Monday, September 28, 2015

Con Law Scholars Forum at Barry

The Barry University Law School Student Chapter of the American Constitution Society is hosting its Second Annual Constitutional Law Scholars Forum, Friday, April 1, 2016, in Orlando.

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea of the editing stage. The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)

The deadline to submit proposals is December 1, 2015.

E-mail proposals to Ms. Fran Ruhl, Faculty Assistant, at, and to Professor Eang Ngov at, with "Constitutional Law Scholars Forum" in the subject line. Submissions should include a short abstract (300 words max) and biography (150 words max).

There are no conference fees, but participants have to pay their own travel expenses.

The Conference organizer is Professor Eang Ngov,, tel. (312) 206-5677.

September 28, 2015 in News, Scholarship | Permalink | Comments (0)

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Wednesday, September 23, 2015

Deputy Sheriff Gets No First Amendment Protection from Political Reprisal

The Eleventh Circuit ruled that a deputy sheriff does not enjoy First Amendment protection from retaliation in employment for her political beliefs. That's true, the court held, even when local law bans political retaliation against certain covered employees, including the deputy sheriff. The court also rejected the deputy sheriff's Equal Protection claim for gender discrimination.

The case arose when John Darr beat incumbent Sheriff Johnson in the sheriff race in Columbus, Georgia. Darr substantially reorganized the staff, including taking away significant responsibilities from Deputy Sheriff Terri Ezell. According to the court, Ezell "has a long and path-breaking record of law enforcement service for [the Columbus Consolidated Government]." She also supported Johnson (against Darr) in the sheriff race.

Ezell brought a First Amendment claim against Darr and the CCG for retaliating against her based on her political affiliation. Recognizing that circuit law said that a deputy sheriff enjoyed no First Amendment rights against political retaliation (because "the nature of the sheriff-deputy relationship is such that a sheriff must be able to require absolute loyalty from his deputies for his office to be effective"), Ezell argued that local law classified her position within the CCG civil service and prohibits employment decisions based on political patronage. In other words, she said that the CCG civil service system changed the nature of her position for First Amendment purposes in a way that gave her protection against political retaliation, notwithstanding circuit law.

The court rejected this argument. The court said that the touchstone of First Amendment protection for retaliation is the relationship between the deputy sheriff and the sheriff--a question of law--and that this isn't changed by the CCG civil service system. The court said that nothing in the local law could change the fundamental relationship between the offices for First Amendment purposes. This meant that Ezell was subject to circuit law, and that she enjoyed no First Amendment protection.

The court also rejected Ezell's Equal Protection claim based on gender discrimination. The court held that there was no factual dispute that Darr shifted Ezell's responsibilities in order to address problems in the local jail (which Ezell previously supervised)--a non-discriminatory explanation--and that Ezell couldn't show that this was a pretext.

September 23, 2015 in Cases and Case Materials, Equal Protection, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, September 22, 2015

No Constitutional Claim for Former Embed Journalist

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit this week dismissed a case of a former embed journalist against Defense Department officials for terminating his embed status in violation of the First Amendment and the Administrative Procedure Act.

The ruling may reveal a rift on the court over the sweep of sovereign immunity in a constitutional case for non-monetary, specific relief against government actors in their official capacity--that is, over the meaning or sweep of Clark v. Library of Congress (D.C. Cir.). The issue is critically important for access to justice.

The case arose when NATO officials terminated Wayne Anderson's embed status after he posted pictures that violated the Ground Rules for embeds. Anderson sued the Secretary of Defense and DoD officials in their individual and official capacities, seeking reversal of the memo terminating his embed status and declaratory relief (but no monetary damages).

Anderson appealed the lower court's dismissal, but only as to the defendants in their official capacities. He alleged a claim for retaliation under the First Amendment and a violation of the Administrative Procedure Act. (Anderson's precise arguments were a little muddied, and maybe included a procedural due process claim, too.)

The D.C. Circuit ruled that the government enjoyed sovereign immunity against a suit against the defendants in their official capacities, and did not waive it through the APA. (The APA might have provided a statutory waiver of immunity, except that it exempts "military authority exercised in the field in time of war.")

The court went on to say that Anderson's claim was also moot. That's because the Afghanistan mission was drawn down, and NATO (not a party to the suit) led the embed program. In other words, the court said that it couldn't grant any relief to Anderson. But the court noted that Anderson could re-apply for the current embed program.

