Respondent James B. Beam Co.
Department of Revenue v. James B. Beam Distilling Co.
Respondent is a distributor of whisky produced in Scotland and shipped through United States ports directly to bonded warehouses in Kentucky. State law provided for a tax of ten cents per gallon on the importation of whisky into the State, which tax was collected while the Scotch whisky was in unbroken packages in the importer's possession. Respondent's claim for refund of the taxes on the basis of violation of the Export-Import Clause of the Constitution was upheld by the highest state court.
Held: A tax on the whisky, which retained its character as an import in the original package, was clearly proscribed by the Export-Import Clause, which was not, insofar as intoxicants are concerned, repealed by the Twenty-first Amendment. Pp. 377 U. S. 341 -346.
This case requires consideration of the relationship between the Export-Import Clause [ Footnote 1 ] and the Twenty-first Amendment [ Footnote 2 ] of the Constitution.
The respondent, a Kentucky producer of distilled spirits, is also the sole distributor in the United States of "Gilbey's Spey Royal" Scotch whisky. This whisky is produced in Scotland and is shipped via the ports of Chicago or New Orleans directly to the respondent's bonded warehouses in Kentucky. It is subsequently sold by the respondent to customers in domestic markets throughout the United States.
"No person shall ship or transport or cause to be shipped or transported into the state any distilled spirits from points without the state without first obtaining a permit from the department and paying a tax of ten cents on each proof gallon contained in the shipment."
"the tax was collected while the whisky remained in unbroken packages in the hands of the original importer and prior to resale or use by the importer."
constitutional issue which the case presents. 375 U.S. 811.
The Kentucky Court of Appeals held that the tax in question, although an occupational or license tax in form, is a tax on imports in fact. "[T]he incidence of the tax is the act of transporting or shipping the distilled spirits under consideration into this state." 367 S.W.2d at 270. The court further held that the tax cannot be characterized as an inspection measure in view of the fact that neither the statute nor the regulations implementing it provide for any actual inspection. Concluding, therefore, that the tax falls squarely within the interdiction of the Export-Import Clause, the court held that this provision of the Constitution has not been repealed, insofar as intoxicants are concerned, by the Twenty-first Amendment. [ Footnote 3 ] Accordingly, the court ruled that the respondent was entitled to a refund of the taxes it had paid. We agree with the Kentucky Court of Appeals, and affirm the judgment before us.
"the goods imported do not lose their character as imports . . . until they have passed from the control of the importer or been broken up by him from their original cases. Whilst retaining their character as imports, a tax upon them, in any shape, is within the constitutional prohibition."
Id. at 80 U. S. 34 . See Hooven & Allison Co. v. Evatt, 324 U. S. 652 .
"[t]his Court made clear in the early years following adoption of the Twenty-first Amendment that, by virtue of its provisions, a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders. [ Footnote 4 ]"
What is involved in the present case, however, is not the generalized authority given to Congress by the Commerce Clause, but a constitutional provision which flatly prohibits any State from imposing a tax upon imports from abroad.
"We have often indicated the difference in this respect between the local taxation of imports in the original package and the like taxation of goods either before or after their shipment in interstate commerce. In the one case, the immunity derives from the prohibition upon taxation of the imported merchandise itself. In the other, the immunity is only from such local regulation by taxation as interferes with the constitutional power of Congress to regulate the commerce, whether the taxed merchandise is in the original package or not."
Hooven & Allison Co. v. Evatt, 324 U. S. 652 , 324 U. S. 665 -666.
"[t]he plaintiffs insist that to sustain the exaction of the importer's license fee would involve a declaration that the amendment has, in respect to liquor, freed the states from all restrictions upon the police power to be found in other provisions of the Constitution. The question for decision requires no such generalization."
Id. at 299 U. S. 64 . In Gordon v. Texas, 355 U. S. 369 , the Court, in a brief per curiam, affirmed a Texas conviction for illegal possession of 11 bottles of rum which had been imported without a permit and to which the required Texas tax stamps were not affixed. The state tax in that case had been held to be not a tax on imports. [ Footnote 6 ] It is clear that the gravamen of the offense in Gordon was the failure to obtain, or even apply for, a permit as required by state law. Such permits, in addition to other functions, serve to channelize the traffic in liquor, and thus to prevent diversion of that traffic into unauthorized channels. In the present case, the respondent has both applied for and obtained the requisite permit. The relief it requests is not the abrogation of that requirement, but simply a refund of the import tax.
in its history leads to such an extraordinary conclusion. This Court has never intimated such a view, and, now that the claim for the first time is squarely presented, we expressly reject it.
We have no doubt that, under the Twenty-first Amendment, Kentucky could not only regulate, but could completely prohibit, the importation of some intoxicants, or of all intoxicants, destined for distribution, use, or consumption within its borders. There can surely be no doubt, either, of Kentucky's plenary power to regulate and control, by taxation or otherwise, the distribution, use, or consumption of intoxicants within her territory after they have been imported. All we decide today is that, because of the explicit and precise words of the Export-Import Clause of the Constitution, Kentucky may not lay this impost on these imports from abroad.
MR. JUSTICE BRENNAN took no part in the disposition of this case.
"No State shall, without the Consent of the Congress, lay and Imports or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress."
U.S.Const. Art. I, § 10, cl. 2.
U.S.Const. Amend. XXI, § 2.
