"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

That was Justice Gorsuch for a 6 Justice majority today (including Chief Justice Roberts) in Bostock v. Clayton County.  This was another slap down for the 11th Circuit, which has tilted WAY too far to the right.

Justice Kavanaugh was completely wrong in his dissent, but at least he wasn’t a jerk about it — unlike Alito.  Look at the difference in tone:

Kavanaugh at least acknowledged “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

Alito, on the other hand, said Gorsuch’s opinion “is virtually certain to have far-reaching consequences” which will “threaten freedom of religion, freedom of speech, and personal privacy and safety.” He said that Gorsuch was “irresponsible,” because his opinion “greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution.”

Meantime, the 11th Circuit has a couple of 2-1 decisions. First is a reversal of the Metro-West injunction related to corona. Newsom and Martin square off, with a visiting district judge joining Newsom.

The second is a reversal of a suppression order, with Branch and Marcus in the majority. Kudos to Judge Ungaro for dissenting:

While the evidence is that the three men and Mrs. Yarborough were secured near the porch of the house and, as emphasized by the majority, Officer Monroy’s re-entry was swift and his search was cursory, the only conclusion I can reach from the record is that Officer Monroy made the sweep, no doubt for officer safety, because the arrest scene was proximate to the house and he had a concern that the house, like any structure, could have concealed the presence of a dangerous individual. In other words, Officer Monroy conducted the sweep based on speculation, rather than articulable facts.

Tennessee v. Garner

You'll be hearing a lot about that old 1985 case in the coming weeks.  It's interesting to re-read the case and to listen to oral argument (which you can do here).

The case, per Justice White, held: Under the Fourth Amendment, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Here, a state police officer shot and killed Garner as he was fleeing the scene of the crime. Despite knowing that Garner was unarmed, the police officer believed that he was justified in shooting him to prevent his escape. Garner's father brought a constitutional challenge to the Tennessee statute that authorized the use of deadly force in this situation. The state prevailed in the trial court, but the state appellate court ruled that the statute was unconstitutional. The Supreme Court decided that when a non-violent felon is ordered to stop and submit to police, ignoring that order does not give rise to a reasonable good-faith belief that the use of deadly force is necessary, unless it has been threatened.

Justice White was joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens.

Justice O'Connor wrote the dissent and was joined by Justices Burger and Rehnquist.

One local connection -- former UM Law Professor, Steve Winter, argued for Garner.  Winter is now at Wayne State University Law School.

"Cellphones haven't stopped cops from lying — only courts can do that"

That's the title of my latest piece in The Hill.  Here's the intro:

A 75-year old man was injured when he “tripped and fell.” That was the scenario the Buffalo police department released to the public before it knew that there was a video showing two officers shoving the old man to the ground and then walking over him while blood poured out of his head.

Many express shock that police officers would misrepresent — even lie — with such impunity. Those people naively ask what would happen if there wasn’t a video of the whole affair. Criminal practitioners know exactly what would happen — because, sadly, it’s what has been happening in courtrooms around the country every day for years. Too many officers are known to lie under oath, and there are judges and prosecutors who let them get away with it. This dirty secret is a true epidemic in the criminal justice system; it’s called “testilying,” and it has been around a long time.

Please let me know your thoughts. Have a nice weekend!

Flynn OA day

You can listen here at 9:30am. 

Also, check out SDNY Judge Nathan's order in a case where the Government obtained a conviction at trial and then moved to dismiss post-trial because of all of the Brady violations.  Judge Nathan says not so fast... you need to explain yourself first via a response to the defense motion for new trial, as the defense has requested and then dismiss with prejudice. This is a  big difference from Flynn where the parties have agreed.  Judge Nathan is doing the right thing.

Justice Sotomayor slaps 11th Circuit

Thanks to helpful readers in the comments yesterday and through email, I saw Justice Sotomayor issued this statement yesterday just crushing the 11th Circuit on its unique (and awful) practice of how it handles successive habeas petitions.  Although cert wasn't granted, congrats to Brenda Bryn and FPD's office for getting the Court's attention.

Part of the intro:

Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application. In re Williams, 898 F. 3d 1098, 1102 (2018) (Wilson, J., concurring). Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F. 3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc). That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture. The Eleventh Circuit has published several of its orders denying permission to file a second or successive petition, and determined that all future litigants (including those on direct appeal) are bound to the holdings of these orders unless and until an en banc Eleventh Circuit or this Court says otherwise. See 909 F. 3d 335, 346 (2018). These factors make out a troubling tableau indeed. Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process. The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case. In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.