Judge Srinivasan concurred and dissented. He argued that the government did not enjoy sovereign immunity, citing Clark v. Library of Congress (D.C. Cir.). In that case, the court declined to apply sovereign immunity to shield the government from suit for non-monetary, specific relief for officials' unconstitutional behavior. The Clark court wrote, "Clark's claims for non-monetary, specific relief are not barred by sovereign immunity. It is well-established that sovereign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority."

Judge Srinivasan also argued that the case was not moot, given that the "government has not shown that the transition to a NATO-led mission has made it impossible for the court to provide any relief bearing on a United States journalist's ability to embed."

September 22, 2015 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Second Circuit Grants Standing to Challenge NY's Criminalization of "Gravity Knives"

A gravity knife is “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device,” according to New York Penal Law §265.00 (5).  It is clear that having one is criminal possession of a weapon in the fourth degree, a misdemeanor punishable by no more than one year in prison.  It is less clear, at least according to the plaintiffs in Knife Rights, Inc. v. Vance, exactly what a gravity knife is: what if a person possesses a "common folding knife" that he is unable to open with a "wrist flick," but that someone else (presumably more talented) can open with a "wrist flick."? 

The Second Circuit's opinion in Knife Rights, Inc. v. Vance, however, is concerned not with the due process challenge to the New York law, but the Article III standing of the plaintiffs seeking to challenge it. 

circa 1613 via

Almost two years after the district judge's opinion dismissing all plaintiffs, the Second Circuit has affirmed the lack of standing of the organizational plaintiffs, Knife Rights and Knife Rights Foundation, but reversed as to the individual plaintiffs, Copeland and Perez, as well as Native Leather, a retail knife store.

In applying the well-established test for Article III standing - - -(1)  ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood that the injury ‘will be redressed by a favorable decision.’ - - - the Second Circuit disagreed with the district judge that the plaintiffs had not established an injury in fact. 

Indeed, the three individual plaintiffs had been prosecuted under the statute.  Copeland and Perez, an artist and an art dealer, both carry knives for their work.  Perez was stopped by law enforcement in 2010 in Manhattan for a

metal clip protruding from his pocket. Inquiry revealed the clip to be part of a Gerber brand common folding knife that Perez had purchased approximately two years earlier at Tent & Trail, an outdoor supply store in Manhattan. Plaintiffs assert that the charging officers were unable themselves to flick open Perez’s knife, but based on the possibility that someone could do so, they issued Perez a desk appearance ticket charging him with unlawful possession of a gravity knife.

Copeland was similarly stopped in 2010, but although he had previously shown his knife to NYC police officers to inquire about the legality of its possession and those officers were "unable to flick open the knife and so returned it to Copeland, advising that its possession was legal," when he was stopped, the officers were "able to open the knife by “grasping the knife’s handle and forcefully ‘flicking’ the knife body downwards” and, thus, issued Copeland a desk appearance ticket for violating the statute.

As to the store, Native Leather, it had entered into a deferred prosecution agreement with District Attorney Vance, which included the payment of fines and a "compliance program" to stop selling "gravity knives."

The Second Circuit easily found that the plaintiffs' alleged an imminent threat of prosecution.  The court rightly distinguished the controversial case of City of Los Angeles v. Lyons (1983) involving the police practice of choke-holds, by noting that the plaintiffs here seek to engage in the very conduct that is being subjected to criminalization.  The court denied the organization's standing by concluding that its monetary injury incurred by supporting persons prosecuted under the statute would not be adequately redressed by the injunctive relief sought in the complaint.  (The district court had denied leave to amend, which the Second Circuit affirmed).

The plaintiffs ability to move forward with the merits of their challenge to the New York statute criminalizing specific - - - or as alleged, not sufficiently specific - - - knives seems long overdue. 

September 22, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Opinion Analysis, Standing | Permalink | Comments (0)

Monday, September 21, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Friday, September 18, 2015

Eighth Circuit First to Strike Accommodation of Contraception Mandate

The Eighth Circuit yesterday became the first federal circuit court to rule that the government's accommodation of the contraception mandate in the Affordable Care Act likely violated the Religious Freedom Restoration Act.

The ruling upholds a lower court's preliminary injunction against the contraception mandate as applied to objecting religious non-profits.

The ruling is notable not only because it's the first federal appellate court (of eight) to so hold, but also because it seems to grant deference to the plaintiffs' beliefs about how their religion works, but also their religious beliefs about how the law works. That could have far reaching impacts for other cases under RFRA, at least in the Eighth Circuit.