As the Kentucky Court of Appeals noted, two other state courts have reached the same conclusion. Parrott & Co. v. San Francisco, 131 Cal.App.2d 332, 280 P.2d 881; State v. Board of Review, 15 Wis.2d 330, 112 N.W.2d 914.
See State Board v. Young's Market Co., 299 U. S. 59 ; Indianapolis Brewing Co. v. Liquor Comm'n, 305 U. S. 391 ; Finch & Co. v. McKittrick, 305 U. S. 395 .
See brief for appellees, No. 22, 1936 Term, pp. 24-25.
"It is apparent that the tax involved is not an import tax nor a tax upon an importation. In fact, the instant tax could not become an import tax because the importation must have been completed before the tax here levied attached."
Gordon v. Sate, 166 Tex.Cr.R. 24, 27, 310 S.W.2d 328, 330.
Prior to the Eighteenth Amendment, Congress passed the Webb-Kenyon Act and the Wilson Act, giving the States a large degree of autonomy in regulating the importation and distribution of intoxicants. Those laws are still in force. 27 U.S.C. §§ 121, 122. In De Bary & Co. v. Louisiana, 227 U. S. 108 , the Court upheld under the Wilson Act a Louisiana license tax imposed on the business of selling in their original packages wines and liquors imported from abroad. There is nothing in that decision, nor in the language of either the Wilson Act or the Webb-Kenyon Act, to support the view that Congress intended by those laws to consent to state taxation upon importation of liquor.
MR. JUSTICE BLACK, with whom MR. JUSTICE GOLDBERG joins, dissenting.
liquors, in violation of the laws thereof, is hereby prohibited."
"No State shall, without the Consent of the Congress, lay any Imports or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws. . . ."
As recently as 1958, this Court reviewed the Texas conviction of a man who had brought some bottles of rum into Texas from Mexico on his way to his home in North Carolina, and had refused to pay Texas alcoholic beverage taxes when asked to do so. Over objections that this tax violated both the Export-Import Clause and the Commerce Clause, this Court, in a three-line per curiam opinion, unanimously affirmed the conviction. Gordon v. Texas, 355 U. S. 369 (1958). Briefs filed by Texas in that case had argued that the tax was really one on "possession," not on "importation," but these labels cannot obscure the fact that, both in Gordon and in this case, the same conduct was involved: the physical importation of liquor from abroad into the State at which point the State's interest in regulating or taxing the liquor came into play. Gordon did not -- just as the Twenty-first Amendment does not -- draw nice distinctions about where imported liquor comes from. Nor is there one word in the debates in Congress preceding the adoption of the Amendment to suggest that the backers of the Amendment, in seeking to give the States full and unhampered power over liquor traffic, thought liquor coming from abroad was less of a problem than domestic liquor or should be treated at all differently.
"To sustain the tax which Kentucky has imposed in this case would require nothing short of squarely holding that the Twenty-first Amendment has completely repealed the Export-Import Clause so far as intoxicants are concerned."
Twenty-first Amendment does mean, I believe, is that, whenever liquor imported from anywhere outside the State, including foreign countries, is transported physically into a State, there to come to rest to be stored for sale and distribution, it then and there becomes a state problem, and, like all other liquors, is subject to state laws of all kinds. It cannot be treated as if it were liquor passing straight through the State -- although, even then, the State would have the power to impose regulations to prevent diversions or other possible evils. See Carter v. Virginia, 321 U. S. 131 (1944). Whatever may have been the virtue or the constitutional soundness of the fiction that articles imported from abroad are "imports" so long as they remain "in their original packages," see Hooven & Allison Co. v. Evatt, 324 U. S. 652 (1945), and dissent at 324 U. S. 686 -691, that doctrine was expressly attacked in the Senate debate on the Twenty-first Amendment as rendering the States "powerless to protect themselves against the importation of liquor into the States." * 76 Cong.Rec. 4171 (1933). The Amendment was meant to bury that obstacle to state power over liquor, and the doctrine of "original package," which the Senate consciously rejected, should not be revived after 30 years' interment, once again to be used to deprive States of power the Senate so clearly wanted them to have and the people so clearly granted them. Section 2 of the Amendment, born of long and bitter experiences in the field of liquor regulation, should not be frustrated by us.
I would uphold the Kentucky tax.
"The State of Iowa passed a prohibition law prohibiting the manufacture or sale of intoxicating liquors, except under certain specifications made. The Supreme Court, in the case of Leisy Hardin, (135 U.S. 100), held the law unconstitutional insofar as it applied to the sale by the importer in the original package or keg. . . ."
"The States therefore were powerless to protect themselves against the importation of liquor into the States."
76 Cong.Rec. 4171 (1933) (Senator Borah).


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Deadly force is not an option that police officers may use on a whim. It is governed by several layers of policy and precedent.
Several months ago, the Campbell Law Observer posted an article regarding the use of Tasers as a tool in the intermediate or “less-lethal” range of the use-of-force continuum. This article will further expand on the force continuum to explain the use of deadly force in North Carolina.
Each and every time a police officer uses any level of force, that force must be reasonable under the circumstances and the officer must be able to clearly articulate why they used it.
To defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.
What does this mean? Simply put, a police officer may use the level of force he or she believes is necessary to arrest a person whom that officer has reason to believe committed a criminal offense. If that person resists arrest, either passively (such as refusing to stand up and submit to arrest) or actively (such as fighting with the officer), subsection (d)(1)(a) allows that officer to use force to arrest that person.
