The Supreme Court (Barely) Rules On Hernandez v. Mesa

A few months ago, I wrote about Hernandez v. Mesa, the case of a cross-border shooting of a Mexican teen by a U.S. Border Patrol agent. Today, instead of issuing a big opinion on the rights of aliens abroad or police shootings or extraterritorial jurisdiction, the quietly Court issued a per curiam slip opinion vacating the lower court’s ruling and remanding in the least exciting way possible.

When I wrote about this case last, I warned that the court might “punt[] like Ray Guy” or issue a very narrow ruling on Bivens grounds (I also suggested that the Court might also issue a big ruling on extraterritorial jurisdiction, so what do I know?). Well, that’s what they did. If you recall, in granting cert, the court added the question of whether plaintiff’s claims could be asserted under Bivens, even though the circuit court did not address that question below.

Today, the Court remanded the case back to the Court of Appeals. It reasoned that the Bivens question was an “antecedent” to the remaining (and more interesting) issues, yet the lower court did not have an opportunity to consider how the Supreme Court’s recent decision in Ziglar v. Abbasi may bear on the Bivens claim in this case.

This is most certainly a punt. Except for one tiny bit of substance (which I’ll get to in a second), this opinion did nothing but put the ball back in the lower court’s…court and instruct it to rule on Bivens this time around. This hurts the plaintiff’s chances, since Ziglar limited the availability of Bivens claims for plaintiffs.

There was, however, some substance to this opinion. In dealing with the Fifth Amendment claim, the Court of Appeals had held that the officer was entitled to qualified immunity because the Mexican teen had no connections to the U.S. and was not a U.S. citizen. However, this information regarding the teen was not actually known to the officer. Thus, because qualified immunity centers on the facts knowable to the defendant officer, and the officer did not know that the teen had no connections to the U.S., the lower court erred. However, all that earned the plaintiff was the ability to have his Fifth Amendment Bivens claim evaluated based on Ziglar too.

Justice Thomas briefly dissented, arguing that the Court should have just gone ahead and affirmed the lower court because the plaintiff had no Bivens claim. Justice Breyer, joined by Justice Ginsburg, dissented for an opposite reason: they held that the plaintiff did have valid constitutional claims, and they believed that the Court should have ruled as such and then remanded for consideration of the Bivens and qualified immunity issues. Breyer then appended to his opinion a 54-year-old drawing of the channel in question, as well a black and white photo from 1968 of President Johnson and Lady Byrd Johnson viewing the channel. For what its worth, the President is waiving to no one in particular, and the First Lady looks miserable.

This marks a disappointing end (for now, at least) to this case. It would have been quite interesting to see the Court square extraordinarily sympathetic facts with very thorny issues of immigration, police excessive force, and jurisdiction. However, resolving an interesting case that felt like a fun law school hypothetical was apparently not worth the potentially major doctrinal implications.

Wait, did I just call law school fun?

-Ryan

SCOTUS Hints At Middle Ground In Travel Ban Ruling

On Monday, the last day of the term, the Supreme Court granted cert on the travel ban cases and partially granted the government’s petition for a stay, meaning that portions of the travel ban will go into effect. The court issued a per curium opinion explaining its decision (while avoiding the substantive issues). Gorsuch, Thomas and Alito partially concurred (they wanted a full stay). That cert was granted was not surprising, but certain aspects of the substance and breakdown of the court’s opinion were telling.

The primary takeaway is that the scope of the stay closely tracks the plaintiffs’ theory of the case on the constitutional issues while also suggesting that the court is not inclined to find in the plaintiffs’ favor on the statutory issues. In terms of the stay, the Court allowed the government to bar those individuals with no “bona fide” connections to the United States, but did not permit the barring of those with said connections. This is interesting because it mirrors Plaintiffs’ constitutional arguments and suggests that the Court will find in Plaintiffs’ favor on the Mandel/Din test that has been the focus of much of the briefing by the parties.