The court said that the government's accommodation--that an objecting religious non-profit complete a Form 700, or certify to the government that it has a religious objection to certain contraception--itself was a substantial burden on the non-profits' religious beliefs. According to the court, that's because the accommodation "triggers" the provision of contraception to employees by the non-profits' insurers or third-party administrators.

This contradicts the holdings in other circuits, which have said that it's not the accommodation that "triggers" contraception, but the law itself.

But the Eighth Circuit rejected that approach, based on the deference that it says it owes to the non-profits' interpretation of their own religious beliefs:

Instead, we must accept a religious objector's description of his religious beliefs, regardless of whether we consider those beliefs "acceptable, logical, consistent, or comprehensible." In other words, a religious objector is entitled to "dr[a]w a line" regarding the conduct that his religion deems permissible, and once that line is drawn, "it is not for [a court] to say that the line . . . was . . . unreasonable."

The Eighth Circuit extended the deference traditionally granted to a plaintiff over his or her religious beliefs to the plaintiffs' interpretation of law. In other words, the court didn't look to the way the ACA actually worked (in requiring insurers and TPAs to provide contraception when an employer files the accommodation), as the other circuits did; instead, it simply accepted the plaintiffs' interpretation of the law--based on its deference to the plaintiffs' sincerely held religious belief--that their certification "triggered" contraception. The court explained:

As Hobby Lobby instructs, however, we must accept CNS and HCC's assertion that self-certification under the accommodation process--using either Form 700 or HHS Notice--would violate their sincerely held religious beliefs.

The court went on to say that the accommodation didn't meet strict scrutiny (under RFRA), because there were other ways for the government to achieve its objective of providing contraception: the government could provide contraception directly, itself; or it could use a simple notice requirement consistent with the Supreme Court's requirement in Wheaton College. (The court said that the government's notice requirement was broader, and more burdensome, than what the Supreme Court approved in Wheaton College.)

September 18, 2015 in Cases and Case Materials, News, Opinion Analysis, Religion | Permalink | Comments (1)

Alabama Supreme Court Denies Full Faith and Credit to Lesbian "Second-Parent" Adoption

In its opinion in Ex Parte E.L., the Alabama Supreme Court has refused to recognize an adoption of three children that occurred six years earlier in Georgia by "E.L.'s former same-sex partner."  Reversing lower courts, the Alabama Supreme Court's per curiam majority held that it need not recognize the Georgia adoptions under the Full Faith and Credit Clause, Article IV, §1. 

Georgia & Alabama circa 1823 via

The biological mother challenging the adoptions argued that the Full Faith and Credit Clause should not apply to the Georgia adoptions under two exceptions: lack of subject matter jurisdiction and violation of public policy.  The Alabama Supreme Court held that the Georgia courts did not have "subject matter jurisdiction" over the second-parent adoption because Georgia law did not recognize second-parent adoptions at that time.  Its conclusion regarding the lack of subject matter jurisdiction was supported by a dissenting opinion from a Georgia Supreme Court Justice.  As the Alabama Supreme Court's per curiam opinion explained:

The Supreme Court of Georgia as a whole has not specifically addressed this issue; however, in Wheeler v. Wheeler, 281 Ga. 838, 642 S.E.2d 103 (2007), a similar case involving a biological mother's attempt to void a second- parent adoption granted her same-sex ex-partner, that court, without issuing an opinion, denied a petition for the writ of certiorari filed by the biological mother challenging the Georgia Court of Appeals' decision not to consider her discretionary appeal of the trial court's order denying her petition to void the adoption. However, in a dissenting opinion Justice Carley addressed the argument E.L. now makes . . . .

The Alabama Supreme Court then extensively quoted Supreme Court of Georgia Justice Carley's dissenting opinion.  The Alabama Supreme Court then stated that it agreed "with the analysis of Justice Carley," and having "concluded that his is the proper analysis" of the statutes, "we can only assume that a Georgia court would make the same conclusion and, by extension, would permit a challenge on jurisdictional grounds" to such an adoption decree.  (emphasis in original).

Alabama Supreme Court Justice Greg Shaw dissented from this interpretation and began by stating:

The main opinion reviews the merits of the adoption in this case; our caselaw, interpreting the United States Constitution, does not permit this Court to do so.

He continued:

I see no support for the proposition that, if a petitioner fails to show that an adoption is warranted or permissible under Georgia law, then the court in Georgia is suddenly divested of jurisdiction over the subject matter. Indeed, Georgia's adoption code seems to provide the opposite.

