Wednesday, November 18, 2015

Federal Judge Finds Transgender Status a Fundamental Privacy Right

In an opinion denying a motion to dismiss in Love v. Johnson, United States District Judge for the Eastern District of Michigan Nancy Edmunds has concluded there is a fundamental privacy right in one's transgender status under the Fourteenth Amendment's Due Process Clause.  The constitutional challenge is to Michigan's policy for changing the sex designation on state-issued identification, including drivers licenses.  Under the policy, the only document that is accepted as a proof of sex designation is a certified birth certificate.   Thus, transgendered individuals would need an amended certified birth certificate - - - for which the procurement process is described as "onerous" - - - and could not use passports, which are specifically excluded by the Michigan policy.

sample Michigan driver license via

In finding a fundamental right, the judge considered Sixth Circuit precedent that there were two types of fundamental rights protected “by the right to privacy that is rooted in substantive due process”:  the interest in “independence in making certain kinds of important decisions,” and the “interest in avoiding disclosure of personal matters.”  The court found that the latter - - - the "informational privacy" interest - - - was implicated.  This right must not only relate to a "fundamental liberty interest" but must satisfy either of two conditions: "the release of personal information could lead to bodily harm" or "the information released was of a sexual, personal, and humiliating nature."  The judge found that both 'the potential for harm' and 'the personal nature' conditions were satisfied.  The judge rejected the State's argument that the plaintiffs had not satisfied the harm prong because they had not shown sufficiently specific danger to themselves; it recognized "hostility and intolerance" and cited supporting Second Circuit caselaw.

The judge then applied strict scrutiny, writing that when

state action infringes upon a fundamental right, “such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest.”  Defendant vaguely identifies two purported interests–albeit not in the context of a fundamental right–in support of the Policy: (1) “maintaining accurate state identification documents” to “promote effective law enforcement” and, (2) ensuring “that the information on the license is consistent with other state records describing the individual.”

[citations and footnote omitted].   The judge found that the means chosen - - - the restrictive policy - - - bears "little, if any, connection" to the "purported interests."  The judge considered two facts especially salient.  First, the Michigan policy applied only to those wishing to change the sex designation on a drivers license, not to procure an original drivers license (in which case a passport would be acceptable identification).  Second,  Michigan's policy was especially restrictive: the majority of other states, as well as the federal government, did not require a certified birth certificate and thus the judge stated she was "unable to conclude at this juncture that the Policy narrowly serves the state’s interest in maintaining “accurate” identification documents or promoting effective law enforcement."

While the complaint raised other constitutional claims, including an equal protection claim, the judge found the motion to dismiss need not be considered as to those claims given the conclusion that there is a valid substantive due process claim which will move forward.


November 18, 2015 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexuality | Permalink | Comments (1)

Monday, September 21, 2015

D.C. Circuit Upholds Part, and Strikes Part, of Long Gun Registration Law

A divided panel of the D.C. Circuit today upheld portions of the D.C. long-gun registration law, even as the court struck other portions. The mixed ruling has a little for both sides in the debate over gun rights.

This case follows previous rulings in which the court upheld handgun registration requirements and a ban on assault weapons and magazines with a capacity in excess of 10 rounds.

The court applied its familiar two-part framework, asking first whether a provision impinges on a right protected by the Second Amendment, and, if so, second whether the provision satisfies intermediate scrutiny. Here are the results:

Basic Registration: Upheld. The court said that a basic registration requirement for long-guns did not impinge on Second Amendment rights, and therefore didn't even trigger intermediate scrutiny. The court followed its own ruling on registration of handguns, saying that the only difference between the two is the "historical pedigree" of registration requirements for handguns (which registration for long-guns lacks).

The court held that all other requirements, below, did infringe on Second Amendment rights, and therefore applied intermediate scrutiny (with different results):

In-Person Registration, Fingerprinting, and Photographing: Upheld. The court held that an in-person registration requirement, a fingerprinting requirement, and a photograph requirement for an application for a long-gun license were all sufficiently tailored to meet D.C.'s interest in public safety. The court said that these requirements would "help to deter and detect fraud and thereby prevent disqualified individuals from registering firearms" and (as to the photograph requirement) "facilitat[e] identification of the owner of a registered firearm during any subsequent encounter with the police." "The additional requirement that registrants appear in person to be photographed and fingerprinted is but a corollary necessary to implement those requirements."

Bringing the Firearm to Registration: Struck. The court said that the requirement that an applicant bring the firearm to registration was not tailored to promote public safety. "On the contrary, common sense suggests that bringing firearms to the MPD would more likely be a threat to public safety . . . ."

Re-registration Every 3 Years: Struck. The court held that D.C.'s requirement to re-register every three years was not sufficiently tailored to promote public safety, because officials can already conduct background checks on permit holders (without re-registration), the regular registration process should take care of firearms transfers, and D.C. law already requires owners to report lost weapons (obviating the need to use the re-registration process to locate lost or stolen weapons).

Registration Fees: Upheld. The court upheld reasonable registration fees, $13 per firearm and $35 for fingerprinting.

Education Requirements: Upheld and Struck. The court upheld training requirements going to the safe use of firearms, but it struck a testing requirement on D.C. gun laws as not sufficiently tailored to promote public safety.

One Pistol Per Month Rule: Struck. The court struck this limit, because D.C.'s evidence failed to show that it would promote public safety. Moreover, "taken to its logical conclusion, that reasoning [limiting registrations in order to limit firearms present in the home, in order to promote public safety] would justify a total ban on firearms kept in the home."

Judge LeCraft Henderson wrote separate and would have upheld all the requirements under intermediate scrutiny.


September 21, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Friday, September 11, 2015

Seventh Circuit Strikes Partisan Balance Statute in Judicial Elections

The Seventh Circuit this week struck an Indiana law election law that ensured "partisan balance" on the Marion Superior Court, in Marion County. Curiously (and tellingly), the law only applied to judicial elections in Marion County (the home of Indianapolis); more regular judicial election rules (or, in two counties, merit selection) applied in the rest of the state.

Here's how it worked. Each major party conducted a primary election in which each party selected a number of candidates that equaled half the open seats on the court in the general election. (If there were 16 open seats, the Republicans would put up 8 candidates, and the Dems would put up 8.) Then, in the general election, all primary winners would win a seat. The system virtually ensured an equal divide among the judges on the court. ("Virtually," because there was a remote chance that a minor-party candidate or independent could get elected.)

Common Cause challenged the law, arguing that it infringed on the right to vote. (What good is your vote in the general, if you can't select among competing candidates?) The court agreed.

