Thursday, October 12, 2017
The en banc Ninth Circuit ruled this week that a denial of a zoning permit to open a gun store did not violate the Second Amendment rights of local residents (to buy guns) or the gun shop (to sell them).
The case, Teixeira v. County of Alameda, arose when the unincorporated county denied a conditional use permit to Teixeira to open a gun shop under a county ordinance. The ordinance say that firearms retailers can't operate within 500 feet of residential districts, schools and day-cares, other firearm retailers, and liquor stores. After some back-and-forth, the Zoning Board found that Teixeira's proposed shop was within 500 feet of two homes, and so denied the permit.
Teixeira sued, arguing that the ordinance requiring a conditional use permit violated his own Second Amendment right (to sell) and the Second Amendment rights of county residents (to buy). The en banc court rejected these claims.
The court ruled first that the plaintiffs failed to plausibly allege that the ordinance impeded any county resident from buying a gun:
Alameda County residents may freely purchase firearms within the County. As of December 2011, there were ten gun stores in Alameda County. Several of those stores are in the non-contiguous, unincorporated portions of the County. In fact, Alameda County residents can purchase guns approximately 600 feet away from the proposed site of Teixeira's planned store, at a Big 5 Sporting Goods Store.
The court therefore held that the ordinance did not violate the Second Amendment rights of county residents to buy.
As to the gun-store owners' right to sell, the court surveyed the text and history of the Second Amendment and concluded that it did not protect the right to sell firearms. "[T]he right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them." (The court rejected an analogy to the First Amendment for booksellers, writing that "bookstores and similar retailers who sell and distribute various media, unlike gun sellers, are themselves engaged in conduct directly protected by the First Amendment.") Because the ordinance didn't restrict Second Amendment rights, the court said it was "necessarily allowed by the Amendment."
Wednesday, October 11, 2017
The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.
The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.
The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.
Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.
About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.
The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."
The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."
Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.
Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.
Saturday, October 7, 2017
Here's a constitutional issue that might unite some on the right and the left: Should the Court revisit the qualified immunity doctrine?
Qualified immunity provides protection for state actors from liability for constitutional torts when the office did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." The doctrine was created by the Court, not by the plain text of the Constitution or by 42 U.S.C. Sec. 1983, the basis for constitutional tort claims against state officers. It operates as a back-door way to shield an officer from liability (and thus deny a victim a remedy) in cases where a constitutional right hasn't (yet) been established. That leaves a lot of room for immunity. Moreover, a court granting qualified immunity does not necessarily reach the merits, and so never needs to rule on the underlying constitutionality of the officer's act. In other words, under the doctrine an officer could enjoy qualified immunity from liability for a specific act that the courts have not (yet) ruled unconstitutional, and we also don't learn whether it's actually unconstitutional.
Justice Thomas raised concerns about the doctrine in his concurrence last Term in Ziglar v. Abassi. And the ACLU argued this Term in Wesby (as amicus) that the doctrine lacks a firm basis in history and over-protects officers. (The Court heard oral arguments this week in Websy, the Fourth Amendment case involving arrests for unlawful entry after officers raided a house party in D.C. While the Justices asked about the application of qualified immunity, they showed no interest in reevaluating the doctrine itself.) Prof. William Baude explains some of the concerns about the doctrine in this Federalist Society podcast.
The ACLU filed suit yesterday in the Northern District of California challenging the Trump Administration's roll-back of the contraception benefit under the Affordable Care Act. The lawsuit seeks declaratory and injunctive relief.
The lawsuit also illustrates the new approach to religion under this administration as stated yesterday in AG Sessions's principles of religious liberty.
The suit, which also includes SEIU-UHW as a plaintiff, argues that the roll-back in HHS's interim final regulations would permit religiously affiliated organizations that currently get an exemption from the contraception-coverage requirement to back out of the requirement altogether. (The exemption permits religiously affiliated organizations to pass the implementation off to their insurer or third-party administrator, so that the organization itself doesn't have anything to do with contraception, but so that employees and students of the organization still get direct and free access through the insurer or third-party administrator. The interim final rules would permit those organizations to deny contraception coverage entirely.)