Finally, he warned of the opinion's consequences:

Further, I fear that this case creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court's decision in an adoption would now arguably create a defect in that court's subject- matter jurisdiction.

However, it may be that the opinion is implicitly limited to second-parent adoptions in the context of same-sex relationships.  Chief Justice Moore of the Alabama Supreme Court has been very vocal regarding his opposition to same-sex relationships.  So while the per curiam opinion explicitly rests on the subject matter jurisdiction exception to the Full Faith and Credit Clause, it also implicitly raises the public policy problem.

September 18, 2015 in Current Affairs, Family, Full Faith and Credit Clause, Gender, Sexual Orientation | Permalink | Comments (0)

Daily Read: Slavery and the Original Constitution

The question of whether the institution of chattel slavery is inherent in the Constitution is being debated in the popular press.

In an op-ed in the New York Times, Sean Wilentz argues that "the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past."  He concludes

Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.

Over at the New Republic, Lawrence Goldstone argues Wilentz is absolutely wrong.  Sure, the Constitution's framers avoided the word "slavery" in the document itself, just as in the debates they "almost always employed euphemisms such as 'this unique species of property, 'this unhappy class,' or 'such other persons.' "  Goldstone concludes that perhaps it may be correct to say that "the Constitution didn’t specifically anoint slavery as a national institution," but nevertheless "in clause after clause it tried to make certain that slavery would endure as one."

To see such matters debated in the popular press, even in such abbreviated form, has been stimulating to many ConLaw students studying the issue in class.

circa 1789 via

September 18, 2015 in Current Affairs, History, Scholarship, Thirteenth Amendment | Permalink | Comments (2)

Second Circuit Says No Waiver of General Immunity when State Removes

The Second Circuit this week ruled that a state does not waive its general state sovereign immunity (as opposed to its Eleventh Amendment sovereign immunity) when it removes a case to federal court.

The ruling is a win for the states and adds to the apparent weight of authority in the circuits. Still, the Second Circuit noted that "there has . . . been some confusion in the Circuit Courts" on the question, inviting the Supreme Court to clarify.

The case started with state employees' Fair Labor Standards Act case against Vermont in state court. Vermont removed the case to federal court, declined to assert any form of sovereign immunity, and even at one point represented that it wouldn't assert Eleventh Amendment immunity (as a result of its removal to federal court). Then it asserted general common law state sovereign immunity and moved to dismiss.

The Second Circuit dismissed the case. The court said that while Vermont waived its Eleventh Amendment immunity by virtue of its removal to federal court (under Lapides v. Board of Regents), it did not waive its general state sovereign immunity by virtue of removal. The court noted that the state in Lapides had already waived its general state sovereign immunity, so did not support the plaintiffs' position that Vermont waived immunity (because Vermont had not previously waived its general state sovereign immunity). The court also said that the circuits that have considered the question have ruled that a state does not waive its general state sovereign immunity by virtue of removal (even if it waives Eleventh Amendment immunity by virtue of removal)--even while noting that there's some confusion in the circuits on how to apply Lapides.

The court said that both logic also supported its result:

A state defendant sued in state court, when entitled to remove the suit to federal court, may well wish to do so in the belief that its entitlement to have the suit dismissed by reason of the state's sovereign immunity, an entitlement largely elaborated by federal courts, will be better protected by the federal courts than by courts of the state.

The court also rejected the plaintiffs' arguments that Vermont's foot-dragging on asserting immunity amounted to a waiver and that Vermont expressly waived immunity.

September 18, 2015 in Cases and Case Materials, Courts and Judging, Eleventh Amendment, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Thursday, September 17, 2015

Sixth Circuit Finds Standing in "Juggalo" Constitutional Challenge to Gang Designation

In its opinion in Parsons v. Department of Justice today, a panel of the Sixth Circuit reversed the district judge's dismissal of a complaint for lack of standing by individuals who identify as "Juggalos"  a group the FBI's National Gang Intelligence Center (NGIC) has identified as a "hybrid gang."  The individuals alleged that "they subsequently suffered violations of their First and Fifth Amendment constitutional rights at the hands of state and local law enforcement officers who were motivated to commit the injuries in question due to the identification of Juggalos as a criminal gang."

                                                                                                                 image via

As the court explained, Juggalos are fans of Insane Clown Posse, a musical group, and its record label, Psychopathic Records, who often wear or display Insane Clown Posse tattoos or insignia, as well as paint their faces. The complaint alleged various actions by law enforcement, including detentions and inference with performances, as a result of the gang designation.

