Chicago Headline Club v. Noem had a dramatic week. CBP Commander Gregory Bovino was caught on video throwing tear gas into a crowd in Little Village — including at what appear to be journalists with large cameras. The TRO requires warnings before tear gas; especially for journalists. No warning appears to have been given. Some officers in the video appear without ID numbers. Bryan: "Don't follow the shiny thing." Whether protesters were peaceful is a messier question. Gassing journalists without warning is not. Bovino ordered to appear in person October 28.
Two potential TRO violations emerged this week in CHC v. Noem. First: video surfaced showing CBP Commander Gregory Bovino personally throwing tear gas canisters into a crowd in Little Village, a Chicago neighborhood, with federal agents between him and the crowd. The TRO requires two audible warnings before any riot control device deployment, with a narrow exception only if someone is in immediate danger. Journalists with large cameras are visible in the footage. The TRO prohibits deploying riot control devices against journalists absent specific conditions. No warning appears in the video. Bryan cautioned viewers against "shiny objects" — the anticipated argument that protesters in the video weren't being peaceful. Bryan: even if the protesters weren't fully peaceful, that's a separate and messier question; tear gas deployed on journalists without the required warnings is a clearer TRO violation with less gray area. Second violation: some officers in the video appear without alphanumeric ID numbers, which the TRO requires. Bryan flagged this as potentially the most unambiguous violation: the judge designed the ID requirement precisely so that when videos emerge, she can identify specific officers. If officers have no numbers, the enforcement mechanism fails. The court responded by ordering Bovino to appear in person at a status hearing on October 28 — moved up from a previously scheduled November 5 hearing — with the court explicitly wanting to see him in person. Bryan: he doubted it would be broadcast but said he'd report back.
First AmendmentTRO compliance enforcementriot control device warning requirementsjournalist identification protectionsofficer identification requirement
Constitutional question: The TRO operationalizes specific First Amendment protections: journalists have a right to observe and document government conduct; that right cannot be extinguished by tear gas without warning. The identification requirement exists precisely to create accountability chains from video evidence to specific officers. When a commander — not a line officer, but a commander — is personally on video doing the act the TRO prohibits, the constitutional accountability is direct: the government's own senior officer is the violator. The court's response (in-person appearance, expanded questioning, evidence preservation order) implements what the First Amendment requires structurally: that officers who violate constitutional rights be personally identifiable and answerable.
SCOTUS denied a stay of execution in Boyd v. Ivey — Alabama's nitrogen hypoxia case. No explanation from the majority. Sotomayor dissented, joined by Kagan and Jackson: nitrogen hypoxia violates the Eighth Amendment's ban on cruel and unusual punishment. Bryan: "I just didn't have it in me to read this on the air." Separately, SCOTUS also denied cert on a case that would have let parents opt out of school vaccination requirements on religious grounds. Bryan's read: religious exemptions don't extend to public health contexts the same way they extend to curriculum.
Two SCOTUS items on Aloha Friday. First: SCOTUS denied a stay of execution in Boyd v. Ivey (25A451), Governor of Alabama. The method at issue: nitrogen hypoxia, used by Alabama, Louisiana, and a few other states. The defendant had requested a different execution method. The Court denied the stay without explanation. Sotomayor wrote a dissent joined by Kagan and Jackson, arguing in detail that nitrogen hypoxia constitutes cruel and unusual punishment in violation of the Eighth Amendment. Bryan acknowledged the dissent exists and is detailed, but said he didn't have the emotional bandwidth for Aloha Friday to read it on air — he pointed viewers to it directly. Second: SCOTUS denied cert (without explanation) in a case seeking to let parents opt out of school vaccination requirements for their children based on religious objections. Context: earlier in 2025, SCOTUS had granted parents a religious exemption from certain school curricula. This attempt to extend that ruling to vaccination opt-outs was rejected. Bryan's analysis: there's a long history in First Amendment law of carving out public health as a context where religious exemptions face a harder road. Curriculum exemptions affect only the one child; vaccination exemptions affect all children in the school by increasing disease exposure. Easier jurisprudential line to draw.
Eighth Amendmentcruel and unusual punishmentnitrogen hypoxia as execution methodstay of execution standardSotomayor dissent. For the vaccination case: First Amendment free exerciseFulton v. City of Philadelphiareligious exemption scope
Constitutional question: Boyd v. Ivey presents the recurring Eighth Amendment question of when a specific execution method crosses from constitutional to unconstitutional. The Court's silence on the denial leaves the doctrine where it was; Sotomayor's dissent signals three votes for finding nitrogen hypoxia unconstitutional, with no indication of a fourth. The vaccination cert denial illustrates how the Court draws lines within free exercise: the earlier curriculum exemption protected a child's passive exposure to information; vaccination exemptions would actively expose other children to communicable disease. The Court declined to extend the exemption logic across that line — likely because the public health cost is externalized onto non-consenting third parties, which the constitutional free exercise framework has historically treated differently.