The court applied the Burdick/Anderson balancing test and ruled that the infringement on the right to vote outweighed the state's interests. On the infringement side of the balance, the court simply noted that the system denied voters any choice in the general election--a "severe" burden on the right to vote:

the Statute removes electoral choice and denies voters any effective voice or ability to choose between candidates of the two major parties. In fact, absent a possible third party or independent candidate on the ballot [a remote chance, by the way--ed.], the general election is guaranteed to be uncontested, rendering any vote meaningless because there is no choice to be made.

On the state's interests side of the balance, the court rejected the claimed interest in ensuring fair political representation and impartiality, because that interest doesn't really apply to judicial elections (where judges make independent decisions in their own independent courtrooms, not like a legislature, where the body makes a decision as a whole), and because the state had other ways of achieving this interest (by enforcing standards of judicial conduct, e.g.). The court said that the state's interests in saving money and ensuring stability and public confidence could be achieved in other ways, too, and that in any event they were outweighed by the severe restriction on the right to vote.

The ruling means that the state needs to come up with a different way to elect Marion County judges before the next election (in 2018). The ruling is a victory for the right to vote, but it's a victory for judicial independence, too, given that this strange system applied only to Marion County, suggesting a legislative power-play against the court system in the state's capital and largest city.

The state hasn't said whether it will seek en banc review or cert.

September 11, 2015 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, August 18, 2015

Kentucky Court Clerk's "No Marriage License Policy" Going to Sixth Circuit

A few months after the United States Supreme Court issued its decision in Obergefell v. Hodges, reversing the Sixth Circuit's opinion, and declaring that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the issue of same-sex marriage is again reaching the Sixth Circuit. 

This time, however, the issue is whether a government employee, a court clerk in Kentucky, can refuse to issue same-sex marriage licenses - - - or any marriage licenses - - - based upon a claim of free exercise of religion.  The claim of religious exemptions from state clerks is not new (consider events in New York in 2011); neither are objections to implementing the Court's decision in Obergefell (consider events in Alabama this summer).  Nevertheless, this controversy has become particularly focused.

United States District Judge David Bunning's Opinion and Order last week in Miller v. Davis issued a preliminary injunction in favor of April Miller and Karen Roberts, enjoining Rowan County Clerk Kim Davis from applying the "no marriage licenses" policy.  The Judge rejected Davis' First Amendment claims.  First, Judge Bunning found that Governor Beshear's directive to county clerks to issue same-sex marriage licenses was a general law of neutral applicability that "likely does not infringe on Davis' free exercise rights."  Second, Judge Bunning further found that the issuance of the marriage license did not implicate Davis' free speech rights: the issuance of the license, even with the clerk's certification, is not an endorsement and furthermore is quite possibly government rather than individual speech, citing the Court's decision in Walker v. Sons of Confederate Veterans from last Term.  Judge Bunning also rejected Davis' third  - and perhaps the most interesting - claim based upon Article VI §3 prohibiting a "religious Test" as a qualification for public office.  Davis argued that this prohibition meant that her religious beliefs must be accommodated.  Even as he rejected this interpretation, Judge Bunning drew attention to the "first half" of Article VI §3 requiring state officials to take an oath to defend the United States Constitution. 

Davis predictably sought a stay of the preliminary injunction.  In an Order late yesterday, Judge Bunning denied the stay, including in his 7 page opinion an extensive quote from Obergefell regarding the relationship of religious freedom to same-sex marriage.  Yet Judge Bunning did stay the order denying the stay:

in recognition of the constitutional issues involved, and realizing that emotions are running high on both sides of the debate, the Court finds it appropriate to temporarily stay this Order pending review of Defendant Davis’ Motion to Stay (Doc. # 45) by the Sixth Circuit Court of Appeals.

While decisions to stay and to issue preliminary injunctions involve equitable and other factors, of central prominence is the probable outcome on the merits.  Thus, the Sixth Circuit is again poised to consider, albeit less directly, the issue of same-sex marriage. 

August 18, 2015 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Interpretation, Opinion Analysis, Religion, Sexual Orientation, Speech | Permalink | Comments (0)

Wednesday, July 22, 2015

Eighth Circuit Finds North Dakota's "Heartbeat" Abortion Prohibition Unconstitutional

A unanimous panel of the Eighth Circuit, affirming the district judge, found that North Dakota's abortion regulation based on a "detectable heartbeat" is unconstitutional in its opinion in MKB Management Corp. v. Stenehjem. 

North Dakota's 2013 House Bill 1456, codified at N.D. Cent. Code § 14-02.1, mandates physicians determine whether the "unborn child" has a "detectable heartbeat," and if so, makes it a felony for a physician to perform an abortion.  The medical evidence submitted was that a "detectable heartbeat" occurs when a woman is about six weeks pregnant.

LogoThe court held that a woman's constitutional right to terminate a pregnancy before fetal viability is binding United States Supreme Court precedent, quoting language from Gonzales v. Carhart (2007): "Before viability, a State 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'” 

However, the Eighth Circuit opinion noted that while it could not depart from the current state of protection of the right to abortion, the United States Supreme Court should reconsider the issue.  Essentially, the Eighth Circuit opinion argues that "developments in the unborn" should shift the balance to the ability of the states - - - and not the courts - - - to protect the unborn and assert the interest in "potential life."  The court's opinion also discussed the controversial findings that women who have had abortions suffer from emotional ills including regret, as well as repeating evidence that "some studies support a connection between abortion and breast cancer."  The court thus concludes, "the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children."

Nevertheless, the opinion clearly finds the North Dakota law unconstitutional.

July 22, 2015 in Abortion, Courts and Judging, Due Process (Substantive), Family, Fundamental Rights, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0)

Thursday, July 2, 2015

Obergefell, Federalism, and Religion: Constitutional Issues Raised in Alabama and Texas

After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration. 

The situations in Alabama and Texas have been the most contentious.


ALABAMA:     Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of  Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area.  This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.

When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.

However, after the Court decided Obergefell, the Alabama Supreme Court's  "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell.  Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:

The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.

Thus, the officials of Alabama are subject to a direct order by a federal judge.

 TEXAS:   The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages.  Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case."  Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique:  the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages. 

The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the  the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott],  "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed. 

The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations. 

In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution.  This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states.  The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity.  While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.

July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Wednesday, July 1, 2015

Anti-Masking Laws, the Ku Klux Klan, and the First Amendment


Reports that Ku Klux Klan (KKK) members are considering a rally in Columbia, South Carolina to support the controversial display of the confederate battle flag evokes images of hooded persons in traditional KKK garb.

However, South Carolina, like many states, has an anti-masking statute,  S.C. 16-7-110, which provides:

No person over sixteen years of age shall appear or enter upon any lane, walk, alley, street, road, public way or highway of this State or upon the public property of the State or of any municipality or county in this State while wearing a mask or other device which conceals his identity. Nor shall any such person demand entrance or admission to or enter upon the premises or into the enclosure or house of any other person while wearing a mask or device which conceals his identity. Nor shall any such person, while wearing a mask or device which conceals his identity, participate in any meeting or demonstration upon the private property of another unless he shall have first obtained the written permission of the owner and the occupant of such property.

