Wednesday, August 24, 2016
Ninth Circuit Upholds Upholds California Ban on Sexual Orientation Conversion Therapy Against Religion Clauses Challenge
In a sequel to the Ninth Circuit's 2013 decision in Pickup v. Brown upholding California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit upheld the same law against a facial challenge based upon the First Amendment's Religion Clauses in its relatively brief opinion in Welch v. Brown.
The panel in Welsh - - - the same panel as in Pickup - - - held that the SB 1172 violated neither the Establishment Clause nor the Free Exercise Clause. The panel rejected the challengers' interpretation of the law as applying to members of the clergy because the law specifically exempts religious clergy "as long as they do not hold themselves out as operating pursuant" to any therapist licenses.
The panel also rejected the contention that the law has the primary effect of inhibiting religion. That some minors who seek sexual orientation conversion may have religious motivations does not rise to the level of an inhibition of religion, especially given that the law was not targeted at religious motivated conduct. The panel noted that the law's legislative findings focused on "social stigmatization" and "family rejection" rather than religiosity. The panel likewise rejected the Free Exercise Clause claim that the law was not neutral as to religion based on the same rationales and cited the Third Circuit's similar conclusion regarding New Jersey's prohibition of sexual conversion therapy in King v. Christie.
The court also reiterated its rejection of any "privacy" claim based on its previous analysis in Pickup.
So far, challenges to state prohibitions of sexual conversion therapy for minors have had little success.
August 24, 2016 in Courts and Judging, Disability, Due Process (Substantive), Establishment Clause, Family, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation | Permalink | Comments (0)
Tuesday, August 23, 2016
The Ninth Circuit ruled in American Hotel and Lodging Association v. City of Los Angeles that federal labor law did not preempt LA's ordinance requiring a minimum wage for certain hotel workers in the city.
The ruling is a win for the city and for covered hotel workers. It denies the plaintiffs' motion for a preliminary injunction, but in terms that, as a practical matter, put an end to these claims. (The court ruled that federal law did not preempt, not only that that it likely did not preempt (the usual preliminary injunction standard). So the ruling tees up a city motion to dismiss these claims on the merits. And unless the plaintiffs have other claims, this ruling tees up a city motion to dismiss the entire case.)
The case arose when LA enacted an ordinance that required large hotels in the city, and smaller hotels near LAX, to pay workers $15.37 an hour (and provide other minimum benefits), unless they were covered by a collective bargaining agreement (the "collective-bargaining exemption"), and unless this wage would drive an employer into bankruptcy (the "hardship waiver"). American Hotel and Lodging Association and the Asian American Hotel Owners Association sued, arguing that the entire wage ordinance and the collective-bargaining exemption were preempted by the National Labor Relations Act, because they interfered with labor-management relations. The plaintiffs pointed to Machinists preemption (named for Int'l Ass'n of Machinists v. Wis. Emp't Relations Comm'n) which says that the NLRA implicitly preempts state restrictions on "self-help," like a strike or lock-out--things that "regulate the mechanics of labor dispute resolution." The plaintiffs moved for a preliminary injunction on this theory.
The Ninth Circuit flatly rejected the claim. The Ninth Circuit said that "[m]inimum labor standards, such as minimum wages, are not subject to Machinists preemption":
Such minimum labor standards affect union and nonunion employees equally, neither encouraging nor discouraging the collective bargaining processes covered by the NLRA. Minimum labor standards do technically interfere with labor-management relations and may impact labor or management unequally, much in the same way that California's at-will employment may favor employers over employees. Nevertheless, these standards are not preempted, because they do not "regulate the mechanics of labor dispute resolution."
The court said that minimum standards are merely background conditions of collective bargaining, not interferences with collective bargaining.
As to the collective-bargaining exemption, the court was even more direct, merely citing Lividas v. Bradshaw and its language that says that "familiar and narrowly drawn opt-out provisions" for collective bargaining agreements are valid, because they do not impact rights to collective bargaining.
Thursday, August 18, 2016
In his opinion and order in EEOC v. R.G. & G.R. Harris Funeral Homes, United States District Judge Sean Cox of the Eastern District of Michigan, the judge held that the funeral home is "entitled to a RFRA exemption from Title VII and the body of sex-stereotyping case law that has developed under it."
The funeral home, a for-profit closely-held corporation, relied upon the United States Supreme Court's closely-divided and controversial decision in Burwell v. Hobby Lobby (2014) which allowed a religious exemption under RFRA (the Religious Freedom Restoration Act) to a federal requirement in the Affordable Care Act (ACA or Obamacare) that employers provide health insurance to employees that includes contraceptive coverage.
