"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."