As I've discussed in Dressing Constitutionally, such statutes, sometimes known as anti-KKK statutes, have been upheld against First Amendment challenges.

"Children with Dr. Samuel Green, Ku Klux Klan Grand Dragon" 1948 via

For example, the similar Georgia statute, passed in 1951 and still in force, makes it a misdemeanor for any person who “wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” and is either on public property or private property without permission.  In 1990, the Georgia Supreme Court in State v. Miller, 260 Ga. 669, 674, 398 S.E.2d 547, 552 (1990) upheld the statute against a First Amendment challenge by Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute itself.  In addressing Miller’s argument that the statute was overbroad, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK.  Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would  “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”

New York's anti-masking statute, which was not originally prompted by KKK activities but by land revolts before the Civil War, was also upheld against a challenge by the KKK.  In 2004, the Second Circuit panel - - - including now United States Supreme Court Justice Sotomayor - - -decided Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 201 (2d Cir. 2004).  The KKK group had sought an injunction against the statute to allow a demonstration while wearing masks. Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask in its analysis.  In the court’s view, the mask was “redundant” and did “not convey a message independently of the robe and hood.” Moreover, the court opined that mask-wearing was not integral to the expression, but optional even amongst KKK members.  Thus, while the KKK members had a First Amendment right to march, they did not have a First Amendment right to do so wearing their masks.

Should KKK members attempt to demonstrate while wearing their "regalia" that includes hoods that obscures their faces,  the South Carolina masking statute - - - and its constitutionality - - - are sure to be in play. 


July 1, 2015 in Association, Criminal Procedure, Current Affairs, Federalism, First Amendment, Fundamental Rights, History, Interpretation, Race, Reconstruction Era Amendments, Speech, Theory | Permalink | Comments (0)

Tuesday, June 30, 2015

Daily Read: Corey Robin on Dignity (and Whitney Houston)

Over at his eponymous blog, CUNY-Brooklyn Political Science professor Corey Robin has an interesting take on the controversial passage from Justice Thomas's dissent in Obergefell criticizing the "dignity" rationale of Kennedy's opinion for the Court by stating in part that slaves" did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. " 

Robins's post, "From Whitney Houston to Obergefell: Clarence Thomas on Human Dignity," is worth a read, and even worth a listen if you are so inclined.




June 30, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fundamental Rights, Race, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Thirteenth Amendment, Web/Tech | Permalink | Comments (0)

Monday, June 29, 2015

Court Rejects Challenge to OK Lethal Injection

The Supreme Court in Glossip v. Gross rejected an Eighth Amendment challenge to Oklahoma's three-drug lethal injection cocktail. The ruling deals a blow to opponents of the death penalty and leaves in place a protocol that's resulted in a spate of gruesome and botched executions. It also means that the plaintiffs' executions will move forward under Oklahoma's protocol.

The case was important, because victory for the challengers would have left states with few, if any, viable and sustainable options for administering lethal injection--and may have marked the de facto beginning of the end of the death penalty. (That's why some states have explored other methods of execution recently.) But there was no victory for the challengers, so the ruling allows states to move forward with a popular, but deeply flawed, cocktail.

If the past is any indicator, opponents of the death penalty will now work outside the courts to get suppliers of Oklahoma's new drug to stop providing it to states that use it for lethal injections--the same strategy they used to force Oklahoma to turn to a new protocol in the first place. And if the past is any indicator, they'll be successful, which might, in turn, lead to the next protocol and the next challenge.

We posted on the oral arguments here.

Challengers argued that Oklahoma's use of the sedative midazolam as the first drug did not reliably induce and maintain a deep, coma-like unconsciousness that would render a person insensate to the excruciating pain caused by the second and third drugs (which paralyze and cause cardiac arrest, respectively). Oklahoma turned to midazolam after suppliers for the state's previous first drugs dried up.

Justice Alito wrote for the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Alito wrote that the challengers didn't show that the state's use of midazolam created a demonstrated risk of severe pain, substantial compared to alternatives, and that they didn't identify a viable alternative. Justice Alito credited the district court's factual findings as to midazolam's ability to stop pain, and wrote that the district court didn't clearly err in finding that alternative drugs (the state's old drugs) were unavailable.

Justice Sotomayor wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Kagan. She argued that the district court erred in crediting the state's expert and in putting the burden on the challengers to identify a viable alternative to the state's use of midazolam.

Justice Breyer dissented, joined by Justice Ginsburg, and argued that the Court should entirely reevaluate the constitutionality of the death penalty. Justices Scalia and Thomas each wrote concurrences addressing Justice Breyer's points.

June 29, 2015 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (1)

Monday, June 22, 2015

Court Strikes Warrantless Hotel Registry Searches

The Supreme Court today struck a Los Angeles city ordinance that required hotels to make available their guest records "to any officer of the Los Angeles Police Department for inspection . . . ." But at the same time the ruling specifically allows the city to require hotel owners to keep and retain a guest registry and says that officers can search it if they only get a warrant (even just an ex parte administrative warrant), or satisfy an established exception to the Fourth Amendment warrant requirement.

In short, the ruling in Los Angeles v. Patel only requires officers to jump through a hoop--an important hoop, to be sure, but perhaps only a minimally challenging hoop--before reviewing hotel records.

Still, the sharply divided ruling is a clear victory for Fourth Amendment enthusiasts for two reasons. For one, the ruling requires precompliance review of some sort in the ordinary case. This means that in most cases a neutral decisionmaker would review an officer's request to search the records before the search. For another the ruling underscores the fact that challengers can bring a facial case under the Fourth Amendment.

Justice Sotomayor wrote for the Court, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Sotomayor wrote that the LA ordinance violated the Fourth Amendment on its face. In particular, she said that ordinance authorized an extra-judicial administrative search (with no prior judicial approval and no probable cause requirement), and that kind of search requires the subject to "be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." The Court explained why that's important:

Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.

Although the Court recognized that it never really defined "precompliance review," the ordinance allowed no review and therefore violated the Fourth Amendment on its face. The Court said that the ordinance has to provide a hotel owner at least an opportunity for precompliance review; but because it didn't, it violated the Fourth Amendment.

The Court emphasized "the narrow  nature of our holding," saying that nothing in today's ruling prevents the city from requiring hotel owners from maintaining a guest registry with certain information, or authorizing the police to access that registry with appropriate Fourth Amendment protections, or under established Fourth Amendment exceptions.

Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justice Alito. Justice Scalia argued that a warrantless hotel records search was not unreasonable in every application (as required for a facial challenge), because hotels are closely regulated and therefore the government has more leeway in conducting warrantless administrative searches under New York v. Burger.