Rather than contraception, the issue in Harris Funeral Homes is the funeral home's sex-specific dress code and its termination of Stephens, an employee transitioning from male to female for failure to wear the mandated male-specific clothing. The primary shareholder of the funeral home, Thomas Rost, stated his beliefs that the Bible teaches "that a person's sex is an immutable God-given gift" and "that is wrong for a biological male to deny his sex by dressing as a woman." More importantly for his RFRA claim, Rost stated that he himself “would be violating God’s commands” if he were to permit one of the Funeral Home’s biologically-male-born funeral directors to wear the skirt-suit uniform for female directors while at work, because Rost “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”
Recall that under RFRA, a threshold question is whether the person's religious belief are sincerely held. Hobby Lobby having determined that a company's major shareholder's belief is the relevant one, the EEOC conceded that the "Funeral Home's religious beliefs are sincerely held." The next question is whether the neutral law of general applicability - - - here, Title VII - - - is a substantial burden on the person's religious beliefs. The district judge found that allowing an employee to wear a skirt would impose a substantial burden on the ability of Rost to conduct his business in accordance with his sincerely held religious beliefs and that the economic consequences of back pay would be "severe." The burden then shifts in RFRA to the government to satisfy strict scrutiny as well as a least restrictive means requirement. Recall that the stated purpose of Congress in passing RFRA was to "restore the compelling interest test as set forth in Sherbert v. Verner" (1964), which Congress believed the Court had departed from in Employment Division v. Smith (1990), although Congress also added the "least restrictive means" language.
And in his Harris Funeral Homes decision, Judge Cox ultimately relied on the least restrictive means requirement. However, first Judge Cox treated the traditional strict scrutiny questions. Judge Cox assumed "without deciding" that the EEOC had a compelling governmental interest, although Judge Cox expressed doubts whether this was true. Indeed, Judge Cox interpreted the passage in Hobby Lobby stating that the decision provided "no such shield" to equal employment laws (and thus refuting a claim made by the dissent) as essentially dicta:
This Court does not read that paragraph as indicating that a RFRA defense can never prevail as a defense to Title VII or that Title VII is exempt from the focused analysis set forth by the majority. If that were the case, the majority would presumably have said so. It did not.
Moreover, Judge Cox relied on Hobby Lobby to contend that a general interest in ending employment discrimination is not sufficient, it must be focused on the particular person burdened: "even if the Government can show that the law is in furtherance of a generalized or broad compelling interest, it must still demonstrate the compelling interest is satisfied through application of the law to the Funeral Home under the facts of this case." (italics in original). Although Judge Cox wrote that he "fails to see how the EEOC has met its requisite 'to the person'-focused showing," he nevertheless stated he would assume it was met.
As to the least restrictive means, Judge Cox's solution is a gender-neutral dress code:
Yet the EEOC has not challenged the Funeral Home’s sex-specific dress code, that requires female employees to wear a skirt-suit and requires male employees to wear a suit with pants and a neck tie, in this action. If the EEOC were truly interested in eliminating gender stereotypes as to clothing in the workplace, it presumably would have attempted to do so.
Rather than challenge the sex-specific dress code, the EEOC takes the position that Stephens has the right, under Title VII, to “dress as a woman” or wear “female clothing” while working at the Funeral Home. That is, the EEOC wants Stephens to be permitted to dress in a stereotypical feminine manner (wearing a skirt-suit), in order to express Stephens’s gender identity.
If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here? Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions.
Of course, the courts have not ruled favorably on challenges to sex-specific dress and grooming codes in the employment context.
Interestingly, Judge Cox also rejected the EEOC's gender discrimination claim based on the funeral home company's clothing allowance policy: there is a monetary clothing allowance to male employees but not female employees. Judge Cox found that this issue was not properly brought by the EEOC.
The EEOC is sure to appeal. If individual employers can claim exemptions to Title VII under RFRA, it could have widespread consequences.
Although it is also possible that a new Congress could amend RFRA.
Wednesday, August 17, 2016
The Seventh Circuit ruled this week that language in a state statute criminalizing the possession of cocaine near a "youth program center" was unconstitutionally vague. The ruling sends this case of hyper-aggressive prosecution back for resentencing (though the criminal law has been repealed).
The case arose when police arrested Walker Whatley at his father's home on an unrelated charge. The officer discovered a bag with just over three grams of cocaine in Whatley's pocket. Ordinarily, this would have constituted a Class C felony under state law, with a sentence of two to eight years. But because Whatley's dad lived 795 feet from the Robinson Community Church, Whatley was charged with a Class A felony of possessing more than three grams of cocaine within 1,000 feet of a "youth program center"--a charge that brought 20 to 50 years. Whatley was convicted and got 35 years--more than four times the maximum sentence for a Class C felony.
Whatley appealed through the state courts, and then brought a federal habeas claim. The district court rejected that claim, however, ruling that Whatley defaulted.
The Seventh Circuit reversed. The court ruled that the statute was unconstitutionally vague, because it defined "youth program center" as a facility with "regular" youth programs, and because "regular" didn't put a person of ordinary intelligence on notice of what was illegal. (The church hosted youth programs, but only a few times a week, and only for a few hours at a time.)
The court rejected the state court's reasoning that fair notice wasn't required, because the statute created strict liability; the court said that reasoning was "inconsistent with Supreme Court precedent that requires fair notice for all criminal statutes." "The lack of an intent element in the statute does not cure the vagueness problem; it makes it worse by making unknowing defendants absolutely liable for violating an indeterminate standard," that is, the definition of "youth program center."