As explained before, the two main substantive issues  are that 1) the ban is invalid statutorily, in its entirety, and 2) that it is invalid constitutionally, for those with connections to the United States. The Fourth Circuit relied on the constitutional claim while the Ninth Circuit relied only on the statutory issue, ruling that Trump simply lacked the authority to issue the travel ban. Such a statutory ruling would necessarily invalidate the entire travel ban. I had suggested that the statutory issue may be an attractive option for the court since it would avoid ruling on the constitutional issues.

But, from the looks of it, I am probably wrong, and the Court seems destined to rule on the constitutional issues, on Plaintiffs’ terms. Although the government argued that the courts did not even have the power to review the ban, ultimately most observers agreed that the constitutional case would ultimately come down to a test set forth in two cases, Mandel and Din, which I have described before. Notably, however, because the Supreme Court has repeatedly ruled that non-resident, un-admitted aliens possess no constitutional rights themselves, only those in the United States with connections to the aliens would have standing to sue. When such connections do exist, the court evaluates the claim by determining whether there is a “facially legitimate and bona fide reason” for the ban. The plaintiffs have argued that the government’s reason was not bona fide because it was actually motivated by anti-Muslim prejudice; obviously the government disagreed, and the key issue in this case is probably whether the government can prove their bona fide reason.

That gets us back to the scope of the stay. The Court declined to continue the injunction against the ban entirely, which it probably would have done had it thought that the statutory argument had merit. Instead, the Court allowed in those with connections to the U.S.; in other words, those who could win under the Mandel/Din test are protected, while those unprotected by such a test are similarly unprotected by the injunction.

A fight squarely on the “bona fide” requirement is not what the government wants at all. In its initial arguments on the original EO, the government bizarrely argued that the courts do not have the authority to review the travel ban at all, and then the next round argued that the travel ban was valid because it was authorized under statute, conveniently ignoring that the constitution trumps (sorry) statutes. Discussing the bona fides of the government’s reasoning opens it up to a discussion of Trump’s public statements. The fact that the Court evaluated the stay petition, implemented it partially, yet kept the injunction in place as to this aspect does not bode well for the government.

It bears noting that Justices Thomas, Alito and Gorsuch dissented to that portion of the ruling, believing that the entire lower court injunction should be stayed, and that thus the entire travel ban should be put into effect. At this point, you have to assume that the government already has three votes going into oral argument.

Finally, the Court also ordered briefing on whether the travel ban litigation became moot on June 14, when the travel ban technically expired. This mootness issue was raised by the State of Hawaii at the Supreme Court and touches on a bigger problem for the government: the stated purpose of the ban was to provide the government time to conduct a review, and it has had – and will have had – plenty of time to conduct a review. Thus, by the time the case is argued, why is the ban even necessary at that point? As I (and many others) wrote a couple weeks ago, the DOJ has put itself in a pickle here, and the mootness issue suggests that the court is cognizant of that fact. The Court even noted in it opinion that the government did not ask for expedited argument. The government may have a hard time arguing that the ban has any purpose being applied prospectively.

Further, the Court may see this as a way to ultimately give both sides what they want. After all, argument will be four months from now, longer than the actual ban itself. So, over the summer, the government will effectively get its travel ban, for those with no connections to the United States. Then, at that point, the court would presumably be saying that the travel ban is no longer in effect and the lower court rulings prior to June 14 would remain good law. 

Look, obviously, the ultimate ruling on the merits will not automatically mirror the scope of the stay, and the addition of a question presented does not guarantee a particular answer to that question. So, take all of this with a giant grain of salt (Maldon or pink Himalayan, both known for their size, are probably the way to go here). But, both of my observations above – about the scope of the stay and the addition of the mootness question – suggest that the court is trying to forge a middle ground.

-Ryan

SCOTUS Takes Up Political Gerrymandering, Round 3

In many politically important cases before the Supreme Court, prognosticators often (correctly) surmise that Justice Kennedy will be the swing vote. However, on Monday the court took up a redistricting case, Gill v. Whitford, where we not only think Justice Kennedy will be the swing vote, he already has been the swing vote on the very same issue before the court and will surely be so again here.

The issue of political gerrymandering has made its way up to the high court on numerous occasions previously. However, the standard for political gerrymandering claims has actually yet to be definitively decided, despite the court’s best efforts on at least two prior occasions.

