Constitutional Law Prof Blog

Fifth Circuit Upholds Ban on Gun Sales to Those Under 21 Years

A three-judge panel of the Fifth Circuit in NRA v. ATF upheld the federal ban on gun sales by federal firearms licensees to those under 21 years of age against a Second Amendment challenge.  Notably, the court ruled that the ban didn't even touch activity protected by the Second Amendment (and it therefore didn't violate the Second Amendment).  But, the court ruled, even if it did touch activity protected by the Second Amendment, it did not violate the Second Amendment.

This is the first federal circuit court ruling on these federal provisions and only the second federal court ruling on them.  (The first, a 2008 district court ruling from the Western District of Texas, held the provisions constitutional under an intermediate scrutiny standard.)  Otherwise the ruling breaks no new ground in Second Amendment jurisprudence post Heller and McDonald--it hews closely to the Second Amendment jurisprudential line set by other circuits--and it therefore may be a model and bellwether for other cases challenging these provisions.

The NRA will certainly seek en banc review, and the ultimate loser at the Fifth Circuit will undoubtedly seek cert.  The case presents a good candidate for the Supreme Court to set and to apply a Second Amendment standard (on the one hand), but it's almost surely too soon, without any other circuit ruling on the provisions (on the other).  At the end of the day, the Supreme Court is unlikely to take this one up, so long as any final ruling from the Fifth Circuit reflects the kind of cautious, well-within-bounds approach of this panel.

The federal provisions, 18 U.S.C. Secs. 922(b)(1) and (c)(1), together prohibit federally licensed firearms dealers from selling handguns to persons under the age of 21.  The NRA sued with a couple individual named plaintiffs and argued that the restriction violated the Second Amendment.

The Fifth Circuit disagreed.  The court recognized that the Supreme Court has not defined a precise constitutional test for Second Amendment challenges.  But in adopting the flexible and "prevailing" two-step inquiry established by the Third, Fourth, Sixth, Seventh, Tenth, and D.C. Circuits, the court drew on language from Heller:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Op. at 10 (quoting Heller at 626-27) (emphasis added).  The two-step inquiry asks: (1) Does the challenged law impinge upon a right protected by the Second Amendment? and (2) Does intermediate scrutiny or strict scrutiny apply?

As to the first question, the court carefully surveyed the history and tradition of gun sale regulations and concluded that

the conduct at issue falls outside the Second Amendment's protection.  At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups' ability to access and to use arms for the sake of public safety.  More specifically, the present ban appears consistent with a longstanding tradition of age- and safety-based restrictions on the ability to access arms.  In conformity with founding-era thinking, and in conformity with the views of various 19th-century legislators and courts, Congress restricted the ability of minors under 21 to purchase handguns because Congress found that they tend to be relatively immature and that denying them easy access to handguns would deter violent crime.

Op. at 26-27.  Thus the court ruled that it didn't even need to get to the second question.

But just in case, it did.  On the second question, the court applied intermediate scrutiny and held that curbing violent crime by those under 21 constitutes an important government objective and that the sales ban--not a blunter possession ban--adequately served that end.

SDS

Daily Read: Felon Disenfranchisement in Comparative Perspective

The current controversy in the UK over voting by persons who are presently incarcerated and the imminent US election again raise questions regarding the general US policy of disenfranchisement by persons convicted of felonies (even if not incarcerated), a topic we've previously addressed here and here.

Ruvi Ziegler's 2011 article, Legal Outlier, Again? US Felon Suffrage: Comparative and International Human Rights Perspectives, 29 Boston University International Law Journal 197, available on ssrn, situates the US practices and doctrine within international human rights and comparative constitutional law perspectives. 

Ziegler concludes that defending the "rights of convicts is hardly a popular task. However,defending their right to vote means, inter alia, defending the substantivedemocratic legitimacy of criminal law, which labels certain community members as convicts by proscribing their acts and which sanctions the imposition of punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed."

This is worth a read for any scholar or student pondering the relationship between the fundamental right to vote and punishment.

RR
[image via]

Pennsylvania Trial Judge on remand Issues Partial Injunction of Voter ID Law

On remand from the Pennsylvania Supreme Court's opinion last month, Commonwealth Judge Robert Simpson issued his Memorandum Order by today's deadline issuing a partial injunction of Pennsylvania's controversial voter photo identification law administered by PennDOT. 

In short, the Judge allows election officials to request an in-person voter show photo identification, but "enjoin[s] enforcement of those provisions of Act 18 which amend the provisional ballot procedures of the Election Code and cause disenfranchisement based on failure to present photo ID for in-person voting." [emphasis added].  The Judge rejected the State's argument that such a voter be allowed only to cast a "provisional ballot."

Judge Simpson also noted that the Pennsylvania Supreme Court's

reference to “no voter disenfranchisement ... for purposes of the upcoming election,” Applewhite, ___ Pa. at ___, ___ A.3d at ___, slip op. at 7, has sparked debate between the parties. I understand the phrase to be focused on the preliminary injunction for purposes of the upcoming election. I do not understand the phrase to define the test for a facial validity challenge in the context of a permanent injunction. If that understanding is not correct, the Court’s guidance will be necessary.

