Weekend Circuit: Chevron, Amputees Roughed Up In Courts

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Kevin Daley Supreme Court correspondent
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This is Weekend Circuit, a review of the serious and the silly in federal appellate courts in the last week.

Seventh Circuit Ends Wisconsin Voter ID Challenges

The 7th U.S. Circuit Court of Appeals essentially ended a pair of challenges to Wisconsin’s voter ID law Friday, refusing to reinstate a remedy proposed by a lower court while rejecting different appeals from other parties.

To recap: Judge Lynn S. Adelman of the U.S. District Court for the Eastern District of Wisconsin placed an injunction on a Wisconsin law requiring voters to present a state issued identification while voting. Adelman ruled that citizens without an official ID may still cast ballots after signing an affidavit affirming their identity, and that they had a reasonable impediment to registering for a government ID.

“The plaintiffs’ proposed affidavit option is a sensible approach that will both prevent the disenfranchisement of some voters during the pendency of this litigation and preserve Wisconsin’s interests in protecting the integrity of its elections,” his ruling reads. (RELATED: Federal Court Puts Hold On Wisconsin Voter ID Law)

That remedy was itself put on hold for the November election by the 7th Circuit. The plaintiff’s appealed for en banc review by the full 7th Circuit. En banc review occurs when all of a circuit court’s judges agree to hear and decide a case together.

A unanimous court declined to hear the case, issuing a per curiam opinion which stated that, for now, there are no live controversies to address because, in separate litigation, the state of Wisconsin promised to issue free government IDs to any person who requests them. The court emphasized that simply starting the process, that is, merely requesting the ID from the Department of Motor Vehicles, was enough to receive a state credential.

“The State assures us that the temporary credentials required in the One Wisconsin Institute decision will indeed be available to all qualified persons who seek them,” the court wrote. “In its response to the petition for initial hearing en banc…it said this: ʺ[T]he State has already voluntarily accommodated any concerns relating to the November 2016 election. Specifically, Wisconsin has enacted a rule that requires the Division of Motor Vehicles (‘DMV’) to mail automatically a free photo ID to anyone who comes to DMV one time and initiates the free ID process.”

Gorsuch’s Takedown Of Agency Deference Generates Buzz

Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals authored a concurring opinion in a complex immigration case, which became something of a cause celebre at week’s end. Gorsuch, often seen as a potential Supreme Court appointee in the next Republican administration, wrote a thorough repudiation of the Chevron doctrine, which requires courts to submit to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable.

“Rarely will you run across such an elegant legal essay, closely argued and packed with citations yet as accessible as good journalism,” Alison Frankel of Reuters wrote.

“There’s an elephant in the room with us today,” Gorsuch wrote. “We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron…permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Elsewhere in the concurrence, Gorsuch calls Chevron, “no less than a judge-made doctrine for the abdication of the judicial duty,” which “certainly seems to have added prodigious new powers to an already titanic administrative state.”

Cops Lose Qualified Immunity After Roughing Up Amputee 

The 8th U.S. Circuit Court of Appeals stripped three police officers of qualified immunity, which protects government employees acting in their official capacities from civil prosecution, provided their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” in connect with a Sept. 2011 incident in Lincoln, Neb.

The officers approached a vehicle and individual corresponding in several general respects to a suspicious person report they had received earlier in their shift. They drew their weapons and ordered the driver to exit the vehicle with his hands in the air. The driver, who was a double amputee with prosthetic legs, attempted to explain that he could not comply with the command given his handicap. After a tense exchange, the driver opened the door and fell out on to the pavement face first — one of prosthetic legs had become detached during the standoff.

The driver was handcuffed and remained face down on the pavement with his leg detached while officers executed a search of his vehicle. The 8th Circuit ruled that, at this point, the officers’ conduct became unreasonable in violation of constitutional rights. Though the original traffic stop may have been justifiable — the driver was operating a vehicle similar to the car in the suspicious person report — the officers should have stood down and ended the stop on encountering the driver himself. Where the driver was bald, 58, and had no legs, the individual described in the report had braided hair, was in his 20s, and had no physical ailments.

A civil case may now proceed against the officers.

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