Subsection (d)(1)(b) goes one step further and allows the officer to use force in anticipation of opposing physical force. In other words, the officer does not have to wait until the person actually begins to use physical force before that officer can respond or preempt with force. To be clear, N.C. Gen. Stat. § 15A-401(d) does not give an officer carte blanche to use force whenever and however they choose. Each and every time a police officer uses any level of force, it must be reasonable under the circumstances and the officer must be able to clearly articulate why they used it.
A police officer’s use of force is governed by the “use-of-force continuum”.
How does an officer know what level of force to use? A police officer’s use of force is governed by the “use-of-force continuum.” This continuum is generally established by an individual agency’s policies; however, the National Institute of Justice provides an excellent example. At the bottom or starting point of the continuum is mere officer presence. Here, the officer’s attitude and demeanor is professional and non-threatening. They are not holding any weapons nor are their hands on any weapons. This is considered the best way for an officer to resolve a situation as no force is used.
The next level is verbalization. This is more than a simple conversation or voluntary encounter as the officer is actually giving the individual commands. For example, officers use verbalization during a traffic stop when an officer asks a driver for their license and registration or is commanding someone to stop or not move. There is a level of force being used, but this force is not physical.
After verbalization is empty-hand control, which is the first level of physical force. There are two sub-levels of force within empty-hand control: “soft hands” and “hard hands”. Soft-hands include techniques such as grabs, holds, pressure points, and joint locks. These pain-compliance techniques are not designed to cause any lasting injury and are generally used on passively resisting individuals. Hard-hands include punches, kicks, and strikes. These techniques generally target specific areas of the body with high concentrations of nerve endings and are designed to stun or temporarily incapacitate an individual who is actively resisting an officer with physical resistance or force.
If empty-hand control is ineffective or impractical, officers may move to “less-lethal methods” or “intermediate weapons”. These include blunt impact weapons such as batons or bean-bag rounds, chemical weapons such as OC spray or CS gas, or conducted energy devices such as Tasers. Less-lethal methods of force are used on combative subjects who are either armed or whose actions pose a threat of serious injury to the officer or the individual themselves if the officer were to attempt a lesser degree of force.
[The use of deadly force] requires a reasonable belief of the use or imminent use of a deadly weapon, not absolute certainty.
To prevent the escape of a person from custody imposed upon him as a result of conviction for a felony.
The first provision of § 401(d)(2)(a) allows officers to use deadly force against a person that they reasonably believe is using or is about to use deadly force against them or another person. Typical scenarios include: a person about to shoot an officer or another person, an attempt to stab them, hit them in the head with a club or heavy object, or use a vehicle as a weapon. The scenarios are limitless.
It is important to understand that this statute requires a reasonable belief of the use or imminent use of a deadly weapon, not absolute certainty. This provision is what protects officers who have a reasonable belief that a suspect was reaching for a gun or a weapon. Further, this statute does not require an officer to wait until a suspect actually uses a weapon before the officer can respond with deadly force.
The best illustration of § 401(d)(2)(b) is an active-shooter scenario. This provision allows police to engage and eliminate the threat of an active shooter without having to observe the suspect in order to establish and justify a reasonable belief that the suspect posed a threat to the officer or a third party. If officers are authorized to use deadly force under § (d)(2)(b), then the requirements of § (d)(2)(a) must have already been met.
Lastly, § 401(d)(2)(c) allows prison guards to use deadly force to stop prisoners from fleeing. This provision allows armed guards to sit in the towers of prisons as well as carry shotguns when supervising inmate work crews. Should a convicted felon attempt to flee, a corrections officer is allowed to shoot them.
So what exactly is reasonable? The Supreme Court of the United States has provided some guidance through its “objectively reasonable” test established in Tennessee v. Garner and Graham v. Connor.
In Tennessee v. Garner, two Memphis police officers responded to a burglary call. Upon arrival, they saw Edward Garner, a teenager, running from the scene. When Garner stopped at the base of a 6-foot-high chain link fence, Officer Elton Hymon ordered Garner to stop. Garner failed to obey, and began to scale the fence. Hymon testified that he did not see a weapon in Garner’s hands. Yet as Garner began to climb the fence, Hymon testified that he fired a warning shot. Unfortunately, the shot hit Garner in the back of the head and he died shortly thereafter. Ten dollars and a purse stolen from the house were found near his body.
Prior to Garner, police in Tennessee were allowed to use deadly force against a fleeing suspect under the “fleeing felon doctrine”. Under this doctrine, police were required to weigh the danger of shooting a fleeing suspect, the severity of their crime, and the likelihood of immediate or future harm caused by the suspect if not immediately stopped. However, in the 1984 Garner decision, the Court held that Garner’s death under these circumstances was unreasonable and was a violation of his Fourth Amendment rights. It struck down the fleeing felon doctrine and ruled that police officers may not use deadly force to prevent the escape of a felon unless that person poses a significant threat of death or serious physical injury to the officer or a third party. In making this ruling, the Court tried to balance the government’s interests in providing effective policing against the infringement on a suspect’s rights.
The Court did not address how Garner would apply to any other uses of force until the 1989 decision of Graham v. Connor. In Connor, Petitioner Graham felt an insulin attack coming on and asked a friend to drive him to the store to get something with sugar. When they got to the store, there was a long line. Graham ran back out of the store and jumped into his friend’s car to go somewhere else. At that time, a Charlotte police officer observed Graham’s actions and thought they were suspicious. He followed the car, stopping it a short distance away. Graham’s friend tried to explain to Officer Connor what was happening and that his friend needed help. Connor told them to wait until he could check the convenience store to be sure everything was okay.