The court found that while their allegations of chilled expression were insufficient to rise to the requisite "injury in fact" required under standing doctrine,

The Juggalos’ allegations that their First Amendment rights are being chilled are accompanied by allegations of concrete reputational injuries resulting in allegedly improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations. Stigmatization also constitutes an injury in fact for standing purposes.  As required, these reputational injuries are cognizable claims under First Amendment and due process causes of action.

[citations omitted].  Thus, the court held that the injury in fact requirement was satisfied as to the First Amendment and due process claims.

As to causation, the court held that the Juggalos’ allegations "link" the gang report to their injuries "by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question."   Thus, at this initial stage of the case, the Juggalos’ allegations sufficed.

On the question of redressibility, the remedy sought included a finding that the gang report is invalid.  The court rejected the government's argument that such information about the Juggalos was available from other sources by stating that the test is not that the "harm be entirely redressed." "While we cannot be certain whether and how the declaration sought by the Juggalos will affect third-party law enforcement officers, it is reasonable to assume a likelihood that the injury would be partially redressed where, as here, the Juggalos have alleged that the law enforcement officers violated their rights because of" the government report.  The court seemingly found it pertinent that the DOJ's report gave the gang designation an impressive "imprimatur" of government authority.

As the Sixth Circuit made clear, the complaint remains subject to the motion to dismiss on other grounds, but this is an important victory for the Juggalo quest to remove its gang-identification.

September 17, 2015 in Due Process (Substantive), Fifth Amendment, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Constitution Day 2015

It's Constitution Day - September 17 - and federal law mandates that

Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.

Eleventh Amendment Department of Education regulations provide that the law

requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week.

In President Obama's proclamation this year, he states:

On this day and throughout this week, let us honor the values for which the Framers stood by rededicating ourselves to carrying forward the spirit first embodied in their achievements -- that what makes our country great is not that we are perfect, but that we can face our imperfections and decide that it is in our power to remake our Nation to more closely align with our highest ideals.  With time, courage, and the participation of our citizenry, we can pay tribute to those who shaped the land we love today while working to secure everlasting peace, prosperity, and opportunity for all who call America home.


It's quite possible that Constitution Day is itself unconstitutional. One of the classic discussions is from ConLawProf Kent Greenfield in 2005 where he argues:

The right to be free of government-compelled speech - even speech that is worthwhile and beneficial - has been a "fixed star in our constitutional constellation" for over sixty years. That quote comes from Justice Robert Jackson, writing for the Supreme Court striking down a law expelling students who refused to recite the Pledge of Allegiance. Even though the country was in the middle of World War II at the time, the Court recognized that patriotism must be voluntary to be meaningful. Jackson did not mince words: "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters."

The same is true now. Though we are at war, if we have to mandate patriotism or respect for the constitution, then we have already lost.

And whether it is September 17 that should be "Constitution Day" is also subject to critique.  LawProf Colin Starger and others argue that the commemorative day should be February 3:

On that date in 1870, our nation ratified the last of the Civil War Amendments. That date symbolizes our commitment to reconstruct the Founders’ immoral compromise and place under national protection the inalienable rights of all the nation’s people.



September 17, 2015 in Current Affairs, First Amendment | Permalink | Comments (0)

Wednesday, September 16, 2015

Daily Read: Val Napolean, the novel Birdie, and Cree Justice

Over at Jotwell, University of Victoria Professor of Law Val Napolean's  contribution to the Equality section suggests that the novel Birdie be "approached as a Cree law text—as a performance of law with difficult questions expressed and examined through narrative." 

available here

Napolean writes:

Cases are law stories about something that has happened and that are publicly recorded in a particular way to be recalled in future collaborative legal reasoning through specific problems. In the same way, Birdie is a Cree law story placed in northern Alberta (near fictitious Little Loon First Nation) about a woman whose life is a personal chronicle of colonial law and history. But it is far more than this. It is also about Cree law that is undermined by colonization, but which has not disappeared . . . .

For US Con Law Profs teaching constitutional law, Napolean's discussion is an invitation to interrogate the stories that are told - - - or not told - - - in cases about Native peoples and justice.

September 16, 2015 in Books, Equal Protection, Scholarship | Permalink | Comments (0)

Federal Judge Finds Arrest for Obscenity Violates First Amendment - - - and Denies Prosecutorial Immunity

In her decision from the bench in Barboza v. D'Agata, federal district judge Cathy Seibel has not only found that the arrest of William Barboza violated the First Amendment but has granted summary judgment against a state prosecutor for a First Amendment violation and allowed a claim against the village to proceed.

