Constitutional Law Prof Blog

Ninth Circuit Rebuffs Plaintiffs' Effort to Halt California's COVID Restrictions Based on Free Exercise

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit yesterday denied plaintiffs' motion for an emergency injunction pending appeal to halt California's COVID restrictions as applied to their religious practices, among other claims. The ruling means that California's restrictions stay in place, at least for now.

The case raises, once again, the question of the relevant comparator in determining whether the restrictions are neutral with regard to religion, or whether they target religion.

The plaintiffs challenged California's restrictions on private "gatherings" as applied to their in-home religious studies. Under the state's restrictions, indoor and outdoor gatherings are limited to three households; and gatherings must be held in a large enough space to allow distancing of six feet, they must last no longer than two hours, and attendees must wear face coverings. Singing, chanting, shouting, and cheering are allowed at outdoor gatherings, but not indoor gatherings.

The plaintiffs argued that the restrictions prevent them from holding in-home Bible studies and communal worship with more than three households, even though California allows more than three households to engage in certain commercial activities. They said that this amounts to religious targeting, triggering strict scrutiny.

The court rejected the argument. The court said that the plaintiffs were looking to the wrong class of activities to compare: "When compared to analogous secular in-home private gatherings, the State's restrictions on in-home private religious gatherings are neutral and generally applicable and, thus, subject to rational basis review." The court said that "[t]here is no indication that the State is applying the restrictions to in-home private religious gatherings any differently than to in-home private secular gatherings." As to the restrictions' application to small businesses and commercial activities (like barbershops and tattoo parlors), the court acknowledged that these businesses are not subject to the three-household restriction, but noted that they're subject to a host of other restrictions that are directed to the particular, place-specific risks that they raise.

Judge Bumatay dissented, arguing that the state's restrictions target religion, because they don't apply equally to small businesses and commercial activities (again, like barbershops and tattoo parlors). Judge Bumatay would therefore apply strict scrutiny, rule that the plaintiffs showed that they'd likely succeed on the merits, and enjoin the restrictions.

Capitol Officers Sue Trump for Inciting Insurrection

Steven D. Schwinn, University of Illinois Chicago School of Law

U.S. Capitol Police Officers James Blassingame and Sidney Hemby sued former President Trump on Tuesday for inciting the January 6 insurrection. The complaint alleges a variety of torts and seeks compensatory and punitive damages.

Representative Bennie Thompson and Representative Eric Swalwell previously filed their own separate complaints against Trump and others, alleging civil-rights violations, a variety of torts, and interference with Congress's count of the electoral college votes.

Whatever other defenses Trump and other defendants may seek to assert, the president's official immunity is unlikely to work. Under Nixon v. Fitzgerald, a president is absolutely immune for civil damages for acts within the "outer perimeter" of the president's official responsibility. But allegations in all three complaints--not to mention the public record--put Trump's actions well outside this "outer perimeter." And the Thompson and Swalwell complaints specifically allege that Trump was acting in his personal capacity (not his official capacity) and for his personal benefit (and not in aid of the president's "constitutional office and functions").

Organizations Sue Over Georgia Election Law

Steven D. Schwinn, University of Illinois Chicago School of Law

The New Georgia Project, Black Voters Matter Fund, and Rise, Inc. sued Georgia officials last week to halt the state's new restrictive voting law, SB 202. The complaint is here.

The plaintiffs challenge the state's adoption of "unnecessary and burdensome new identification requirements for absentee voting"; restrictions on absentee drop boxes; ban on mobile polling places; prohibition on distributing unsolicited absentee ballot applications; prohibition on third-party ballot collection; authorization of third-party challenges to voter qualifications; invalidation of ballots cast before 5:00 p.m. in a precinct where a voter wasn't assigned; ban on giving food and drink to voters waiting in line; and compressed time period for voting in a runoff election.

The plaintiffs argue that the restrictions create an undue burden on the right to vote under the Fourteenth and Fifteenth Amendments, and Section 2 of the Voting Rights Act.