With a little over a month until the election, this case may be heading back to the Pennsylvania Supreme Court for such guidance.

RR

Eighth Circuit on Due Process Constraints of Punitive Damages (and First Amendment)

In its opinion in Ondrisek v. Hoffman, a panel of the Eighth Circuit held  "Despite the exceptionally reprehensible nature of Alamo’s conduct, it would be unconstitutional to let the punitive damages – and their 10:1 ratio to compensatory damages – stand."

The Defendant, Bernie Hoffman, a/k/a Tony Alamo (pictured right), was the leader of Tony Alamo Christian Ministries (TACM).  The Plaintiffs, Spencer Ondrisek and Seth Calagna were raised in TACM, and suffered extreme brutality until they managed to escape at age 18.  As the panel opinion states:

Spencer Ondrisek and Seth Calagna were raised in TACM. They were forced to work without pay starting at the age of 8. Alamo began threatening to beat Ondrisek when he was 11. Alamo told him that if he disobeyed, he would be enlisted in the military and “shot and killed.” When he was 12, Alamo had an “enforcer” severely beat him because he made a small tunnel while hauling dirt for the church. As Ondrisek received discipline of 15 to 20 blows to his face, Alamo made his father watch. Ondrisek then received 20 to 30 strikes from a paddle that was three feet long, an inch-and-a-half thick, and three or four inches wide. He was unable to sit for several days and not allowed to attend services because the swelling on his face was too visible. Two years later Alamo had Ondrisek beaten again for horseplay. He sustained 15 to 20 hits to his mouth, beginning to bleed after the second blow. He also received 30 to 40 paddles (maybe more), causing severe bruising that did not fully heal for several weeks. He has permanent scarring from the beating. At 15, Ondrisek’s schooling stopped, and he began working on the church’s property 70 hours a week. He was forced to attend services and listen to Alamo’s recordings daily. As punishment for falling asleep as a night watchman, Alamo required him to fast two days, giving him only water. At 16 or 17, Ondrisek was beaten for a third time after being falsely accused of bullying. He was slapped 20 or more times in the face, and paddled 40 times. Ondrisek blacked out, but no one took him to a hospital. His hand was severely injured and still causes him pain.

Calagna’s youth at TACM was similar to Ondrisek’s. When he was 14, Calagna’s parents woke him at 4 a.m. to have him beaten. He was hit so hard he vomited. His face was unrecognizable afterwards; his injuries took weeks to heal. Less than a month later, he witnessed his father get beaten, causing him emotional distress. He was beaten again at 17 for talking about “Harry Potter.” He was struck until the paddle broke and then hit again with a larger board. In addition to physical abuse, both boys experienced verbal abuse. They both contemplated suicide, “unable to imagine that death would be worse.” At 18, Ondrisek and Calagna escaped TACM separately. They still have trouble sleeping, experiencing nightmares and flashbacks. Alamo is currently serving a 175-year sentence for 10 counts of transporting minors across state lines for illicit sex.

A jury awarded each plaintiff $3 million in compensatory damages and $30 million in punitive damages.

The Eighth Circuit quickly rejected Alamo's argument that his actions were protected by the First Amendment free exercise clause.  The panel also rejected Alamo's appeal regarding a denied jury instruction on corporal punishment and regarding compensatory damages.  However, the panel found meritorous Alamo's argument that the $30 million punitive damages award violated the Due Process Clause of the Fourteenth Amendment's prohibition of “grossly excessive” civil punishment under BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996).

The panel reduced the punitive damages to $12 million for each plaintiff, at a ratio of 4:1.  The panel opinion provided an instructive chart of Eighth Circuit cases regarding due process punitive damage decisions in support of its decision.

It does seem, however, that the chart elides the gravity of the case against Alamo.  As the panel admits, the compensatory damages in the various cases are generally less than a million dollars.  Moreover, it does not seem as if any of the charted cases involve such prolonged acts.

Perhaps Tony Alamo's prolonged intentional torts should be considered "off the charts," at least for the "grossly excessive" analysis of punitive damages in a due process analysis.

RR

Daily Read: Conscience Clauses and Same-Sex Marriage

In the United States, there can be First Amendment Free Exercise Clause arguments against participating in same-sex marriages (or other matters involving sexual minority equality), as in the town clerk controversies in New York.  Similar constitutional controversies between "conscience" and same-sex marriage occur in other jurisdictions.

With a focus on civil servants (or their equivalents) who act as marriage officers and who object to participating in the legal institutionalization of same-sex unions, co-authors Bruce MacDougall (University of British Columbia, Canada); Elsje Bonthuys (University of the Witwatersrand, South Africa); Kenneth Norrie (University of Strathclyde, Glasgow, Scotland), and Marjolein Van den Brink (University of Utrecht, the Netherlands) have produced an important comparative discussion centering on Canada, Scotland, South Africa, and the Netherlands, in their article  "Conscientious Objection to Creating Same-Sex Unions: An International Analysis."  It's published in the Canadian Journal of Human Rights, and available on ssrn.

Their explorations of the specifics of jurisdictions are excellent, but it is the final sections of the article that make the most vital contribution.  By discussing the conflict of constitutional values in more generalized terms - - - not burdened by specific doctrinal developments and histories - - - the authors ask whether it is possible to satisfy both the equality and conscience concerns.