The complaint argues that the move violates the Establishment Clause, equal protection, the Administrative Procedure Act, and the ACA itself:
By authorizing businesses, non-profit organizations, and universities to impose their religious beliefs on their employees and students, and rob women of health coverage that is otherwise guaranteed by law, the Religious Exemption [interim final rule] violates the Establishment Clause. Furthermore, by authorizing employers to block contraception coverage based on religious or other grounds, both [interim final rules] violate the right to equal protection guaranteed by the Fifth Amendment to the U.S. Constitution. Moreover, because the [interim final rules] were promulgated without good cause for foregoing notice and comment and without providing a reasoned basis for the change in agency position as required by the Administrative Procedure Act, they violate federal statutory requirements that agencies not act in an arbitrary and capricious manner and observe procedures required by law. Finally, the [interim final rules] exceed the statutory authority given to the agencies by the Affordable Care Act.
As to the Establishment Clause, the complaint argues that the purpose and effect of the interim final rules were to advance religion, and that they foster an excessive government entanglement with religion.
It's no coincidence that the interim final rules came out the same day as AG Sessions's principles on religious liberty.
But note that while the ACLU complaint speaks in terms of the Lemon test (purpose, effect, entanglement), AG Sessions's principles don't mention the case. The principles instead discuss the Establishment Clause barely (privileging free exercise) and only in terms of "establishing a religion and coercing Americans to follow it," "restrict[ing] government from interfering [in religion]," "prohibit[ing] government from officially favoring or disfavoring particular religious groups," and "neutrality towards religion."
In other words, AG Sessions's principles back off the Establishment Clause concerns about religious purpose and effect, and even excessive entanglement, and instead emphasize only more blunt forms of government establishment of religion (and downplay even those, in favor of free exercise concerns). It's thus hardly a surprise that HHS would issue these interim final rules, even with a religious purpose and effect: they fall squarely within AG Sessions's free exercise interpretation, and do not violate his (lesser important) establishment interpretation.
In yet other words, these interim regs are just a preview of what's to come under the Sessions approach to religion.
Friday, October 6, 2017
Attorney General Jeff Sessions today released a memo for all executive departments and agencies on Federal Law Protections for Religious Liberty. The document contains 20 "principles of religious liberty" that "should be understood and interpreted in light of the legal analysis set forth in the appendix to this memorandum."
The document came out the same day as HHS's new interim final rules that employers more leeway to object on religious grounds to the Obamacare "contraceptive mandate."
The HHS rules may well predict how we might expect the government to implement AG Sessions's principles. The principles themselves largely rehearse existing law (but emphasizing and tilting toward free exercise), but may open the door to policies (like HHS's new rules) that lean toward religion.
The principles hit on several lightning rods in recent religion debates, including the "contraception mandate," IRS treatment of religious non-profits, abortion, and religious organizations' participation in government contracting and aid programs.
The Appendix on Free Exercise spells out the position on generally applicable laws, stating that "even a neutral, generally applicable law is subject to strict scrutiny under this Clause if it restricts the free exercise of religion and another constitutionally protected liberty, such as the freedom of speech or association, or the right to control the upbringing of ones' children." The provision goes on merely to describe Supreme Court cases in this area, but the language could support a position that laws prohibiting discrimination by sexual orientation are unconstitutional--the exact position DOJ took in Masterpiece Cake. It's not clear under the principles how far the government might extend this argument.
As to government contracting and aid programs, the Appendix on the Establishment Clause gives a flavor of the overall orientation of the document--restating existing law, with a decided tilt toward religion, leaving us to wait and see just how far these principles will extend. Here's that portion in full (citations omitted):
The Establishment Clause, too, protects religious liberty. It prohibits government from establishing a religion and coercing Americans to follow it. It restricts government from interfering in the internal governance or ecclesiastical decisions of a religious organization. And it prohibits government from officially favoring or disfavoring particular religious groups as such or officially advocating particular religious points of view. Indeed, "a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion." That "guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Thus, religious adherents and organizations may, like nonreligious adherents and organizations, receive indirect financial aid through independent choice, or, in certain circumstances, direct financial aid through a secular-aid program.