During this time, Graham got out of the car, ran around it twice, and sat down, briefly passing out. Connor, believing Graham to be under the influence of something, placed him in handcuffs. Graham and his friend’s repeated requests for medical assistance were ignored, and during this time Graham received a broken foot, cuts on his wrist, a bruise on his forehead, and an injured shoulder. When another friend brought Graham some orange juice, the officers refused to let him have it.
The Court held the actions of the Charlotte Police Department were unreasonable. The Court ruled that when a police officer uses force, the force used must be “objectively reasonable.” In other words, their actions must have been reasonable in light of the facts and circumstances in front of them, regardless of their underlying intent or motivation.
There are several factors which must be considered when deciding to use force, including whether the suspect poses an immediate threat to the officer or to the public, the severity of the suspect’s crime, whether they are actively resisting arrest, and whether they are a flight risk or trying to escape custody. The Court noted “reasonableness . . . is not capable of precise definition or mechanical application”. Thus, when reviewing the reasonableness of an officer’s use of force, courts will look at what an officer with similar training and experience could have done in the same situation, not what they would or should have done.
[T]here are things that can be done to ensure all parties in a police encounter remain safe.
The most common question after a police shooting is, “What can be done to prevent this from happening again?” Simply put, there is nothing that can be done to prevent any police officer from ever having to use deadly force again. As long as violent people exist, police officers will be needed to stop them. Sometimes, it will include taking the lives of those individuals. Nonetheless, there are things that can be done to ensure all parties in a police encounter remain safe.
The first is to remain calm. Nobody likes to be questioned by the police, and it can be a very embarrassing and uncomfortable experience. However, becoming aggressive or agitated is not going to help. It will make you more likely to say something you should not (and that can be used against you in court) and it will put the officer on guard. The best approach is to be as polite and courteous as possible, regardless of how the officer is acting or treating you. Many officers wear body cameras now, and the actions of all involved will be scrutinized later.
Keep your hands in plain sight. When a police officer interacts with an unknown individual, that officer does not know who the person is, what their intentions are, what their criminal history is, whether or not they are wanted, whether or not they are carrying weapons (legally or illegally), etc. Keeping hands in plain sight shows the officer you are not holding any weapons nor are you reaching for any weapons. If you are carrying a weapon (including knives), let the officer know as soon as possible, and let them remove it to a safe location until the encounter is over.
Carry identification with you and present it when requested. As previously mentioned, police officers will be on heightened alert until they know who you are and what your intentions are. While keeping your hands visible, let the officer know you are carrying identification and let them instruct you to retrieve it. This way, there is no mistaking whether you are suddenly reaching for your wallet or for a weapon.
Do not argue with the officer. Right or wrong, legal or illegal, you will not win an argument about the validity of the officer’s actions on the side of the road. This is a fight better fought in court. Further, should you continue arguing, you may be charged with resisting arrest and/or disorderly conduct.
Obey the officer’s instructions, whether or not you agree with or understand the reasons for them. Officers have valid reasons for giving the commands and instructions they give. While these reasons may not be clear to the person receiving the orders, this is not the time to demand an explanation. Police work is very dynamic in nature, and officers do not always have the time to explain themselves. If a person has genuine concerns about the officer’s instructions, such as a concern for their safety if they obey, these may be respectfully voiced. Otherwise, it is best to wait until after the situation is concluded before asking the officer for an explanation. Officers are generally not required to explain themselves, but most officers will at the appropriate time. Once again, a respectful demeanor is key.
Finally, do not, under any circumstances, resist the officer. Regardless of whether you feel you are being wrongfully searched, detained, or arrested, if you resist, the officer is legally authorized to use force (assuming the search, detention, or arrest is lawful, which will not be determined until after the situation is over). Submitting to arrest and then arguing its validity in court is the safest way to handle the encounter.


text:
This volume is dedicated to the memory of Yu. M. Lotman.
Tartu University: Department of Russian Literature, Department of Semiotics.
Russian State University of the Humanities: Institute of Higher Research in the Humanities.
Editor and compiler: E. V. Permyakov.
Moscow: Iz-Garant, 1995, 734 p.
TABLE OF CONTENTS: FROM THE ARCHIVES OF Yu. M. LOTMAN: Non-memoirs.
Letters on Karamzin (Publ., intro. notes and commentary by B. F. Egorov).
A. S. Pushkin. Biography of the writer: Foreword to the Polish edition.
The "Lermontov Encyclopedia" and the problems of constructing personal literary encyclopedias.
V. A. Uspenksii. Walks with Lotman and the secondary modeling.
L. M. Lotman. My recollections of my brother, Yuri Mikhailovich Lotman. Childhood and youth.
S. M. Daniel. From the memoirs of a former correspondence student.
V. A. Kamenskaya. On Yuri Mikhailovich Lotman - from the bottom up.
"In all the study of Lotman..." (From letters and works of Ya. I. Gin.) Publ. S. M. Loiter.
M. B. Plyukhanova. Yu. M. Lotman's research on Old Russian literature and the 18th century.
Yu. M. Lotman's "Analysis of the poetic text": 1960 - 1990.
