It further asks the Court to award the Plaintiff attorney’s fees and have the fee award “donated to the United States Holocaust Memorial Museum and the Tuskegee History Center.”

Selected media coverage regarding the program appears below:

-Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-White County Inmates Given Reduced Jail Time If They Get Vasectomy

–‘We were guinea pigs’: Jailed inmates agreed to birth control

–Tennessee judge rescinds inmate sterilization-for-freedom program

Judge to inmates: Get sterilized and I’ll shave off jail time

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Local First Amendment Scholar Calls on Justice Kennedy to Reverse His Worst First Amendment Decision

Constitutional Law, First Amendment, , ,

By Daniel A. Horwitz

Local First Amendment scholar David L. Hudson, Jr. – an occasional guest contributor to this blog whose First Amendment resume rivals anyone alive (Ombudsman for the First Amendment Center, Legal Fellow for the Foundation for Individual Rights in Education, Professor of First Amendment Law at Vanderbilt Law School, etc.) – has penned an excellent piece over at Slate calling on U.S. Supreme Court Justice Anthony Kennedy to undo the damage of Garcetti v. Ceballos—one of the worst First Amendment decisions in the Supreme Court’s modern history.

Decided in 2006, the Supreme Court’s contentious 5-4 decision in Garcetti upended previously settled law regarding the First Amendment rights of public employees.  The Court’s majority opinion—authored by Justice Kennedy—stands for the general proposition that even if public employees are exposing governmental misconduct or speaking about matters of unquestioned public importance, they have no First Amendment protection whatsoever for any speech made pursuant to their official duties.  As Hudson explains:

“In Garcetti, the Supreme Court created a categorical rule: ‘When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.'”

The consequences of Garcetti have been devastating, falling particularly hard on whistleblowers and other public employees who have sought to expose official misconduct.  Professor Hudson’s full piece (accessible here) is well worth the read, and for the public’s sake, one can only hope that Justice Kennedy will take notice.

Questions about this article?  Email Daniel Horwitz at [email protected].

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Breaking: Foreign Vanderbilt Law School Graduate Wins Right to Take the Tennessee Bar Exam

Constitutional Law, ,

By Daniel A. Horwitz

Maximiliano Gluzman, the “obviously very, very qualified” Vanderbilt Law School graduate who was denied the opportunity even to take the Tennessee Bar Exam, has officially won his case before the Tennessee Supreme Court.  Based on the Court’s order approving his petition, Mr. Gluzman will be able to take the upcoming bar exam scheduled for February 2018.

“We conclude that the requirements of section 7.01 should not be applied to preclude Mr. Gluzman from taking the Tennessee bar examination,” the Court held in a per curiam order.  “As a result, the BLE may not hereafter rely upon section 7.01 of Rule 7 as a basis to deny Mr. Gluzman permission to take the Tennessee bar examination.”  The Court’s order is available here.

“We are ecstatic that the Tennessee Supreme Court has vindicated Mr. Gluzman’s claim that he was wrongfully denied the opportunity to take the Tennessee Bar Exam,” said Daniel Horwitz, Mr. Gluzman’s attorney.  “Mr. Gluzman is as qualified to practice law as any attorney in Tennessee, and he will be a tremendous asset to the legal profession.  Justice was served today.”

The briefing in Gluzman v. BLE featured the participation of three leading national conservative groups, which argued that the Board’s crippling regulations violated Mr. Gluzman’s fundamental right to earn a living free from irrational government overreach.  Tennessee’s two flagship law schools—Vanderbilt Law School and the University of Tennessee College of Law—also filed petitions in the case after seeing students disenroll from their law programs once the Board began implementing its protectionist regulations.  All parties’ briefs from the case are available below.

