Weekend Circuit: Ballot Selfies, Bath Salts, And A Big Retirement

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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.

1st Circuit Strikes Down Ban On Ballot Selfies

A New Hampshire state law banning selfies with ballots was struck down by the 1st U.S. Circuit Court of Appeals Thursday.

Though there is no federal law prohibiting the so-called “ballot selfie,” photographing ballots is illegal in 35 states. There are no express bans on ballot selfies in many of these jurisdictions, but it stands to reason that the practice is captured by the existing ban on photographing votes.

Snapchat took up common cause with those battling the restrictions, arguing that sharing a photo with a ballot through social media was core First Amendment activity, and that the organization has an interest in aggregating such photos as a media organization.

New Hampshire argued that the law is necessary to prevent coercion or intimidation, suggesting that nefarious characters would entice or intimidate citizens into voting a certain way, and then require them to present photographic evidence corroborating their action. Though the panel agreed the state had a legitimate interest in protecting the integrity of the ballot box, they ruled that the government’s remedy was not narrowly tailored.

“New Hampshire has ‘too readily forgone options that could serve its interests just as well, without substantially burdening’ legitimate political speech,” the court wrote. “There are strong First Amendment interests held by the voters in the speech that this amendment prohibits.”

The panel also noted there was no evidence an intimidation scheme along the lines New Hampshire imagined had ever been successfully executed.

O’Scannlain Goes Senior

Judge Diarmuid O’Scannlain, the conservative pillar of the sprawling, solidly liberal 9th U.S. Circuit Court of Appeals, will assume senior status at the end of the year.

A federal judge who assumes senior status abdicates regular duties, but may still participate in a handful of cases as needed.

O’Scannlain’s departure from the bench is important in several respects. In the first place, the 9th Circuit will be deprived of its leading conservative voice. His departure effectively leaves four vacancies on the court (there are currently two empty seats on the 9th Circuit, and the nomination of District Judge Lucy Koh to fill the third empty seat is unlikely to be taken up by the U.S. Senate).

With O’Scannlain’s retirement leaving a fourth opening, the next president will be able to meaningfully affect the direction of the nation’s largest appeals court. A slew of retirements by former President Jimmy Carter appointees has left the 9th at a cross-roads. In their absence, the court has begun to tack toward the center, though O’Scannlain’s departure may arrest that development. (RELATED: The Conservative Lion Of The 9th Circuit Is Retiring) 

He was also a forceful proponent of breaking the unruly 9th into two new courts. Nine states sit within the court’s jurisdiction, representing a massive swath of the country’s population. Justices Clarence Thomas and Anthony Kennedy endorsed the proposal in 2007, telling a congressional committee that splitting the 9th in two was the consensus position of the U.S. Supreme Court.

No Immunity For Cops Who Crushed Man High On Bath Salts

Phillip McCue was so overcome by ecstatic bliss he didn’t notice five cops were sitting on him — he died moments later.

McCue was taken into protective custody in Sept. 2012, after his erratic public behavior led officers to believe he was high on bath salts. In court documents witnesses say he was “ranting and raving, yelling and screaming, and stomping and kicking at doors.”

Maine officers restrained McCue and placed him in a face-down prone position. He died moments later. An expert witness said he was killed “under the weight of multiple officers, in the face of a hypermetabolic state of excited delirium.”

McCue’s father brought a suit against the police department on behalf of his son’s estate, alleging constitutional violations and state tort violations. The district court granted the officers qualified immunity — protection against civil claims for government employees acting in their official capacities — on several counts, but denied immunity on an excessive force claim and on the Maine Tort Claims Act claim.

The officers appealed, but an unanimous panel of the 1st U.S. Circuit Court of Appeals found they were not entitled to qualified immunity on the excessive force claim, since they pined McCue in the prone position for several minutes after he stopped resisting. The case will now be heard by a jury.

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