R. Lakhman. Estimative aspects of Yuri Lotmanþs semiotics of culture/semiotics of the text.
M. Yu. Lotman. Beyond the text: notes on the philosophical background of Tartu semiotics (first essay).
P. Torop. The Tartu school as a school.
P. Grzhibek. Bakhtinian semiotics and the Moscow-Tartu school.
O. A. Sedakova. "Eternal dreems, as blood samples...": On Yuri Mikhailovich Lotman and the structural school in the context of the culture of the '70s.
G. S. Knabe. Sign. Truth. Circle. (Yu. M. Lotman and the problem of the postmodern).
V. S. Bibler. Yu. M. Lotman and the future of philology.
I. P. Smirnov. The unknown soldier.
M. De Michiel. On perceptions of the work of Yu. M. Lotman in Italy.
M. I. Lekomtseva. Metaphor and metonymy in "Eulogy to Cyril-Philosopher" of Kliment Okhridskii.
D. S. Likhachev. "Slovo o polku Igoreve" and the custom of ambassadorial negotiations in Old Russia.
E. N. Gracheva. Representations of the childhood of the poet in biographical material of the end of the 18th and beginning of the 19th centuries.
B. A. Uspenskii. The language of Derzhavin (on the 250th anniversary of his birth).
I. A. Pil'shchikov. Delille's "Les Jardins" in Voeikov's translation and Baratynskii's "Memoirs".
V. E. Vatsuro. Pushkin and Dante.
T. M. Nikolaeva. "Dreams" of Pushkin's heroes and the dream of Svyatoslav Vsevolodovich.
A. V. Vostrikov. Specificity of the conflict of Pushkin's tale "The Shot" in connection with the spatial-temporal organization of the text.
Vyach. Vs. Ivanov. Research on archaism in Pushkin's "Monument".
V. N. Toporov. On the dynamic context of three-dimensional works of fine art (a semiotic view): The Falconet's monument to Peter I.
E. V. Permyakov. On the origin of the "Notebooks" of P. A. Vyazemskii.
A. L. Ospovat. Discussions of the 1830s on the Russian capital.
V. Yu. Proskurina. From Athens to Jerusalem (The cultural status of antiquity in the 1830s and beginning of the 1840s).
V. Strada. Moscow - St. Petersburg - Moscow.
R. G. Leibov. Tyutchev's unnoticed cycle.
L. P. Novinskaya, P. A. Rudnev. From observations on the poetry of F. I. Tyutchev: Metrical rarities.
M. O. Chudakova. Pushkin and Bulgakov and the "temptation of the classics".
A. K. Zholkovskii. On Smerdyakov (The problem of "Bulgakov and Dostoevsky").
A. S. Nemzer. Karamzin - Pushkin: Notes on Yu. N. Tynyanov's novel.
G. A. Levinton. Remizovian subtext in "Fourth prose".
T. V. Tsiv'yan. On the metapoetic in "Poem without a hero".
O. G. Revzina. Number and quantity in the poetic language and poetic world of M. Tvetaeva.
E. V. Paducheva. Toward a definition of linguistic parameters of non-personal direct speech.
E. S. Novik. Pragmatic aspect of magical rites.
S. Yu. Neklyudov. The "text - denotation" relation and the problem of trueness in narrative traditions.
A. K. Baiburin. "Unleashing of the mind".
A. F. Belousov. Reminiscences of Igor' Mal'skii: "The distorting mirror of reality": the question of the origin of "sadistic verses".
M. F. Grishakova. Ancient Greece as utopia.
De vita memoriae. (N. V. Braginskaya).
O. M. Freidenberg. Studies on the semantics of literary forms.
O. M. Freidenberg. Palliata. Chapter 21.
N. V. Braginskaya. Song of the horizon.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V.


This matter is before the Court upon a motion for summary judgment by defendant Samuel Wright. (DN 62.) This matter is ripe for decision.
According to the complaint, Brock was an inmate at Green River Correctional Complex. In May 2014, he was involved in an altercation with an inmate named Timothy Delahanty, who Brock alleges has ties to a white supremacist group. Following the altercation, Brock was placed on “rec alone, ” meaning he could not be placed in a recreation cage with other inmates. However, on June 4, 2014, Brock was placed in a recreation cage with defendant David Hicks, who Brock alleges was another white supremacist in the prison. Hicks and another unknown individual assaulted Brock in the recreation cage. Brock alleges that prison staff conspired with Hicks to have Brock assaulted in retaliation for his prior altercation with Delahanty and a previous lawsuit Brock filed while being housed at the Crittenden County Jail.
Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying the portion of the record that demonstrates the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies this burden, the non-moving party must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non-moving party to show that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
Wright argues that he is entitled to summary judgment on both claims that remain against him, as Brock has failed to establish that he has a cognizable physical injury for which he could recover damages. The Prison Litigation Reform Act states that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Brock has asserted § 1983 claims against Wright for violations of his Eighth Amendment rights. (Pl.'s Compl. [DN 1] at 4; Mem. Op. and Order [DN 11] at 13 (construing allegations as Eighth Amendment claims for failure to protect and deliberate indifference).) Thus, the statute applies to Brock's claims. See Jarriett v. Wilson, 162 Fed.Appx. 394, 400 (6th Cir. 2005) (42 U.S.C. § 1997e(e) applies to § 1983 claims for violations of Eighth Amendment rights).