It's a question without an easy answer, but this article frames the issues and provides several perspectives. This would be a terrific article for a First Amendment class considering these issues.

RR
[image: "The Interrupted Wedding" by Edmund Bristow circa 1860 via]

CFP: Corporations and Children's Rights

ConLawProfs doing work on privatization might be interested in this CFP for a Vulnerability and Feminism Legal Theory Workshop.

From the organizers:

This workshop considers the growing trend in some countries to subordinate and often sacrifice children's interests (indeed all of our interests) to corporate interests claimed in the name of efficiency. This trend is represented by the proliferation of for-profit schools, hospitals, and prisons, and in corporate rights exemplified by the reach of commercial advertising into public schools -- from buses to corridors to cafeterias.  Particularly in the U.S., the corporation reigns supreme.  Politicians and policy makers increasingly accept markets as adequate mechanisms to allocate health, education, public safety, criminal justice, environmental protection, recreation, procreation, and other social goods, and they tend to consider "business" models as the superior means to do so.  Corporate legal personhood protects as "speech" the allocation of corporate wealth to political and social causes that aggressively work against protective regulations of corporate activities.  Advertising and social media driven by corporate interests create consumer demand for unhealthy and unnecessary products and use the mantra of parental "choice" as a subterfuge for gross profit-seeking.  Corporate practices and "values" are adopted as relevant and beneficial to assessing the worth and success of public services, such as education and health care. What is the balance struck in other countries?  Is it possible within a liberal legal order to challenge the assumptions that underlie privatization and the "corporatization" of society?  Is it impossible to reorient and "humanize" the corporation by holding it legally responsible beyond shareholders and the market, using law to encourage responsiveness to the interests of children and other human beings?  

 

The deadline for submissions is July 25, 2012.   More info, including submission details, here.

RR

D.C. Circuit Rejects Torture Suit Against Rumsfeld

A three-judge panel of the D.C. Circuit today rejected a U.S. citizen's Bivens action against former Defense Secretary Donald Rumsfeld for developing, authorizing, and implementing policies that led to his torture while in U.S. custody in Iraq.  The panel, following an earlier similar ruling from the Fourth Circuit, Lebron v. Rumsfeld, held that special factors counseled against a Bivens remedy--special factors "pertaining to military, intelligence, and national security."

The ruling comes on the heels of the Supreme Court's rejection of the plaintiffs' cert. petition in Lebron and while a similar suit is now pending before the en banc Seventh Circuit.  (A three-judge panel of the Seventh Circuit earlier ruled that the plaintiffs in that case did have a Bivens remedy against Rumsfeld.)

The case means that U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials in the D.C. Circuit, even when the violations resulted from torture while in U.S. custody.  With two circuit rulings now on the books--this case, Joe Doe v. Rumsfeld, and Lebron--and with a Seventh Circuit ruling against the plaintiffs now all but certain, and with the Supreme Court's rejection of cert. in Lebron, it now seems all but certain that other circuits faced with the question will follow suit, and that therefore U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials anywhere.

The case also gives extraordinary authority to the executive to evade suits for detention and mistreatment--even torture--of U.S. citizens.  Congress, of course, could change this by authorizing such suits.  But don't look for that to happen anytime soon--or ever.

The D.C. Circuit ruling closely follows the Fourth Circuit's earlier ruling.  That is, the court today ruled that the "special factors" of military, intelligence, and national security foreclose a civil damage remedy for constitutional violations by U.S. citizens.  Here's the court's special factor analysis:

In his complaint, Doe challenges the development and implementation of numerous military policies and decisions.  The complaint would require a court to delve into the military's policies regarding the designation of detainees as "security internees" or "enemy combatants," as well as policies governing interrogation techniques.

Doe's allegations against Secretary Rumsfeld implicate the military chain of command and the discretion Secretary Rumsfeld and other top officials gave to [military] agents to detain and question potential enemy combatants.  The allegations raise questions regarding Secretary Rumsfeld's personal control over the treatment and release of specific detainees.  Litigation of Doe's case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq.  And . . . allowing such an action would hinder our troops from acting decisively in our nation's interest for fear of judicial review of every detention and interrogation.

Op. at 10-11.

The court also found persuasive--another "special factor" counseling against a Bivens remedy--that Congress did not authorize such suits under the Detainee Treatment Act, or any other statute.  

Because the court ruled against Doe on Bivens, it did not rule on Rumsfeld's defense of qualified immunity.

SDS

D.C. Circuit: No Bivens Claim for LOC Employee Fired for Speech

A sharply divided three-judge panel of the D.C. Circuit ruled last week in Davis v. Billington that a Library of Congress employee did not have a Bivens claim against his supervisor and the Librarian of Congress for firing him for his speech.  The court ruled that special factors counselled against extending Bivens, because Congress did "not inadvertently" omit damage remedies for employees in the plaintiff's position--employees of the Library of Congress, not the executive branch--in the comprehensive Civil Service Reform Act.

The case arose after Morris Davis, the Congressional Research Service Assistant Director of the Foreign Affairs, Defense, and Trade Division, penned some high-profile opinion pieces critical of the Obama administration for choosing to prosecute some Guantanamo detainees in federal courts and others in military commissions.  Davis was also critical of the Bush administration handling of Guantanamo detainees.