Thursday, October 5, 2017
Check out the latest American Constitution Society Issue Brief, The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond, by Richard Briffault, Nestor Davidson, Paul A. Diller, Olatunde Johnson, and Richard C. Schragger. From the intro:
This Issue Brief canvasses the current wave of preemption and the primary legal theories that these state-local conflicts present, as well as claims that might arise as these battles continue. The Brief also explores other possibilities for strengthening home rule to advance progressive local policymaking at a moment when cities increasingly stand on the front lines of economic justice, civil rights, sustainable development, and so many other critical policy domains.
Chicago-Kent's Institute on the Supreme Court of the United States and the Law Review are hosting a symposium on Tuesday, October 17, titled The Supreme Court and American Politics. The program includes three terrific panels and Rick Hasen as keynote. For more information, and to register, click here.
Thursday, September 28, 2017
The Court today agreed to take up a First Amendment challenge to a public sector union fair-share law in Janus v. AFSCME. The case pits non-members' First Amendment right not to pay dues for a union's collective bargaining activities (even if they benefit from those activities) against a union's interest in collecting dues for its collective bargaining efforts that everyone benefits from in a union shop.
This isn't the first time the Court has considered the issue, not by a long shot. The Court originally upheld fair-share laws--state requirements that non-members pay union dues for collective bargaining (but not for a union's political activities)--in 1977 in Abood v. Detroit Board of Education. In that case, the Court held that a state's interests in avoiding non-union-member free-riders and labor harmony permitted a state to require non-members to pay a "fair share" of a union's collective bargaining activities. (Under federal law, the union has to represent even non-members in a union shop.)
But more recently, the Court has hinted in a couple of cases that it's ready to reconsider Abood and overturn fair share laws under the First Amendment. A case, Friedrichs v. California Teachers Association, was teed up for just such a ruling when Justice Scalia passed away. When the 8-member Court decided Friedrichs, it deadlocked, leaving a Ninth Circuit ruling upholding fair share in place.
At the time, Senator Mitch McConnell was refusing to give Judge Garland, President Obama's nominee to replace Justice Scalia, a hearing in the Senate. McConnell famously waited President Obama's term out, and the Senate then confirmed President Trump's nominee, Neil Gorsuch.
With Justice Gorsuch on board, the Court now agreed to hear another case testing fair share, Janus. And that doesn't bode well for fair share laws and public sector unions. If Justice Gorsuch votes with the conservatives (who all presumably would have voted against fair share in Friedrichs), as seems likely or even certain, it'll mark the end of fair share and the likely demise of public sector unions. That's because if the Court strikes fair share, non-members in a union shop will have no requirements and few incentives to pay for the union's collective bargaining activities that benefit them. And without a requirement or incentive to pay fair share, many won't. And seeing that non-members can free ride on the union (because even non-members benefit from a union's collective bargaining activities), members will likely drop out to free ride, too. The siphoning of dues-paying non-members and members will leave the union with less and less resources to support collective bargaining, potentially decimating public sector unions.
There's no guarantee, of course, that a Justice Garland, or any other Obama appointee, would have voted to uphold fair share laws. But with Justice Gorsuch filling Justice Scalia's seat, we can all but guarantee that fair share will go away.
The Supreme Court today granted cert. in Janus v. American Federation, the case challenging union fair-share laws under the First Amendment.
The Court previously deadlocked on the issue. But with the addition of Justice Gorsuch, the Court can rule (likely against union fair share laws).
The American Constitution Society, Barry University Law School Student Chapter, and Texas A&M University School of Law are soliciting paper proposals for the Third Annual Constitutional Law Scholars Forum, March 2, 2018, in Orlando.
The deadline is December 1, 2017. Send a short (300 word) abstract and short (150 word) bio to Prof. Eang Ngov, engov.barry.edu, with "Constitutional Law Scholars Forum" in the subject line.
Here's the call. Prof. Ngov and Prof. Meg Penrose, email@example.com, are the organizers.
Check out Linda Greenhouse's take on the travel ban case at the NYT, the case's likely mootness, and what it all means. Here's a link to Robert Loeb's piece at Lawfare (cited by Greenhouse) on the "presumption of regularity"--the basis for the administration's argument that the Court should grant it deference, and not look behind the stated purposes of the travel ban to the President's and surrogates' anti-Muslim statements.