Justice Alito also dissented, joined by Justice Thomas. Justice Alito argued that the Court overreached with its facial ruling, that there are (at least) five applications of the ordinance that satisfy the Fourth Amendment, and that the Court's ruling means that LA can never enforce its "116-year-old requirement that hotels make their registers available to police officers."

June 22, 2015 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Court Sets Objective Standard for Pretrial Detainee Civil Rights Action

The Supreme Court ruled today in Kingsley v. Hendrickson that a pretrial detainee need only show that an officer's use of force was objectively unreasonable--and not subjectively unreasonable, a higher standard--in order to prevail on an excessive force claim. The ruling reverses the Seventh Circuit, which affirmed a trial judge's jury instruction that set the bar at the higher subjective standard, and remands the case for an application of the lower objective standard.

The ruling means that a pretrial detainee's burden in an excessive force claim is lower than the standard upheld by the Seventh Circuit. That's good news for pretrial detainees who bring civil rights claims. But the Court was quick to say that a detainee still has other hurdles to jump--including qualified immunity.

Justice Breyer wrote for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Breyer wrote that the trial court's jury instruction based on a subjective standard--that "[e]xcessive force means force applied recklessly that is unreasonable in light of the facts and circumstances [and]  [d]efendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff's safety . . . ."--should have been been based on an objective standard--that "the force purposely or knowingly used against him was objectively unreasonable."

Justice Scalia wrote the principal dissent for himself, Chief Justice Roberts, and Justice Thomas. Justice Alito also dissented, arguing that the case should be dismissed as improvidently granted.

June 22, 2015 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Monday, June 1, 2015

No Clearly Established Right to Suicide Prevention Procedures

The Supreme Court ruled today that there was no clearly established right to proper implementation of adequate suicide prevention procedures in a prison. The per curiam ruling in Taylor v. Barkes means that the commissioner of the Delaware Department of Correction and a prison warden enjoyed qualified immunity against a claim by the family of a deceased prisoner that they failed to supervise and monitor a private contractor's intake screening and medical treatment of the suicidal prisoner. The family's civil rights case against the commissioner and warden is therefore dismissed.

The case involved a prisoner who had a history of psychiatric treatment, medication, and suicide, but who was not designated for any special suicide prevention measures pursuant to the intake protocol. After intake, the prisoner called his wife and told her he was going to kill himself. Officers observed the prisoner awake and behaving normally the next morning, but later that morning the prisoner hanged himself with a bed sheet.

The family sued the commissioner and warden for violation of the Eighth Amendment. But the Court's ruling today says that the prisoner had no clearly established right to proper implementation of an adequate suicide prevention protocol. As a result, the defendants enjoyed qualified immunity, and the case is dismissed.

June 1, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Sunday, May 31, 2015

Stern on Lethal Injection

Jeffrey Stern gives the shameful back-story on Clayton Lockett's botched execution over at The Atlantic. In the course, he also gives the shameful back-story on Glossip v. Gross, the case now before the Supreme Court testing whether a state can use a three-drug protocol where the first drug does not reliably induce a a deep, coma-like unconsciousness, and where the second and third drugs can therefore cause excruciating pain.

Stern covers all the details: death-penalty states' initial inability to acquire sodium thiopental (the old first drug); their efforts to get it overseas and from compounding pharmacies; their later inability to get it from these sources (in part because of foreign governments' opposition to the death penalty); their turn to midazolam, a sedative, as an alternative; and their botched executions using this alternative.

If you don't know the back-story, read Stern's piece. It puts a different shade on the oral arguments in Glossip (which we previewed here).

May 31, 2015 in Cases and Case Materials, Fundamental Rights, News | Permalink | Comments (0)

Tuesday, May 26, 2015

Supreme Court to Review Batson Challenge in Georgia Death Penalty Case

The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief. 

According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman.  At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of  Batson v. Kentucky (1986).  The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge.  The Georgia courts affirmed.

FosterImageAlmost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.”  (The affidavit was originally submitted to the court with all mentions of race excised). 

In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists."  The Georgia Supreme Court declined review.

In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm.  Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach.  According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors.  Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult.  The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.



May 26, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Federalism, First Amendment, Fundamental Rights, Habeas Corpus, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, May 23, 2015

Contraception Mandate Accommodation Opponents Rebuffed--Again

Federal appeals courts this week dealt two (more) blows to opponents of Obamacare's religious accommodation to the contraception mandate. A Seventh Circuit panel ruled that the accommodation did not violate the Religious Freedom Restoration Act as interpreted by the Supreme Court in Hobby Lobby, and the full D.C. Circuit declined to re-hear an earlier panel ruling against opponents.

Together the rulings should put an end to this chapter of challenges to Obamacare. But by now we've learned never to say never . . . .

The cases grow out of religious non-profits' opposition to the government-created religious accommodation to Obamacare's contraception mandate. The accommodation requires a religious non-profit to complete a form to notify its health insurer (or third-party administrator) that the non-profit objects to providing contraception as part of its health insurance plan. The law then requires the insurer or third-party administrator to provide contraception coverage directly to plan participants, free of charge.

Opponents say that the accommodation--the form that notifies the insurance company of the religious objection--itself violates the Religious Freedom Restoration Act, because it "triggers" the provision of contraception coverage to plan participants.

The Seventh Circuit categorically rejected that claim last February. But then the Supreme Court handed down Hobby Lobby, holding that the contraception mandate violated the RFRA as applied to a self-insured, closely-held, for-profit corporation, and requiring an accommodation. But Hobby Lobby also contained language suggesting that an accommodation of the type challenged by religious non-profits would skirt any RFRA problem. The Supreme Court then vacated the Seventh Circuit ruling and remanded for reconsideration in light of Hobby Lobby.

The Seventh Circuit panel this week again ruled against the challengers, citing the same problems in the original case (before Hobby Lobby)--under the law the non-profit doesn't act as a "conduit" for the provision of contraception (the law itself does this), and the case was under-developed at the trial level. As to Hobby Lobby, the panel said that the Supreme Court recognized the accommodation as valid, but that the Court "did leave open . . . the possibility that the accommodation sought and obtained there would not prevent religious beliefs or practices from being substantially burdened in some cases." But the Seventh Circuit said that those beliefs or practices weren't burdened here, by the accommodation. In particular, the court wrote that Notre Dame couldn't come up with any workable alternative to the accommodation that wouldn't "impede the receipt of [contraception] benefits," especially given the undeveloped factual record in the case.

The D.C. Circuit (also, and again) came to the same conclusion in denying a rehearing en banc. Its earlier panel ruling in Priests for Life came down after Hobby Lobby, so already considered any effects of that case.