In Davis v. Bandemer, 478 U. S. 109 (1986), the Supreme Court dealt with the question of whether partisan redistricting could ever give rise to a justiciable equal protection claim. The court, 6-3, held that such claims were indeed justiciable, but could not agree on the appropriate legal standard. So, essentially, we agree that there is a standard, but we can’t agree on what it is yet.

The four-Justice plurality concluded that plaintiffs could win only upon a showing of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” So, intent and effect. The concurring opinion, on behalf of two Justices, agreed with the plurality that a plaintiff should show intent and effect, but believed that the intent of the legislature must have been solely for partisan ends.

Eighteen years later, the court tried again in Vieth v. Jubelirer, 541 U.S. 267 (2004). However, the court fractured there as well and actually took a step backwards. By a vote of 5-4, five justices rejected the plaintiffs’ political gerrymandering claim and also agreed that no discernible, manageable standard existed at all. These five justices rejected every possible standard presented to them, including the standards previously proposed by the plurality and concurring opinions in Davis.

That is where things go haywire. Of those five justices, a four-justice plurality found that no discernible standard could be established and that partisan gerrymandering claims were simply not justiciable. However, Justice Kennedy – the fifth vote against the plaintiffs – found that while no adequate standard had yet been devised, future courts should not be foreclosed from identifying one. The four liberal justices found that an adequate standard already existed.

Essentially, the four conservative justices found that no adequate standard existed or could ever exist, and the four liberal justices thought that there already existed an adequate standard. Then there was Justice Kennedy, all by himself, finding that no adequate standard currently existed, that it might exist in the future, that he didn’t know what it was, and that he was not preventing courts from developing such a standard.

In discussing what type of standard would be appropriate, Justice Kennedy implored courts to exercise “great caution” so as to avoid an “unprecedented intervention in the American political process.” Thus, Kennedy wrote,

“A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”

Kennedy could not identify such a standard at the time. However, “[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”

So, that is where we are now: asking whether Justice Kennedy can be convinced that an appropriate, manageable standard has now been identified. Enter Gill v. Whitford.

The case deals with the Wisconsin State Assembly redistricting plan. Wisconsin is a closely divided swing state. Obama won Wisconsin in 2008 and 2012, and Trump won in 2016; the state has one democratic and one republican senator, and statewide vote totals typically hover around 50/50. However, due to a redistricting plan, “Act 43”, in 2012, 2014 and 2016, Republicans won over 60% of the seats even though the statewide vote remained nearly tied.  The District Court found that Act 43 “was intended to burden the representational rights of Democratic voters.” The three-judge District Court panel then struck down Act 43.

After Act 43 was struck down by the District Court, Wisconsin petitioned for cert to the Supreme Court and also asked for a stay of the District Court’s ruling. The court granted cert on Monday and also granted the stay petition by a 5-4 margin, with Kennedy in the majority along with the other conservatives. Given the court’s breakdown on the stay motion, it seems reasonably clear that the four liberals will be voting to uphold the ruling of the District Court on its merits.  Thus, Kennedy is again in the middle of a deeply divided court.

That gets us to the legal standard adopted by the District Court and now being reviewed by the Supreme Court. The District Court required a plaintiff to demonstrate: 1) discriminatory intent, 2) a large and durable discriminatory effect, and 3) a lack of a legitimate justification. This hinges on intent and effect like the rejected standards of yesteryear, but it also requires a third prong  seemingly tailored to Kennedy’s Vieth concurrence: a lack of a legitimate justification.

This may pass muster because it closely tracks Kennedy’s own words in Vieth and is, as a practical matter, an extraordinarily tough standard for plaintiffs to meet. Under this standard, a legislature’s redistricting plan would be upheld if the state could simply demonstrate a legitimate, non-invidious reason for it. This is similar to but more difficult than even the familiar “rational basis review”, which upholds governmental action against non-suspect classes when it is rationally related to a legitimate governmental purpose. Under both standards, providing the court with a legitimate reason for the conduct is sufficient to withstand judicial scrutiny. In fact, under the proposed rule here, the plaintiffs would then also be required to demonstrate discriminatory intent and effect. 