The very harsh sentencing also played a factor:
In sum, a triad of factors convince us that the state courts were not simply wrong but unreasonable in applying federal law on vagueness in Whatley's case: (1) the use of the word "regular" in the definition of "youth program center" provides no objective standard, and thereby fails to place persons of ordinary intelligence on notice of the conduct proscribed and allows for arbitrary enforcement; (2) defendants are strictly liable for violating the terms of this nebulous sentencing enhancement, exacerbating the effect of the subjectivity; and (3) the consequences of violating this indeterminate strict liability provision are extreme: an increase in the sentencing range from 2-to-8 years to 20-to-50 years' imprisonment.
Monday, August 15, 2016
The Ninth Circuit ruled in Democratic Party of Hawaii v. Nago that the plaintiff failed sufficiently to prove that Hawaii's open primary violated its First Amendment right of association. The ruling dismisses the case and keeps the state's open primary system in place.
The Democratic Party of Hawaii challenged Hawaii's open primary system as a facial violation of its associational rights. But the Party declined to submit evidence in support (showing, for example, that cross-over primary voters would influence the positions of candidates and result in candidates not supported by the Democrats), and maintained its position that the courts could decide the claim as a pure matter of law.
The courts disagreed. The Ninth Circuit said that the plaintiff had to submit proof to show that an open primary system infringed on associational rights--that the claim turns on a question of fact. And because the Democrats failed to provide any proof, their facial challenge had to fail.
Friday, August 12, 2016
The Sixth Circuit ruled this week in State of Tennessee v. FCC that the Federal Communications Commission lacked statutory authority to preempt states' laws that restricted municipalities from providing broadband Internet service outside their boundaries.
The ruling means that the FCC can't require states to permit municipalities to provide service outside their boundaries, at least in the Sixth Circuit, and at least unless and until Congress specifically authorizes the FCC to preempt in the Telecommunications Act of 1996.
Because areas outside the boundaries of these particular municipalities are unserved or under-served areas, the ruling also means that certain regions outside the municipalities' boundaries will continue to go with inadequate Internet service.
The case arose when Tennessee and North Carolina implemented restrictions on municipalities' ability to provide Internet service outside their territorial boundaries. Two municipalities in those states complained to the FCC, because they saw benefits to providing service, and thus wanted to provide service, outside their boundaries. The municipalities appealed to the FCC to preempt state laws restricting broader service.
The FCC responded by finding that broader service would serve the interests of the Telecommunications Act of 1996 (expanded broadband access, and all the benefits that this brings to communities), and by issuing an order preempting the portions of the state laws that prohibited municipalities from providing access beyond their boarders.
The states sued, arguing that the FCC lacked authority to preempt under the Act's preemption provision, Section 706. The court agreed.
The court said that the FCC's order ran headlong into the "Clear Statement Rule" and Nixon. Under the Clear Statement Rule, the FCC can't preempt a state action that allocates state decision-making; under Nixon v. Missouri Municipal League, that rule applies when a federal government preemption action "interpos[es] federal authority between a State and its municipal subdivisions," which, the Court said, "are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion." As the Sixth Circuit said,
Any attempt by the federal government to interpose itself into this state-subdivision relationship therefore must come about by a clear directive from Congress, and the FCC can only pick the decision maker here if there exists a clear statement to do so in Section 706.
According to the court, Section 706 contains no such clear statement.
So despite the Act's ambitious goals and broad delegation to the FCC to achieve those goals, the court said that the Act stops short of authorizing the FCC to preempt state laws restricting Internet access beyond a municipality's boarders.
Nothing in the ruling requires a state to adopt this kind of restriction, however, or forbids a state from specifically authorizing a municipality to expand access. But when it does--as Tennessee and North Carolina have done--the FCC cannot preempt it, at least in the Sixth Circuit, and at least unless and until Congress gives the FCC specific authorization to do so.
(The North Carolina case was in the Fourth Circuit when that court transferred it to the Sixth Circuit for consolidation with the Tennessee case.)
Thursday, August 11, 2016
The Seventh Circuit ruled today in Kristofek v. Village of Orland Hills that a police officer's allegation of official misconduct in the higher ranks was protected speech under the First Amendment.
The ruling reverses the district court on the point and on its companion ruling that the police chief enjoyed qualified immunity. But the court rejected the officer's municipal liability claim.
The case arose when a part-time police officer, Kristofek, complained to colleagues and then to the FBI that a driver that he cited and detained may have been released, and charges dropped, because of official misconduct. (The driver's mother, a former township trustee, successfully intervened with local politicians and the police on behalf of her son. Kristofek thought that this might constitute official misconduct, based on a misconduct training that he attended.) Police Chief Scully then fired Kristofek.
Kristofek sued, arguing that his termination in retaliation for protected speech violated the First Amendment, and that the township was liable under Monell. The district court granted summary judgment to the defendants.
The Seventh Circuit reversed on the First Amendment claim. The court ruled that Kristofek spoke as a private citizen on a matter of public concern when he complained to his colleagues and to the FBI, and that the Pickering balance favored his speech. The court also denied qualified immunity to Scully.
But the court rejected Kristofek's Monell claim, because Scully didn't have authority to unilaterally fire Kristofek or to set department firing policy.