The Court finds that Brock suffered nothing more than a de minimis injury during the altercation that gave rise to his claims against Wright. Even taking into account the two burn marks of questionable origin, Brock's scratch on the neck and burn marks are not the type of serious injury that would allow him to recover for an Eighth Amendment violation. See Corsetti v. Tessmer, 41 Fed.Appx. 753, 755 (6th Cir. 2002) (two small bruises and minor cuts that did not require medical attention were de minimis injuries); Ratliff v. De Baun, 2017 WL 4365802, at *8 (W.D. Ky. Sep. 29, 2017) (two burn marks on arm were de minimis injury). Brock has not presented proof that he required medical attention for his injuries or that the prison's records understate the extent of his injuries. As such, his injuries are de minimis, and they do not give rise to an actionable claim under § 1997e(e). Therefore, the motion for summary judgment by Wright is GRANTED as to all remaining claims against him, and he is DISMISSED from the action as a party.


This position contradicted longstanding United States policy and was eventually retracted in the May 1983 Bulletin."
Van Z. Krikorian pro se.
Charles F. Flynn, Assistant United States Attorney, with whom Jay B. Stephens, United States Attorney, and R. Craig Lawrence and John D. Bates, Assistant United States Attorneys, were on the brief, for appellee.
Opinion for the court filed by Circuit Judge HENDSRSON.
This position contradicted longstanding United States policy and was eventually retracted in the May 1983 Bulletin.
In an effort to determine the origin of the Article and the Note, Van Z. Krikorian made a Freedom of Information Act (FOIA) 1request on October 7, 1983, asking the Department for "all Department of State memoranda, directives, letters and other records... which relate to the August 1982 publication in The Department of State Bulletin of [the Article] and the accompanying 'Note'..." Appellant's FOIA Req. at 1. The Department searched the records of various offices and in January 1986 advised Krikorian that it had retrieved sixty-six relevant documents. Of those, the Department withheld twelve in full or in part, relying on three different exemptions from disclosure included in the FOIA. In response, Krikorian filed an administrative appeal in March 1986, challenging the exemption claims. He also questioned the adequacy of the search because the Department had retrieved no pre-August 1982 materials explaining how the Article came to be, an important part of his FO1A request. The Department issued its final decision in July 1986, releasing in full two of the originally withheld documents and part of another previously withheld document.
Krikorian then filed suit in district court to contest the Department's decision to withhold, in whole or in part, ten documents and the adequacy of its search. In seeking a protective order, the Department claimed that it had recovered all relevant records. Later, however, the Department released more material. The Department has yet to retrieve any relevant records pre-dating August 1982.
The parties filed cross-claims for summary judgment. Krikorian also requested in camera review of the withheld documents. The district court granted the Department's summary judgment motion, holding that the Department correctly withheld the ten documents because they fell within three FOIA exemptions: seven of them under exemption 1, one under exemption 3 and two under exemption 5. Moreover, although the court recognized "legitimate deficiencies" in the Department's search, it did not believe they were so severe as to constitute bad faith justifying in camera review. Mem. Op. at 8.
On appeal, we address three issues. First, do the ten withheld documents fall within one of the three FOIA exemptions? Second, if they do, should portions nonetheless be disclosed because they are either segregable or officially acknowledged? Third, did the Department conduct an adequate search for the requested materials? We affirm the district court's conclusion that each of the documents contains information exempt from disclosure under the FOIA. We remand, however, for the court to make specific findings whether portions of the withheld documents are segregable and whether any portions have been officially acknowledged. Finally, we remand for further proceedings to determine whether the Department conducted an adequate search for the requested material.
Under the FOIA "the burden is on the agency to sustain its action." S U.S.C. § 552(a)(4)(B). The Department submitted affidavits from Ralph E. Lindstrom, Director of the Department's Office of Mandatory Review in the Classification and Declassification Center, 2 Sharon B. Kotok, Acting Chief of the Department's Information Access and Service Division of the Foreign Affairs Information Management Center (FAIM/IS), and Frank H. Machak, Chief of FAlM/IS, to support its decision to withhold certain documents and to defend the adequacy of its search.
Of the ten documents withheld in full or in part, the Department asserts that exemption 1 covers seven of them.3 Under exemption 1, documents may be withheld if they are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). While the burden of proof is on the agency, a reviewing court "'must recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosures of a particular classified record.'" Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (quoting S. Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290). "Judges, moreover, lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case." Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir.. 1980). Accordingly, we " 'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.'" Military Audit Project, 656 F.2d at 738 (quoting S. Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6290) (emphasis in Military Audit Project).
As another example, the Department withheld document 87, which was classified pursuant to section 1.3(a)(5) of Executive Order 12,356 because it relates to "foreign relations or foreign activities of the United States."5 Document 87 is a telegram from the American Embassy in Paris to the Department reporting interviews with the Turkish Ambassador to France and a leader of the Armenian National Movement. The interviews were conducted by and originally published in a Paris newspaper. The Department released the published material but it withheld one paragraph of United States Embassy comment on a sensitive issue that "would be easily misinterpreted and could cause harmful repercussions in U.S. relations." Lindstrom Aff. II at 10.
The district court found the Department's summaries of the seven documents "adequately specific" to satisfy its burden of proof. Mem, Op. at 7; see Halperin, 629 F.2d at 148 (affidavits need to be "reasonably specific"). The court concluded that, were the Department required to be more specific, it "would be forced to breach its promises of confidentiality." Mem. Op. at 7. Having also reviewed the descriptions of the other documents included in Lindstrom's affidavits (relating to documents 79, 93, 94, 103 and 104), we agree with the district court that the seven documents contain confidential information that is exempt from disclosure under exemption 1.
