Lawyer can be sanctioned for frivolous challenge to bail reform, 10th Circuit rules

Legal Ethics

Gavel and bail money

Image from AVN Photo Lab/

Updated: A federal appeals court has agreed to toss a challenge to New Mexico bail reform rules that discourage the use of money bail.

The 10th U.S. Circuit Court of Appeals at Denver upheld dismissal of the suit as well as a sanction of nearly $15,000 against the lawyer for the plaintiffs. Courthouse News Service covered the Feb. 25 decision.

Previously, judges had relied on a set schedule to set bail that was based on the severity of the charged offense. The New Mexico Supreme Court struck down that system in 2014.

Voters ratified a constitutional amendment in November 2016 that said individuals who are not dangerous or a flight risk should not be detained before trial solely because they are financially unable to post bond.

Implementing rules by the New Mexico Supreme Court said defendants eligible for pretrial release should be freed on personal recognizance or on an unsecured appearance bond—unless the court makes findings why those conditions won’t reasonably ensure the defendant’s appearance.

The plaintiffs had challenged the rules and a risk assessment tool adopted by two courts to assess the likelihood that a defendant will fail to appear in court or will commit new crimes while on release. The risk assessment test is known as the Arnold Tool.

The plaintiffs contended that the new rules and the Arnold Tool violated the excessive bail clause of the Eighth Amendment by taking secured bonds off the table as an option. They also alleged a due process violation on the ground that nonexcessive money bail is fundamental to the nation’s scheme of ordered liberty.

The plaintiffs included the Bail Bond Association of New Mexico, five New Mexico state legislators and a woman who was denied cash bail before her arraignment.

The lawsuit defendants included the New Mexico Supreme Court and the courts that adopted the Arnold Tool, as well as New Mexico Supreme Court justices and the chief judges of the courts using the Arnold Tool.

The trial court dismissed the suit and granted sanctions because there was no reasonable basis to think the defendants’ immunity could be overcome and no reasonable basis to think the bail group and legislators had standing. The trial judge required plaintiffs lawyer A. Blair Dunn to pay a $14,868 sanction.

The sanction was imposed under Rule 11 of the Federal Rules of Civil Procedure, which requires pleadings to be justified by existing law or by a nonfrivolous argument to extend, reverse or modify the law.

The 10th Circuit affirmed in an opinion by Circuit Judge Mary Beck Briscoe. The plaintiffs’ standing arguments “ignored controlling precedent,” and their immunity arguments “suffer from similar infirmities,” the court said.

“To bring it all together,” Briscoe wrote, the woman denied cash bail “is the only plaintiff with standing, but defendants are immune to her claims, so we do not address the merits of [the plaintiff’s] claims that the 2017 rules and the Arnold Tool violate the Eighth and 14th amendments.”

Dunn told the ABA Journal that he is considering a request for a rehearing by the 10th Circuit panel or by the en banc court. If that fails, he expects to ask the U.S. Supreme Court to hear the case, although the cert petition could be limited to the Rule 11 issues.

Rule 11 requires only that you have a plausible basis for your arguments, not that your arguments must be correct, he said. He and his co-counsel made good faith arguments on standing and would have made more extensive arguments on judicial immunity if they had received permission to lift page and word limits, he told the ABA Journal.

There is some case law holding there is no judicial immunity in a case such as this because the courts were not performing a judicial function, he said.

In Dunn’s view, judges are “openly upset” about being sued, and that sentiment seems to come through in the opinion.

He also questions why he was sanctioned but his three co-counsel weren’t. “There’s really no discerning why I got singled out,” he said.

He acknowledges doing media interviews after the suit was filed and also writing a letter to a legislative committee explaining why the suit was filed. But the court didn’t cite either of those differences in sanctioning only him, Dunn said.

There are some “big holes” in the Rule 11 portion of the opinion, he said.

Updated at 1:40 p.m. to include comment from Dunn.