The ruling sends the case back for proceedings consistent with the opinion. But it also assigns the case to a new judge.
Monday, August 8, 2016
Judge Rosemary Collyer (D.D.C.) on Friday dismissed a case by the Libertarian and Greens against the Commission on Presidential Debates and others challenging their exclusion from the 2012 presidential debates and seeking to participate in the 2016 debates.
The ruling is hardly a surprise, despite the plaintiffs' mighty efforts to navigate well settled precedent.
The Libertarians and Greens argued that their exclusion under the Commission's 15% rule (a candidate needs 15% support in the polls to participate) violated antitrust laws and the First Amendment. But Judge Collyer held that they lacked standing, and that they failed to state a claim.
Judge Collyer said that the plaintiffs lacked standing, because their injury (lack of electoral support) was too speculative and was not traceable to Commission action (on the First Amendment claim) and because their injury wasn't a harm to the market (on the antitrust claim).
Judge Collyer went on to say that the plaintiffs failed to state a claim, because the Commission isn't a government actor subject to the First Amendment (on the free speech claim) and because they failed to allege an injury to competition in a commercial market (on the antitrust claim).
Given the plaintiffs' attempts to navigate well settled First Amendment law, Judge Collyer's ruling sometimes reads like a law exam answer--covering everything from the public function exception to the state actor doctrine, to right-to-access laws, to forum analysis, to the Jaybird primaries.
Despite the plaintiffs' efforts, however, they still lost. The ruling means that the Libertarians and Greens won't be at the 2016 presidential debates, at least not by court order.
Thursday, July 21, 2016
The en banc Fifth Circuit yesterday ruled that Texas's voter-ID law, widely described as the most restrictive voter-ID law in the country, had a discriminatory effect in violation of Section 2 of the Voting Rights Act.
The ruling is a decisive victory for voting-rights advocates and opponents of Texas's voter-ID law. If the state appeals, it'll face an 8-member Supreme Court (assuming the Court would take the case). If the Supreme Court were to divide 4-4, the Fifth Circuit's ruling stays in place. (The Texas AG hasn't said yet what he plans to do, if anything.)
The sharply divided ruling sends the case back to the district court to fashion a remedy for the November elections.
Recall that Texas's voter-ID law was denied preclearance under the VRA, but Texas implemented the requirements as soon as the Supreme Court struck the coverage formula for preclearance in Shelby County.
This suit challenged the law under Section 2. The district court ruled that the law had a discriminatory purpose and a discriminatory effect in violation of Section 2.
The Fifth Circuit yesterday walked that ruling back, but just slightly. The court said that the district court erred in its analysis of discriminatory purpose, and sent the case back for further proceedings on that ground (because there may be sufficient evidence of discriminatory purpose, but the district court analyzed it the wrong way). But the court went on to agree with the district court that the law had a discriminatory effect.
Given the timing of the ruling (so soon before the fall elections), the Fifth Circuit instructed the district court to fashion a remedy for the law's discriminatory effect as to "those voters who do not have SB 14 ID or are unable to reasonable obtain such identification," with an eye toward one of the legislature's purposes, reducing voter fraud. That remedy could include something like voter registration cards, or an indigency exception to the ID requirement. The Fifth Circuit also instructed the lower court to "consider the necessity of educational and training efforts to ensure that both voters and workers at polling places are capable of making use of whatever remedy the district court selects."
The Fifth Circuit did not rule on the constitutional claims.
Monday, July 18, 2016
Judge Ellen Segal Huvelle (D.D.C.) ruled last week in State national Bank of Big Spring v. Lew rejected a Recess Appointments Clause challenge to Consumer Protection Financial Bureau Director Richard Cordray. At the same time, the court declined to rule on the plaintiffs' separation-of-powers challenge to the Bureau itself.
The ruling is a decisive win for Director Cordray and actions he took during his period of recess appointment (before he was confirmed by the Senate). But it leaves open the question whether the CFPB itself it unconstitutional--a question that the D.C. Circuit could answer any day now.
This is just the latest case in a spate of challenges to Cordray's appointment and the CFPB. We posted on this case when the D.C. Circuit ruled that the plaintiffs had standing.
The plaintiffs argued that Director Cordray's recess appointment in January 2012 violated the Recess Appointments Clause. And they had good reason to think they were right: the Supreme Court ruled in NLRB v. Noel Canning that the President's recess appointments to the NLRB on the same day he appointed Cordray violated the Clause.
But Judge Huvelle didn't actually rule on that argument. That's because President Obama re-nominated Cordray in 2013, and the Senate confirmed him; he then (as validly appointed head of the CFPB) issued a notice in the Federal Register ratifying all the actions he took during his recess-appointment period. Judge Huvelle said that under circuit law the ratification cured any actions during this period that would have been invalid because of his invalid recess appointment.
But at the same time, the court punted on the plaintiffs' separation-of-powers challenge to the CFPB itself. That argument--which says that the CFPB invalidly combines legislative, executive, and judicial powers in the hands of a single individual--is currently pending at the D.C. Circuit in another case, PPH Corp. v. CFPB, and the court could rule any day now.