Court Says a Shooting by Police is a Seizure, even if victim gets away

Steven D. Schwinn, University of Illinois Chicago  School of Law

The Supreme Court ruled this week that a shooting by police officers is a "seizure" under the Fourth Amendment, even if the victim of the shooting escapes. The ruling is consistent with the holding in California v. Hodari D., a 1991 opinion authored by Justice Scalia. But the Court said that it didn't need to determine whether Hodari D. controlled, because the Court independently came to the same conclusion here.

The ruling doesn't end the case, though; it just allows it to move forward. The lower courts will still have to determine whether the seizure was "reasonable," whether the officers are entitled to qualified immunity, and what damages the plaintiff is entitled to.

The case, Torres v. Madrid, arose when officers shot at Roxanne Torres as she fled in her vehicle. (Torres sped away from the officers because she thought they were trying to carjack her.) The officers hit Torres, but she continued driving for 75 miles. She was airlifted to a hospital, where police arrested her the next day.

Torres sued the officers for unreasonably "seizing" her in violation of the Fourth Amendment. The officers argued that their shots couldn't have amounted to a seizure, because she got away.

The Court agreed with Torres. Chief Justice Roberts wrote for the Court that "[a]t the adoption of the Fourth Amendment, a 'seizure' was the 'act of taking by warrant' or 'of laying hold on suddenly'--for example, when an 'officer seizes a thief,'" but that it didn't "necessarily result in actual control or detention." The Court noted that at English common law "a corporal touch [was] sufficient to constitute an arrest, even though the defendant do[es] not submit." It said that "[e]arly American courts adopted this mere-touch rule . . . just as they embraced other common law principles of searches and seizures." (The Court went on to say that a touch must "objectively manifest[] an intent to restrain," that it's not measured from the perspective of the seized person, and that it a seizure "lasts only as long as the application of force.") It held that the officers' bullets constituted just such a "touch," and therefore constituted a Fourth Amendment seizure.

Justice Gorsuch dissented, joined by Justices Thomas and Alito. He argued that "[u]ntil today, a Fourth Amendment 'seizure' has required taking possession of someone or something," and that this didn't occur here.

Justice Barrett did not participate.

Court Says Plaintiffs Can Sue Ford Where Torts Occurred

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled this week that Ford had sufficient contacts with states where plaintiffs suffered injuries in Ford vehicles to allow the plaintiffs to sue there. The ruling means that the plaintiffs can pursue their claims against Ford in states where "Ford had systematically served a market . . . for the very vehicles" that caused the injuries, even though the plaintiffs didn't purchase their vehicles in those states, and even though Ford did not manufacture or design them there.

The holding breaks no new ground. But the reasoning might.

The case, Ford Motor Co. v. Montana Eighth Judicial District Court, arose when plaintiffs who were injured in Ford vehicles in Montana and Minnesota sued the carmaker in those states. Ford argued that the state courts lacked personal jurisdiction, however, because the plaintiffs didn't buy the cars in those states, Ford didn't manufacture the cars there, and Ford didn't design the cars there--even though it had many other contacts with those states.

In other words, Ford said that there was no causal link between its behavior in the states and the plaintiffs' injuries.

The Court rejected this approach. In an opinion by Justice Kagan, the Court wrote that "Ford's causation-only approach finds no support in this Court's requirement of a 'connection' between a plaintiff's suit and a defendant's activities." The Court said that this result squares with language from World-Wide Volkswagen that "has appeared and reappeared in many cases since." Justice Alito summarized that language in his concurrence: "If a car manufacturer makes substantial efforts to sell vehicles in States A and B (and other States), and a defect in a vehicle first sold in State A causes injuries in an accident in State B, the manufacturer can be sued in State B."

In getting there, the Court looked to language in past opinions that said that a plaintiff's claims "must arise from or relate to the defendant's contacts" with the forum state. The Court read this as a disjunctive phrase, and said that while the first part ("arise from") requires causation, the second part ("relate to") doesn't. Even if the plaintiffs' claims here might not have "arose from" Ford contacts (in the causal sense), they certainly "related to" those contacts--and that's enough for personal jurisdiction.