See also:

ABA Journal: “Bail industry battles reforms that threaten its livelihood”

ABA Journal: “Kentucky tests new assessment tool to determine whether to keep defendants behind bars”

ABA Journal: “Court systems rethink the use of financial bail, which some say penalizes the poor”

ABA Journal: “Risk-assessment algorithms challenged in bail, sentencing and parole decisions” “ABA weighs in on California Supreme Court case affecting state’s new bail reform law”

ABA Journal: “Boosting Bail Reform: ABA urges Congress to limit use of cash bail”

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Judge asked for ladder to climb Statue of Liberty and was denied request for safety concerns


A federal magistrate judge who wants a firsthand look at a Statue of Liberty protest site will likely have to stay on the observation deck.

U.S. Magistrate Judge Gabriel Gorenstein of the Southern District of New York had asked whether he could be provided with a site visit and a ladder so he could “better appreciate the risks and hazards” of the protester’s conduct, report ABC News, NBC News and the New York Law Journal.

The protester, Therese Patricia Okoumou, had climbed the base of the Statue of Liberty on July 4 of last year to protest President Donald Trump’s family separation policies. Gorenstein will sentence Okoumou on March 19 for her conviction on trespassing and other misdemeanor charges. She faces up to 18 months in prison, according to the New York Law Journal.

In his Feb. 20 order, Gorenstein said he would like the National Park Service to investigate the feasibility of his request and to provide the ladder if it is “deemed possible and safe.”

Gorenstein asked for accommodation for others to make the site visit, including two defense lawyers, Okoumou, possibly law clerks and a court reporter.

Prosecutors replied in a partially redacted Feb. 22 letter. The U.S. Park Police discussed the ladder idea internally and determined “it is not possible to set up a ladder in such a way as to ensure the court’s safety,” the letter said.

The Park Police instead recommended a visit to an observation deck outside visiting hours.

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Federal judge refuses to block regulatory ban on bump stocks, used to accelerate gunfire

Constitutional Law

A regulation that bans bump stocks can take effect on March 26, a federal judge ruled Monday.

U.S. District Judge Dabney Friedrich of Washington, D.C., refused to grant a preliminary injunction to block the regulation, report the Washington Post, Reuters and USA Today.

Bump stocks, used to accelerate gunfire on semi-automatic weapons, were used in the deadly 2017 Las Vegas mass shooting that left 58 people dead. The new regulation defines a bump stock as a machine gun, a weapon that is banned under the Firearms Owners’ Protection Act of 1986.

The regulation requires people who own bump stocks to destroy them or turn them in to federal agents. The new rule was issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Friedrich ruled in consolidated lawsuits, Guedes v. ATF and Codrea v. Barr. One of the plaintiffs is the Firearms Policy Coalition, which announced in a press release that its attorneys have filed notice of appeal. A separate suit is pending in Michigan.

The plaintiffs challenging the ban had claimed violations of the Administrative Procedure Act and the Fifth Amendment’s takings clause. Their suit also claimed that Acting Attorney General Matthew Whitaker had no authority to promulgate the rule because his appointment violated the appointments clause and an attorney general succession statute.

Friedrich said most of the administrative law challenges are foreclosed by the Chevron doctrine that permits an agency to reasonably define undefined statutory terms.

As for the takings clause challenge, the plaintiffs weren’t able to show that injunctive relief rather than future compensation is appropriate, Friedrich said.

She also said the statutory scheme allows the president to select one of two statutes governing succession of Senate-confirmed officials. One is the Federal Vacancies Reform Act, which allowed for the appointment of Whitaker.

She also rejected an argument that Whitaker’s appointment violated the appointments clause, which generally requires “principal officers” of the United States who report directly to the president be appointed with the advice and consent of the Senate.

The Supreme Court has repeatedly embraced the government’s view that the temporary nature of acting duties allows individuals to perform them without becoming a principal officer, Friedrich said.

