10th Circuit Upholds Order Finding Kansas Ag Gag Law Unconstitutional

Today the U.S. Court of Appeals for the Tenth Circuit upheld our victory knocking down the Kansas Ag Gag law.

Like other Ag Gag laws, the Kansas law made it a crime to expose the horrific cruelty at factory farms and other animal agricultural facilities. It criminalized making any recording on a factory farm without the consent of the owner or being on the property without the consent of the owner. Obtaining a job under false pretenses (i.e., as an investigator for an animal rights organization) counted as being on the property without effective consent of the owner.

The Tenth Circuit affirmed the district court’s order finding the law was unconstitutional. In a split 2-1 decision, the majority of the Tenth Circuit found that the law was viewpoint discriminatory because whether lies were prohibited depended on the intent of the speaker. Because only people who sought to criticize the animal facility (or, in the words of the statute, had the “intent to damage the enterprise conducted at the animal facility”) were criminalized, and not those who wished to write a puff piece or were just curious about the operations were not, the statute was unconstitutionally viewpoint discriminatory and thus violated the First Amendment.

This ruling follows victories (or partial victories) in challenges to similar laws in Idaho, Utah, Wyoming, and Iowa.

Victory: Federal Judge Orders Montana Remove Man with Consensual Gay Sex Conviction from Sex Offender Registry

Today the Montana federal district court suspended a requirement that a man convicted of having consensual gay sex register as sex offender.

While the Supreme Court found that so-called “sodomy” laws were unconstitutional in 2003, and Montana formally repealed its sodomy law in 2013, Montana still required people with sodomy convictions to register as sex offenders if they were convicted in another state that still requires registration. Idaho, South Carolina, and Mississippi still require sex offender registration for people convicted under their sodomy laws.

Randall Menges was convicted in Idaho of having consensual gay sex back in 1993. After he moved to Montana, Montana required him to register as a sex offender.

The federal court affirmed that “having consensual intimate sexual contact with a person of the same-sex does not render someone a public safety threat to the community. It does not increase the risk that our State’s children or other vulnerable groups will be victimized, and law enforcement has no valid interest in keeping track of such persons whereabouts. And, while it can be undoubtedly said that Montana’s sexual offender registration statutes generally serve compelling governmental interests, they are not narrowly tailored to serve those interests to the extent they pull Menges within their grasp.”

“I’m grateful to the court for putting an end to my nightmare,” said Randall Menges. “It should not have required a lawsuit to enforce the Supreme Court’s command from 18 years ago, but I’m happy that it’s over.”

The decision got picked up in dozens of national and international publications, including the New York Times, the Daily Mail, the Advocate, and the Associated Press.

Challenge to Retroactive Application of Idaho's Sex Offender Registration Scheme

Today my office filed a lawsuit challenging the retroactive application of Idaho’s sex offender registration requirements to people with decades-old convictions. The lawsuit contends that applying the registration statute’s increasingly strict amendments to people whose offenses occurred long ago violates the Constitution.

Idaho passed its first registration law in 1993. Only six crimes required registration and the access to the registry was limited to law enforcement. In 1998, the state expanded it to include seventeen offenses and made the information available to the public. But it was just that: a public registry. There were no restrictions associated with registration.

But virtually every year since, the Idaho legislature expanded the registry and imposed new restrictions. Dozens of offenses now require registration and the registry restricts where people can live, where they can work, how they can use the internet, and how they can practice their religion. While registration used to only last five or ten years, the legislature changed it to lifetime registration for everyone. Parents and grandparents cannot even attend their own children or grandchildren’s sporting events or school plays. And they must get permission from local law enforcement to leave the county for as little as a few days.

The plaintiffs in this case were convicted in the 1980s, 1990s, or early 2000s. Some were convicted before a registry even existed. Other pleaded guilty under promises that they would only be on the registry for five years, only to have the Idaho legislature change the terms of the agreement years later.

Our lawsuit contends that this violates the Ex Post Facto clause of Constitution and seeks to prevent the state from continuing to punish people through mandated sex offender registration decades after they completed the punishment for their crimes.