Davis had some unique familiarity with these issues.  He served as Chief Prosecutor of the military commissions at Guantanamo Bay until October 2007.

After the pieces came out, Daniel Mulhollen, Davis's supervisor, fired him.  Davis sued Mulhollen and Billington, the Librarian of Congress, seeking declaratory and injunctive relief, and for damages against Mulhollan for violation of his First and Fifth Amendment rights under Bivens.

The court ruled that special factors counselled against extending a Bivens remedy, because Congress, through the comprehensive remedial scheme in the CSRA, did "not inadvertently" omit damage remedies for civil service members, like Davis, outside the executive branch. 

Judge Rogers filed a lengthy and sharp dissent.  She said that Congress omitted civil service members outside the executive branch from the CSRA remedial scheme based on separation-of-powers principles.  That is, the legislative history of the CSRA shows that Congress didn't include legislative branch employees in the CSRA comprehensive remedial scheme because it didn't want the executive branch to have the power to adjudicate claims of legislative branch employees.  The history shows, moreover, that Congress didn't have that same concern with respect to judicial adjudication.  According to Judge Rogers, this all shows that Congress did not omit legislative branch employees becauase it wanted to leave them without a remedy.  On the contrary, Congress seems to have left open the possibility of a judicial remedy--a Bivens action.

SDS

County Pulls Rug Out From Under Second Amendment Claim

In the latest installment in the long-running saga Nordyke v. King, the en banc Ninth Circuit ruled today that Alameda County's ban on gun shows at the county fairgrounds didn't violate the Second Amendment, because, well, Alameda County changed its policy to allow gun shows.

The county's late-in-the-day move pulled the rug out from under the plaintiffs' original Second Amendment claim and gave the court an out (which it took) in articulating a Second Amendment standard.  The move also allowed the court to preempt any repleading by the plaintiffs.  Between the county's move and the court's ruling, the case now has virtually no chance of going to the Supreme Court.

Recall that the case involved Alameda County's ban on gun shows at the county fairgrounds.  The county ordinance banned firearms on the fairgrounds, but provided exceptions for, among other things, a "dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event."  The county originally interpreted the ordinance to ban gun shows, and the plaintiffs sued.

That was a long time ago, and the case has been up and down several times since.  But most recently, the county re-interpreted its ordinance to allow gun shows (as an "event"), provided that the weapons are secured or tethered (like cell phones are in a cell phone store).

The en banc Ninth Circuit ruled that the county's change in interpretation meant that the plaintiffs no longer had a Second Amendment claim against a ban on gun shows.  The court said nothing about the Second Amendment itself.

As to the requirement that the guns remain secured or tethered, the court said that that "[n]o matter how broad the scope of the Second Amendment . . . it is clear that . . . this regulation is permissible."

Judge O'Scannlain, joined by Judges Tallman, Callahan, and Ikuta, concurred, arguing that the court should have adopted a standard of scrutiny for the Second Amendment--the "measured, calibrated approach developed in the original three-judge panel majority opinion, which considers carefully the extent of the regulation's burden on Second Amendment rights."  But even applying this standard, Judge O'Scannlain argued that the county's new interpretation of the ordinance would survive.

Judge Ikuta, joined by Judge Callahan, also wrote a concurrence, arguing that the court should adopt a standard and determine whether the plaintiffs could re-plead their case.

While we still don't have guidance from the Supreme Court as to the standard for Second Amendment claims, this case now makes a poor candidate for the Court to determine that standard.  Look for this case to (finally) end.

SDS

ACLU Sues to Stop Minnesota Voter ID Ballot Proposal

The Minnesota ACLU, along with the League of Women Voters Minnesota, Common Cause, Jewish Community Action, and five Minnesota voters, filed a petition with the Minnesota Supreme Court seeking to strike a ballot question that, if passed, would amend the Minnesota Constitution to require voter ID.

The petitioners claim in their Brief and Addendum that the ballot question is false, misleading, and an incomplete description of what the amendment would actually do--in violation of Article IX, Section 1, of the Minnesota Constitution.  That Section provides that proposed amendments shall be "submitted to the people for their approval or rejection."  The Minnesota Supreme Court interprets it considering whether the language of the ballot question would mislead a voter of common intelligence to the proposed amendment's actual meaning and effect.

Here's what the legislature required the ballot to say:

Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?

Yes

No

And here's what the amendment to the Constitution would say:

(b) All voters voting in person must present valid government-issued photographic identification before receiving a ballot.  The state must issue photographic identification at no charge to an eligible voter who does not have a form of identification meeting the requirements of this section.  A voter unable to present government-issued photographic identification must be permitted to submit a provisional ballot.  A provisional ballot must only be counted if the voter certifies the provisional ballot in the manner provided by law.  

(c) All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted.

The petitioners argue that the ballot question misleads in five ways:

1. It says that the amendment would require photo ID from "all voters," but the amendment actually only requires it from those who vote "in person."

