Must be 21

By John R. Byrne

Erotic dancers in Jacksonville now need to be of drinking age. The Eleventh Circuit upheld a city ordinance prohibiting erotic dancers under the age of 21 from performing at adult-entertainment establishments.  What’s interesting is that the Eleventh Circuit openly acknowledged that adult entertainment ordinances are effectively graded on a government-friendly curve. Specifically, "although these ordinances are not strictly content-neutral, they are simply treated as such.” So, instead of applying “strict scrutiny” to the ordinance—which would usually kill it—the courts apply the more government-friendly intermediate scrutiny. The reason for this seemingly unprincipled approach is rooted in the so-called “secondary effects” doctrine—the notion that the government really isn’t trying to target a particular kind of speech but, rather, the undesirable effects that flow from that speech (in the case of under 21-year-old erotic dancers, human trafficking).

 

Still, Judge Newsom, who penned the opinion for the majority, also wrote a concurrence, expressing doubt over the “continuing vitality of the secondary effects doctrine.” He wrote: "The problem, as I see it, is that the government’s subjective motivation for imposing a speech restriction—whether virtuous, wicked, or somewhere in between—has nothing to do with the threshold question whether the restriction is, objectively, content- based or content-neutral. That’s a determination to be made on the face of the restriction, not on the government’s underlying purpose or intent."

Probably didn’t help the appellants’ cause that one of the establishments challenging the ordinance goes by “Wacko’s Too”….

 

Opinion below.Wacko's Too Inc. by John Byrne on Scribd

Some Markus news

My dad Stuart Markus was a lawyer in Miami for over 50 years.  He was an amazing lawyer and a better person.  He absolutely loved the law, but more than the law -- he loved people and fighting for the underdog.  When he passed away, we started the "Markus award" at the University of Miami (where he graduated in 1957), for a clinical student who fought for the underdog.  This year, that award went to Julia Steiner, a graduating 3L in the Children and Youth Law Clinic.  
 
Julia has demonstrated exceptional legal skills, diligence, and sound judgment, achieving remarkable outcomes for her clients. Julia's advocacy was powerfully exemplified in a case where she secured a more appropriate home placement for a vulnerable client, a former foster youth who had endured years of instability in the foster care system. The client, who had been subjected to multiple placements, therapeutic foster homes, and psychiatric hospitalizations, was placed at the age of 17 in a home licensed by the Agency for Persons with Disabilities (APD). This facility, intended for adults with severe disabilities, was profoundly unsuitable for the client’s developmental needs, worsening her distress and contributing to frequent Baker Act incidents as a means of escape.
 
While Julie worked alongside her clinic partner, she was the driving force behind this case, navigating a complex web of legal and administrative challenges. The situation was made more difficult by the shifting of blame between two government agencies, and the separation of powers principles that limit the Court’s ability to specify particular placements.
 
Nevertheless, Julia persisted, bringing clarity and resolution to a case that once seemed intractable. She and her partner secured key testimony and a court order declaring the placement inappropriate. When the child welfare agency deflected responsibility to APD, Julia authored a persuasive motion arguing the placement was harming, not helping, her client. She also navigated APD’s administrative system, prompting the Court to involve the agency. When APD proposed restrictive placements outside Miami, Julia effectively argued for her client to stay close to school, support systems, and a vital guardianship program.
 
Julia built a strong, trusting relationship with her client and never stopped advocating. Her skill, persistence, and compassion led to a life-changing result: a more stable, supportive placement as her client enters adulthood. Beyond the Clinic, Julia enriches classroom discussions and recently co-authored a legal article on public nuisance claims in the opioid crisis with adjunct Professor Frank Citera. 

Congrats to Julia -- my dad would be very proud!

In other Markus news, and something else my dad would have been telling all his friends about -- I made an appearance on David Lat's podcast last week.  You can listen to it here.