The principal problem with the challenges is that, contrary to the challengers' claims, it's not the accommodation that triggers the provision of contraception; it's the law that does that. In the language of the Seventh Circuit, the non-profits don't act as a "conduit" for the provision of contraception, because the law itself requires insurers and administrators to provide contraception. And a mistaken interpretation of the law is not a burden on religion. Or, as Judge Pillard put it in her concurring opinion to the D.C. Circuit's denial of en banc review:

The dispute we resolved is legal, not religious. Under the ACA regulations, a woman who obtains health insurance coverage through her employer is no more entitled to contraceptive coverage if her employer submits the disputed notice than if it does not. The ACA obligation to provide contraceptive coverage to all insured women does not depend on that notice. Nothing in RFRA requires that we accept Plaintiffs' assertions to the contrary.


May 23, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 13, 2015

Seventh Circuit Says No Immunity for Prosecutor, Lab Techs in Civil Rights Case

The Seventh Circuit ruled in Armstrong v. Daily that a prosecutor and two crime lab technicians were not entitled to qualified immunity after they bungled an investigation that resulted in a faulty trial and foiled the plaintiff's attempts to demonstrate his innocence. In all, this top-to-bottom outrageous investigation put a wrongfully convicted plaintiff behind bars for 29 years.

Ralph Armstrong brought the civil rights case against prosecutor John Norsetter and state lab technicians Karen Daily and Daniel Campbell. Armstrong was convicted of rape and murder in 1981 and sentenced to life plus 16 years. The prosecution had two key pieces of physical evidence against him: drug paraphernalia found at the crime scene that could have shown who was in the victim's apartment the evening she was murdered; and a bathrobe belt used as the murder weapon.

The drug paraphernalia was never examined; instead, it was tossed in a trash bag, left in an office storage locker at the police station, and eventually lost. The bathrobe belt was tested crudely for DNA in 1980, which didn't rule out Armstrong. (The prosecution also relied on the identification by an eyewitness who Norsetter had hypnotized. Armstrong challenged this evidence in a prior case, where he lost his habeas claim at the Seventh Circuit.)

Armstrong later presented new DNA testing definitively excluding him and, in 2005, won a new trial through the state courts. A state court also ordered the prosecution to inform the defense of future DNA tests and to allow the defense to be present for any handling of the evidence. Armstrong stayed in prison.

Norsetter then ordered new testing of the belt, without telling Armstrong (despite the court order). Daily and Campbell conducted testing that consumed the entire DNA sample from the belt. The results could not confirm or eliminate Armstrong as the source, because the test they used could not distinguish between men with the same father. (This is important, because Armstrong's brother, who died in 2005, earlier confessed to the crime.) Norsetter never disclosed to Armstrong or the technicians that Armstrong's brother might be a suspect.

After Armstrong's attorneys learned that the prosecution's secret testing destroyed the evidence, they moved to dismiss charges against him. The court found that the prosecution acted in bad faith and dismissed the charges because the destruction of that evidence had irreparably compromised his right to a fair trail. Armstrong remained in prison for the three years between the destruction of the evidence in 2006 and the court's dismissal in 2009.

Armstrong then sued Norsetter, Daily, and Campbell, arguing that they violated his civil rights. Norsetter claimed absolute immunity as a prosecutor for the destruction of DNA evidence and qualified immunity for the destruction of the drug paraphernalia; Daily and Campbell claimed qualified immunity. The district court denied these claims, except as to Norsetter's involvement in the destruction of DNA evidence.

The Seventh Circuit affirmed. As to Norsetter, it ruled that Norsetter did not enjoy absolute immunity for his investigatory acts, and that he did not enjoy qualified immunity because he acted in bad faith in allowing the destruction of the drug paraphernalia and DNA sample. As to Daily and Campbell, the court said that

we must assume that Daily and Campbell's actions caused Armstrong to suffer a loss of liberty as he languished in prison for three more years after Daily said he was excluded by the earlier DNA tests and after the last sample had been destroyed in the [later] test of the newly discovered stain.

The court rejected the defendant's arguments that a state tort action could have provided Armstrong a remedy sufficient to satisfy federal due process under Parratt v. Taylor. In a lengthy discussion, the court said that the argument was based on a fundamental mis-reading of Parratt. In short:

When Parratt and its progeny are read carefully, then, and are read against the broader sweep of due process jurisprudence, they do not bar Armstrong's claims based on deprivation of his liberty through deliberate destruction of exculpatory evidence. More specifically, Parratt does not bar Armstrong's claims because the defendants' conduct was not "random and unauthorized" and the available state remedies are not adequate.

The court recognized "some disagreement among the courts about the conditions for obtaining a civil remedy for destruction of exculpatory evidence, those disagreements do not support a qualified immunity defense."

Judge Flaum argued that Norsetter should get qualified immunity, because his destruction of the drug paraphernalia was negligent, not "in bad faith."

May 13, 2015 in Cases and Case Materials, Courts and Judging, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

Court Takes on Lethal Injection

The Supreme Court heard oral arguments today in Glossip v. Gross, the case testing the constitutionality of Oklahoma's three-drug lethal injection cocktail. Our preview is here.

The case centers around Oklahoma's use of midazolam as the first drug in the cocktail. In particular the case asks whether midazolam, a sedative, reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't feel the intense pain associated with the second drug, potassium chloride. (Everyone agrees that potassium chloride alone causes intense pain and suffering. The pain is described as burning alive, or burning from the inside out.) If so, there's probably no constitutional problem with midazolam. (Under Baze, the Court upheld a different lethal injection protocol on the assumption, supported in the record, that the first drug reliably produced a deep, coma-like unconsciousness.) If not, however, Oklahoma's protocol may violate the Eighth Amendment.

But there's a problem: Nobody seems to know for sure. More: the state's expert's testimony at trial on a key point about how midazolam works was wrong--so much so that the state itself backed away from that testimony. That means that the district court's ruling, based on its conclusion that midazolam sufficiently protects against pain, based on the state's expert's testimony, is seriously flawed. (Justice Kagan described it as "gobbledygook." That seems about right.)

The Court focused principally on two questions today. The first, whether the state's use of midazolam reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't suffer from potassium chloride, seemed to divide the Court along conventional ideological lines. The progressive wing went with the condemned (against the use of midazolam), and the conservatives went with the state. The second question--whether the petitioners bear the burden to show that midazolam does not induce the state (and to identify a constitutional alternative for the state), or whether the state bears the burden to show that its use of midazolam does not cause intense pain and suffering--divided the Court the same way.