2. It omits any mention of the "substantially equivalent" verification provision.

3. It fails to disclose that the proposed amendment would requirement government-issued ID (and not just any ID).

4. It fails to disclose that the proposed amendment would require provisional voting.

5. It has a misleading title for the proposed amendment--"Photo Identification Required for Voting."

The proposed amendment came about after the legislature first passed voter ID and the governor vetoed it.  Rather than overriding the veto, the legislature voted to put the measure on the ballot as a constitutional amendment.

SDS

Supreme Court: Retrial Does Not Violate Double Jeopardy

The Supreme Court ruled 6-3 today that retrying a defendant on charges on which the jury agreed that defendant was not guilty did not violate double jeopardy in an acquittal-first jurisdiction, where the jury deadlocked on lesser-included charges, and where the judge declared a mistrial.

The ruling, together with earlier Supreme Court cases, means that when a jury agrees that a defendant is not guilty of a greater offense, but when it deadlocks on a lesser-included offense, in an acquittal-first jurisdiction, the state can retry the defendant for the greater offense; but when a jury agrees that a defendant is not guilty of a greater offense, but when it convicts on a lesser offense, the state may not retry the defendant.

The case, Blueford v. Arkansas, arose out of the state's attempt to bring a second case against Alex Blueford for the death of his girlfriend's one-year-old child.  The state first charged Blueford with capital murder and the lesser offenses of first-degree murder, manslaughter, and negligent homicide.  The trial judge instructed the jury to consider the offenses as follows:

If you have a reasonable doubt of the defendant's guilt on the charge of capital murder, you will consider the charge of murder in the first degree. . . .  If you have a reasonable doubt of the defendant's guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter. . . .  If you have a reasonable doubt of the defendant's guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.

The court gave the jury a set of verdict forms, one for each charged offense and one to acquit.  Acquittal was all or nothing: the jury could not acquit on some charges but not others.

The jury reported, in open court, that it was unanimous against guilt on the capital and first-degree murder charges, but that it was deadlocked on manslaughter and had not voted on negligent homicide.  The judge sent the jury back for more deliberation, but the jury was still unable to reach a verdict.  The judge declared a mistrial.

The state sought to retry Blueford.  Blueford moved to dismiss the capital and first-degree murder charges as violating the Double Jeopardy Clause.  

Chief Justice Roberts wrote for the Court that the retrial did not violate double jeopardy.  He said that the jury didn't acquit Blueford of the capital and first-degree murder charges--"[t]he foreperson's report was not a final resolution of anything"--and may well have reconsidered its initial unanimous agreement when the judge sent the case back for further deliberation.  "The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses."  The Court also rejected Blueford's argument that the judge's mistrial declaration was premature, without sufficient effort to get the jury to come to a verdict.

Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.  Justice Sotomayor viewed the jury's report on its agreement on the capital and first-degree murder charges as sufficiently final to trigger double jeopardy.  She also argued for a rule under the Double Jeopardy Clause that a judge in an acquittal-first jurisdiction must grant a partial verdict on the defendant's request: "If a State wants the benefits of requiring a jury to acquit before compromising, it should not be permitted to deprive a defendant of the corresponding benefits of having been acquitted."

SDS

Court Says Detention Authority Violates First Amendment

Judge Katherine B. Forrest (SDNY) ruled last week that the detention authority in the National Defense Authorization Act likely violates free speech.  Judge Forrest granted the plaintiffs' motion for a preliminary injunction in Hedges v. Obama and thus enjoined enforcement of Section 1021.

The case is notable in that the government could easily have side-stepped the whole thing: It simply could have taken the position that the plaintiffs, based only on their affidavits and testimony, did not fall within Section 1021.  This would have taken away the plaintiffs' standing (as Judge Forrest noted) and undermined the suit.  (The government need not have said anything about whether the plaintiffs would have been covered by Section 1021 if additional evidence arose.)  But it refused, suggesting that it keeps open the possibility that Section 1021 could apply to a remarkably wide swath of individuals, notwithstanding the President's efforts to limit it upon signing the NDAA.  More on this below.

The ruling is the first against the controversial detention authority in the NDAA.  The section at issue, Section 1021, defines a detainable person broadly (and vaguely, as it turns out) and apparently authorizes indefinite detention.  The Section, titled Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force, provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

But President Obama, upon signing the NDAA, issued a signing statement that said that Section 1021 did nothing to existing government detention authority under the AUMF and that the Section was therefore unnecessary.  In short, according to the President, Section 1021 changed nothing.  As to indefinite detention, the President wrote: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."

Moreover, while the White House issued a policy directive that included procedures for detention under Section 1022 (relating to military custody of foreign al-Qaeda terrorists), it issued no such directive on Section 1021--further suggesting that, in its view, nothing changed.

A group of writers, reporters, and activists brought suit, claiming Section 1021 could be interpreted to include them based on their reporting and writing on terrorist groups, including al-Qaeda, and terrorist activities; that they feared detention under Section 1021; and that Section 1021 chilled their further speech.  They said that Section 1021 was overbroad and vague in violation of the First Amendment.

Judge Forrest agreed.  In a lenghty and careful ruling, she wrote that the plaintiffs had standing, and that Section 1021 likely violated the First Amendment based on its overbreadth and vagueness.  