The Department invokes exemption 3 to justify withholding document 11. Exemption 3 permits agencies to withhold documents if they are "specifically exempted from disclosure by statute," provided the statute "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). The Department asserts that document 11 is not disclosable under the National Security Act, 50 U.S.C. §§ 401 et seq., which makes the Director of the Central Intelligence Agency "responsible for protecting intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 408(d)(3). It is well settled that section 403(d)(3) falls within exemption 3. Gardels v. CIA, 689 P.2d 1100, 1103 (D.C. Cir. 1982); Halperin, 629 F.2d at 147.
Under section 403(d)(8), a document is exempt if the Agency demonstrates that an answer to the query 'can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods.'" Gardels, 689 P.2d at 1103 (quoting Halperin 629 F.2d at 147). In reviewing an exemption 3 claim, we do not closely scrutinize the contents of a withheld document; instead, we determine only whether there is a relevant statute and whether the document falls within that statute. Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978), cert. Denied 445 U.S. 927 (1980).
Document 11 appears to be an earlier, thirty-page version of the Article. The Department states that portions,6 of document 11 are classified as secret and confidential because they contain "highly sensitive foreign government information, information concerning intelligence sources and methods, and information concerning foreign relations or foreign activities of the United States, the release of which reasonably could be expected to cause damage to the national security." Lindstrom Aff. I at 16. We agree that document 11 falls within section 403(d)(3) of the National Security Act and the district court correctly held that exemption 3 protects against its disclosure.
Exemption 5 permits an agency to withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The purpose of exemption 5 is to protect the "quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). The exemption protects pre-decisional, not post-decisional, documents because only the former can have an effect on the decisionmaking process. Id. at 151.
Documents 97 and 102 fall within exemption 5 because they are pre-decisional, deliberative documents that in part discuss how the Department should respond to the reaction of some members of the public to the Article and the Note. Document 97 includes two draft letters proposing two options for replies to public inquiries about the Article and the Note. Lindstrom Aff. II at 20. Neither option was ultimately used by the Department but the letters reflect advisory opinions that are important to the deliberative process. See Russell v. Department of Air Force, 682 F.2d 1045, 1048-49 (D.C. Cir. 1982) (withholding documents to prevent public from "misconstruing" officer's views as agency views); Fisher v, United States Dep't of Justice, 772 F. Supp. 7,10-11 (D.D.C. 1991) (withholding documents "to prevent public confusion that might be caused by disclosure of reasons and rationales that were not ultimately the grounds for the agency's action"), aff'd, 968 F.2d 92 (D.C. Dir. 1992). Document 102 is an informal, undated note containing comments made by one Department officer to another about a third officer's memorandum on the Armenian genocide. Lindstrom Aff, II at 21. The document reflects part of the deliberative process used to address the genocide issue. Accordingly, the district court correctly held both documents exempt from disclosure.
Although the ten documents fall within the three exemptions, portions of the documents may not be exempt. "It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. United States Dep't of Air Force, 566 F.2d 242, 260 (D.C. Dir. 1977). Indeed, the FOIA dictates that "(a)ny reasonably segregable portion of a record shall be provided... after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). We have made clear that "[t]he 'segregability' requirement applies to all documents and all exemptions in the FOIA." Center for Auto Safety v. EPA 731 F.2d 16, 21 (D.C. Cir, 1984).
Recently, we described the type of detail an agency must provide in its Vaughn index, 7 and affidavits so that a district court can adequately consider the segregability issue. In Schiller v. NLRB, 964 F.2d 1205 (D.C. Dir. 1992), we reviewed the NLRB's decision to withhold five of nine documents relating to the implementation of the Equal Access to Justice Act. The district court had found, after in camera review, that all five documents could be withheld under various exemptions. We agreed. Nevertheless, we remanded the case because the NLRB had not adequately described the exempted material, preventing a determination of the segregability of non-exempt material. We criticized the NLRB because its Vaughn index and affidavits discussed withheld memoranda without "correlat[ing] the claimed exemptions to particular passages in the memos." Id at 1209. In other words, the index and affidavit "[we]re written in terms of documents, not information, but '[t]he focus in the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.'" Id. (quoting Mead Data Central Inc., 566 F.2d at 260). To address the inadequacy of the NLRB's materials, we held that "[t)he withholding agency must supply 'a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.'" Id,. at 1210 (quoting King v. United States Dep't of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987)) (emphasis in Schiller). A district court that " 'simply approve[s] the withholding of an entire document without entering a finding on segregability, or the lack thereof,'" errs. Powell v. United States Bureau of Prisons, 927 F.2d 1289, 1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology v. Department of the Army, 611 F.2d 738, 744 (9th Cir. 1979)).
As we did in Schiller, we remand here because the district court did not make specific findings of segregability regarding each of the withheld documents. The district court itself noted that the plaintiff "refers to a few instances in which the agency might have been more exacting in its segregation of factual assertions from confidential thought processes." Mem. Op. at 8-9. For example, Document 103 purports to be the author's views "on the legal, historical, and policy aspects of genocide as it applies to Armenians." Lindstrom Aff. II at 22. This description is quite general and may well include segregable material. Likewise, the Department's affidavit describing document 94 broadly states that "[p]ortions of the four-page memorandum contain information provided by a foreign government," and "[t]he four-page memorandum is primarily an analysis and discussion of foreign policy considerations and options." Lindstrom Aff. II at 15-16 (emphasis added). The use of such qualifying language implies that other portions of the documents may be segregable.