0b0d6031e6e41dfbaf5986c2c98f3915After Barboza received a speeding ticket from Liberty, New York, he not only paid the fine but returned the form with "Liberty" in "Liberty Town Court" crossed off and replaced with "tyranny" and with the phrase "fuck your shitty town bitches" written in all caps and underlined.  (photo here).  An assistant district attorney, Robert Zangala, made a decision that the statement constituted "aggravated harassment" under NY Penal Law 240.30 (1) (a). While New York courts had rejected facial challenges to the subsection,  New York's highest court had found the statute unconstitutional as applied in a 2003 case in which the defendant had "left five voice messages on the Village of Ossining Parking Violations Bureau's answering machine in which the defendant rained invective on two village employees, wished them and their family ill health, and complained of their job performance as well as the tickets that she had received."  Judge Seibel found that decision was "on all fours" with the present case.

Importantly, the prosecutor not only charged Barboza, but participated in the plan to arrest Barboza when he came to court about the speeding ticket; a judge having ordered Barboza to appear. While Judge Seibel found that the prosecutor was entitled to absolute immunity for the decision to charge Barboza, he was not entitled to absolute immunity for the decision to have him arrested.  Moreover, Judge Seibel found that the prosecutor was not entitled to qualified immunity.  However, she did find that the police officers who actually made the arrest were entitled to qualified immunity.

Regarding the reasonableness of their actions, Judge Seibel's discussion about the differences between the police officers executing the arrest and the prosecutor is illuminating.   She stated that the precedent "distinguishing police officers from lawyers, which helps the officers, hurts Zangala," the prosecutor.

If cops are not expected to know what a lawyer would learn or intuit from researching case law, an assistant district attorney certainly is. And  there surely is nothing unfair or impracticable about holding a trained lawyer to the standard of trained lawyer. While it is reasonable for a police officer to rely in certain circumstances on the legal advice of a prosecutor, the prosecutor himself must be held to the standard of a trained lawyer.

And given that the assistant district attorney was a "trained lawyer," she held that he is "not saved by his getting approval from the District Attorney in the way that the officers are saved by complying and getting approval from an assistant district attorney."  Indeed, the prosecutor's actions are not reasonable "given that he had the time to do the relatively simple legal research but did not."  Additionally, Judge Seibel intimates that the prosecutor may have known that the arrest suffered from First Amendment infirmities and simply chose to continue.

Finally, Judge Seibel decided that the claim against the village could proceed on the issues of whether there was a sufficient pattern of similar violations, the obviousness of the risk of a violation (under a single incident theory), and whether the village's failure to train caused the arrest.

She also directed the parties to discuss settlement.

September 16, 2015 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, September 15, 2015

Daily Video: Justice Breyer on Colbert's "The Late Show"

Friday, September 11, 2015

Federal District Judge Finds Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

In his opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, United States District Judge Dennis Hurley held the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment. 

The ordinance, Chapter 205-32 of the Code of the Town of Oyster Bay, sought to prohibit "any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle," and to similarly prohibit "the operator of any motor vehicle utilizing a public right-of-way within the Town of Oyster Bay to stop or stand within or adjacent to said public right-of-way or any area designated as either a traffic lane or a no-standing or no-stopping zone for the purpose of soliciting employment or accepting a solicitation of employment from a pedestrian."

Masonry circa 1425 via

After first discussing preliminary matters including standing, Judge Hurley's description of the parties' arguments offers a good illustration of the types of doctrinal choices available under the First Amendment:

Plaintiffs maintain that the Ordinance must be stricken as violative of the First Amendment. First, it is a content-based enactment, presumptively unconstitutional and not justified as narrowly tailored to serve a compelling state interest. Second, if viewed as a “time, place or manner restriction” and not content- based, it is not narrowly tailored to serve “legitimate, content-neutral interest.” Third, even if viewed as restricting purely commercial speech, it is not narrowly tailored.

Defendants offer several arguments in response. First, the Ordinance does not affect expressive speech; rather, it regulates conduct. Second, day labor solicitation is commercial speech. As such, it is entitled to no protection because it relates to illegal activity; alternatively, the ordinance is a constitutional restriction of commercial speech. Finally, to the extent it is viewed as a time, place or manner restriction, it is narrowly tailored.