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One twin born to same-sex parents was declared a citizen, the other was not; judge disagrees

Immigration Law

A twin son born abroad to two married men—one a U.S. citizen and the other Israeli—is a U.S. citizen even though he was conceived with the sperm of the Israeli parent, a federal judge has ruled.

U.S. District Judge John Walter of Los Angeles said the child, Ethan, was a U.S. citizen at his birth in September 2016, just like his twin brother, Aiden, who was conceived with the sperm of the U.S. parent. The Washington Post, the Associated Press and the New York Times covered the Feb. 21 decision.

The boys’ parents had sought a “Consular Report of Birth Abroad” and a passport for the boys in January 2017 when they were living in Canada. The parents had used an anonymous egg donor and surrogate to conceive.

The State Department granted the certificate and a passport to Aiden, conceived by the U.S. parent, and a tourist visa to Ethan, conceived by the Israeli parent. Ethan was denied the certificate and passport.

Walter said a child born during a parents’ marriage does not have to demonstrate a biological relationship with both parents under the Immigration and Nationality Act. Because he ruled for Ethan and his parents, Walter said, there was no need to reach the plaintiffs’ argument that the State Department’s interpretation of the INA violated the due process clause of the Fifth Amendment.

Immigration Equality and Sullivan & Cromwell had filed the suit on behalf of the family. Aaron Morris, executive director of Immigration Equality, was co-counsel.

“While this ruling did not explicitly strike down the State Department’s policy, it is a strong indication that the department should do so on its own,” Morris said in a press release. “We will continue to fight until all same-sex couples have their relationships fully recognized.”

The State Department said in a statement Friday that it is reviewing the decision.

The case is Dvash-Banks v. Pompeo.

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As deepfakes make it harder to discern truth, lawyers can be gatekeepers


Jason Tashea

Jason Tashea. Photo by Saverio Truglia.

“We’re entering an era in which our enemies can make it look like anyone is saying anything at any point in time, even if they would never say those things,” former President Barack Obama announced in a video PSA for BuzzFeed News last year.

Calling attention to deepfakes, a technology that uses AI to manipulate images, Obama went on to reference Black Panther and said U.S. Secretary of Housing and Urban Development Ben Carson “is in the Sunken Place,” an allusion to the movie Get Out.

After Obama insulted President Donald Trump, a viewer would be excused thinking that the ex-president was relaxed in retirement and watching a lot of Netflix.

“Now, I would never say these things—at least not in a public address—but someone else would, someone like Jordan Peele,” he continued, noting the actor-director known for his Obama impersonation.

The video, now in split screen, shows Obama and Peele, where it becomes apparent that Peele has been been the one talking all along, putting words in the Obama’s mouth thanks to deepfake technology.

“Moving forward we need to be more vigilant about what we trust from the internet,” said both men in unison. “It may sound basic, but how we move forward in the Age of Information is going to be the difference between whether we survive or whether we become some f—-ed up dystopia.”

Levity aside, the warning from Obama-Peele is serious. Deepfakes, also called “AI synthesized fakes,” are rapidly evolving and proliferating. While many websites banned the use of the technology, new forensic tools are being developed to root out fakes. Meanwhile, lawmakers are pushing for new regulations while many lawyers argue that the law is already able to manage the illegal use of the emerging technology.

At its core, a deepfake is what happens when neural networks, a type of AI, are merged with image, video or audio manipulation. Think of it as Photoshop on steroids.

In its most common usage, the technology allows a person’s face to be superimposed onto an other’s. This has received the most attention in the form of adult videos featuring celebrities’ or average people’s faces transposed with the actors in the scene.

And it’s not just used on faces. Emma Gonzalez, a survivor of the 2018 Parkland shooting in Florida, was featured in a video for Teen Vogue where she ripped up an image of a gun range target. Within short order, the bull’s-eye was replaced with a copy of the Constitution and quickly made its rounds on social media in an attempt to discredit the gun control advocate.

Receiving less attention, the same technology can be used to create fingerprints to weaken biometric security features, according to recent research from New York University and Michigan State University.