Judge Huvelle's ruling is a clear win for the CFPB and Cordray. But the real heart of opponents' claims against the Bureau are the ones now at the D.C. Circuit--that the CFPB violates the separation of powers.
Saturday, July 16, 2016
The D.C. Circuit yesterday upheld a lower court's dismissal of David Patchak's long-running attempt to stop the Match-E-Be-Nash-She-Wish Band's casino in Wayland Township, Michigan, based on a federal law that stripped the courts of jurisdiction over the case.
The ruling ends this dispute in favor of the Band and its casino, with little or no chance of further appeals.
The case started when David Patchak sued the Interior Department for putting certain land in Wayland Township in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino. Patchak, a neighboring property owner, argued that Interior lacked authority under the Indian Reorganization Act and sought damages for economic, environmental, and aesthetic harms.
The case went to the Supreme Court on justiciability grounds, and the Court ruled in 2012 that Patchak had prudential standing.
After that ruling came down, Congress enacted a stand-alone law that affirmed that Interior had authority to put the land in trust and divested the courts of jurisdiction over Patchak's case. The act, in relevant part, read:
NO CLAIMS -- Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.
The district court then dismissed Patchak's case, and yesterday the D.C. Circuit affirmed.
The court first rejected Patchak's claim that the jurisdiction-stripping provision violated the separation of powers. The court looked to the familiar distinction (recently sharpened by the Court's ruling in Bank Markazi) between a congressional act that applies a new legal standard in pending civil cases (which is OK) and an act that "prescribes a rule of decision" in those cases (which is not). The court said that this act falls squarely in the former class, even though Congress set the legal standard in a separate, stand-alone statute (and not the statute at issue in the case, the IRA).
The court next rejected Patchak's various individual-rights claims. The court said that the Act did not violate Patchak's First Amendment right to access the courts, because that right isn't absolute, and it yields to Congress's power to set the jurisdiction of the lower federal courts. The court said that the Act also did not violate Patchak's due process rights (because the legislative process provided Patchak any process that he might have been due) and the Bill of Attainder Clause (because the Act wasn't punishment).
Given the Supreme Court's powerful reaffirmation of congressional authority of federal court jurisdiction in Bank Markazi, the D.C. Circuit's ruling almost certainly ends Patchak's challenge.
Monday, July 11, 2016
In its opinion in Lone Star Security and Video v. City of Los Angeles, the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing the United States Supreme Court's 2015 Reed v. Town of Gilbert.
Recall that in Reed, Justice Kagan separately concurred in the unanimous decision to warn that strict scrutiny was not always appropriate and that "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive." Here, it seems that the Ninth Circuit panel has taken that advice, applying the relaxed standard of time, place, and manner doctrine rather than content-discrimination meriting strict scrutiny.
The L.A. ordinances are directed at "advertising signs" on vehicles or attached to vehicles. Signs on vehicles - - - painted or permanently affixed - - - are allowed as long as they do not extend beyond the vehicle or make the vehicle unsafe. Signs that attached to non-motorized vehicles, such as those on standalone trailers, are prohibited from parking on city streets.
Judge Mary Murguia, writing for the unanimous panel, concluded that the ordinances applicability to "advertising" did not render the ordinances content-based. The opinion relied on a state case that construed advertising as displaying any message to the public rather than the content of that message and upheld an ordinance as applied to a nonprofit organization protesting animal cruelty. Moreover,
The Supreme Court’s recent decision in Reed does not alter our conclusion. Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security’s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. . . . In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance.
[ellipses added; citations omitted]. Once having determined the correct standard was not strict scrutiny, the panel easily found that the ordinances survived review.
The parties do not dispute that the cities’ stated interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech, nor could they.
As for the "narrow tailoring" required, the panel found that none of the ordinances were broader than necessary. Additionally, the panel found that there were ample alternative channels for communication, including advertising.
Appellants are free to disseminate their messages through myriad other channels, such as stationary billboards, bus benches, flyers, newspapers, or handbills. Appellants may also paint signs on vehicles and attach decals or bumper stickers. Although mobile billboards are a unique mode of communication, nothing in the record suggests that Appellants’ overall “ability to communicate effectively is threatened.”
The last quotation is from the United States Supreme Court's City of Los Angeles v. Taxpayers for Vincent (1984), on which Judge Murguia heavily relied. However, for Judge John Owens, Taxpayers for Vincent has its own flaws. In a brief concurrence, Judge Owens suggested that the United States Supreme Court should take a "second look" at Taxpayers for Vincent.
This case is about ugly signs on vehicles, and no doubt I would not want these vehicles and their signs parked in front of my house. But under the ordinances at issue, a car with equally ugly decals—including a decal of a vehicle with an ugly sign—would not “go to jail,” but instead treat my curb like the upper left corner of a Monopoly board.
If “aesthetics” are to play a part in speech restriction, then such aesthetics should apply equally, decal or sign. Yet under Taxpayers for Vincent, the Court rejected the very point that I now make. See 466 U.S. 810–12 (rejecting the Ninth Circuit’s holding that “a prohibition against the use of unattractive signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located”). I think our court was right then, and the Supreme Court should reconsider this portion of Taxpayers for Vincent. As it currently stands, politicians can use Taxpayers for Vincent and its beholderish “aesthetics” to covertly ensure homogeneous thinking and political discourse. That is a dimension we should avoid. See The Twilight Zone: Eye of the Beholder (CBS television broadcast Nov. 11, 1960).