Justice Alito and Justice Gorsuch (joined by Justice Thomas) wrote separate concurrences taking issue with that parsing of the phrase. Justice Alito worried that "[r]ecognizing 'relate to' as an independent basis for specific jurisdiction risks needless complications." Instead, he'd "leave the law exactly where it stood before we took these cases." Justice Gorsuch said the Court's approach was "unnecessary" to resolve the case. He'd revisit the modern approach (starting with International Shoe) and look instead to "the Constitution's original meaning." He suggested that for a case like this (with a defendant "nationwide corporation" whose "business is everywhere"), the defendant could be sued anywhere.

State AGs Object to COVID Stimulus Plan Restrictions UPDATE

Steven D. Schwinn, University of Illinois Chicago Law School

Twenty-one Republican state attorneys general wrote a letter to Treasury Secretary Janet Yellen yesterday objecting to provisions in the recently enacted federal stimulus bill that place certain restrictions on the $350 billion that is directed to cities, counties, and states.

In particular, the AGs objected to a provision that prohibits recipients of the funding from

us[ing] the funds . . . to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase.

The AGs argue that the provision could prohibit states from reducing taxes in areas that have nothing to do with COVID relief or the stimulus bill, and that this would violate federalism principles. They say that the restriction, as written, is ambiguous, does not relate to COVID stimulus or relief, and "would effectively commandeer half of the States' fiscal ledgers, compelling States to adopt the one-way revenue ratchet of the current Congress for the next three years"--in violation of the conditioned spending test in South Dakota v. Dole.

According to the AGs, "such federal usurpation of state tax policy would represent the greatest attempted invasion of state sovereignty by Congress in the history of our Republic."

The AGs ask Secretary Yellen to confirm that the restriction "does not prohibit States from generally providing tax relief through the kinds of measures listed and discussed above and other, similar measures, but at most precludes express use of the funds provided under the Act for direct tax cuts rather than for the purposes specified by the Act." Without such assurance, they say that'll "take appropriate additional action . . . . "

UPDATE: Turns out Ohio, whose AG did not sign the letter, didn't want to wait for an answer from Yellen: it filed suit against Yellen, alleging more-or-less the same claims.

Seventh Circuit Strikes Indiana's Parental Notification Bypass for Minors' Abortion, Again

Steven D. Schwinn, University of Illinois Chicago Law School

The Seventh Circuit ruled last week that Indiana's amended judicial bypass procedure violated the right to an abortion for minors. The court earlier ruled on the case (and struck the same amended bypass procedure), but the Supreme Court vacated that judgment and remanded the case in light of the Court's ruling last summer in June Medical. Last week, the Seventh Circuit came to the same result.

The case, Planned Parenthood v. Box, challenged Indiana's judicial bypass procedure. As amended, that procedure required a court to notify a minor's parents when the minor sought an abortion through judicial bypass of the state's parental-consent requirement, unless the judge finds that parental notification is not in the minor's best interest.

The district court originally ruled that the procedure created an undue burden on a minor's right to an abortion. The Seventh Circuit affirmed. The appeals court applied the balancing test from Whole Women's Health, the 2016 Supreme Court case that struck Texas's admitting-privileges requirement. (Under the requirement, abortion doctors had to have admitting privileges at a hospital within 30 miles of the place where they performed abortions.) The Court in Whole Women's Health assessed whether the admitting-privileges requirement created an undue burden by balancing the burdens of the requirement on a woman's right to an abortion against the putative benefits of the requirement. It held that the requirement created substantial burdens, but no benefits. The Seventh Circuit similarly ruled that Indiana's judicial bypass procedure created substantial burdens, but no benefits. (The plaintiffs demonstrated that the procedure would create burdens on access, while the state failed to produce any evidence of benefits of the law.)