–Petitioner Maximilano Gluzman’s Principal Brief

–Brief of Respondent the Tennessee Board of Law Examiners

–Petitioner Maximiliano Gluzman’s Reply Brief

–Brief of Amici Curiae The Beacon Center, Cato Institute, and Goldwater Institute

–Petition of Vanderbilt Law School and University of Tennessee College of Law

Selected news coverage about the ruling is available at the following links:

-Nashville Post: Supreme Court rules Argentine can take Tennessee Bar

-Bloomberg: Argentine LL.M. With 3.9 GPA Wins Bid to Take Tenn. Bar Exam

-Nashville Post: Argentine lawyer challenging Tennessee Board of Law Examiners

-Nashville Post: National conservative groups join local bar fight

-Above the Law: State Bars Foreign Student From Bar Exam — Next Stop, State Supreme Court

-ABA Journal: Vanderbilt law prof who taught Argentine LLM student backs his bid to take the bar exam

-The Tennessean: How Tennessee discriminated against a talented Vanderbilt law grad

-Cato At Liberty Blog: Even Lawyers Have the Right to Earn an Honest Living

-Beacon Center Blog: Banned From the Bar Exam

###

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Tennessee Advisory Committee to the U.S. Commission on Civil Rights Holds Comprehensive Hearing on Civil Asset Forfeiture

Civil Procedure, Constitutional Law, Fourth Amendment, ,

By Daniel A. Horwitz

In what may well have been the most comprehensive hearing on civil asset forfeiture ever held, the Tennessee Advisory Committee to the U.S. Commission on Civil Rights held a day-long hearing on Tennessee’s forfeiture laws at the Nashville Public Library on Monday, July 24th.  The hearing featured testimony from District Attorneys past and present, police officers, legislators, attorneys, scholars, local and national advocacy groups, individuals affected by Tennessee’s forfeiture laws, and others interested in the topic.  Video footage of the Committee’s hearing is available at the links that follow:

U.S. Commission Opening Remarks and Introduction

Panel 1—Law Enforcement

Panelists: Glenn R. Funk (District Attorney, Nashville and Davidson County);  D. Michael Dunavant (District Attorney, Tennessee’s 25th Judicial District, President Trump’s nominee for U.S. Attorney for the Western District of Tennessee); Stephen D. Crump (District Attorney, Tennessee’s 10th Judicial District); Carlos Lara (Lieutenant, Metro Nashville Police Department)

Panel 2—Legislators

Panelists: State Representative Mike Carter (R-Ooltewah); State Representative John Ray Clemmons (D-Nashville); State Representative William G. Lamberth (R-Cottontown); State Representative Martin Daniel (R-Knoxville); State Representative Harold M. Love, Jr. (D-Nashville); State Representative G.A. Hardaway (D-Memphis)

Panel 3—National and State Organizations

Panelists: Vikrant Reddy (Senior Research Fellow, Charles Koch Institute); Lee McGrath (Senior Legislative Counsel, Institute for Justice); Hedy Weinberg (Executive Director, ACLU of Tennessee); Julie Warren (State Director, Tennessee/Kentucky Right on Crime)

Panel 4—Practitioners and Academics

Panelists: George Frank Lannom (Tennessee Association of Criminal Defense Lawyers);  Joy Radice (Professor of Law, University of Tennessee College of Law); John Morris Miles (Attorney, Union City); Ben Raybin (Attorney, Nashville); Kyle Mothershead (Attorney, Nashville); Elliot Ozment (Attorney, Nashville)

Panel 5—Advocacy Organizations

Panelists: Jackie Sims (Tennessee State Conference of the NAACP); Christopher M. Bellamy (President, Napier-Looby Bar Association); Samuel Lester (Street Outreach and Advocacy Coordinator, Open Table Nashville)

The hearing record will remain open for public comment until August 23, 2017.  If you would like to submit comments for consideration, please email Jeff Hinton, Southern Regional Director for the U.S. Commission on Civil Rights, at [email protected].  Following the conclusion of the public comment period, the Tennessee Advisory Committee will consider all commentary and prepare a final report and recommendation.

Selected press coverage of the hearing is available below.