The case is Jane Doe #35, et al., v. Wasden, et al., Case No. 1:16-cv-429-DCN (D. Idaho).

Lawsuit Filed Challenging Montana's Treatment of Historical Sodomy Convictions

Today my office filed another challenge to Montana’s requirement forcing people with historical sodomy convictions from certain states register as sex offenders.

Sixty years ago, all states criminalized so-called “sodomy”: oral and anal sex. While some states repealed those prohibitions or had them struck down on state constitutional grounds, others kept them. In 1986, the Supreme Court found such laws survived constitutional challenge. Then in 2003, the Supreme Court reversed. In Lawrence v. Texas, the Supreme Court found that its earlier blessing of such laws was wrong and that it was unconstitutional to criminalize having oral or anal sex.

Randall Menges was convicted in Idaho of having gay sex back in 1993. At the time, Idaho required people convicted of sodomy to register as sex offenders. And it still requires it today.

Montana hasn’t enforced its sodomy prohibition since 1997 and even formally repealed it in 2013. And Montana never required people convicted under its old sodomy prohibition to register as sex offenders. But Montana does require anyone with a conviction from another state that is registerable in that state to register if they move to Montana. So despite taking measures to decriminalize gay life in Montana, the state still enforces Idaho’s backwards and homophobic treatment of old sodomy convictions.

Together with Missoula attorney E. Ehret, my office filed suit challenging Montana’s forced inclusion of Mr. Menges on the Montana sex offender registry. The lawsuit asserts that forcing Menges to register violates the Substantive Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Right to Privacy under the Montana Constitution.

This is the third case my office has filed challenging state’s attempts to enforce pre-Lawrence sodomy convictions through sex offender registries.

We Are Challenging Idaho's Unconstitutional Sodomy Law


My office is continuing our fight against unconstitutional “sodomy laws,” which criminalize oral and anal sex among mutually consenting adults.

This time, the fight takes us to Idaho.

“Sodomy laws” shouldn’t exist anywhere in the United States, as the Supreme Court declared these invasive, puritanical conventions unconstitutional almost two decades ago. Citing the Fourteenth Amendment, the Court found that these laws constitute an intrusion on privacy, dignity, and autonomy; all of which the Fourteenth Amendment protects. (Lawrence v. Texas, 539 U.S. 558). Despite this ruling, eight stubborn states still cling to their unconstitutional sodomy laws.

Idaho is one of those states. Its law (Idaho Code § 18-6605) makes it a crime to have oral or anal sex, in any context. Idaho even requires people who are convicted of having oral or anal sex to register as sex offenders—displaying their pictures and home addresses on a public website, opening them to harassment, violence, and pointless everyday burdens like being banned from certain public spaces.


Idaho’s sex offender law also requires people with convictions from other states to register in Idaho if they have a conviction from another state that is similar enough to a registrable crime in Idaho—no matter what the “crime,” or how old the conviction.

Today, together with the ACLU of Idaho and Debra Groberg (of Boise’s Nevin, Benjamin, McKay, and Bartlett ) we filed a case challenging Idaho’s continued enforcement of the law generally and through the sex offender registry.

This is the second case my office has filed challenging state’s attempts to enforce pre-Lawrence, so-called “sodomy” convictions through sex offender registries.

Center for Constitutional Rights, Electronic Frontier Foundation, ACLU of Southern California, Greenpeace, Sierra Club, and Others Ask California Supreme Court to Protect Protest Rights

Today a coalition of advocacy groups, including the Center for Constitutional Rights, the Electronic Frontier Foundation, the ACLU of Southern California, the Sierra Club, the Civil Liberties Defense Center, Greenpeace, Palestine Legal, the National Lawyers Guild, the Partnership for Civil Justice, Portland Rising Tide, Amazon Watch, the Center for International Environmental Law, and the International Corporate Accountability Roundtable, asked the California Supreme Court to review a lower court decision that endangers protest rights throughout Southern California.

My office represents an immigrant family who lost their house to foreclosure after the financial crisis. Wedgewood—the nation’s largest “fix and flip” operation—bought it. When the family regained employment and tried to buy it back, Wedgewood first led them on and then ignored them.