Justice Kennedy is probably the swing vote, but he was relatively quiet today. He only piped up when the arguments turned to whether the petitioners contributed to the problem in the first place. (Oklahoma started using midazolam because it couldn't gain access to the barbiturate drugs that more reliably protect against pain--and that the Court upheld in Baze. Oklahoma can't gain access to the barbiturate drugs because manufacturers have stopped supplying them, for ethical reasons, for use in lethal injections. Justice Alito suggested that opponents of the death penalty contributed to that situation, and that the Court shouldn't be complicit in this "guerrilla war" against the death penalty.) Justice Kennedy simply asked what relevance this all had to the case. Answer from the petitioners: none.

On one level, the case asks pretty narrow and technical questions about a particular drug and the burdens in proving an Eighth Amendment violation under Baze.

But on another level, the case potentially strikes a serious blow against the death penalty itself. That's because if the Court strikes Oklahoma's use of midazolam (whatever it does with the burden), Oklahoma and other lethal-injection states will have to look to a much less attractive alternative--something like electrocution, the gas chamber, or even a firing squad. (That's "much less attractive" on the barbarity scale, not the constitutional one (alas).) Some states have already moved in this direction. If that happens across the board, moves like this could erode public support for the death penalty. And if that's true, a ruling for the petitioners could be much more than a narrow, technical ruling on lethal injections: it could strike a serious practical blow against the death penalty itself.

April 29, 2015 in Cases and Case Materials, Criminal Procedure, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Supreme Court Hears Same-Sex Marriage Arguments in Obergefell v. Hodges

The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.

For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents. 

For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.

The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-­sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:

It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time  until they would, in effect, be recognizing that within the State.


Donkey Hotey via

 The themes of the oral arguments held no surprising issues:

Is a same-sex marriage decision by the Court premature?  Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years." 

Should it be the Court or the states that should decide?  The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."

Is the race analogy apt?  Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and  "States' interest in linking children to their biological" parents.

Is there a slippery slope?  What about polygamous and incestuous marriages?  What about age of consent laws?

What about religious freedom?  How do we know that ministers won't be forced to perform "gay marriages"?

Should the case be resolved on Equal Protection or Due Process?  Justice Kennedy asked General Verrilli about Glucksberg,   Verrilli replied:

  1. GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

  2. JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?

  3. GENERAL VERRILLI: Well, because we think ­­well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms

As an equal protection case, it is one about sexual orientation or sex discrimination?  One of the more interesting questions was posed by Chief Justice Roberts to Bursch:

Counsel, I'm ­­ I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

How is the state's interest in procreation related to the ban on same-sex marriage?  Justice Ginsburg, as well as others, posed questions about the elderly not being barred from marriage.
Is marriage a changing institution or is a constant for millennia?  Justice Ginsburg predictably noted that marriage was once "a dominant and a subordinate relationship," with women being subordinate, while Chief Justice Roberts disputed the fact that women's subordination (or coverture) was a universal aspect of marriage.
Does the Full Faith and Credit Clause, Article IV, guarantee a state will recognize another state's marriage?  Justice Scalia noted he was "glad" to be able to quote Article IV, "a portion of the Constitution that actually seems to be relevant," although there remained a lack of clarity in its applications.  Is a marriage a public act?  record?  judgment? 

The open question is whether the Court's opinion will be as predictable as the questions.

April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Court to Hear Challenge to Lethal Injection Protocol

The Supreme Court will hear a challenge to Oklahoma's three-drug lethal injection protocol tomorrow, the last day of scheduled oral arguments for the Term. Here's an excerpt from my preview of the case, Glossip v. Gross, for the ABA Preview of United States Supreme Court Cases, with permission:


For many years, Oklahoma administered the death penalty using a three-drug lethal-injection protocol that included sodium thiopental, pancuronium bromide, and potassium chloride. The first drug, sodium thiopental, is a fast-acting barbiturate sedative that is designed to induce a deep, coma-like state of unconsciousness in the condemned. The second drug, pancuronium bromide, is a paralytic agent that is designed to inhibit all muscular-skeletal movements, thus paralyzing the diaphragm and stopping respiration. The third drug, potassium chloride, interferes with the electrical signals that stimulate heart contractions and thus induces cardiac arrest.

Since 2010, however, Oklahoma has been unable to obtain the first drug, sodium thiopental, for use in executions. Oklahoma used an alternative barbiturate, pentobarbital, for a brief period, but that drug, too, became unavailable for use in executions. (Oklahoma was not alone. Other states that used sodium thiopental in executions also saw their sources dry up. Those states, too, turned to pentobarbital or a similar barbiturate capable of producing a deep coma. But soon enough, the sources for pentobarbital also dried up.)

So in early 2014, Oklahoma substituted midazolam hydrochloride (midazolam) for sodium thiopental and pentobarbital as the first drug in its protocol. (Oklahoma retained pancuronium bromide and potassium chloride as the second and third drugs, respectively.) Midazolam is a sedative in the benzodiazepine family of drugs. Midazolam and other benzodiazepines are prescribed to treat anxiety disorders and insomnia, to reduce anxiety before general anesthesia, and for conscious sedation in minor outpatient procedures. Unlike barbiturates, midazolam does not reliably produce a deep, coma-like state that would render a person insensate to severe pain; and it is not used as the sole drug to maintain general anesthesia during a painful procedure. (There is some dispute on this point. The state’s expert testified at trial that 500 milligrams would induce and maintain coma-like unconsciousness between its administration and death. The petitioners, however, take issue with the expert’s methodology, as described more below.) Indeed, studies show that although midazolam can cause unconsciousness, a person on midazolam can be “jolted into consciousness” by the infliction of pain. (Midazolam itself does not reduce or relieve pain.) Moreover, midazolam has a “ceiling effect.” This means that beyond a certain dosage, an additional increase in dosage does not produce a corresponding increase in effect.

Oklahoma first used midazolam on April 29, 2014, in its execution of Clayton Lockett. The state administered 100 milligrams of midazolam, and Lockett was declared unconscious seven minutes later. But during the administration of the second and third drugs, Lockett awoke. He writhed in the gurney, bucked his head, and said, “This shit is fucking with my mind,” “Something is wrong,” and “The drugs aren’t working.” Lockett died 24 minutes later. While a subsequent investigation found that a catheter failure caused the drugs to infiltrate Lockett’s tissue instead of directly entering his bloodstream (as they should have), this would not have significantly impacted midazolam’s effectiveness, because it has a rapid absorption rate even when not administered intravenously.

Lockett’s experience was not unique. Ohio and Arizona both used a mixture of midazolam and hydromorphone in executions with similar results. In January 2014, Ohio used 10 milligrams of midazolam and 40 milligrams of hyodromorphone to execute Dennis McGuire. McGuire gasped for nearly ten minutes before his death. In July 2014, Arizona used more of each drug, 750 milligrams of each, to execute Joseph Wood. Wood gasped for nearly two hours before dying.