-Fox 17:  Tenn. Attorneys say law enforcement wrongfully benefits from drug seizures

###

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Update: White County Judge Rescinds Sterilization Order…Sort of

Constitutional Law, Criminal Procedure, ,

By Daniel A. Horwitz

Last week, news broke of White County General Sessions Judge Sam Benningfield’s wildly unconstitutional standing order that White County inmates who declined to submit to sterilization would receive an additional 30 days in jail.  In an order dated July 26, 2017, Judge Benningfield has formally rescinded his prior order with the caveat that he will still be handing out a eugenics discount to anyone who “demonstrate[s] to the court their desire to improve their situations” by being sterilized.

Even as partially rescinded, however, Judge Benningfield’s policy of determining the length of an inmate’s sentence based on whether the inmate has agreed to submit to sterilization remains illegal.  As previously explained:

 In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

White County’s backdoor eugenics program needs to be terminated in its entirety.  The program is a moral outrage and a blight on the entire legal profession.  Nobody—and certainly no member of the Bar—should tolerate it.  If Judge Benningfield will not resign his office, he should be removed.

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Eugenics is Illegal

Constitutional Law, Criminal Law, Criminal Procedure, Editorial

By Daniel A. Horwitz

On Wednesday evening, News Channel 5 broke the unspeakable outrage that a judge in White County, Tennessee, had signed a standing order providing for a 30-day “reduction” in jailtime if an inmate submits to sterilization.  According to the report, 70 inmates have already accepted this “eugenics discount” in exchange for early release.  Somehow, each aspect of the story is even more shocking than the next.

To begin, General Sessions Judge Sam Benningfield—the mastermind behind White County’s backdoor eugenics program—defended his efforts without any apparent sense of shame, telling Channel 5’s Chris Conte that: “I hope to encourage [inmates] to take personal responsibility and give them a chance, when they do get out, to not to [sic] be burdened with children.”

Even worse, Judge Benningfield’s standing eugenics order has apparently been on file since May 15, 2017—meaning that an untold number of lawyers, judges, doctors, and law enforcement personnel have either acquiesced to it or simply turned a blind eye in the face of a policy that the Rome Statute of the International Criminal Court designates as a crime against humanity.

To be absolutely and unequivocally clear: eugenics is illegal.  In America, reproductive freedom is a fundamental constitutional right, and the equal protection clause of the United States Constitution forbids the government from treating people differently based on whether or not they choose to exercise their right to reproductive freedom.  Tennessee’s criminal code also contains several specifically-designated mitigating factors and enhancement factors that judges are permitted to consider during sentencing.  Whether a defendant has submitted to sterilization is not among them.

The framing of Judge Benningfield’s eugenics program as a “voluntary sentencing reduction” is also deeply troubling.  It is not.  Simply stated: In White County, Tennessee, any inmate who refuses to be sterilized is punished with an additional 30 days in jail.

Such a program is profoundly coercive—especially for defendants convicted of minor crimes who may avoid jail time entirely if they submit to sterilization.  Anyone familiar with the criminal justice system knows that this length of time is sufficient to send a person’s life into disarray, because an extra month in prison can and frequently does result in job loss, loss of one’s home, or loss of one’s children.  Of note, under Tennessee law, everyone is also at risk of being imprisoned for 30 days at any time for even the slightest traffic infraction based on law enforcement’s discretion.

In addition to its rank illegality and immorality, it goes without saying that using the coercive power of the state to promote sterilization also has severe potential for abuse.  As a historical matter, eugenics programs always target disfavored minorities—from Jews in Nazi Germany to black men in Tuskegee, Alabama.  Firmly in keeping with this tradition, Judge Benningfield’s eugenics program is reserved for White County inmates and apparently targets those suffering from drug addiction.  In this regard, it is no less disgusting.

Judge Benningfield’s eugenics program is an outrage.  He need not serve on the bench any longer, and he need not keep his law degree any longer.  Infuriatingly, this also is not the first time that an officer of the Court who has been charged with upholding the law has implemented a (very recent) sterilization program in Tennessee—a fact that is similarly unconscionable in its own right.  If Tennessee’s administrators of the practice of law took a fraction of the effort that they’ve expended trying to prevent qualified immigrants from taking the bar exam and redirected it toward removing people like Judge Benningfield from the profession, perhaps further abuses like this would be avoided.