Judge Owens was not part of the Ninth Circuit panel that the Court reversed, although the third member of this Ninth Circuit panel - - - Judge Stephen Reinhardt - - - was. Judge Reinhardt, born in 1931, may also have seen the original episode of The Twilight Zone to which Judge Owens, born more than a decade after its original airing, refers.
Thursday, July 7, 2016
The Ninth Circuit ruled this week that a prosecutor is not entitled to absolute immunity for swearing out a false declaration in support of a subpoena for medical records of an unindicted third-party witness in a murder trial.
At the same time, however, the court said that the prosecutor is entitled to absolute immunity for issuing the subpoena and using the medical records at trial.
The case arose when a prosecutor sought Detrice Garmon's medical records in preparation for Garmon's son's murder trial. Garmon was set to testify as an alibi witness in her son's trial, but she was scheduled to undergo brain surgery with an uncertain outcome before the trial date. So she gave a deposition. She also authorized her medical plan to disclose to the prosecution medical records related to her brain tumor.
But the prosecutor in the case instead swore out a declaration that Garmon was the murder victim, and issued a subpoena for all of Garmon's medical records. The prosecutor then used Garmon's unredacted records to impeach her at trial, and Garmon's son was convicted.
Garmon sued, but the trial court held (among other things) that the prosecutor enjoyed absolute immunity.
The Ninth Circuit reversed. The court applied the distinction between a prosecutor's advocacy functions (triggering absolute immunity) and a prosecutor's administrative or investigative functions (triggering the lesser qualified immunity). The court said that the prosecutor's declaration was more investigative, and only gets qualified immunity, while the prosecutor's subpoena and use of the records at trial was more advocacy, triggering absolute immunity.
The ruling means that the prosecutor in the case has some protection, but not absolute protection, against Garmon's civil rights suit based on the false declaration.
The court also rejected Garmon's argument that absolute immunity is unavailable against claims of unindicted third-party witnesses. The court's ruling aligns it with the Second, Sixth, and Seventh Circuits. There's no circuit that goes the other way.
The case now goes back to the trial court, where Garmon will have a chance to amend her complaint to square with Monell on municipal liability.
Friday, July 1, 2016
Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination
In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.
The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.
Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago. In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.
Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."
On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:
The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.
Judge Reeves also found that the law would have a discriminatory effect. Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest." But concluded that the interest is "not one with any rational relationship to HB 1523." Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."
On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:
The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.
Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.
Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.
July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)
Tuesday, June 28, 2016
Judge Says Timber Company is Likely, but not Substantially Likely, to Have Standing to Challenge BLM Timber Sales
Judge Richard J. Leon (D.D.C.) ruled today that a timber company has a sufficient likelihood of showing standing to withstand a motion to dismiss, but not sufficient to get a preliminary injunction, in just the latest order in this six-year litigation thicket challenging the government's timber sales in the Pacific Northwest and the habitat for the northern spotted owl.
The ruling means that the company's case against the Bureau of Land Management can continue (because it has a sufficient likelihood of showing standing to withstand the government's motion to dismiss), but that it will not now get a preliminary injunction ordering the government to sell more timber (because it doesn't have a sufficient likelihood of showing standing to satisfy the "substantial likelihood of success" test for a preliminary injunction).
The six-year old case--or, really, series of cases--involves timber companies' and individuals' challenges to BLM's failure to offer for sale a declared amount of timber from two western Oregon districts in violation of the Oregon and California Railroad and Coos Way Wagon Road Grant Lands Act of 1937. (The government declined to sell a full quota in order to protect the spotted owl.)
In earlier phases of litigation, the government successfully moved to dismiss based on lack of standing. The corporations and individual officers came back with new allegations supporting standing, which formed the basis of today's ruling.
Judge Leon said that only one timber corporation, Rough & Ready, likely satisfied standing requirements to survive the government's motion to dismiss. That's because Rough & Ready, alone among the plaintiffs, alleged with particularity that the BLM's failure to sell timber caused it to close its doors and that its requested relief (an order requiring BLM to sell more timber) would redress that harm (and allow it to re-open).
But Judge Leon went on to say that Rough & Ready didn't show a "substantial likelihood" of standing (a higher standard than a mere likelihood of standing), and thus couldn't show a "substantial likelihood on the merits" in order to get a preliminary injunction that would require the government to sell more timber. Here's Judge Leon:
While the allegations supporting Rough & Ready's standing suffice to satisfy the lower "likely" standard required at [the] motion-to-dismiss phase, they fail to rise to the level of the "substantial likelihood" required at the preliminary injunction phase. In particular, although Rough & Read plausibly claims that its injuries are likely redressable as described above, its "hope to be able to reopen the mill and resume operations" if and when the BLM offers its full ASQ of timber sales is insufficient to establish substantial likelihood of redressability. That is, while the various allegations taken as a whole establish Rough & Ready's injuries are likely redressable, they simply fail to provide the basis necessary to establish the requisite substantial likelihood.