 Judge Hurley decided that the ordinance was a content-based regulation of commercial speech.  He thus applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), as "adjusted" by Sorrell v. IMS Health Inc. (2011).

In deciding that the ordinance was content-based, Judge Hurley quoted the Court's recent decision in Reed v. Town of Gilbert (2015), including the passage that regarding the "commonsense" meaning of the phrase.  Here, Judge Hurley noted, to enforce the ordinance the Town authorities would have to "examine the content of the message conveyed."

Not surprisingly then, Judge Hurley found that the ordinance failed the fourth prong of Central Hudson - - - “whether the regulation is more extensive that necessary to serve the governmental interest” - - - given that the content-based restriction should be "narrowly tailored" and that there were "less speech-restrictive alternatives available."  He wrote:

Because of its breath, the ordinance prohibits speech and conduct of an expressive nature that does not pose a threat to safety on the Town’s streets and sidewalks. It reaches a lone person standing on the sidewalk, away from the curb, who attempts to make known to the occupants of vehicles his availability for work even if it does not result in a car stopping in traffic or double parking. It reaches children selling lemonade at the end of a neighbor’s driveway (which is, after all, “adjacent to” a public right of way), the veteran holding a sign on a sidewalk stating “will work for food,” and students standing on the side of a road advertising a school carwash. Even a person standing on the sidewalk holding a sign “looking for work - park at the curb if you are interested in hiring me” would violate the ordinance as it contains no specific intent element and no requirement that the “attempt to stop” result in traffic congestion, the obstruction of other Vehicles, or double parking. The Ordinance applies to all streets and roadways in the Town regardless of traffic flow and in the absence of any evidence that the traffic issues the Town relies on to support its interest exist elsewhere in the Town.

In support of this final observation, Judge Hurley quotes the Court's buffer-zone decision in McCullen v. Coakley (2014).

Interestingly, although Judge Hurley did not reach the Equal Protection challenge because he found the Ordinance unconstitutional under the the First Amendment, he provides a glimmer of the Equal Protection difficulty in the Town's position:

Nor is it any comfort that the Town’s safety officers will use their discretion, or be “trained” on how to determine whether a person is soliciting employment or attempting to stop a vehicle to solicit employment. Such discretion may surely invite discriminatory enforcement. . . . . Will safety officers be instructed and/or use their discretion to ignore the students advertising a school car wash and the child selling lemonade on the sidewalk and to ticket the group of Latino men standing on a corner near a home improvement store?

Moreover, he concludes that other ordinances are more than adequate to address the specific problem of traffic safety.

Judge Hurley's conclusion that the Oyster Bay day labor solicitation violates the First Amendment is similar to the Ninth Circuit's 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  Should the Town appeal, the Second Circuit would most likely find Valle Del Sol persuasive, especially since the Court's subsequent opinions provide even more support.

September 11, 2015 in Cases and Case Materials, Equal Protection, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Connecticut Supremes Strike Extra-Judicial Regulation of Attorneys in Debt-Relief Business

The Connecticut Supreme Court ruled that state regulation of attorneys who offer certain debt-relief services to clients violates state constitutional separation of powers principles. The ruling is quite limited, however, and does not extend to attorneys who set up a sham shop as a cover for a distinct debt-relief operation. (The ruling keeps the regulatory scheme on the books; it simply says that it can't apply to certain actual attorneys doing actual legal work.)

The ruling means that Connecticut attorneys who are really practicing law (but also providing debt-relief services) cannot be regulated outside the judiciary, but attorneys who are simply providing cover for debt-relief operations (without really practicing law) can be.

The case tested a Connecticut law that authorizes the state Banking Commissioner to license and regulate persons engaged in the debt negotiation business. Attorneys in this line of work are not exempt, except those who are "admitted to the practice of law in [Connecticut] who [engage] or [offer] to engage in debt negotiation as an ancillary matter to such [attorneys'] representation of a client . . . ."

A Connecticut law firm that enters into retainer agreements for legal services and an attorney-client relationship with clients, but also provides debt-relief counseling, challenged the licensing and regulation scheme on the ground that it's the courts, not the legislature, that regulate an attorney's law practice in Connecticut. The firm claimed that the Commissioner's attempts to regulate it intruded into the role of the judiciary and thus violated state constitutional separation of powers.

The court agreed. (Like many states, Connecticut has an explicit clause on separation of powers. Connecticut's says, "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .")