Tuesday, September 26, 2017
The American Constitution Society is calling for papers for a workshop on public law on January 4, 2018, at the 2018 AALS Annual Meeting in San Diego.
This is an excellent opportunity. The ACS Board of Academic Advisors will select 10 papers, and each author will have a chance to discuss her or his work with two experienced scholars.
The deadline is October 18, 2017; submissions should be works that have not been published as of January 1, 2018. Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2017, are eligible.
Inquiries? Send to firstname.lastname@example.org.
The Seventh Circuit ruled on Friday that Illinois's requirement that a new political party field candidates for all offices on the ballot in the relevant political subdivision violated the First Amendment. (H/t Aggie Baumert.) The ruling strikes the full-slate requirement for new parties, but leaves in place a signature requirement for them.
The case tested Illinois's requirement that a "new" political party field candidates for every office on the ballot in the political subdivision where it wishes to compete. (A "new" political party is one that's not (yet) "established" based on performance in prior elections.) New parties also have to obtain a minimum number of signatures on nominating petitions.
These rules meant that when the Libertarian Party sought to put up a candidate for Kane County auditor, it had to get the signatures, and it also had to put up candidates for circuit clerk, recorder, prosecutor, coroner, board chairman, and school superintendent.
The Party sued, arguing that the full-slate requirement (but not the signature requirement) violated the First Amendment.
The Seventh Circuit agreed. The court ruled first that the Party had standing, even though it didn't get enough signatures (and therefore couldn't get on the ballot even if it did field a full slate). The court explained that the Party's injury wasn't not getting on the ballot; it was the burden on its free association:
It isn't simply that the Party couldn't run its candidate for county auditor in the 2012 election. It's that Illinois law imposes a burdensome condition on the Party's exercise of its right of political association; that is, the Party's injury is its inability to access the ballot unless it fields a full slate of candidates. That requirement persists and stands as an ongoing obstacle to ballot access.
The court went on to rule that the full-slate requirement "severely burdens the First Amendment rights of minor parties, their members, and voters," thus triggering strict scrutiny. And under strict scrutiny, the court said that the full-slate requirement simply didn't meet the state's interests promoting political stability, avoiding overcrowded ballots, and preventing voter confusion--and, indeed, cut against those interests:
By creating unwanted candidacies, the requirement increases political instability, ballot overcrowding, and voter confusion. . . . Whatever its aim, the requirement forces a minor party to field unserious candidates as a condition of nominating a truly committed candidate. . . .
In reality, then, the full-slate requirement does not ensure that only parties with a modicum of support reach the ballot. Instead it ensures that the only minor parties on the ballot are those that have strong public support or are willing and able to field enough frivolous "candidates" to comply with the law.
Monday, September 25, 2017
The Supreme Court today took the travel ban arguments off its oral argument calendar. The Court also ordered the parties to submit short briefs on whether the case is moot in light of President Trump's new proclamation on travel restrictions.
Friday, September 22, 2017
Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.
The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.
The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.
The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."
Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)
Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.
The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:
Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.
As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)
Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."
As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.
September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)
Thursday, September 21, 2017
The Seventh Circuit upheld Chicago's "puppy mill" ordinance, which limits the sources from which city-licensed pet stores may obtain certain pets for resale, against a challenge under the Illinois Constitution's home-rule provision and the federal dormant Commerce Clause. The ruling leaves the ordinance in place.
Chicago's ordinance says that pet retailers in the city "may offer for sale only those dogs, cats, or rabbits" obtained from an animal control or care center, pound, or kennel operated by local, state, or federal government or "a humane society or rescue organization." The ordinance means that pet stores can't get their animals from large, mill-style breeders. Chicago adopted the law in order to protect against the "economic and emotional burdens for pet owners and [the] financial costs on the City as owners abandon their physically or emotionally challenged pets or surrender them to the [city shelter]."
Two Chicago pet stores and a Missouri dog breeder sued, arguing that the ordinance exceeded Chicago's authority under the Illinois Constitution's home-rule provision and violated the federal dormant Commerce Clause.