Notwithstanding the remand, we recognize that the Department may be unable to describe in more specific terms the separate portions of the withheld documents. Unlike Schiller, where the NLRB was attempting to protect litigation strategies, the Department contends that it is protecting national security material regarding terrorism and foreign relations. The dangers of disclosure may be much greater. Nevertheless, we must insist that the affidavits provide a relatively detailed description. Goldberg v. United States Dep't of State, 818 F.2d 71, 78 (D.C. Cir. 1987) (requiring affidavits to provide a "relatively detailed analysis" of withheld information), cert. Denied 485 U.S. 904 (1988). We therefore leave it to the district court to determine on remand whether more detailed affidavits are appropriate or whether an alternative such as in camera review would better strike the balance between protecting sensitive foreign relations information and disclosing non-exempt information as required by the FOIA.
Krikorian also questions whether the Department has "officially acknowledged" any documents so that disclosure may be compelled even though the document falls within an FOIA exemption. For information to be "officially acknowledged," it (1) "must be as specific as the information previously released," (2) "must match the information previously disclosed" and (3) "must already have been made public through an official and documented disclosure." Fitzgibbon. v. CIA, 911 F,2d 755, 765 (D.C. Cir. 1990). Krikorian focuses on document 11, the undated, apparently earlier thirty-page version of the Article. As noted earlier, document 11 contains blacked out portions. See supra note 6. Krikorian obtained an unclassified document, which the Department of State had released in December 1981 as Publication 9218. The unclassified document includes the released portions of document 11 as well as additional information. We cannot determine whether the additional information is identical to the redacted portions of document 11. Accordingly, we instruct the district court on remand to compare the two documents (whether by in camera review or by Department's supplemental showing) to determine whether document 11 has been "officially acknowledged."
[w]hat the agency must show beyond material doubt is that it has conducted a search reasonably calculated to uncover all relevant documents. As we have recently made clear, '[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate.' The adequacy of an agency's search is measured by a 'standard of reasonableness,' and is 'dependent upon the circumstances of the case.
Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1851 (D.C. dr. 1983) (emphasis in original) (citations omitted). If there is substantial doubt in the record as to the adequacy of the search, summary judgment cannot be granted to the agency. Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
The district court listed the locations the Department searched to satisfy Krikorian's request, Mem. Op. at 3, but it did not expressly evaluate the adequacy of the search. Instead, it focused on the adequacy of the affidavits to rebut Krikorian's argument that the search was conducted in bad faith. Id. at 7-8. Notwithstanding our conclusion that Krikorian failed to demonstrate bad faith, the district court's inquiry should not have ended there. A finding of no bad faith does not necessarily equate to a finding that the search was adequate. Krikorian's FOIA request asked for all documents regarding the origin of the Article and the Note. At no point did the district court expressly conclude that the search was adequate or that it satisfied the reasonableness standard. On the contrary, it noted that the plaintiff "does point out legitimate deficiencies in defendant's processing of plaintiffs FOIA request." Id at 8.
Krikorian's allegations of shortcomings in the Department's search make the absence of a finding as to the adequacy of the search troubling. First, as the district court noted, the Department apparently did not know how many documents it had recovered, In Second, Krikorian found Department documents relevant to his request, including the unclassified December 1981 version of the Article similar to document 11, that the Department had evidently failed to locate. Third, and perhaps most significant, the Department conceded that it did not search any of the eleven Regional Security offices that the Article's author expressly thanked in the Article for responding to questionnaires he had generated during his research, The district court discounted these matters as "relatively minor imperfections in the agency's response" because they did not rise to the level of bad faith. Id. at 9.
Accordingly, we remand this case to the district court to consider whether the Department's search adequately responded to Krikorian's FOlA request. Although we reach no conclusion whether the eleven Regional Security offices should be searched, nevertheless, if the district court concludes that the Department's search to date is adequate, it should explain why a search of these offices is not necessary.
To sum up, we affirm the district court's holding that the ten documents either in whole or in part fit into recognized FOIA exemptions. We remand, however, so that the district court can make findings whether the Department should disclose any segregable portions of the withheld documents or any documents that have been officially acknowledged. In addition, on remand the district court is to address the adequacy of the Department's search.
1 5 U.S.C. § 552 (1988).
2 Lindstrom submitted two affidavits, one filed August 14, 1987, (Lindstrom Aff. I) and one filed September 10, 1987 (Lindstrom Aff. II).
3 Documents 79, 87, 93, 94, 96, 103 and 104.
4 'Because this document affected the national security interest, the Department had classified it pursuant to section 1.3(c) of Executive Order 12,356. Exec. Order No. 12,356, 3 C.F.R. 166 (1982), reprinted in 50 U.S.C. § 401 note (1988). According to section 1.3(c) of Executive Order 12,356, '(u)nauthorized disclosure of foreign government information, the identity of a confidential source, or intelligence sources or methods is presumed to cause damage to national security."
5 Section 1.3(a)(5) of Executive Order 12.356 states that "(i)nformation shall be considered for classification if it concerns foreign relations or foreign activities of the United States," Exec. Order No. 12,356, 3 C.RR. 166 (1982), reprinted in 50 U.S.C. § 401 note (1988).
6 The Department blacked out one diagram and portions of two sections.
7 See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. Denied, 415 U.S. 977 (1974).