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Weekend Circuit: Fight Against Syrian Refugees Falters

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

7th Circuit Panel Rips Lawyer Fighting Syrian Refugee Resettlement

A three-judge panel of the 7th U.S. Circuit Court of Appeals had little patience for the Indiana solicitor general during oral arguments Tuesday, who said the state had a right to refuse the resettlement of Syrian refugees.

Judges Richard Posner and Frank Easterbrook, both appointed to the bench by former President Ronald Reagan, took turns grilling Solicitor General Thomas Fisher, raining the state’s top advocate with rhetorical barbs that sketched Indiana’s almost-certain defeat in the litigation.

At stake in the suit is an executive order issued by Indiana Gov. Mike Pence, the Republican nominee for vice president, which bars state agencies from disbursing funds to organizations assisting in the resettlement of Syrian refugees in the United States. The order was challenged by Exodus Refugees International, which argued the order violates the Immigration and Nationality Act, since it targets individuals of a particular nationality.

“Why has Indiana limited its concern to Syrians?” Posner asked. “Are Syrians the only Muslims Indiana fears?”

“Honestly!” the judge bellowed later in the arguments. “You are so out of it! You don’t think there are dangers from other countries?” (RELATED: Texas Must Accept Syrian Refugees, Federal Court Rules)

Easterbrook asked Fisher to respond to an amicus, or friend-of-the-court, brief from the U.S. government arguing the state was exceeding its authority, since state governments do not have the prerogative to set their own immigration policies.

Fisher invoked a statement from FBI Director James Comey, which suggested that the Bureau did not have the data or institutional capacity to vet Syrian refugees. Fisher made reference to the statement frequently during the argument. He then attempted to explain the state was responding to statements made by federal officials, instead of targeting a particular class of immigrants on its own accord.

“When a state targets a policy against people from Syria and says it has nothing to do with national origin, it produces nothing but a broad smile,” Easterbrook retorted.

Institutionalized People Do Not Forfeit Second Amendment Rights, 6th Circuit Rules

Individuals committed to mental health institutions may regain Second Amendments rights after their release, the full 6th U.S. Circuit Court of Appeals ruled Thursday.

The court ruled 10-6 that Clifford Taylor, 74, could acquire a firearm despite a federal law banning individuals committed for mental health issues from buying guns. Taylor was committed following a hostile divorce in 1986 that left him suicidal. His term of commitment was brief, and he has had no mental health issues since.

Individuals with such a profile could apply for relief from the law in the past. However, Congress “defunded this program, noting that reviewing applications was a ‘very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made,’” in 1992. Some states went about the work Congress neglected and erected processes of their own. Nearly two dozen states have not.

The judges divided into three groups in the ruling. Five judges argued that when a person is found no longer a threat to himself or others, a ban on his possession of a firearm is flatly unconstitutional.

Another five judges took the view that the restriction could stand if it survived intermediate scrutiny, a standard of review which requires government lawyers to demonstrate a law or regulation furthers an important interest by means substantially related to said interest. In this case, however, they found government lawyers had failed to demonstrate to pass this test. These 10 judges together constituted the majority of the case.

A third five-judge bloc argued that the U.S. Supreme Court had determined in D.C. v. Heller that restrictions on firearms possession by the mentally ill was lawful, and that this fact posture would survive intermediate scrutiny. Finally, one judge concluded that the the Heller decision did not apply to individuals with previous commitments, though it would survive intermediate scrutiny nonetheless.

Man Sues After Police Subject Him To Multiple X-Rays And Colonoscopies In Search Of Drugs 

A New Mexico man, David Eckert, brought a civil rights lawsuit against Deputy District Attorney Daniel Dougherty, after he and a local judge authorized police to conduct multiple searches of Eckert’s anal cavity for drugs.

Eckert was stopped by police for failing to obey a stop sign on January 2, 2013. During the course of the stop, a narcotics canine detected drugs on the driver’s seat. Eckert was also observed by police to be standing fully erect with his legs at a tight posture. Officers also believed Eckert had previously transported drugs within his rectum (though this information was later proven definitively false).

Dougherty approved a request by police to order an extensive search of Eckert’s person by medical personnel. A judge signed a search warrant authorizing the procedures.

Eckert was taken to Gila Regional Medical Center where he was subjected to multiple chest X-rays, digital rectal exams, a colonoscopy, and three enemas. None of the procedures revealed any presence of narcotics.

He brought a civil rights claim against Dougherty. The district court dismissed the claim, finding that probable cause had been firmly established and because, though all searches beyond the first X-ray and digital exam were unconstitutional, Dougherty “neither knew nor reasonably should have known that his actions would lead to constitutional violations.” Therefore, he is entitled to qualified immunity, which protects law enforcement officials from civil claims when acting in their official capacities. The dismissal was upheld Wednesday by the 10th U.S. Circuit Court of Appeals.

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