Collectively, this technology could continue to erode people’s trust in information.

“I think the deepfakes issue goes to what is truth and what is fact in a post-truth and post-fact world,” says Damien Riehl, vice president at Stroz Friedberg in Minneapolis.

While the technology is novel and the specter of fake information is ever-present, this problem is not entirely new, explains Sam Gregory, program director at Witness, a nonprofit that teaches human rights advocates to use video.

Using the term “shallow fake,” Gregory says he has seen people relabel the same video of a public lynching, for example, to be shared in locations as diverse as the Republic of Georgia, Myanmar and South Sudan, all with an intent to incite local violence.

To root out fakes, his organization relies on traditional vetting, like comparing the video to location, sun and weather records, and modern approaches, like analyzing the file’s metadata, to verify a photo or video.

As deepfake tools evolve, however, there is a concern that fakes will be more numerous and harder to spot.

“The quality of many deepfake generated videos makes it relatively easy to detect a manipulation without requiring an extensive forensic investigation,” explains Matt Turek, a program manager at the U.S. Defense Advanced Research Projects Agency (DARPA), over email. As the technology progresses, however, “detecting the manipulations will require more sophisticated technologies and forensic techniques.”

As part of a four-year project called the Media Forensics program, DARPA is developing these very tools to automate the assessment of media en masse. The end goal is to easily point out inconsistencies at the pixel level and incongruities with the laws of physics, and compare videos with external information.

As emerging technologies continue to create gray areas and confound judges and lawyers, U.S. law may actually be ready for legal conflicts arising from deepfakes.

“I think, generally, that certain uses of deepfakes are going to be actionable under existing law,” says David Greene, the civil liberties director at the Electronic Frontier Foundation. He added in a blog post on EFF’s website and in conversation with the Journal that misappropriation of someone’s likeness through a deepfake could be actionable under civil extortion and defamation law, similar to traditional photo-manipulation. Criminal fraud and harassment statutes are also potential tools.

Even so, state and federal lawmakers want to create new sanctions.

During the previous session of Congress, a bill was introduced in the Senate to criminalize the malicious creation and dissemination of deepfakes; however, the Senate did not act on it before the end of the session. According to Axios, Sen. Ben Sasse of Nebraska, the bill’s sponsor, plans to reintroduce the legislation. Meanwhile, in New York, a state lawmaker has put forward a bill to regulate a “digital replica” of a person through a new right to privacy, which has received push back from First Amendment and media advocates.

At the practice level, Tara Vassefi, legal officer at TruePic, a digital forensics company, told the Journal that deepfakes will likely increase the cost of litigation because new forensic techniques and expert witnesses aren’t cheap.

However, she believes that recent changes to the Federal Rules of Evidence (FRE) might inadvertently help lawyers manage this moment.

In a blog post, Vassefi argued that amended FRE 902, which covers self-authenticating evidence, “speeds up the process and lowers the cost of using digital evidence”—including video.

While she says amended FRE 902-13 and 902-14 were not intended for deepfakes, she reasons these rules, which apply to electronic information broadly, can control costs while keeping out manipulated photos from legal proceedings with the use of certified forensic technologies.

“However, to date, lawyers are either unaware or not taking advantage of these amendments and only a handful of cases have drawn on the new rules,” she writes.

While there is a need to further educate lawyers and policymakers as technologists continue to grapple with this technology, attorneys may see a familiar role for themselves in battling deepfakes, according to Riehl at Stroz Friedberg.

“[Lawyers] have a particularly important role to help our fellow citizens—to help everybody—distinguish truth from fakery,” he says. “So, this is just another thing we will have to be diligent on as a duty to our profession.”

Jason Tashea is the author of the Law Scribbler column and a legal affairs writer for the ABA Journal. Follow him on Twitter @LawScribbler.

Correction: The spelling of Damien Riehl’s last name was corrected in two places on Feb. 26.

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