The court also emphasized, however, that a presumption that an attorney is practicing law (and not subject to Commissioner regulation) can be overcome where "the Connecticut attorney has failed to (1) exercise meaningful oversight over debt negotiation staff, (2) provide any genuine legal advice or other legal services, and/or (3) maintain a bona fide attorney-client relationship with the client." The court also reminded the Office of Chief Disciplinary Counsel of its "duty to regulate lawyers when they are acting as debt negotiators," and urged it "to monitor vigilantly their activities and fees in this area of practice."

September 11, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, Separation of Powers, State Constitutional Law | Permalink | Comments (0)

Seventh Circuit Strikes Partisan Balance Statute in Judicial Elections

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

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

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

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

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

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

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

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

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

Thursday, September 10, 2015

Ninth Circuit Rejects Equal Protection and Due Process Challenges to California Sexual Predator Statute

In its opinion in Taylor v. San Diego County today, a panel of the Ninth Circuit rejected constitutional challenges to indefinite detention as a "sexually violent predator" raised in a habeas petition governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

"Lunatic Asylum" circa 1831 via

The court's equal protection analysis was essentially that "sexually violent predators" are "not similarly situated" to other civilly committed offenders.  "California’s expressed legislative policy is to protect the public from the increased danger posed by sexually violent predators," and thus indefinite detention, rather than one year renewable periods of detention do not offend equal protection. 

Additionally, the court found that there was no due process problem with the California statute's requirement that the person (not the state) bears the burden of proving, by a preponderance of the evidence, that he no longer meets the definition of a sexually violent predator. 

The opinion is another example of the federal courts giving wide latitude to state civil commitment of sexual offenders.

September 10, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Equal Protection | Permalink | Comments (0)

Wednesday, September 9, 2015

District Judge Says House of Representative Challenge to ACA Can Go Forward (in part)

Judge Rosemary Collyer (D.D.C.) ruled today that the U.S. House of Representatives has standing to pursue its claim that the administration spent money on a portion of the Affordable Care Act without a valid congressional appropriation. But at the same time, Judge Collyer ruled that the House lacked standing to sue for an administration decision to delay the time when employers have to provide minimum health insurance to their employees.

The split ruling means that the House's case against the administration for spending unappropriated funds can go forward, while the case for extending the time for the employer mandate cannot.

But Judge Collyer's ruling is certainly not the last word on this case. The government will undoubtedly appeal.

And just to be clear: this is not a ruling on the merits. It only says that a part of the case can go forward.

The case arose when the House authorized the Speaker to file suit in federal court against HHS Secretary Burwell and Treasury Secretary Lew for spending money on an ACA program without an appropriation and for unilaterally extending the statutory time for employers to comply with the employer mandate.

As to the spending claim, the House said that a provision of the ACA, Section 1402, which authorizes federal reimbursements to insurance companies for reducing the cost of insurance to certain eligible beneficiaries (as required by the ACA), never received a valid appropriation. That is, Congress never funded the provision. That's a problem, the House said, because Article I, Section 9, Clause 7 of the Constitution says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." In short, the administration's funding of Section 1402 violated the Constitution.

As to the employer mandate claim, the House said that the administration pushed back the employer mandate beyond December 31, 2013, the date set in the ACA, without congressional authorization. (The House couched this in constitutional terms, but, as Judge Collyer wrote, it's really essentially a statutory claim.)

The Secretaries filed a motion to dismiss for lack of standing.

Judge Collyer denied the motion as to the appropriations theory, but granted it as to the employer mandate claim. According to Judge Collyer, the House could show an institutional harm from the administration's use of non-appropriated funds (because the Constitution itself specifies a role in appropriations for the Congress, which the House said that the administration ignored here, and because the claim isn't about the administration's execution of law). But at the same time she wrote that the House couldn't show a particular institutional harm for the administration's push-back for the employer mandate (because this claim was all about the administration's execution of the law--a role reserved under the Constitution to the executive). She explained:

Distilled to their essences, the Non-Appropriation Theory alleges that the Executive was unfaithful to the Constitution, while the Employer-Mandate Theory alleges that the Executive was unfaithful to a statute, the ACA. That is a critical distinction, inasmuch as the Court finds that the House has standing to assert the first but not the second.

As to the employer mandate claim, she said,

The [House's] argument proves too much. If it were accepted, every instance of an extra-statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against "the specter of 'general legislative standing' based upon claims that the Executive Branch is misinterpreting a statute or the Constitution."

We'll watch this case on appeal.


September 9, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)