Based on his history on this issue, Justice Kennedy is not going to endorse an easy standard for plaintiffs in these cases, so proposing one would be pointless.  Indeed, the proposed standard here would uphold all but the most brazen gerrymanders, and that may be the point.

Ultimately, we know that Justice Kennedy wants to thread the needle between the protection of fundamental individual rights and the unnecessary judicial intrusion into the political process. Whether that is done here remains to be seen, but rest assured that it will be Justice Kennedy making that decision on behalf of the court.

Trump Travel Ban, Part Infinity: Yossarian Edition

I wrote earlier this week about how the Ninth Circuit’s ruling on the travel ban would affect the proceedings in the Supreme Court. When discussing the narrowing of the injunction to permit the White House to conduct an internal review of visa screening procedures, I argued that it would now be incumbent on the Trump Administration to promptly commence such a review or else risk blowing up the facial raison d’être for the ban. I still believe that to be true. However, after reading subsequent filings by the parties in the Supreme Court and commentary regarding same, I have realized that the narrowing of the injunction places the White House in a much bigger pickle than I initially believed.

As background, Trump’s stated reason for the original 90 day travel ban and its successor EO was that the White House needed to conduct a review of visa vetting procedures. In a well-reasoned tweetstorm, the indispensable and increasingly omnipresent Steve Vladeck aptly explained the government’s stated reason for the ban: “the travel/entry ban was not an end unto itself, but a means to help carry out the real goal of the EO: new vetting rules.” (Yes, I just quoted a tweet, but that seems perfectly legitimate given the subject matter. The Ninth Circuit says they’re admissible now.)

While the original ban itself was enjoined by the Western District of Washington before it ever began, the review process was not, and the White House remained free to conduct such a review. Once a new travel ban was announced, the District of Hawaii then implemented an injunction which not only blocked the ban but also blocked the review process from occurring as well, roughly 45 days after the first EO’s review was to initially begin. As of the Ninth Circuit’s ruling on Monday, however, the DOJ is now free to proceed with the review. As noted above, the Trump Administration needs to begin this review or else it proves that it was merely pretext for the ban. Indeed, today the DOJ has indicated that it will now conduct the review because of the Ninth Circuit’s narrowing of the Hawaii injunction.

However, Vladeck pointed out that by conducting the review, the Trump Administration undermines the entire purpose for the ban. If the White House is indeed able to conduct this review process now, then why was the ban ever actually necessary? The whole point was to conduct the process that it is now conducting without such a ban being in place.

This point is compounded by the fact that the DOJ has not asked for expedited argument. This means that the 90-day review period will surely have concluded prior to a decision by the court. At that point, what is the point of the travel ban at all? The ban was to facilitate a review process which will have already concluded by the time the court decides the issue.

Hawaii’s counsel yesterday made a similar point: because more than 90 days have passed since the original EO and nearly 90 days since the second EO, this whole case will be moot by the time it gets to the Supreme Court. While I do not think that this argument holds water especially given the Hawaii stay of the review process, the point is clear: the Supreme Court will be deciding the fate of a travel ban which would have – on its face – already concluded had it been allowed to run its course.

This puts the White House in a Catch-22. If it does not conduct the review, then it risks destroying the stated rationale for the ban. If it does conduct the review and the ninety-day period concludes, then the ban is no longer necessary. The one acceptable middle position would have been to seek expedited argument so that the review would be ongoing at the time of argument, but the DOJ elected not to take this tact.

The DOJ could and likely will argue that while it is conducting its review now, said review will not be fully efficient or effective until a shutdown is implemented. But oral argument may not be until October, nine months after the original ban; can the DOJ credibly argue at that point that its ability to conduct a review which would have taken three months under optimal conditions has been so hamstrung that it couldn’t be completed in nine? I don’t think so.