Judge Leon seemed to leave open the possibility that Rough & Ready could later establish this substantial likelihood, however, and perhaps successfully reapply for a preliminary injunction at a later time.
In the meantime, the case can proceed on the merits, though without a preliminary injunction.
Judge Leon dismissed the other plaintiffs' claims for lack of standing--mostly because (unlike Rough & Ready's claims) they weren't specific enough.
Monday, June 27, 2016
The United States Supreme Court's opinion in Whole Woman's Health v. Hellerstdet (previously Cole), declares unconstitutional both the admitting privileges and surgical center requirements of the controversial Texas HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). Justice Breyer, writing for the five Justice majority found that the regulations place a substantial obstacle and constitute an undue burden on the abortion right.
In the first case to address abortion since 2008, the Court clearly reaffirmed the substantial obstacle/undue burden test and found that the Texas' statutory scheme was too restrictive. The divisions amongst the Justices was clear in oral arguments and previous proceedings (a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part).
The bulk of the 107 page opinions is Justice Alito's dissent, joined by Chief Justice Roberts and Justice Thomas. (Note that even if Justice Scalia was still on the bench, the result would have been the same). Justice Thomas also wrote separately.
Justice Breyer's opinion for the Court rebuked the Fifth Circuit for incorrect doctrine.
The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”
The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.
With the correct standard (re)articulated, the Court then carefully considered the "record evidence" in this extensive litigation and agreed with the district judge that the Texas regulations placed substantial obstacles in the path of women seeking abortions, thus meeting the undue burden test. The Court also found that the Texas restrictions did little to serve the state's articulated interests in protecting women's health and may actually have undermined the state's interests.
On the admitting privileges requirement, the Court rehearsed the expert evidence at trial and also pointed to amicus briefs, both to explain the context of admitting privileges and the effect of the requirement (including clinic closures). As to the relation to the state's articulated interest in women's health, the Court added:
when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.
The Court also specifically refuted the dissenting opinion's reliance on a well-known Pennsylvania scandal involving Gosnell:
Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.
Justice Breyer's opinion for the Court engaged in a similar analysis as to the surgical center requirement. Again, the Court stated that the mandate does not serve the stated interests in women's health" "many surgical-center requirements are inappropriate as applied to surgical abortions." And again, the Court found that the record evidence as well as "common sense" meant that the (unnecessary) requirements would result in clinic closures which would result in a substantial obstacle to women's reproductive access.
While the Court's opinion is often very specific, Ginsburg's separate but very brief concurrence briefly strikes a broader note:
When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.
But whether one takes the specific or broader view, Whole Women's Health is a clear message to lower courts that their judicial function is to apply the current rule in a rigorous manner to preserve abortion access.
Thursday, June 23, 2016
The Supreme Court today deadlocked 4-4 in the case challenging President Obama's deferred action plan for certain unauthorized immigrants, or DAPA. The Court's ruling in United States v. Texas affirms the Fifth Circuit's ruling in the case. (Our preview of the case is here.)
While the Court's non-decision today has no precedential value, as a practical matter it upholds a nationwide preliminary injunction against enforcement of DAPA issued by district Judge Hanen. The ruling thus effectively halts enforcement of DAPA and sends the case back to Judge Hanen for proceedings on the merits. Here's the Fifth Circuit's summary of its ruling (which, again, is upheld under today's 4-4 split):
Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.
Note that the Fifth Circuit ruling doesn't touch the Take Care Clause issue--an issue that the Supreme Court asked the parties to brief and argue, even though the government didn't seek review on this issue. Note, too, that the Fifth Circuit upholds a district judge's preliminary injunction that applies nationwide (and not, as would ordinarily be the case, in the judge's district only).
We don't know the justices' positions on particular issues in the case--standing, APA--because the per curiam order (as is customary for a 4-4 split) simply says that "[t]he judgment is affirmed by an equally divided Court." Still, this appears to be one of those cases where Justice Scalia's absence matters: he would have likely voted with the four (likely the conservatives, although we don't know for sure) to uphold the Fifth Circuit, creating a five Justice majority opinion that would have created precedential law.
The government may petition the Court (now) for rehearing (after a ninth justice is confirmed).
Thursday, June 9, 2016
A sharply divided en banc Ninth Circuit ruled today that the Second Amendment does not protect concealed carry. The ruling, a win for the state and for local regulation of concealed carry, upholds two California local restrictions on obtaining a concealed carry permit.
The case is a significant victory for supporters of gun regulations, and a significant defeat for gun-rights advocates.
It seems unlikely that the Supreme Court will grant review quite yet, however, unless there are five justices who would vote to affirm. That's because a 4-4 split on the Court would have no effect and simply leave today's Ninth Circuit ruling in place. (The Court split 5-4 in both Heller and McDonald. In McDonald, the more recent of the two, all of the current conservatives were in the majority, and all the current progressives were in dissent (except Justice Kagan, who replaced Justice Stevens).
The case involved California's concealed carry permitting law. In general, California does not allow concealed carry. But individuals can apply for a permit if they can show "good cause." California law authorizes county sheriffs to establish and publish policies defining good cause.