The family enlisted the help of the Alliance of Californians for Community Empowerment Action (ACCE)—one of the state’s largest housing rights organizations. Neighbors came to the family’s aid, holding protests in the front yard. La Opinón—the country’s largest Spanish-language newspaper—twice covered the family’s efforts to keep their home. Huffington Post covered it, too.  

But Wedgewood moved forward with the eviction. The night the family was evicted, together with ACCE, they picketed outside Wedgewood CEO Greg Geiser’s $3M Manhattan Beach house. About thirty people attended. They sang songs, gave speeches, and chanted. The whole thing lasted an hour. Police observed and didn’t even issue a warning or a single instruction to the protesters.

Two days later, CEO Geiser sued the family and ACCE’s Los Angeles director Peter Kuhns, asking the court prevent the family and ACCE from protesting outside his office or home. Geiser was, of course, represented by a big Century City law firm.

Geiser also wrote to the dean of Occidental College, trying to get the author of the Huffington Post piece fired or reprimanded, in an effort to intimidate him into taking the piece down. Thankfully neither the college nor author was intimidated.

After my office filed anti-SLAPP motions asking the court to dismiss the lawsuit for being retribution over protected First Amendment activity, Geiser said he wanted to talk settlement. He said he would sell the house back to the family for something they can afford. But in exchange, the family, the organizer, and ACCE would have to agree to never disparage him or his company. Not just in relation to this dispute, but ever, over anything. Essentially, Geiser sought to insulate himself and his company from any criticism by one of the state’s largest housing rights organizations and held the family’s home hostage in the process.

The family balked and Geiser away from settlement, dismissed the suit in a fit of spite, and before serving the dismissals, Wedgewood issued a press release about the dispute and the settlement breakdown to get in front of the story in the media.

A spokesman for Wedgewood also published this hit piece on ACCE and the family in the alt-right Breitbart News, trying to tie them to voter fraud, tax increases, “the early release of criminals,” and (the irony!) “millionaires and hedge-fund managers.”

Despite the media attention and dozens of people participating in the protest, the court denied the anti-SLAPP motions saying there was no connection to an issue of public interest. According to the court, all the media attention and other protesters focused on a “purely private” dispute.

After the Court of Appeals affirmed in a 2-1 decision, the California Supreme Court directed the lower court to reconsider the result. The Court of Appeals reissued essentially the same opinion, again splitting 2-1.

We are now asking the Supreme Court to hear this case and uphold the robust protections that the anti-SLAPP statute should provide. Today the diverse coalition of advocacy groups joined that request.

As the coalition states that this case “is a textbook example of a ‘SLAPP’ case, wherein a housing speculator sued a pair of homeowners and a grassroots activist for engaging in public protest of plaintiff’s foreclosure and eviction practices.” And they note the dangers that the lower court’s ruling presents to media who cover protests: “If speech about an issue can be correctly dismissed as purely personal based on a court’s assessment of the motivations of the speaker and evaluation of whether the content ‘address[es] any societal issues,’ then narrative coverage of protests like the ones at issue here might well also not be covered by the protections of the anti-SLAPP statute. Like activists, press are trained to adhere to basic storytelling and persuasive-speech principles, first among them ‘show, don’t tell’: the principle that one must illustrate the general with the particular. It is not clear why a sympathetic blog posting, describing these protests without drawing out obvious connections to the ‘societal issues of residential displacement, gentrification, or the root causes of the great recession, would not now fall outside the protection of the anti-SLAPP statute. That cannot be the outcome the legislature intended.”

Class Action Filed on Behalf of Black Lives Matter Los Angeles and Others Over LAPD Mass Arrests and Brutality

Today, my office, along with a whole bunch of lawyers from the National Lawyers Guild Los Angeles chapter, filed a class action lawsuit over the LAPD’s mass arrests and excessive force tactics used against protesters participating in the recent demonstrations related to the police killings of Black Americans. Black Lives Matter Los Angeles is the lead plaintiff. We expect the class to consist of thousands of demonstrators. The complaint is available here.