Vladeck does seem to suggest that the DOJ was simply wrong in commencing the review process, which in turn would mean that the Catch-22 I described above wouldn’t really exist. I disagree. The argument that the White House is conducting a review – albeit a hobbled one – is much stronger than simply doing nothing when it is permitted to act. Conducting the review now, immediately after the Ninth Circuit’s narrowing of the injunction, is the one bit of urgency that the DOJ or White House has expressed during this saga. It makes more sense to argue that it had a national security imperative to begin a flawed review immediately rather than waiting for the Supreme Court to enable an unfettered review many months from now. Regardless, neither way is optimal, and that’s my entire point – the DOJ is now in prime “damned if you do, damned if you don’t” territory.

Finally, this situation is one of the White House and DOJ’s own making. Their stated rationale for the ban was the urgent need to conduct a temporary review of vetting procedures, in the name of national security. That rationale probably doomed the ban from the start, because it lit a ninety-day fuse for the destruction of the ban’s stated usefulness. The White House and DOJ also bungled the rollout, failing to actually conduct such a review in the 45 day window it had, and then repeatedly refusing to take steps to expedite the inevitable path to the Supreme Court. The DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited argument, and then asking in mid-June for a delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.

Ultimately, the White House may still win at the end of the day. But if they do, then it seems likely that such a result was preordained from the start, since neither the White House nor the DOJ has done themselves many favors.

-Ryan

Ninth Circuit Affirms Injunction Blocking Trump Travel Ban 2.0

On Monday, a Ninth Circuit panel mostly upheld the preliminary injunction against the Trump travel ban. Notably, the court did three things which were ostensibly designed with an inevitable Supreme Court showdown in mind: 1) it did not reach the constitutional issues, instead relying entirely on statutory grounds; 2) it struck down the ban without relying on Trump’s campaign statements, and 3) it slightly narrowed the scope of the injunction. These are all important, as will be set forth below.

I. Taking The (Statutory) Road Less Travelled

Much of the buzz about the travel ban has dealt with its constitutionality – whether it violates the Establishment Clause of the First Amendment. However, the travel ban has also been challenged on statutory grounds. While the Fourth Circuit’s ruling addressed only the constitutional issues and did not reach the statutory issues (as did the Ninth Circuit panel in the travel ban 1.0 case), the Ninth Circuit’s ruling this week did just the opposite. It was the first appeals court decision on either travel ban to address only the statutory arguments.

This is important because it lets the Supreme Court do three things that it loves to do: let issues “percolate” in the lower courts before taking them, exercise constitutional avoidance, and avoid sweeping devisions with unwanted or unintended consequences.

A. It’s Time For The Percolator

First, the court loves to let lower courts weigh in on big issues first. For some reason, every Supreme Court analyst and their mother refers to this as lower court “percolation”. Essentially, what lower court “percolation” means is that the Supreme Court does not like taking cases until at least one appeals court decides it first. It is quite likely that the Supreme Court would have wanted the thoughts of the lower courts on the statutory issue, but prior to this week no appeals court had decided either travel ban on statutory grounds. That has now changed, the statutory issue has been percolated, and the Supreme Court is now ready for its morning coffee.

B. Avoidance Like the Plague

Second, the court loves to avoid deciding constitutional issues when it can. Similarly, the court typically seeks to avoid controversial or deeply political issues, which it fears may affect its legitimacy. A ruling on statutory grounds would let the Supreme Court avoid a sweeping constitutional ruling and also partially mitigate the inevitable political fallout from its decision. Thus, the Ninth Circuit has provided the Supreme Court with a roadmap to strike down the travel ban while doing so on narrow, more palatable terms.

C. “We Write Some Words…”

Relatedly, the Supreme Court also tends to avoid issuing sweeping opinions with unforeseen or unwanted ramifications beyond the facts at hand. As Justice Breyer stated during oral argument in another case this year, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell – that its rationale will be applied to circumstances well beyond just the facts of the particular case being decided.

A broad ruling on the constitutional issue would then apply to many other contexts, from subsequent presidents’ immigration decisions to equal protection claims generally. Trump’s presidency, obviously, is quite different than most presidencies; the Supreme Court will not want its opinion here to hamstring future presidents in engaging in run-of-the-mill immigration decisions or national security determinations. Essentially, the trick is to strike down the travel ban (if it is so inclined), while limiting the applicability of this ruling to different contexts. That is easier said than done.