The ruling was based as much on the govenrment's stubborn position that it couldn't rule out detaining the plaintiffs based on their affidavits and testimony as it was based on the law.  The government refused to say that the plaintiffs wouldn't be detained under Section 1021 based on their affidavits and testimony, even though it also said that the plaintiffs' fears of detention were unreasonable.  And in a remarkable set of exchanges, reproduced in the opinion (at pages 31 to 34), government lawyers were unable to define phrases like "substantially support" or "directly support," or to give examples, or to assure the court that these plaintiffs, based on their affidavits and testimony alone, would not be subject to detention under Section 1021.

Outside the government's inability to define terms, give examples, or say whether the plaintiffs would be detainable, the court was also concerned about the lack of mens rea in Section 1021--an authority that it viewed as criminal-like, because of the potential for physical detention.  The problem is that a person could violate Section 1021 without intending to, even without knowing.  This, it said in addition to the government's inability to define key terms, rendered the Section unconstitutionally vague, in violation of due process.  

The court said the government's position was strongest on the definition of "associated forces"--a phrase that the government said is rooted in the laws of war.  But even so, "that does not resolve plaintiffs' concerns since they each testified to activities with or involving individuals or organizations that are 'associated forces' as defined by the Government."  Op. at 55-56.  The plaintiffs had the better of the case on "substantially," "direct," and "support."

If the government maintains its positions, keeping its options fully wide open under Section 1021, it's hard to see how an appeals could could rule any differently in this case.

SDS

Catholics Sue Government Over HHS Abortion, Contraception Regs

Forty-three Catholic institutions filed 12 separate suits today against HHS Secretary Kathleen Sebelius to halt HHS regulations that they say would require them to "provide, or facilitate the provision of, abortion-inducing drugs, sterilization, and contraceptive services to its employees in violation of the centuries' old teachings of the Catholic Church."

The move is the latest in the ongoing debate between the church and the administration over new HHS guidelines under the Patient Protection and Affordable Care Act that require insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."  The plaintiffs reject the White House's February 2012 compromise--to exempt religious organizations that have religious objections from directly paying for those services--as insufficient.

The University of Notre Dame filed one such suit in the Northern District of Indiana.  The University's complaint is here; the President's statement is here. 

Notre Dame's complaint alleges violations of the First Amendment religion and speech clauses, the Religious Freedom Restoration Act, and the Administrative Procedures Act.  It seeks declaratory and injunctive relief and attorneys' fees. 

As to its religion clause claims, Notre Dame alleges that the government has no compelling interest in the requirement, that the requirement substantially burdens its religious exercise; that the requirement excessively entangles government in religion (because it requires a government determination of whether the purpose of the organization is to inculcate people into its tenets in order to qualify for an exemption); and that the requirement discriminates among religions (because it treats those religions that do not oppose "abortifacients" differently than those that do).

As to its speech claim, Notre Dame argues that the requirement and counseling are viewpoint-based compelled speech in violation of the First Amendment.

Notre Dame claims that under HHS regulations it has to provide "contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" itself, and not through a third-party insurer.  That's because Notre Dame does not contract with a separate insurance company for its employees' health insurance; instead, it offers self-insured plans.  It also claims that it doesn't qualify for an exemption, because it's not a church or an exclusively religious activity--the exemptions in Section 6033(a)(3)(A)(i) and (iii), respectively, of the IRC.

SDS

Ninth Circuit Rejects Veterans' Claims

The en banc Ninth Circuit today rejected veterans groups' claims against the VA over delays in the provision of mental health care and the adjudication of service-connected disability compensation claims.  The court ruled that it lacked jurisdiction over the groups' mental health care claims and disability benefits claims, and that while it had jurisdiction over the groups' due process challenges to regional office procedures, those challenges failed on the merits.

The ruling is based on a broad reading of the statutory restriction on federal court involvement in cases related to veterans benefits outside the Veterans Court and the Federal Circuit; it means that veterans and veteran groups won't be able to get judicial relief for anything related to veterans benefits in the Ninth Circuit.  While they can still file claims related to individual benefits decisions in the Veterans Court and the Federal Circuit (an appeal of a denial of benefits at the VA, e.g., or even an individual mandamus claim to get the VA moving), they apparently have no judicial remedy for claims like this, based on systemic delay.

The case, Veterans for Common Sense v. Shinseki, arises out of a complaint by two veterans groups that the VA delayed the provision of mental health care and the adjudication of service-connected disability claims of veterans.  The court ruled that it lacked jurisdiction, because Congress "expressly disqualified us from hearing cases related to VA benefits in Section 511(a), and . . . Congress has conferred exclusive jurisdiction over such claims to the Veterans Court and the Federal Circuit." 

Section 511(a) says that the VA

shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.

38 U.S.C. Sec. 511(a).  The court ruled that the groups' mental health care claims and disability benefits claims would require it to delve into "the circumstances of individual veterans and their requests for treatment, and determining whether the VA handled those request properly," thus intruding into an area that Congress reserved, under Section 511(a), to the VA.  Op. at 4850.  The court rejected the plaintiffs' argument that they challenged only average delays, not individual delays, and that the court could rule without violating Section 511(a).  The court said that this was a distinction without a difference.