After its investigation into Lockett’s execution, Oklahoma adopted a new execution protocol, effective September 30, 2014. The new protocol gives the Director of Oklahoma’s Department of Corrections sole discretion to select among four alternative drugs or drug combinations to be used in lethal injection executions. The first alternative calls for the administration of 5,000 milligrams of pentobarbital in a one-drug procedure. The second alternative provides for the administration of 5,000 milligrams of sodium pentothal in a one-drug procedure. The third alternative calls for the administration of 500 milligrams of midazolam and 500 milligrams of hydromorphone. The fourth alternative calls for the administration of 500 milligrams of midazolam, 100 milligrams of vecoronium bromide, and 240 milliequivalents of potassium chloride. The new protocol requires the Director to inform the condemned of his or her decision in writing ten calendar days before the scheduled execution.

Richard Glossip and other death-row prisoners, including Charles Warner, sued Oklahoma and moved for a preliminary injunction to stop the state from carrying out executions in an unconstitutional manner, including through the use of midazolam in a three-drug protocol. The district court denied relief. The United States Court of Appeals for the Tenth Circuit affirmed.

On January 13, 2015, petitioners filed a petition for writ of certiorari to the Supreme Court along with an application to stay their scheduled executions. On January 15, 2015, the Court denied the stay application. Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, dissented.

That same evening, Oklahoma used its fourth alternative drug combination, which includes midazolam as the first of three drugs, to execute Charles Warner. (This combination is the same combination that the state used to execute Lockett, but with a much higher dose of midazolam.) After Warner was injected with midazolam, but before he was sedated past the point of speech, his last words were reported as “my body is on fire.”

A week later, on January 23, 2015, the Court agreed to hear the appeal. The state then applied for a stay of execution for the remaining three petitioners, asking the Court to stay the executions “until final disposition in Oklahoma’s favor . . . or, alternatively, until [the state] has in its possession a viable alternative to midazolam for use in its executions.” The Court granted the stay on January 28, 2015, ordering that the state’s “executions using midazolam are stayed pending final disposition of this case.”


The Supreme Court upheld a three-drug protocol like Oklahoma’s old protocol, including sodium thiopental as the first drug, seven years ago in Baze v. Rees, 553 U.S 35 (2008). In that case, the challengers conceded that an execution under the protocol would be humane and constitutional if performed correctly. But they argued that there was a significant risk that the procedures would not be performed correctly. In particular, they claimed that the sodium thiopental would not be properly administered to achieve its intended effect, thus resulting in severe pain upon the administration of the second and third drugs. The challengers argued that a different protocol—a one-drug protocol using a single dose of sodium thiopental or another barbiturate—would solve this problem.

The Court rejected this argument. A plurality of the Court ruled that the challengers failed to show that the three-drug protocol would create a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that would prevent prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.” The plurality also held that the challengers failed to show that their proposed alternative effectively addressed a “substantial risk of serious harm.” The plurality wrote,

To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.

The Court in Baze thus articulated the standard for an Eighth Amendment violation. It also set a standard for when a condemned prisoner challenges the administration of a protocol and suggests an alternative.

But this case is different than Baze for two reasons. First, the first drug in Oklahoma’s protocol is midazolam, a sedative, and not sodium thiopental or another barbiturate. As a result, this case raises a new question: whether a lethal injection protocol that includes midazolam as the first drug violates the Eighth Amendment. Next, Glossip and the other challengers (together, Glossip) do not merely take on the administration of the protocol; they challenge the protocol itself. In particular, Glossip does not concede (as the Baze challengers did) that the protocol, if properly administered, is constitutional. Instead, Glossip challenges the protocol itself (even if properly administered). Given these differences, this case asks whether and how the courts should apply the Baze standards to challenges that are meaningfully different than those in Baze itself.

Glossip argues first that Oklahoma’s use of midazolam violates the Eighth Amendment because it creates a “substantial risk of serious harm” or an “objectively intolerable risk of harm” in violation of Baze. Glossip says that unlike properly administered sodium thiopental, midazolam does not reliably induce a deep, coma-like unconsciousness that would render a person insensate to pain, and that, indeed, clinical studies show that when midazolam was used in surgery, patients felt pain. Moreover, he claims that there is no substantial practice among the states of using midazolam for lethal injections (again, in contrast to the widespread use of sodium thiopental, at least when it was available). Glossip says that only four states have used midazolam in an execution, and only two have used it as anesthesia.

Glossip contends that the lower court’s decision to credit the state’s expert that a 500-milligram dose of midazolam would induce a deep unconsciousness was clear error. Glossip claims that the expert supported his opinion with only undisclosed or unreliable sources and mathematical error, and that the expert’s supposition about how the drug works “has no acceptance in the scientific community.” Instead, Glossip says that midazolam’s properties, including its ceiling effect, mean that it cannot reliably induce a deep, coma-like unconsciousness.

On the second issue, Glossip argues that the Tenth Circuit erred in setting a higher standard for a stay of execution than the one set by the plurality’s decision in Baze. Glossip says that the traditional standard for obtaining a stay requires, among other things, “a significant possibility of success on the merits.” Hill v. McDonough, 547 U.S. 573 (2006). He says that the Baze plurality did not modify or overrule that standard. Yet he claims that the Tenth Circuit and other courts have construed Baze to set a new and higher standard, one that all but forecloses a stay. He contends that this is wrong. Glossip claims that, if anything, a higher standard should apply only to cases like Baze, where a death-row prisoner challenges a concededly valid method of execution but seeks to show a step that “the State could take as a failsafe for other, independently adequate measures.” But where, as here, a person lodges a claim that the state’s method itself violates the Eighth Amendment, Glossip contends that the traditional stay standard should apply.

Finally, on the third issue, Glossip argues that the Tenth Circuit also erred in requiring the petitioners to propose a commercially available alternative drug for their executions. Glossip claims that the Eighth Amendment prohibits certain punishments, independent of whether market forces prevent a state from adopting its preferred alternative. Glossip says that Hill supports this principle, and Baze did not overrule it. Glossip writes, “The vitality of a core constitutional guarantee does not vary with the marketing decisions or supply constraints of private corporations.”

Oklahoma argues first that the Court should dismiss the appeal as improvidently granted. The state says that Glossip is challenging the lower courts’ fact-finding, and that the fact-finding at issue was not even necessary to the courts’ judgments. Oklahoma claims that this kind of fact-based dispute is ill-suited to Supreme Court review.

Oklahoma argues next that its use of midazolam does not create a “substantial risk of serious harm.” The state says, contrary to Glossip’s assertion, a 500-milligram dose of midazolam can induce a deep, coma-like unconsciousness. Indeed, the state claims that the record evidence indicates that a large dose of midazolam produces unconsciousness sufficiently deep to render a person insensate “to even extremely painful stimuli.” Oklahoma says that midazolam’s lack of analgesic properties is irrelevant, because it induces deep unconsciousness. It claims that the risk of paradoxical reactions is extremely low. And it contends that any ceiling effect has not been sufficiently established. Oklahoma also claims that its other “robust procedural safeguards” “will eliminate” the risk of severe pain.