Then, last summer, the Supreme Court ruled in June Medical that Louisiana's admitting-privilege requirement (the same as Texas's requirement, struck in Whole Women's Health) also created an undue burden on a woman's right to an abortion. But the Court in June Medical split differently than in Whole Women's Health, because Justice Kavanaugh had replaced Justice Kennedy. (Justice Kennedy sided with the majority in Whole Women's Health, but Justice Kavanaugh sided with the dissent in June Medical.) In particular, Justice Breyer wrote for a four-justice plurality (including Justices Ginsburg, Sotomayor, and Kagan) that Louisiana's law was unconstitutional for two reasons: stare decisis (because Louisiana's law was the same as Texas's law, struck in Whole Women's Health); and because the burdens of Louisiana's law outweighed the benefits, thus creating an undue burden under the Whole Women's Health balancing approach. Chief Justice Roberts concurred in the judgment based on stare decisis alone. But he also disagreed with the balancing approach. Justices Thomas, Alito, Gorsuch, and Kavanaugh wrote their own separate dissents.

The Court vacated the earlier Seventh Circuit ruling and remanded it for considering in light of June Medical. So the Seventh Circuit had to figure out whether June Medical changed the balancing test from Whole Women's Health that the Seventh Circuit had previously relied upon to strike Indiana's bypass procedure.

The Seventh Circuit last week ruled that June Medical did not change the balancing test. Under the Marks rule (which sorts out which opinion states the holding of the Court when, as in June Medical, there's no majority opinion), the court looked to Chief Justice Roberts's concurrence in June Medical as the "position taken by those Members who concurred in the judgment on the narrowest grounds." The Seventh Circuit held that Chief Justice Roberts's stare decisis rationale aligned with Justice Breyer's stare decisis rationale as the holding of the Court, and that the Court didn't otherwise alter or overrule the balancing approach in Whole Women's Health. (The court rejected the state's argument that Chief Justice Roberts's second rationale (that the balancing approach was wrong) aligned with the four dissenters' positions (also that the balancing approach was wrong) to create a majority that the balancing approach was wrong. The court explained that Chief Justice Roberts's second rationale (that the balancing approach was wrong) was dicta, and that under Marks the June Medical dissents (which also took issue with the balancing approach) don't count.)

The court said that because the balancing approach under Whole Women's Health was still the law, Indiana's bypass procedure still violated it.

Judge Kane dissented, arguing that under Marks Chief Justice Roberts's opinion in June Medical aligned with the plurality on a "substantial obstacle" test (without balancing, and not merely on stare decisis), and that Indiana's bypass procedure did not violate that "substantial obstacle" test.

Court Says Request for Nominal Damages is Enough for Standing

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled last week that a plaintiff's request for nominal damages is sufficient to satisfy standing requirements and keep the case moving forward. The ruling is a significant win for the plaintiffs in the case, and for civil-rights plaintiffs generally; but it says nothing on the merits of the plaintiffs' claim. Instead, the Court remanded the case for further proceedings.

The case, Uzuegbunam v. Presczewski, arose when a couple of students at Georgia Gwinnett College tried to engage fellow students and distribute religious literature in the school's free-speech zone. Campus officers stopped them, however, citing campus policy that prohibits speech that "disturbs the peace and/or comfort of person(s)." The plaintiffs sued College officials for injunctive relief and nominal damages. (Civil-rights plaintiffs often request nominal damages, $1.00, when their harm can't be quantified.) Rather than defending the policy on the merits, the College changed it, and moved to dismiss the case, arguing that the students' claim for injunctive relief was now moot, and that the students lacked standing based on their sole remaining claim for nominal damages.

The Court disagreed. Justice Thomas wrote for the 8-1 Court that a plaintiff continues to have standing to sue even when the plaintiff seeks only nominal damages. Justice Thomas said that courts at common law recognized suits for nominal damages, and that the common law did not require a plaintiff to seek compensatory damages in order to claim nominal damages.

Chief Justice Roberts was the lone dissenter. He argued that the plaintiffs lacked standing because "an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to." More, "If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar."

The case now goes back to the district court for further consideration. The Court said that one plaintiff--the one who actually spoke--stated a cognizable injury that could be redressed with nominal damages. If that plaintiff meets other all other requirements, his case will go to the merits. But the Court instructed the district court to consider whether the other plaintiff--the one who didn't speak, and only alleged that he was deterred from speaking--suffered a constitutional violation.