In contrast, the court ruled that it possessed jurisdiction over the plaintiffs' challenges to VA regional office procedures, but, applying Mathews v. Eldridge, it rejected those challenges on the merits, emphasizing Congress's creation of a non-adversarial system of benefits administration.

Judge Schroeder dissented, arguing that the court erred in rejecting jurisdiction on the first two claims, writing that "the claims of systemic delay do not, in my view, require any review of the VA's actual benefits decisions."  Op. at 4868.

SDS

Update Redux: Fifth Circuit Panel Vacates Stay in Texas Planned Parenthood Case

A panel of the Fifth Circuit has vacated Judge Smith's emergency stay of District Judge Lee Yeakel's preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.

As the panel in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs stated:

Language in that affidavit reasonably calls into question the State’s declaration of an emergency need for a stay, because it states that any injunction will have the effect of requiring the State to cease operating the program at issue “upon termination of federal funding.” Evidence in the record indicates that such funding is continuing until November 2012.

This supplemental filing undermines the State’s assertion of irreparable harm if the injunction is not stayed pending appeal. Regarding the balance of the merits, we cannot conclude, on the present state of the record, that the State has shown a great likelihood, approaching a near certainty, that the district court abused its discretion in entering the injunction.

Thus, there is no "emergency" and the district judge's injunction stands, as presumably does the district judge's hearing for May 18.

RR

D.C. Circuit Rejects Guantanamo Detainee Habeas Claim

A three-judge panel of the D.C. Circuit today reissued a ruling rejecting the habeas claim of a detainee at Guantanamo Bay.  The case, Alsabri v. Obama, affirms the lower court's dismissal. 

Here's the court's summary of facts:

Alsabri is a Yemeni citizen who was born and raised in Saudi Arabia.  He lived in Saudi Arabia until he was deported to Yemen in 1998, following an arrest for allegedly harboring an individual wanted for passport forgery.  In Yemen, he associated with veteran jihadist fighters, including members of al Qaeda, and decided to travel to Afghanistan to fight with the Taliban or al Qaeda.  In the summer of 2000, he traveled to Afghanistan by way of Pakistan, assisted by the Taliban and in the company of several men who expressed a desire to become martyrs.  Once in Afghanistan, Alsabri stayed at several guesthouses affiliated with the Taliban and al Qaeda.  He actively sought out and received military training from the Taliban or al Qaeda, and thereafter--with the authorization of one of Osama bin Laden's lieutenants--traveled to the front lines of the Taliban's fight against the Northern Alliance.

The court rejected Alsabri's claim that the lower court erred in finding certain facts and in concluding that he was part of the Taliban, al Qaeda, or associated forces.  It also rejected his claim that the lower court wrongly admitted certain pieces of evidence of his objection.  Finally, it rejected his claims that the district court wrongly limited his discovery, that the court wrongly admitted hearsay evidence, and that the lower court wrongly applied a preponderance-of-evidence standard instead of a clear-and-convincing-evidence standard.

There's really nothing new here, and the case is hardly a surprise.  As the court said in regard to Alsabri's legal arguments: "As is apparent, all of Alsabri's legal arguments are foreclosed by Circuit precedent, a point his counsel forthrightly acknowledges.  As is appropriate, counsel notes his disagreement with our rulings and includes the arguments in order to preserve the issues."  Op. at 22.

SDS

National Day of Prayer/ National Day of Reason

This year, as President Obama issues the proclamation of a National Day of Prayer for May 3, it includes an invitation to "all citizens of our Nation, as their own faith directs them, to join me in giving thanks for the many blessings we enjoy, and I call upon individuals of all faiths to pray for guidance, grace, and protection for our great Nation as we address the challenges of our time." 

Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan, declaring the First Thursday in May as the "National Day of Prayer."

While a district judge had enjoined the National Day of Prayer in 2010 as violating the Establishment Clause, the Seventh Circuit later ruled that the Freedom from Religion Foundation lacked standing to bring a claim for relief.  Importantly, the Seventh Circuit stated that even if "this means that no one has standing, that does not change the outcome."

However, May 3 is now also the "National Day of Reason," supported by the American Humanist Association. Congressperson Pete Stark of California has made a statement on the floor of the House of Representatives recognizing the National Day of Reason as celebrating "the application of reason and the positive impact it has had on humanity. It is also an opportunity to reaffirm the Constitutional separation of religion and government."  There is also a petition seeking President Obama's recognition of the National Day of Reason:

"We therefore respectfully ask that you issue a proclamation recognizing the National Day of Reason on May 3rd, 2012 in order to promote the importance of reason and to give secular Americans the same sort of governmental recognition that religious Americans receive on the National Day of Prayer. Regardless of our religious beliefs or lack thereof, we are all Americans."

RR
[image: Erasmus, renowned humanist and theologian, Portrait by Hans Holbein, circa 1523, via]

Yoo Gets Qualified Immunity, Ninth Circuit Rules

The Ninth Circuit ruled today in Padilla v. Yoo that former Office of Legal Counsel attorney John Yoo is entitled to qualified immunity from a civil suit brought by Jose Padilla and his mother Estela Lebron for constitutional violations and torture while Padilla was detained as an enemy combatant.