The plaintiffs in the case said the good cause standards in San Diego and Yolo Counties violated the Second Amendment, because those standards prohibited them from obtaining a concealed carry permit (and thus from carrying a concealed weapon).
The en banc Ninth Circuit disagreed. Drawing on the historical approach in Heller and McDonald, the court held that the Second Amendment doesn't even protect concealed carry. The court traced the history (starting with a directive issued by Edward I in 1299 through rulings in the nineteenth century) and concluded that "[t]he right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." And because concealed carry isn't protect, the court said, "any prohibition or restriction a state may choose to impose on concealed carry--including a requirement of 'good cause,' however defined--is necessarily allowed by the Amendment."
The court went on to say that if it had to address whether the "good cause" requirements satisfied the Second Amendment (which it didn't, because it held that concealed carry wasn't protected at all by the Second Amendment), then it would uphold those requirements under intermediate scrutiny because they "promote a substantial government interest that would be achieved less effectively absent the regulation." Judge Graber, joined by Chief Judge Thomas and Judge McKeown, made this point in concurrence.
The court did not say whether the Second Amendment protects some right to carry firearms in public (i.e., open carry); it only said that the Second Amendment didn't protect concealed carry.
Judge Callahan wrote a principal dissent, joined by Judges Silverman, Bea, and N.R. Smith. Judges Silverman and N.R. Smith also wrote their own dissents. Judge Callahan argued in part that the majority erred by defining the scope of the claimed right to narrowly--as the "right to carry a concealed firearm," as opposed to a more general "right to carry a firearm in self-defense outside the home." Judge Callahan cited Obergefell, Lawrence, and Griswold in support of the argument that "[t]he Court has defined other constitutional rights broadly as well."
In its highly anticipated opinion in Williams v. Pennsylvania, the United States Supreme Court found that the failure of Chief Justice of the Pennsylvania Supreme Court Ronald Castille to recuse himself in the death penalty review of Williams' postconviction appeal constituted a violation of the Due Process Clause.
Recall that Chief Justice Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013. Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row." One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief. Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty. Williams' post-conviction claim, moreover, is based on prosecutorial misconduct.
Writing for the five Justice majority, Justice Kennedy relied on the Court's previous decision in Caperton v. A.T. Massey Coal. Co. in 2009 - - - which Kennedy also authored - - - to articulate the applicable "objective standard" of recusal when the "likelihood of bias on the part of the judge 'is too high to be constitutionally tolerable.'" While Kennedy noted that the "due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor," the Court articulated a clear rule:
The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.
This rule, the Court reasoned, is based upon the due process guarantee that “no man can be a judge in his own case,” which would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision."
Justice Kennedy's relatively brief opinion for the Court specifically rejected each of Pennsylvania's arguments.
As to the passage of time between the prosecutorial and judicial events, the Court reasoned that
A prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time do not relieve the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.
As to the argument that Castille's authorization to seek the death penalty against Williams was insignificant in a large office, the Court specifically found that "characterization cannot be credited." First, the Court stated that it would not assume that the District Attorney treated so major a decision as whether or not to pursue the death penalty as a "perfunctory task requiring little time, judgment, or reflection." Second, the Court noted that "Chief Justice Castille's own comments while running for judicial office" refute any claim that he believed he did not play a major role in seeking death sentences. And third, the Court noted that claim and finding that the trial prosecutor had engaged in multiple and intentional Brady violations, it would be difficult for "a judge in his position" not to view this as a "criticism of his former office, and, to some extent, of his own leadership and supervision as district attorney."
As to the argument that Castille did not cast the "deciding vote" - - - unlike the situation in Caperton - - - and so any error was harmless, the Court stressed the role of the court as a unit:
A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias de- means the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless.
Chief Justice Roberts, joined by Justice Alito, and Justice Thomas writing separately, dissented - - - not surprising given that they have also dissented in Caperton. Roberts's opinion draws the line between due process and judicial ethics: just because it was an ethics violation, does not mean it is a due process violation. Roberts states that it is "up to state authorities" to determine whether recusal is required.
In sum, this extension of Caperton to judicial decisions by former prosecutors and the Court's articulation of a clear rule should result in a new regime of uniform recusal mandated by the Due Process Clause.
[image NYPL digital collection, "A Murder Trial in the Court of General Sessions, circa 1901, via]
Wednesday, June 8, 2016
Daniel McGowan was incarcerated in the federal Bureau of Prisons (BOP), but had been transferred to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges. McGowan is well known as an environmental activist and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front.
While at RCC in April 2013, McGowan published an article on Huffington Post entitled "Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech." This article caused the RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons - - - in solitary confinement - - - for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”
But this "byline regulation" had been declared unconstitutional by a federal district court, Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007). Soon thereafter, the BOP had instructed staff not to enforce it. In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.
McGowan's lawyers soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.
McGowan sued the RCC personnel for a violation of the First Amendment, but the Second Circuit, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity. Qualified immunity protects the government from liability for violation of a constitutional right unless that right was "clearly established" at the time of the violation. Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:
We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).
In short, the " only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding."
The court also rejected claims sounding in tort regarding the BOP's failure to follow its own regulations.
Thus, McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.