II. Trump’s Campaign Statements

The issue of unwanted consequences also arises when discussing Trump’s campaign statements. Unlike the Fourth Circuit, the Ninth Circuit did not rely on Trump’s campaign statements in striking down the travel ban. There is a very real concern that the court’s reliance on Trump’s campaign statements will open the doors to using campaign statements against public officials in all sorts of litigation pertaining to government decision-making. The Supreme Court will be loathe to weaponize campaign statements by political candidates, and it will avoid using Trump’s campaign statements entirely if it can. To that end, the Ninth Circuit omitted such references. Again, this signals to the Supreme Court that it can strike down the ban while staying out of the thorniest part of the thicket.

III. Narrowing the Injunction

Lastly, the Ninth Circuit narrowed the scope of the lower court’s injunction, in that it now permits the White House to conduct an internal review of visa vetting procedures. This review served as the facial reason for the ban, which was to last 90 days (and 120 days for the Syrian refugee program) while the review was conducted.

Today, the clock begins ticking anew. At this point, there is no evidence that such a review ever began in the first place, but the government may have gotten lucky when it was barred from doing so by the District of Hawaii. Now, that excuse melts away, and it will be incumbent on the government to begin that vetting review in earnest. In the Supreme Court, the plaintiffs will certainly argue that if the ban was really about the review process – and not just pretext for banning Muslims – then the review would have begun immediately and would already be concluded. If there is little or no evidence that such a review has taken place at the time of Supreme Court briefing or oral argument, then the government’s stated rationale for the ban will be destroyed.

This aspect of the ruling is also important because keeping the injunction as-is would have certainly given the Supreme Court a good reason to grant certiorari. Barring the President from internally reviewing visa vetting procedures – which does not adversely affect anyone in and of itself – was something that didn’t make much sense. Although the Supreme Court is likely going to grant cert anyway, there is now one fewer reason to do so.

-Ryan

Anything You Tweet Can and Will Be Used Against You In a Court of Law: POTUS TRAVEL BAN EDITION

A few days ago, the DOJ filed its cert petition and petition for stay in the travel ban case. When the petitions were filed, the general consensus seemed to be that the cert petition would certainly be granted and that the petition for stay had a decent (albeit probably unlikely) shot.

And then Trump tweeted.

Trump’s tweets from today were as follows:

People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!

The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.

The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!

In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!

That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!

To understand why today’s tweets were so damaging, we must look to how they affect the biggest sticking points for the respondents. These are (or were): 1) whether or not campaign statements can be used against Trump, and 2) whether the government’s animus from the original ban stains all subsequent versions of it. These two issues created two large fault lines among the judges in the 4th and 9th Circuits at oral argument and in their opinions.

Essentially, as I explained in my initial post, the case likely comes down to a test set forth by the Supreme Court decades ago in a case called Kleindienst v. Mandel and recently reiterated in a  very recent concurring opinion by swing vote Justice Anthony Kennedy in Kerry v. Din. That test requires that government’s immigration decisions be upheld as long as the government can present a “a facially legitimate and bona fide” reason for its decision. There is mostly no question that the travel ban is facially legitimate. The issue then comes to whether the travel ban was done in good faith (bona fide) or out of a bad faith religious animus. That is where Trump’s tweets come in.

To that end, and as I explained above, the dissenting judges in the circuit courts hit hardest on the following points: 1) Trump’s campaign statements should not count, and his actual post-oath-of-office record was not blatantly anti-Muslim, and 2) under the state’s logic, it once bias infects one version of an executive order, there is nothing that an administration could ever do to cure that bias, no matter how objectively legitimate the content of an amended EO. These are two good points, and they force the respondents to attack the EO in its current incarnation and using only Trump’s statements as president. As one of the 4th Circuit dissenting opinions stated, “The Supreme Court has repeatedly warned against judicial psychoanalysis of a drafter’s heart of hearts.” Without the campaign statements, and given the typical levels of executive deference in these contexts, it was a bit difficult to actually pin any of Trump’s statements that specifically and explicitly imbued an anti-muslim bias into the amended travel ban. Rather, the dissenters argued, the court was simply psychoanalyzing Trump’s heart of hearts, and this was improper.

But now those points are gone. Trump’s tweets exhibit his bias as president. Moreover, he makes it clear that he still maintains the bias from the first ban, which he obviously prefers and which was apparently jettisoned by the DOJ, not by Trump himself. Trump still holds the same mindset from the original ban and still wishes to accomplish the same ends. There is no longer a viable argument by the DOJ that the new ban was issued in good faith or that it represented Trump turning a corner. No, it’s clear that Trump signed the new EO kicking and screaming, and that both of the bans were motivated by a politically incorrect intent to ban people from Muslim countries. In other words, this completely undercuts the two best arguments made by the DOJ and the dissenting circuit judges.

Lastly, Trump’s tweets are so damaging because they make him seem dangerously unhinged. They not only threaten the legitimacy of the executive branch, but also that of the Supreme Court if it fails to check Trump’s powers. Although the courts normally grant a high level of deference to the president in the national security and immigration contexts, Trump’s behavior places his presidency – and, in turn, the court’s role in checking its power – in unchartered territory. As Lawfare’s Benjamin Wittes and (today) Jack Goldsmith have stated, Trump no longer enjoys the “presumption of normalcy”, and this certainly applies to the courts. Thus, the Supreme Court may be willing to intercede when it normally would be loathe to do so.

Ultimately, Chief Justice Roberts’ Rules of Order go out the window when faced with the Mad King screaming for wildfire.

  

-Ryan

Justice Alito Cribs From Judge Alito – The Court Rules in Los Angeles v. Mendez

Back in March, I wrote about the Supreme Court case Los Angeles v. Mendez, which centered on whether the court would adopt the Ninth Circuit’s “provocation rule”. This rule held that law enforcement officers could be held liable even when they reasonably used force on a citizen, as long as they  unreasonably provoked the scenario necessitating the deadly force in the first place. Well, today the court issued its opinion, unanimously rejecting the Ninth Circuit’s provocation rule while nonetheless leaving hope for the plaintiffs on remand.

As a refresher, the case involves two sheriff’s deputies who entered a residential property without a warrant. They then encountered a shack located in the backyard in which the plaintiffs  Angel Mendez and Jennifer Garcia were living.  The officers, who had not identified themselves as officers, barged into the shack unannounced. Mendez, who happened to be holding a BB gun to ward off rats and pests, sat up. The officers, upon seeing Mendez with a gun, fired upon Mendez and Garcia, injuring them. At trial, a jury found that the officers had not committed excessive force. However, the jury did find the officers liable under the Ninth Circuit’s “provocation” rule, which had been fiercely criticized in other circuits.

Today, Justice Alito wrote for an 8-0 unanimous court (without Justice Gorsuch, who took the bench after oral argument). The Court outrightly and forcefully rejected the provocation doctrine, finding that the Ninth Circuit had “mistakenly conflate[d] distinct Fourth Amendment claims.” In doing so, the Court reiterated that “reasonableness is always the touchstone of Fourth Amendment analysis”, and that thus no other conduct by the officers could transform their reasonable use of force into a Fourth Amendment claim. “If there is no excessive force claim under Graham [v. O’Connor], there is no excessive force claim at all.”

To be clear – and this is critical –  the Court did not reject the plaintiffs’ unreasonable search and seizure claim, nor did it preclude the plaintiffs from recovering for damages – even damages stemming from the shooting – under such a claim. In fact, the Court explicitly acknowledged that the officers would be liable for the proximate cause of their unreasonable search and seizure; however, the Court declined to spell out what that standard would be or whether the plaintiffs here could recover under such a standard. Those issues, rather, are now to be decided by the lower courts.

That Justice Alito wrote the opinion is interesting. His opinion closely tracks – and at one point is identical – to his language in a prior case from when he was on the Third Circuit. In my initial post on this case, I devoted a section to the issue of proximate cause and cited heavily to then-Judge Alito’s Third Circuit opinion in Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995). There, law enforcement officers conducted an unconstitutional search of a home which then led to a deadly confrontation. The lower court instructed the jury that they need not determine whether the force used was reasonable, because the unreasonableness of the search rendered the subsequent use of force automatically unreasonable. Then-Judge Alito, writing for the Third Circuit, strongly rejected the conflation of these two claims, reinstated the excessive force claim, and remanded on both the excessive force and unreasonable search and seizure claims. Further, Judge Alito also held that the plaintiff’s recovery of damages under the unreasonable search and seizure claim was determined by “basic principles of tort law,” including proximate cause; thus, if the jury believed that the conduct of the officers in unlawfully entering the home was a proximate cause of the shooting (even if the force was reasonable), then the officers would be liable for the shooting under the search and seizure. The case was then remanded for a jury trial.

Then-Judge Alito then concluded his analysis with the following comments regarding proximate cause and the interplay between excessive force and unreasonable search claims, which may give you deja vu:

“If at a retrial in this case the jury decides that the troopers’ entry was unlawful, it will be necessary to determine how much of the injury suffered by Bodine was ‘proximately’ or ‘legally’ caused by the illegal entry, and we express no view on this question at this time. We merely emphasize that this determination must be made and that the illegal entry and unlawful force claims must be kept separate. Thus, if the troopers are found to have entered the Bodine residence illegally, they should be held liable for the harm proximately caused by the illegal entry. Similarly, if the troopers are found to have used unlawful force, they should be held liable for the harm proximately caused by this use of force. The harm proximately caused by these two torts may overlap, but the two claims should not be conflated.” (emphasis mine).

This language, and particularly the language in bold, will surely look familiar to those who have read today’s opinion in Mendez. Here, Justice Alito wrote that the Mendez plaintiffs may still have a claim if the shooting was a proximate cause of the initial unreasonable search and seizure:

“[B]oth parties accept the principle that plaintiffs can—subject to qualified immunity—generally recover damages that are proximately caused by any Fourth Amendment violation. Thus, there is no need to dress up every Fourth Amendment claim as an excessive force claim. For example, if the plaintiffs in this case cannot recover on their excessive force claim, that will not foreclose recovery for injuries proximately caused by the warrantless entry. The harm proximately caused by these two torts may overlap, but the two claims should not be confused.” (emphasis mine).

Essentially, Justice Alito mirrored a prior opinion of his in the Circuit Court in a similar fact pattern, going so far as to essentially copy and paste his own prior writing.

The only major difference between Justice Alito’s Mendez opinion and Judge Alito’s Bodine opinion is what they did next. Judge Alito laid out the framework for a proximate cause analysis, taking pains to stress that 1) the officers are only liable for the proximate cause of their unlawful entry into the home, not for the proximate cause of any of their constitutional conduct, and 2) that officers who illegally enter a suspect’s home “would not be liable for harm produced by a ‘superseding cause”, but “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.”

In Mendez, Justice Alito only went half way, explaining briefly that the Ninth Circuit erred in its proximate cause analysis by once again conflating the officers’ constitutional conduct and their unconstitutional conduct, but refusing to go further. Like in Bodine, Justice Alito noted that the key is to isolate the unconstitutional conduct and then track the proximate cause of that particular conduct, not any other conduct by the officer. However, Justice Alito declined to further develop the proximate cause framework, noting that the Supreme Court has previously “declin[ed] to draw the precise boundaries of proximate cause in the first instance.” It seems that Justice Alito rightly sees his role as different than that of Judge Alito.

Finally, it bears noting that the court did not address at all a hot button issue at oral argument, namely how this case is impacted by the Second Amendment right to bear arms. After all, the only reason Mendez was shot was due to his lawful and constitutional possession of a firearm in his home. However, tiptoeing around this issue may have been a way to avoid fracturing the court’s unanimity. Plus, the issue seems to be preserved within the plaintiffs’ argument that their behavior did not constitute a superseding cause of the shooting, since their conduct was entirely lawful and proper. Thus, we may see that issue again in this case before the high court, albeit in a more focused discussion of proximate cause.

-Ryan