The ruling means that the case will be dismissed, unless Padilla and Lebron appeal to the full Ninth Circuit or to the Supreme Court--and they agree to hear the case.  The ruling reverses the lower court ruling in the case and aligns with the recent Fourth Circuit ruling dismissing a similar case (but for different reasons, discussed below).

The three-judge panel ruled unanimously that at the time of Padilla's detention it was not clearly established that his treatment violated his constitutional rights, and that it was not clearly established that his treatment amounted to torture. 

As to constitutional rights, the court said that the outcome was dictated by the Supreme Court's ruling in Ashcroft v. al-Kidd (2011):

Significant here, under the second prong, a "Government official's conduct violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" . . .  "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate."  The Court emphasized that "[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions" and admonished us "not to define clearly established law at a high level of generality."

Op. at 4524 (quoting Anderson v. Creighton (1987)).  The court said that there was no judicial precedent squarely on point, and Padilla's argument--that a reasonable official would have known that he was entitled to the same constitutional protections as an ordinary prisoner or a suspect--defined the clearly establish right at too high a level of generality, in violation of al-Kidd.

As to torture, the court said that it wasn't clearly established at the time of Padilla's detention that his allegations rose to the level of torture (although it was clearly established that a U.S. citizen in military custody could not be tortured).  The court surveyed international and domestic cases on torture and concluded that Padilla's allegations didn't obviously amount to torture. 

The ruling aligns with the recent Fourth Circuit ruling in essentially the same case, although for different reasons.  The Fourth Circuit ruled in Lebron v. Rumsfeld that special factors counseled against the case and that Padilla had other avenues of relief (habeas), thus defeating Lebron's Bivens claim.

SDS

Padilla Takes Torture Case to Supreme Court

Jose Padilla filed a cert. petition with the Supreme Court this week, asking the Court to review the Fourth Circuit's ruling rejecting his Bivens claim against former Defense Secretary Donald Rumsfeld and other officials allegedly involved in his torture.

This case could be a first foray for the Court into the spate of cases since the attacks of 9/11 that allege torture by U.S. government officials and their private-sector collaborators.  In particular, despite several similar Bivens cases percolating in the lower courts, the Supreme Court has yet to rule on this precise question: Whether a U.S. citizen can sue government officials for torture while in military custody, when the detention may (or may not) be related to national security.  (We last posted on one of these cases, Vance v. Rumsfeld, recently argued before the en banc Seventh Circuit.  (The three-judge panel ruled that the plaintiffs' torture suit could move forward.))  The Court has also not yet taken up a case involving another barrier to torture suits, the state secrets privilege.

Padilla sued Rumsfeld, et al., for violation of his rights, and authorization of violation of his rights, while he was detained at the Naval Brig in Charleston, South Carolina, for two years as an "enemy combatant."  Padilla sued under Bivens, the 1971 case authorizing an individual cause of action against federal officers for violations of the Fourth Amendment; subsequent cases have restricted Bivens claims when "special factors" counsel against a judicial remedy. The defendants moved to dismiss the case, arguing just that--that "special factors" counseled against a Bivens remedy.  The district court dismissed the case (on this ground, and also on qualified immunity grounds), and the Fourth Circuit affirmed.

Padilla, represented by Ben Wizner and a team at the ACLU, argues that the Fourth Circuit's ruling is contrary to Carlson v. Green (1980), a case extending the Bivens remedy to a prisoner's Eighth Amendment claim that federal officers were deliberately indifferent to his mistreatment in federal custody:

Petitioners' claims here fall squarely within the heartland of Bivens and Carlson.  As in Carlson, petitioners allege mistreatment while in federal custody.  And as in both Bivens and Carlson, the traditional circumstances for permitting Bivens relief are plainly present: petitioners seek to hold individual federal officers accountable for grave abuses of a prisoner in federal custody, and there is no adequate alternative remedy.

Padilla also argues that the Fourth Circuit effectively turned the Bivens "special factors" analysis into an executive trump card in military matters, weildable any time somebody tries to sue the military.  Padilla says that this is a misreading of Bivens and the Court's precedents, which show that "special factors" "embody judicial deference to the legislative, rather than the executive, prerogative."  Padilla also argues that it frustrates checks-and-balances and undermines principles of separation-of-powers (by allowing too much power to be consolidated, unchecked, in the executive).

SDS

Canadian Perspectives on Revisiting Roe v. Wade

Canadian Law Prof Sonia Lawrence (pictured right) starts her Jotwell post "Womb as Wedge" this way:

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

Questions worth asking, certainly. 

    But Lawrence quickly dismisses this view as smug and self-satisfied. In her review of Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available on ssrn, Lawrence confirms the Greenhouse and Siegel view that "the focus on Roe is not just a faulty conclusion – it is a rhetorical strategy in and of itself."  And increasingly, it is not a strategy confined to the United States.

    Indeed, Lawrence argues that abortion law and politics in both Canada and the UK have become "Americanized," discussing Carol Sanger's recent lecture, as well as a motion to reconsider Canada's criminal code defining human being to be debated April 26.

    Thus, in a relatively short piece, Lawrence offers more "new questions" about "backlash" and Roe v. Wade," providing essential comparative constitutional law perspectives.

RR