Here's some coverage by NLJ:

In the Supreme Court petition denied Monday, Michael St. Hubert had sought authorization from the circuit court, as required by federal law, to file a second or successive habeas petition. To be successful, the prisoner must show that the habeas petition will be based either on new evidence sufficient to establish that no reasonable fact-finder would have found the defendant guilty or on a new constitutional rule made retroactive on collateral review.

Sotomayor, contrasting the Eleventh to other circuits, said the Eleventh publishes "far more" denials of authorization (45 from 2013-2018 compared to 80 from all circuits combined); mandates a decision within 30 days; requires prisoners to state their legal argument on a form with space for fewer than 100 words; does not grant oral argument in noncapital cases; generally does not require briefs from the prisoner or government, and often decides the merits of the habeas claims when the circuit court is only to decide whether the prisoner's application meets the authorization requirements.

"Surprisingly still," Sotomayor wrote, the circuit court has published a number of authorization denials stating that all future litigants, even those on direct appeal, are bound by the orders until overruled by the en banc court or the Supreme Court.

In opposing review, U.S. Solicitor General Noel Francisco said some members of the circuit court "expressed concerns" about publishing and giving precedential weight to certain denials of authorization.

"Yet, in the course of those opinions, no member of the court addressed the possible application of the Due Process Clause," Francisco told the justices. "Given the court of appeals’ active internal deliberation about the proper treatment of published orders on applications for leave to file second or successive Section 2255 motions, that court should decide in the first instance whether or to what extent due process principles should affect the court’s approach."

Sotomayor ultimately agreed with the government's recommendation. "The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case," Sotomayor wrote. "In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative."

What upppppp?

The federal courts are extremely slow.
No jury trials.
No grand juries.
Prosecutors have been told to work at home whenever possible.
It's slow.

In the meantime, here is some reading material.

• Professor Ricardo Bascuas and I, along with Jeffrey Green from Sidley, filed this NACDL amicus brief in support of the Rule 48 motion to dismiss the Flynn case.

• The DBR covers John Couriel's appointment to the Florida Supreme Court:

Born in 1978, Couriel grew up in West Miami. In his application to the Florida Supreme Court, Couriel said he was the son of hardworking Cuban immigrants that sacrificed their income to support their son’s educational endeavors. Couriel was always interested in the law and excelled academically.
In high school, Couriel’s interest in law led him to participate on the debate team. Debate was more than just a means to sharpen his speaking skills — in the final round of one particularly competitive showdown, Couriel was pitched against his future wife, Rebecca L. Toonkel. Ultimately, he triumphed in the debate, and they would later connect during their undergraduate years at Harvard College.

• Trump is tweeting crazy theories about the 75-year old Buffalo man who was shoved and injured by police officers:

President Donald Trump put forth an unsubstantiated conspiracy theory Tuesday about the 75-year-old protester in Buffalo who suffered head injuries after he was pushed to the ground by police and hit his head on the sidewalk.

"75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment," Trump said in a morning tweet. Citing a report on conservative news network OANN, Trump said, "I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?" He said Gugino "could be" an anarchist "provocateur" but provided no evidence for that assertion. Two suspended Buffalo police officers were charged with assault and accused of intentionally pushing Gugino, who bled from the back of the head after he hit the sidewalk.

News & Notes

1.  NACDL says that it isn't safe to have jury trials right now and issues a number of guidelines for courts on how and when to reopen:

Compromising accused persons’ constitutional and fundamental rights -- like the right to counsel, the right to confront witnesses, the right to due process, and the right to a speedy and public trial by a jury culled from a fair cross section of the community -- for the sake of public safety results in grave injustice. NACDL recognizes that there is no way to fully reconcile these core constitutional rights with the public safety considerations arising from this pandemic. There are, however, fundamental principles that can minimize the constitutional burden while protecting the public and all the stakeholders who must come together for our courts to function.

2. An Ohio federal judge had ordered the release or transfer of over 800 inmates from a high risk prison. Justice Sotomayor issued a stay. SCOTUSblog covers it:

Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.

3. How broken is our criminal justice system? Clark Neily from Cato says it's rotten to the core:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts. And the most relevant fact is that America’s criminal justice system is rotten to its core. Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response. If America is burning, it is fair to say that America’s criminal justice system—which is itself a raging dumpster fire of injustice—lit the fuse.
***
As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government. Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

4. The Sentencing Commission just released some data, which shows how this broken system is disproportionately affecting minorities: Of those in federal prison, 34.3% are Black, 33.7% are Hispanic, 28.2% are White, and 3.8% are other races.

Chief Judge Bill Pryor

Today was Judge Ed Carnes’ last day as chief. Judge Bill Pryor takes over. The 11th Circuit website already has been updated.

This anonymous account is a great follow on Twitter for judicial updates. Here’s his thread today: