“Arson, vandalism, and other acts of rioting have accompanied many of the anti-police-brutality protests around the country. But since this violence is often adjacent to protected First Amendment activities, law enforcement’s response needs to be careful, targeted, and proportionate. We should try to stop the violence and vandalism, but peaceful protesters shouldn’t be unjustly punished or otherwise dissuaded from exercising their rights to free speech and assembly.
By encouraging prosecutors to be as punitive as possible, Barr appears to be taking the exact opposite approach. His suggestion that they dust off sedition laws should alarm all civil liberties advocates.”
“If last week is any indication, the right to vote is unlikely to fare well in a judiciary that is increasingly dominated by Republicans: Voting rights cases out of Florida and Texas handed important victories to the GOP. At least one of those victories is likely to disenfranchise tens of thousands of voters altogether. (In Wisconsin, Democrats fared better this week in a ballot-printing case.)
The Florida case involves a longstanding dispute over individuals with felony convictions. In 2018, Florida voters overwhelmingly approved a state constitutional amendment intended to restore felons’ voting rights. But the state’s Republican-controlled legislature almost immediately enacted legislation seeking to prevent most of these individuals from actually being able to vote.
On Friday, in a party-line vote on Jones v. Governor of Florida, the Republican-controlled United States Court of Appeals for the 11th Circuit backed the state legislature’s play — effectively disenfranchising most of the people Floridians voted to reinfranchise.
One day earlier, a three-judge panel of the Fifth Circuit handed down its decision in Texas Democratic Party v. Abbott. That case involves an unusual Texas law that allows voters over the age of 65 to obtain an absentee ballot upon request — thus avoid voting in-person in the middle of a pandemic — but prevents most younger voters from voting absentee.
This kind of age discrimination is highly dubious under the 26th Amendment, which provides that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Nevertheless, a majority of the Fifth Circuit panel upheld Texas’s law in Texas Democratic Party.”
“A federal judge this week gave a blistering rebuke of qualified immunity, the legal doctrine that makes it difficult to sue police officers in federal court when they violate your civil rights.
“The Constitution says everyone is entitled to equal protection of the law—even at the hands of law enforcement,” wrote Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi in a majority decision released yesterday. “Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.””
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“to overcome qualified immunity, a plaintiff must show that the defendant’s misconduct had been “clearly established” by existing case law—the standard pulled out of thin air by the Supreme Court in Harlow v. Fitzgerald (1982). In practice, this criterion requires that plaintiffs show a public official’s misbehavior is prohibited almost verbatim by a previous ruling from the same federal circuit or from the Supreme Court. That requirement is nearly impossible to meet. “This Court is required to apply the law as stated by the Supreme Court,” Reeves writes. “Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.”
It is not unheard of for a federal judge to show disdain for his own ruling. They are required to enforce precedents established by the Supreme Court, even when doing so defies common sense. (Federal judges can also be seen decrying the mandatory minimum sentences they are required by Congress to impose on defendants who meet statutory criteria.)
A review of current qualified immunity decisions is instructive. The legal doctrine has protected two cops who allegedly stole $225,000 while executing a search warrant; a sheriff’s deputy who shot a 10-year-old boy while aiming at the child’s non-threatening dog; a prison guard who forced a naked inmate to sleep in cells filled with raw sewage and “massive amounts” of human feces; two cops who assaulted and arrested a man for the crime of standing outside of his own house; two officers who sicced a police dog on a surrendered suspect. That list is not exhaustive.”
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“The Supreme Court has declined to hear a slew of qualified immunity cases and instead volleyed responsibility back to Congress. While such decisions should arguably be made by Congress, the Supreme Court created the very problem it now wants no part in solving.
“I do not envy the task before the Supreme Court. Overturning qualified immunity will undoubtedly impact our society,” Reeves writes. “Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ so too should it eliminate the doctrine of qualified immunity.””
“A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit split 2-1 along ideological lines.
The majority opinion, penned by Trump appointee Neomi Rao, said allowing the case to continue would intrude on the executive branch’s prerogatives to control criminal prosecutions. Rao said even scheduling a hearing — as Sullivan had done for next month — was improper under the circumstances because there was no good reason to doubt the government’s decision to reverse course.”
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“Rao’s majority opinion leans heavily on the “presumption of regularity” often afforded to executive branch decision-making — the notion that courts should presume prosecutorial decisions are made in good faith. Through this lens, Rao and Henderson concluded, the Justice Department’s discovery of new evidence that cast doubt on Flynn’s guilt should be treated with deference.
Wilkins, an Obama appointee, issued a sharply worded dissent. The government’s U-turn in the case, he said, was so abrupt that a judge could reasonably question it.
“This is no mere about-face; it is more akin to turning around an aircraft carrier,” Wilkins wrote.
Wilkins also complained that his colleagues were departing with normal federal court practice by prematurely intruding in the affairs of a district court judge who had not yet ruled.”
“A former judge selected to advise on a path forward in the criminal case against Michael Flynn is accusing the Justice Department of exercising a “gross abuse of prosecutorial power” to protect an ally of President Donald Trump, distorting known facts and legal principles to shield Flynn from a jail sentence.
The former federal judge, John Gleeson, skewered Attorney General Bill Barr’s handling of the case, describing it as an “irregular” effort that courts would “scoff” at were the subject anyone other than an ally of Trump. The 82-page excoriation featured a painstaking reconstruction of the Flynn case and accused DOJ of contradicting its own arguments and precedents to justify dropping the case against Flynn.
“Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible,” Gleeson wrote. “Indeed, they are preposterous.””
“Trump’s new order aims to limit social media companies’ legal protections if they don’t adhere to unspecified standards of neutrality. It comes just two days after Twitter fact-checked two of his tweets that made misleading claims about voting-by-mail in the 2020 elections.”
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“The order calls for limiting protections that a law called Section 230 offers tech companies like Twitter, Facebook, and Google by not holding them responsible for what users post on their platforms.”
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“To do this, the order tasks regulators at the Federal Communications Commission and the Federal Trade Commission to create new rules that could pull back some of those protections, potentially opening them up to a litany of lawsuits for libel, defamation, and other complaints.”
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“Critics — including, reportedly, some of Trump’s most conservative advisers — have warned the order could set a dangerous and unconstitutional precedent that the president can use executive powers to effectively censor companies for political reasons. Many legal experts say the order is largely toothless and will be challenged in court.”
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“Ironically, it’s actually Trump — not Twitter — who is wading into unconstitutional territory here. If Trump were to try to shut down social media companies in retaliation for Twitter’s fact-check of his tweets, that would be a clear violation of the First Amendment. It would be sure to invite a fierce legal challenge and would signal an alarming attempt by the president of the United States to wield his executive power against one of the most fundamental rights in this country.”
“The state of Georgia was supposed to hold an election Tuesday to fill a seat on the state Supreme Court. Justice Keith Blackwell, a Republican whose six-year term expires on the last day of this year, did not plan to run for reelection. The election, between former Democratic Rep. John Barrow and former Republican state lawmaker Beth Beskin, would determine who would fill Blackwell’s seat.
But then something weird happened: Georgia’s Republican Gov. Brian Kemp and the state’s Republican secretary of state, Brad Raffensperger, canceled Tuesday’s election. Instead, Kemp will appoint Blackwell’s successor, and that successor will serve for at least two years — ensuring the seat will remain in Republican hands.
On May 14, the state Supreme Court handed down a decision that effectively blessed this scheme to keep Blackwell’s seat in the GOP’s hands. The court’s decision in Barrow v. Raffensperger is unusual in many regards — among other things, six of the state’s regular Supreme Court justices recused from the case, and they were replaced by five lower court judges who sat temporarily on the state’s highest court. The court’s decision in Barrow turns upon poorly drafted language in the state constitution, which does suggest that Blackwell, Kemp, and Raffensperger’s scheme was legal.”
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“In late February, just a few days before the deadline for candidates to file to run to replace Justice Blackwell was about to expire, Blackwell sent a letter to Kemp announcing that he intends to resign his seat, effective November 18. That means that Blackwell will leave office a few weeks before his term was set to expire on December 31.
Shortly after receiving this letter, Kemp formally accepted Blackwell’s future resignation. The governor then informed Raffensperger, the state’s chief elections officer, that he intended to fill Blackwell’s seat by gubernatorial appointment. In response, Raffensperger canceled the election to fill Blackwell’s seat, which was scheduled for May 19.
Both Democratic candidate Barrow and Republican candidate Beskin filed lawsuits seeking to reinstate the election, but these pleas were rejected by the state Supreme Court in a 6-2 vote.”
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“an appointed justice may serve until January 1, 2023 — and longer, if that justice eventually wins the 2022 election. The new justice will also be able to run with all the advantages incumbency provides.”
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“As a practical matter, this decision is likely to prove very easy for retiring justices to game if they belong to the same political party as the incumbent governor. Indeed, under the court’s decision in Barrow, Blackwell likely could have announced that he would resign effective December 30 — just one day before his term would have expired — and Kemp still would have gained the power to name Blackwell’s replacement.”
“Reuters analyzed 252 federal appellate opinions from 2015 to 2019 where law enforcement defendants claimed qualified immunity. The courts ruled in the police’s favor in 57 percent of the cases.”
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“Under the 50-year-old doctrine of qualified immunity, police and other government employees are shielded from lawsuits where the civil right they allegedly infringed hasn’t been “clearly established,” or where a reasonable officer wouldn’t have known about it.”
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“On its face, qualified immunity is supposed to protect public officials from frivolous lawsuits related to their official job duties, but the confusing precedent has been construed so pedantically by some courts that plaintiffs must find precedents that match the exact circumstances of their case. Qualified immunity effectively short-circuits civil litigation against individual police officers, ensuring that the cases never make it to trial or settlement.”