The Seventh Circuit disagreed. As to the home-rule argument, the court said that the Illinois Constitution permits Chicago to regulate in an area, concurrently with the state, so long as the General Assembly doesn't "specifically limit" it or "specifically declare the State's exercise to be exclusive." Because state law doesn't restrict, but actually preserves, municipal power to regulate animal care and welfare, the court said that Chicago's ordinance doesn't exceed its home-rule authority.
As to the dormant Commerce Clause, the court said that it didn't even apply, because Chicago's ordinance doesn't discriminate against interstate commerce. The court ruled that circuit law said that a state or local law that doesn't discriminate on its face or in effect doesn't even implicate the dormant Commerce Clause. "No disparate treatment, no disparate impact, no problem under the dormant commerce clause." The court therefore declined to apply Pike balancing, and ruled that the ordinance easily satisfied the default rationality review.
Judge Hamilton dissented in part, arguing that the court should have applied Pike balancing, because Dep't of Revenue of Kentucky v. Davis and United Haulers Ass'n v. Oneida-Herkimer Solid Waste clarified that "even nondiscriminatory burdens on commerce" are subject to Pike balancing and "may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice." Judge Hamilton also argued that the majority applied an overly rigid pleading standard by not crediting the plaintiffs' allegations in the complaint that Chicago's ordinance would disparately impact out-of-staters.
Tuesday, September 19, 2017
The Ninth Circuit today rejected a Second Amendment challenge by Seattle police officers to the city's use-of-force policy. The ruling means that the policy stays in place.
The case arose when Seattle agreed to adopt a use-of-force policy for its police officers as part of a settlement agreement with the U.S. government in a case alleging that Seattle police engaged in a pattern or practice of excessive use of force. The policy says that "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective." It goes on to provide a set of factors that officers must consider to determine whether a use of force is objectively reasonable, necessary, and proportional to the threat, but only "[w]hen safe under the totality of the circumstances and time and circumstances permit[.]" The policy requires officers to use de-escalation tactics in order to reduce the need for force only "[w]hen safe and feasible under the totality of the circumstances."
Seattle officers sued, arguing that the policy violated the Second Amendment, due process (fundamental rights), and equal protection.
The Ninth Circuit disagreed. The court applied the familiar two-part Second Amendment analysis and concluded (1) that while the policy "burdens conduct protected by the Second Amendment," (2) it satisfies intermediate scrutiny.
As to the burden step, the court said that the policy "does not resemble any of the 'presumptively lawful' regulations recognized in Heller," and that "the parties have adduced no evidence that the [policy] imposes a restriction on conduct that falls outside the historical scope of the Second Amendment . . . ." As a result, the court held that the policy burdened Second Amendment conduct.
As to the scrutiny step, the court set the level of review at intermediate scrutiny, because the city "has a significant interest in regulating the use of department-issued firearms by its employees," and because the policy "does not impose a substantial burden on [the officers'] right to use a firearm for the purpose of lawful self-defense." The court noted that the government, in adopting the policy, was acting as "proprietor," and not "regulator," in that it was regulating its own officers' use of force. This might've put a thumb on the scale in favor of the regulation, but, if so, it's not clear how weighty a thumb, because the court nevertheless applied intermediate scrutiny (and not a lower level of scrutiny).
The court went on to say that the policy satisfies intermediate scrutiny, because it's reasonably related to the city's significant interests in public safety and officer safety.
The court also rejected the officers' due process and equal protection claims.
Sunday, September 17, 2017
The Ninth Circuit ruled on Friday that the federal Poultry Products Inspection Act did not preempt California's ban on force-feeding ducks and geese for foie gras production. The ruling means that California's ban stays on the books; this is definitely one for the birds.
In 2004, California joined a growing list of countries that ban force-feeding ducks and geese to produce foie gras. The California law doesn't ban foie gras itself, just the force-feeding method of production. Foie gras producers sued, arguing that California's ban was preempted by the federal Poultry Products Inspection Act.