The judiciary strikes back

 1.  A few weeks ago Gov. DeSantis lashed out at Judge Kathy Williams for her TRO, enjoining the enforcement of a state statute that seemed to encroach on things that were exclusively in fed land.  Yesterday there was a hearing, and it appears that police officers were not told to abide by the TRO.  Judge Williams was.... not happy:

At the court hearing Friday, Williams said she was “astounded” by the state’s arguments and said it was “concerning” to learn that state law enforcement agencies, like FHP, do not work “in concert with state officials.” “When I issued the temporary restraining order, it never occurred to me that police officers would not be bound by it,” Williams said. “It never occurred to me that the state attorneys would not give direction to law enforcement so that we would not have these unfortunate arrests.” Williams expressed her dismay at the state’s actions after a group of lawyers suing the state disclosed that at least 15 people were arrested across Florida after the judge had imposed a halt on enforcing the immigration law.

The state is now complying:

Following the court hearing, Uthmeier told the Florida Department of Law Enforcement, the Florida Highway Patrol, the Florida Sheriffs and Florida Police Chiefs to “please instruct your officers and agents to comply with Judge Williams’ directives.” The arrest of the U.S. citizen was made by FHP. While he told law enforcement agencies to follow the court’s order, Uthmeier also made clear that he disagreed with the “scope” of the order. “I must note my disagreement with this order,” Uthmeier wrote in an email obtained by the Herald/Times. “For reasons my office has argued and will further outline in court, this clarification of Judge Williams’ prior order is both wrong on the merits and overbroad in its scope.”

2.  By now, I'm sure you've seen the 4th Circuit Order by Judge Wilkinson.  You should read the whole thing, which starts like this:

Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision. 

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.  

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.  

BREAKING -- Finalists for Magistrate Judge

Rossana Arteaga Gomez 

Yeney Hernandez

Jonathan Stratton

Stepanie Turk

Detra Shaw Wilder

"New US Justice Department policy cracks down on social media posts"

 That's the headline for this Reuters article about a new DOJ policy.  From the article:

The directive, which was emailed to U.S. Attorneys' offices late on Monday, appears to prohibit the types of social media posts that Trump's political appointees routinely make on their official government accounts.

The change was made by Deputy Attorney General Todd Blanche, who has become frustrated by some of the rhetoric being posted by political appointees, according to one person familiar with the matter.

A Justice Department spokesperson declined to comment.

While the department has always placed restrictions on social media use by employees, such as prohibiting them from discussing non-public investigations or making politically-charged statements that could damage the department's impartiality, the new policy is much broader.

It restricts employees from including their department titles on any social media activity or reposting official government information such as press releases.

Here's the directive in the U.S. Attorney's manual.
But don't worry DOJ lawyers and prosecutors -- I will never rat you out for commenting on the blog or tipping me off to news.  Please keep sending me tips and comments!

Judge Charles Wilson's portrait hanging

On Friday, CA11 Judge Wilson had his portrait hanging ceremony at Jesuit High School in Tampa (his alma mater).  Many of his clerks and the Tampa legal community were in attendance.  Here are some pictures from the event, thanks to a former law clerk who was in attendance.  Thank you for sending them!

Congrats to Judge Robin L. Rosenberg

She was named director of the Federal Judicial Center.  From the Supreme Court website:

Chief Justice John G. Roberts, Jr., announced today that the Board of the Federal Judicial Center has selected United States District Judge Robin L. Rosenberg to be the twelfth director of the Federal Judicial Center.

Chief Justice Roberts, who chairs the nine-member Board of the Center, stated, “The Board selected Judge Rosenberg from a number of outstanding candidates. Judge Rosenberg is an experienced judge with a deep interest in education and research and a demonstrated commitment to the Center’s mission. The Board is confident that Judge Rosenberg will be a worthy successor to John Cooke, whom I thank for his seven years of dedicated service as the Center’s director.”

Upon being notified of her selection, Judge Rosenberg said, “I am honored to be selected and grateful for the opportunity to serve the Center and the judiciary in this new role. I strongly believe in the Center’s initiatives and its staff and will work tirelessly to support both as the director.” She plans to assume her new duties in August.

Pretty cool!  

It's unclear whether this will open up a spot in our District or not.  I've heard conflicting views.  We shall see. 

Guest Post By Sydney Stark and Adam Stolz – United States v. Delligatti (2025)

Delligatti And The Cost of Doing Nothing:  Why Failing to Act Means Using Physical Force Under 18 U.S.C. § 924(c), by Sydney Stark

First, thank you to David Oscar Markus and John R. Byrne for allowing me to submit this guest post. This post will cover the Supreme Court’s recent opinion in United States v. Delligatti, which was the subject of the 2025 Gibbons National Criminal Procedure Moot Court Competition, where my partner, Itiel Wainer, and I represented the University of Miami School of Law. I would also like to thank our devoted coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition and beyond.

    Sometimes the most violent crimes arise from refusing to act at all. The Supreme Court’s recent decision in United States v. Delligatti held as much, concluding those crimes that can be committed by omission qualify as “crimes of violence” under 18 U.S.C. § 924(c). In other words, doing nothing is still using physical force under certain circumstances as far as § 924(c) is concerned.  

    Delligatti is the Court’s latest decision in a saga of cases interpreting § 924(c), which imposes a mandatory sentence to be consecutively served by an individual found to use or carry a firearm during or in relation to a crime of violence (or drug-trafficking offense). Per the statute, an offense qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A). The next layer, whether a given crime carries such an element, has been the bane of many jurists in recent years. That’s in large part due to the controversial “categorical approach” federal courts are constrained to apply to determine whether an offense qualifies as a crime of violence. Under that framework, courts must focus solely on whether the statutory elements of the crime entail the use, attempted use, or threatened use of physical force rather than whether the defendant’s actual conduct involved such physical force. If an offense can conceivably be committed in a hypothetical scenario without the “use, attempted use, or threatened use of physical force,” it does not qualify as a crime of violence subject to § 924(c). The issue presented in Delligatti was whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

    The facts in Delligatti are reminiscent of a classic mobster movie. But all we need for this blog post is the following storyline: Salvatore Delligatti, an associate of the notorious Genovese crime family, was convicted in federal court of attempted murder under the Violent Crimes in Aid of Racketeering (VICAR) statute. By virtue of the VICAR statute, his conviction rested on New York’s second-degree murder law, which is committed when one intentionally causes the death of another person. N.Y. Penal Law Ann. § 125.25(1). Because New York permits criminal liability through either a voluntary act or an omission, Delligatti argued that second-degree murder does not necessarily (i.e., categorically) involve the “use of physical force” and therefore falls outside § 924(c)’s definition of a crime of violence. After all, how could doing nothing amount to the act of using physical force? On the other hand, how could attempted murder not be legally categorized as a crime of violence? The Court took up this logical labyrinth and issued a decision last month on March 21, 2025. 

    The Supreme Court disagreed with Delligatti. In a 7-2 decision penned by Justice Thomas, the Court held that “the knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the ‘use’ of ‘physical force’ against another person within the meaning of § 924(c)(3)(A).” Relying on United States v. Castleman, 572 U.S. 157, the Court reaffirmed that intentionally causing bodily injury always involves the use of physical force, even when accomplished by omission. Because the predicate offense (NY’s second-degree murder statute) requires an intent to cause death, the Court concluded it necessarily has “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 

    Clarifying the scope of a crime of violence, the opinion explained how an omission can nevertheless qualify as using physical force. A defendant who has a legal duty to act but deliberately fails to do so with the intent to cause bodily injury or death still “uses” “physical force” “against the person or property of another” under the law. First, “physical force” encompasses any force that causes injury or death, whether applied directly or indirectly. Second, a person “uses” physical force when they deliberately make the force their “instrument” to cause harm. Finally, “against the person or property of another” requires only that another person be the “conscious object” of the force.

    To illustrate, the Court provided a chilling, extreme example: “a mother who purposefully kills her child by declining to intervene when the child finds bleach and starts drinking it makes ‘use’ of the bleach’s poisonous properties to accomplish her unlawful end.” In other words, inaction can be just as deliberate and violent as an affirmative act. 

    Not all justices were on board. The dissent, written by Justice Gorsuch and joined by Justice Jackson, accused the majority of stretching the ordinary meaning of “use of force.” It painted a stark picture: if a lifeguard intentionally lets a swimmer drown, the inaction may be morally reprehensible and even criminal—but has lifeguard has actually “used” physical force? The dissent said no. 

    The Court’s ruling in Delligatti reinforces that a “crime of violence” under federal law is not limited to overt acts—deliberate inaction with intent to harm qualifies as well. Whether through an affirmative act or omission, those who intend to cause bodily injury or death fall within the statute’s reach.