Another Win In the Fight Against Ag Gag Laws

A small (and maybe technical) victory in the fight against Ag Gag laws today. In the fight against Kansas’ Ag Gag law, we sued on behalf of four plaintiffs: the Animal Legal Defense Fund, the Center for Food Safety, and Kansas-based Shy 38 and Hope Sanctuary. In January, the federal court declared that law is unconstitutional—but didn’t issue an injunction preventing the state from enforcing it.

So we asked the court to issue one. In response, Kansas argued that the law was only unconstitutional as applied to the four plaintiffs, meaning the state believed it could still enforce the law against any other organization that conducted an undercover investigation in Kansas. And it turned into much more of a fight than it should have.

Thankfully, the court agreed with us, and today enjoined enforcement of the Kansas Ag Gag law on its face, against anyone. Undercover investigations of factory farms in Kansas are protected, no matter who conducts them.

Advocates Sue LAPD Officer Who Suffocated 63-Year-Old African American Man Strapped to Hospital Gurney

Today, my office, along with Dan Stormer and Brian Olney at civil rights powerhouse firm Hadsell Stormer Renick & Dai, filed a lawsuit for Michael Moore, a 63-year-old Black man who was suffocated by an LAPD officer while strapped to a hospital gurney. The officer didn’t realize another officer captured it all on his bodycamera. The officers charged Moore with multiple felonies, all of which he beat at trial.

Our press release and the video of the incident are below. Our complaint is here:

Today, lawyers from the Civil Rights law firms Hadsell Stormer Renick & Dai and the Law Office of Matthew Strugar sued the Los Angeles Police Department and its officers for arresting, beating, and suffocating Michael Moore, a 63-year-old legally blind African American man.

Los Angeles Police Department officers tackled, beat, and arrested Mr. Moore in the doorway of his home in South Los Angeles. The officers then transported Mr. Moore to California Hospital Medical Center in downtown Los Angeles. While Mr. Moore lay strapped to a hospital gurney with his arms and legs immobilized and surrounded by half a dozen hospital security guards and multiple LAPD officers, LAPD Officer Choi pulled a towel over Mr. Moore’s face and cupped his hands over Mr. Moore’s mouth and nose, blocking Mr. Moore’s airway. Mr. Moore cried out, “I can’t breathe! I can’t breathe!! I can’t breathe!!!” Ignoring Mr. Moore’s frantic pleas, Officer Choi continued suffocating Mr. Moore, covering Mr. Moore’s face for a full minute even after Mr. Moore lost consciousness. Another officer’s body-worn camera recorded the shocking incident.

The LAPD officers had responded to Mr. Moore’s apartment that day after a house guest assaulted him. Moore tried to refuse their assistance, but the officers, who knew that Mr. Moore is blind, crept up to his apartment without announcing their presence, tackled him to the ground, slammed his head against the floor, and beat him.

Mr. Moore was charged with assaulting the paramedics and a police officer and with resisting arrest. Unable to afford bail and unwilling to plead guilty to crimes he did not commit, Mr. Moore spent 139 days in jail awaiting trial. A jury acquitted him of all charges. He remains deeply traumatized by the incident.

Since regaining his freedom, Mr. Moore has worked with a community organization he founded before his arrest to organize neighborhood cleanups and provide job opportunities for at-risk adults. Mr. Moore named his organization Katie Moore Neighborhood Development after his mother, who is in her 90s.

Attorney Brian Olney stated, “Police officers are sworn to serve and protect, not torture and abuse. The officers’ own video plainly shows an LAPD officer suffocating Mr. Moore while he lies immobilized on a hospital gurney. This conduct is sickening and outrageous.”

Attorney Matthew Strugar said, “Five years after ‘I can’t breathe’ ignited a national uprising against police violence, these officers were filmed nearly suffocating another Black man desperately yelling those very same words. Mr. Moore suffered immensely—and might very well have died—at the hands of these officers. The only way to prevent police violence in the future is to impose severe penalties for such violence in the past. The LAPD must be held accountable.”

The lawsuit was filed in the United States District Court for the Central District of California.