Oklahoma argues that the district court did not err in admitting the opinions of its expert. The state says that Glossip’s challenges to the expert’s methodology lack merit and that the district court properly relied on the expert’s testimony. Oklahoma claims that the Tenth Circuit gave Glossip “every benefit of the doubt” and still ruled that none of Glossip’s challenges undermined the scientific reliability of the state’s evidence at trial.

Oklahoma argues on the second issue that the Tenth Circuit properly applied the standard that Glossip seeks here. Oklahoma says that the Tenth Circuit explicitly applied the proper standard for a preliminary injunction, and that the Supreme Court cannot assume that the Tenth Circuit applied a higher standard without saying so. Moreover, the state claims that the district court ruled that Glossip failed to meet the burden under an even more relaxed standard. And Oklahoma contends that in any event the Baze standard should apply to Glossip’s claim. The state says that the Baze plurality was clear when it wrote, “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain * * * [that] is substantial when compared to the known and available alternatives.”

Finally, on the third issue, Oklahoma argues that Glossip did not show that an alternative execution method is available that will substantially lower the risk of severe pain, which Oklahoma says is the Tenth Circuit’s alternative (not principal) holding. The state says that the Baze plurality’s requirement that a challenger identify an alternative was a “broadly applicable standard” designed to provide adequate guidance in method-of-execution cases. Oklahoma claims that all courts of appeals so far have applied Baze this (broader) way. The state says that this makes sense: Because the death penalty itself is constitutional (even if some pain results), any challenge to a method of execution that fails to identify a feasible alternative method that would result in substantially less pain amounts to a challenge to the death penalty itself. And this, the state claims, is already foreclosed by the Constitution.


Thirty-two states plus the federal government currently have a death penalty. All of these jurisdictions use lethal injection as the primary method of execution, but many have a back-up (electrocution, gas chamber, and even hanging and firing squad) in case lethal injection drugs become unavailable. (Check out for more information on state-by-state approaches to the death penalty.)

States started using lethal injection in the 1980s as a more humane method of execution, theoretically free of unnecessary pain, in reaction to the risks associated with other methods of execution. When states first adopted lethal injection, the vast majority left their statutes purposefully vague on the procedure and delegated the development of a protocol to prison officials. Historically, most states and the federal government used a three-drug protocol like Oklahoma’s earlier protocol, which included sodium thiopental or another barbiturate as the first drug. (For an excellent and critical history, check out the amicus curiae brief filed by The Louis Stein Center for Law and Ethics at Fordham University School of Law. Amicus argues, like Glossip, that states developed and modified their drug protocols not with the kind of medical or scientific rigor that we might expect, but in reaction to court decisions and out of expedience.)

But in the 7 years since Baze came down, states have moved away from the original three-drug protocol. This is at least in part because states’ sources for sodium thiopental and alternative barbiturates for use in executions have largely dried up, as international drug suppliers have refused to sell drugs for use in executions. As a result, some states have turned to compounding pharmacies to obtain lethal drugs, others have altered their protocols, and yet others have authorized alternative methods of execution when lethal drugs are not available. (For example, Utah’s governor signed a bill on March 23, 2015, allowing the use of firing squads in executions if the state is unable to obtain lethal injection drugs.)

Against this backdrop, Glossip is important because it will give states additional guidance on when a particular drug protocol violates the Eighth Amendment, and what challengers must show to prove it.

If Baze is any indication (and, indeed, if the complicated route to the Court in Glossip is any indication), the Court is deeply divided on how to evaluate these claims. While the Court upheld the protocol in Baze by a 7-2 vote, the case produced seven different opinions. Since Baze came down, Justice Sotomayor replaced Justice Souter (who dissented in Baze), and Justice Kagan replaced Justice Stevens (who wrote a separate concurrence arguing that the death penalty is unconstitutional but ultimately deferring to precedents). While these changes may not alter the head-count in this case, they may add yet another dimension to the reasoning.

Just to be clear: This case does not test the constitutionality of the death penalty itself, but instead tests the constitutionality of a particular drug protocol in administering the death penalty. It also tests the standards by which courts should evaluate challenges to a particular method of execution.

But as states continue to have problems obtaining sodium thiopental and similar barbiturates, and as they therefore increasingly look to alternative drug protocols and other methods of execution, these standards will become increasingly important in death penalty challenges. In this way, even though Glossip does not test the death penalty itself, the Court’s ruling will, as a practical matter, put a heavy thumb on the scale either for or against the death penalty.

April 28, 2015 in Cases and Case Materials, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, April 27, 2015

Plaintiffs Shoot a Blank in Assault Weapon Ban Challenge

A divided panel of the Seventh Circuit today upheld a local ordinance banning assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling in Friedman v. City of Highland Park means that the ordinance, by Highland Park, a Chicago suburb, stays in place for now. But this case is a good candidate for en banc and even Supreme Court review, so we likely haven't seen the end of it.

The case is full of turns. For example, Judge Easterbrook, for the majority, used history against the plaintiffs, even though opponents of gun regulation have so often used history in support of their points. He also used federalism against the plaintiffs, even though opponents of gun regulation so often look to "states' rights" in this and other areas. He turned the preservation or efficiency of a well regulated militia into a point about the states' ability to decide what weapons should be available to civilians. And finally he turned the gun-rights victories at the Supreme Court against the plaintiffs: If the plaintiffs can already possess handguns and long-guns for self-defense (as the Court has ruled, why do they also need semi-automatic weapons?

The case is also full of both social science and common sense. For example, "That laws similar to Highland Park's reduce the share of gun crimes involving assault weapons is established by the data." And, "But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in the aggregate. Why else are they the weapons of choice in mass shootings?"

But aside from the turns, the social science, and the common sense, the case is notable for the Second Amendment rule it uses. Judge Easterbrook declined to apply any particular tier of scrutiny and instead applied this test:

[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.

Judge Easterbrook essentially said that this is the best a lower court can do when the Supreme Court has declined to set a particular level of scrutiny (or other test).

As to the requirement of a reasonable relationship to the preservation or efficiency of a well regulated militia, the court said that "states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms, so as to have them available when the militia is called to duty." As to whether the law allows other means of self-defense, the court noted that Highland Park residents can still use handguns and long-guns for self-defense, and that the Court said that was enough.

He even at one point went so far as to say that if Highland Park's ban only "reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit."

In wrapping up, Judge Easterbrook went even more deferential:

The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court's opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.

And he went more on federalism:

Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.

Judge Manion dissented, arguing that the "ordinance infringes upon the rights of . . . citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property."

April 27, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)