Sam O'Hara is a DC resident who's been following National Guard troops around the city playing the Imperial March from Star Wars on his phone. On September 11th, Ohio National Guard Sergeant Devin Beck threatened to call the police. O'Hara didn't stop. He was handcuffed, held for 20 minutes waiting for a supervisor, then released with no charges. He's now suing for First and Fourth Amendment violations and false arrest. The DC AG has to defend the officers. The DC AG who, the very next day, is in court arguing the National Guard shouldn't be in DC at all.
Sam O'Hara, a DC resident using the handle "free DC 209" on TikTok, had been following National Guard troops stationed around Washington DC and playing the Imperial March from Star Wars as a form of protest against the troop presence. Bryan: he'd looked at the videos, and the soldiers were laughing. On September 11, 2025, when O'Hara followed Ohio National Guard Sergeant Devin Beck, Beck threatened to call the police if O'Hara didn't stop. O'Hara didn't stop. Police arrived and placed O'Hara in handcuffs. He waited approximately 20 minutes for a supervisor to arrive. Then the police released him with no charges and no explanation. O'Hara then filed this civil suit against Sergeant Beck and the DC officers who handcuffed him, alleging First Amendment violations (the Star Wars march is protected expressive conduct in a public space), Fourth Amendment violations (detention without probable cause), and common law false arrest and battery. The DC Attorney General — by virtue of DC being a defendant through its police — has to defend the officers. The same DC AG who filed DC v. Trump (listed next) the very next day arguing the National Guard shouldn't be in DC. Bryan: "Slight change of position. Their timing is a little hilarious." Bryan guessed the case would settle.
First Amendmentexpressive conduct in public spacesFourth Amendment detention without probable causefalse arrestbattery
Constitutional question: The First Amendment protects expressive conduct in public spaces, including conduct that others find annoying or objectionable. Military personnel being followed by a protester playing satirical music are not a captive audience; they can walk away. The Fourth Amendment protects against seizure without probable cause — "that's not a protest" is not probable cause. The irony Bryan highlighted is structural: the DC government's police (defending here) and the DC AG's office (plaintiff in DC v. Trump) are on opposite sides of the same underlying policy question within 24 hours. The case illustrates how constitutional rights operate regardless of how a government official privately views the underlying protest.
DC is suing Trump over the National Guard deployment in Washington. Hearing at 2 PM today. DC's argument: Posse Comitatus bars military from law enforcement; and there's a congressional compact requiring out-of-state National Guard to have DC's consent and be under the mayor's control. The feds argue Posse Comitatus doesn't apply — because the Guard is "not executing laws" AND "has express authorization to execute laws." Bryan: "Which is confusing." The feds' real argument: just dismiss it.
D.C. v. Trump (1:25-cv-03005) was scheduled for a 2 PM hearing on October 24, with the judge considering DC's motion for a preliminary injunction and the federal government's motion to dismiss. DC's complaint: the National Guard has been deployed throughout Washington DC for law enforcement purposes. DC's legal arguments: (1) the Posse Comitatus Act prohibits the use of federal military forces (including, under its extensions, the National Guard when federalized under Title 10) for civilian law enforcement; (2) there is a compact among states ratified by Congress that requires out-of-state National Guard forces to obtain consent from DC (the mayor) and be placed under mayoral command before deployment. The federal government's response: Posse Comitatus doesn't apply because — in a position Bryan noted was "confusing" — the Guard is "not executing laws" (first argument) AND simultaneously "has express authorization to execute laws" (second argument, an exception to Posse Comitatus). The federal government's primary litigation posture: even if DC's arguments are wrong, DC lacks standing or jurisdiction, so dismiss. Bryan provided dial-in details for the 2 PM hearing. Bryan noted the timing: DC filed O'Hara v. Beck (defending police who detained a National Guard protester) yesterday and is now arguing the National Guard shouldn't be in DC at all.
Posse Comitatus ActTitle 32 vs. Title 10 federalizationinterstate compact on National Guard deploymentPosse Comitatus exception for "express authorization to execute laws"DC standingmotion to dismiss for lack of jurisdiction
Constitutional question: The Posse Comitatus Act is a statutory limit on military involvement in law enforcement, not a direct constitutional prohibition — but it implements constitutional separation-of-powers principles about the role of military force in civilian governance. The interstate compact argument adds a structural constitutional dimension: compacts ratified by Congress become binding federal law (Art. I, §10), potentially giving DC a legally enforceable consent requirement against out-of-state Guard deployment. The government's dual argument — Guard is not enforcing laws AND has express authorization to enforce laws — exposes the incoherence of its position: it cannot simultaneously invoke both the "not law enforcement" exception and the "expressly authorized law enforcement" exception, since these are mutually exclusive characterizations of the Guard's role. The judge's core question from the hearing: if there are no limits on the president's Title 32 authority, what's left of the constitutional framework?