The Ninth Circuit disagreed. The court said that the federal law didn't expressly preempt the California ban, because the federal law's prohibition on states from imposing "ingredient requirements" that are "in addition to, or different than" the PPIA or its regs applied to "the physical composition of poultry products," and not the way animals are raised or how they're fed (which the California ban covers). According to the court, California law
does not require that foie gras be made with different animals, organs, or physical components. Nor does it require that foie gras consist of a certain percentage of bird liver. It simply seeks to prohibit a feeding method that California deems cruel and inhumane. [The law] therefore addresses a subject entirely separate from any "ingredient requirement": how animals are treated long before they reach the slaughterhouse gates.
Moreover, the court said that the PPIA didn't field-preempt California law, because the PPIA doesn't occupy the field (and in fact allows for "extensive" state regulation). It also said that the PPIA didn't obstacle preempt California law, because California law doesn't interfere with the federal food-regulation scheme and its purposes.
Unless and until producers come up with a different way to make foie gras, this ruling will keep it out of California.
Saturday, September 16, 2017
Judge Harry D. Leinenweber (N.D. Ill.) yesterday enjoined two conditions nationwide, but declined to enjoin a third, that AG Sessions placed on a federal grant program to clamp down on sanctuary cities. The order came in the lawsuit that Chicago filed against Session.
The ruling is a partial victory for the City and partial victory for the government. It partially halts two key conditions that AG Sessions placed on Byrne Grant recipients, but upholds a third, requiring certification of compliance with Section 1373.
Recall that AG Sessions placed three conditions on a municipality's receipt of federal funds under the Byrne Memorial Justice Assistance Grant Program: (1) that a state law or practice is in place to honor a request by DHS to provide advance notice of any scheduled release date and time for a particular alien (the "notice" condition); (2) that a state law or practice permits federal agents to have access to any correctional facility to meet with aliens and interrogate them (the "access" condition); and (3) that a local government submit a certification of compliance with 8 U.S.C. Sec. 1373, the federal law prohibiting state and local laws and practices that restrict state and local officials from sending to, or receiving from, federal officials information regarding the citizenship or immigration status of any individual, and prohibiting officials from maintaining such information or exchanging it with federal officials. (the "certification" condition).
The conditions ran up against Chicago's "Welcoming Ordinance." That Ordinance prohibits any "agent or agency" from "request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by [state law], federal regulation, or court decision." It goes on to forbid any agent or agency from "disclos[ing] information regarding the citizenship or immigration status of any person."
So Chicago sued Sessions, arguing that all three conditions were unconstitutional and unlawful.
Judge Leinenweber agreed in part and disagreed in part. As to the notice and access conditions, the court said that Sessions lacked statutory authority and exceeded his power to implement these conditions. In particular, the court held that only Congress could impose these conditions, or authorize the AG to do so, and that the statutory scheme in place didn't do that. Because the court ruled on statutory grounds, it declined to rule on the constitutionality of those two provisions.
But in contrast to its ruling on the notice and access conditions, the court held that Chicago did not show a likelihood of success on the merits of its challenge to the certification condition. The court held that this condition was authorized by Congress under the Byrne Grant statute, which says that a recipient must certify that it's in compliance "with all provisions of this part and all other applicable Federal laws" (emphasis added). The court said that Section 1373 fell into that latter category, "all other applicable Federal laws."
Moreover, it held that the certification condition didn't violate the Spending Clause and the anti-commandeering principle. In particular, the court said that Section 1373 doesn't compel Chicago to do anything; instead, it merely forbids it from doing something. The court said that the anti-commandeering principle only prohibits the federal government from requiring states or state officials to act, not from prohibiting them from acting, so Section 1373 doesn't violate it.
Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. . . . Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.
But the court went on to recognize that Section 1373 raises an unanswered constitutional question: Does the provision commandeer insofar as it prevents local governments from disciplining an employee for spending time assisting in the enforcement of federal immigration law? The court punted, leaving that novel question for appeal:
[B]y leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program. . . . Here, we follow binding Supreme Court precedent and the persuasive authority of the Second Circuit, neither of which elevates federalism to the degree urged by the City here. A decision to the contrary would require an expansion of the law that only a higher court could establish.
Friday, September 15, 2017
The American Constitution Society hosted its Supreme Court Preview yesterday at the National Press Club. C-Span coverage is here. The panel included Anil Kalhan, Claire Prestel, Dale Ho, Erin Murphy, and Marty Lederman. Kara Stein introduced the program; I moderated.