Compounding the outrage is that nobody has yet filed suit over Judge Benningfield’s eugenics program during the two months that it has been in effect.  Whether initiated by the ACLU, a public defender, or a private defense attorney, such a lawsuit needed to be filed yesterday.  If you or a client of yours is affected by White County’s eugenics program and you want assistance pursuing the case, please feel free to contact me at [email protected].  I will gladly take the case pro bono and donate the proceeds to the Holocaust Museum and the Tuskegee History Center.  A program like this violates what the United States Supreme Court has declared to be “one of the basic civil rights of man,” and nobody—least of all the Bar—should tolerate it.

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Judge Dismisses Defamation Lawsuit Filed Against Restaurateur Randy Rayburn

Constitutional Law, First Amendment

The defamation lawsuit filed against beloved Nashville restaurateur Randy Rayburn has been dismissed outright by Davidson County Circuit Court Judge Kelvin Jones.  The costs of the lawsuit were also assessed against Plaintiff Tom Loftis, the aggrieved former director of The Randy Rayburn School of Culinary Arts at Nashville State Community College, who had sued Mr. Rayburn for a whopping $1.5 million over a March 2, 2016 Tennessean article that had reported that the program was turning out unqualified students.

The lawsuit, first reported by the Nashville Business Journal, drew national media coverage due in part to its “extraordinarily innocuous subject matter.”  According to one media outlet, the lawsuit’s “attempt to fashion a libel lawsuit out of nothing bears far more resemblance to those filed by plaintiffs with fools for lawyers.”  The Plaintiff in the case was represented by Nashville attorneys Gary Blackburn and Bryant Kroll.

In his verbal ruling from the bench dismissing the lawsuit against Mr. Rayburn, Judge Jones noted that under Tennessee law, an allegedly defamatory statement must “be read as a person of ordinary intelligence would understand it in light of the surrounding circumstances.”  Judge Jones also observed that whether a statement is capable of being understood as defamatory “is a question of law to be determined by the court.”  Finding that Mr. Loftis’s Complaint could not satisfy these basic standards even at the motion to dismiss stage, Judge Jones dismissed Mr. Loftis’s lawsuit with prejudice and assessed him the costs of the litigation.

Said Daniel Horwitz, Mr. Rayburn’s lead counsel: “We are pleased that this baseless lawsuit has come to a quick and much-deserved end.  The legal system should not be used to litigate hurt feelings or to deter people from speaking to the media.  We are grateful that Judge Jones dismissed this frivolous lawsuit at its first appearance, and we are thrilled that Mr. Rayburn will be able to recommit his full attention to doing what he loves: running wonderful restaurants, serving his community, and feeding delicious food to his grateful patrons.”

Documents from the case and selected media coverage are available below.

###

Case Documents:

–Plaintiff’s First Amended Complaint

–Defendant’s Motion to Dismiss First Amended Complaint

–Plaintiff’s Response to Motion to Dismiss (1)/Plaintiff’s Response to Motion to Dismiss (2)

–Defendant’s Reply to Plaintiff’s Response

*Order Dismissing Plaintiff’s Complaint With Prejudice

–Transcript of Hearing on Motion to Dismiss

–Brief of Plaintiff-Appellant Thomas Nathan Loftis, Sr.

–Brief of Defendant-Appellee and Cross-Appellant Randy Rayburn

–Reply Brief of Plaintiff-Appellant Thomas Nathan Loftis, Sr.

Selected Media Coverage:

-Nashville Business Journal: Nashville restaurateur Randy Rayburn faces $1.5 million lawsuit

-TechDirt: Former University Official Files Libel Lawsuit Against His Replacement For Things A Journalist Said

-Nashville Business Journal: Judge dismisses $1.5M suit against well-known restaurateur

-First Amendment Center’s Newseum Institute: Unusual Defamation Suit Targets Source of Story

-TechDirt: Judge Dumps Stupid Libel Suit Featuring A Man Suing A Third Party For Things A Journalist Said