This week’s Forensic News Roundup focuses on the federal courts and high-profile cases to watch.
Jan. 6 lawsuit
U.S. District Judge Amit Mehta (Obama appointee) asked the House General Counsel’s Office to weigh in on Rep. Eric Swalwell’s lawsuit against Rep. Mo Brooks for the latter’s role in the Jan. 6 insurrection. Brooks asked to be dismissed from the suit alleging he, Rudy Giuliani, and former president Donald Trump incited the attack on the Capitol, claiming he can’t be held liable because he was acting as a federal employee (PDF).
The Federal Tort Claims Act gives government employees and officials immunity when acting within the scope of their official duties. According to Brooks, he “only gave an Ellipse Speech because the White House asked him to, in his capacity as a United States Congressman.” Further, he argues that his speech and tweets “were indisputably made in the context of and preparation for Congressional votes on January 6, 2021” to count electoral votes and confirm (or, in Brooks’ case, reject) the result of the presidential election.
In Brooks’ judgment (a judgment Brooks is legally allowed to have in a free society, and a judgment Brooks has to make pursuant to his voting duties imposed by 3 U.S.C. 15), the evidence is overwhelming that the November 3, 2020 elections were the subject of voter fraud and election theft on a scale never before seen in America and that, if only lawful votes cast by eligible American citizens were counted, Donald Trump won the electoral college and should be serving his second term as President of the United States.
While the House General Counsel’s Office is currently controlled by Democrats, there is a chance – possibly a high chance – that its lawyers will side with Brooks.
While supporting Brooks could rile partisan Democrats, former general counsels to the House said there is a strong institutional interest in defending its traditionally broad view of what counts as a member acting within the scope of their office.
That’s particularly the case here, where “it appears that there will be a judicial ruling on the question that could have an impact on future cases as well,” said Thomas Hungar, a former House general counsel now at Gibson Dunn law firm.
- Related: Brooks brought back his Jan. 6 tone for CPAC over the weekend, telling the audience to “fight for America” and “sacrifice” like colonial soldiers at Valley Forge. “We need patriots at every level of government. So my final question to you is very, very simple: is America worth fighting for? Is America worth fighting for? Then I implore you: Do it! Do it! Do it!” Clip.
- Further reading: “‘The Most Spectacular Example of Incitement’: First Amendment Icons Back Eric Swalwell in Lawsuit Against Donald Trump for Jan. 6th Siege,” Law&Crime.
District Judge J. P. Boulee, a Trump appointee, refused to block Georgia’s newest voting restrictions from taking effect before this week’s runoff elections, ruling that changing the rules mid-voting would jeopardize the results.
“We are at the juncture where all of the challenged provisions are already the law. Therefore, an injunction would not merely preserve the status quo; rather, it would change the law in the ninth inning,” wrote Boulee. The judge did leave room for [a] broader decision on the law in the future: “The Court reserves judgment regarding the propriety of relief as to future elections and will issue a separate order on this question at a later date.”
Another Trump-appointed judge, Julius Richardson of the Fourth Circuit Court of Appeals, wrote a majority opinion holding that a ban on handgun sales to adults under 21 is unconstitutional. He was joined by George W. Bush appointee Judge G. Steven Agee in arguing that because 18-year-olds served in militias in the late 1700s, 18-year-olds today must be allowed to buy handguns (PDF).
The militia laws in force at the time of ratification uniformly required those 18 and older to join the militia and bring their own arms. While some historical restrictions existed, none support finding that 18-year-olds lack rights under the Second Amendment…First, nothing in the text of the Second Amendment limits its application by age. Second, the most analogous rights to the Second Amendment, those in the First and Fourth Amendments, similarly contain no age limits. Third, most other constitutional rights are not age limited.
- Slate’s Mark Joseph Stern points out the inconsistencies in the majority’s opinion: “Richardson reasons that (1) the age of majority at the Founding was 21, but (2) people as young as 16 were forced into militia service, so (3) people aged 18-20 today have a freestanding right to bear arms that is completely unattached to military service.”
Judge James A. Wynn Jr. (Obama appointee) dissented (page 89):
The majority’s decision to grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago is not compelled by law. Nor is it consistent with the proper role of the federal judiciary in our democratic system…No, the Second Amendment is exceptional not because it is uniquely oppressed or imperiled, but rather because it is singularly capable of causing harm…the Second Amendment alone protects a direct and lethal right to endanger oneself and others.
A Republican-majority of a 6th Circuit panel ruled that Kentucky can withhold life-saving Hepatitis C treatment from prison inmates because it is expensive. Judges Alice Batchelder and Richard Allen Griffin – a George H.W. Bush appointee and George W. Bush appointee, respectively – declared that denying treatment to most of the state’s 1,200 Hepatitis C inmates does not violate the Eighth Amendment ban on cruel and unusual punishment (PDF). The drugs in question, known as direct-acting antivirals, have few side effects and cure virtually all patients… but cost $13,000 to $32,000.
Judge Jane Stranch (Obama appointee) dissented:
Plaintiffs’ evidence suggests that by flouting the recognized standard of care, KDOC consigns thousands of prisoners with symptomatic, chronic HCV to years of additional suffering and irreversible liver scarring, despite the availability of early treatment with effective, easily tolerated alternatives that would prevent those long-term harms…
Chronic HCV subjects infected inmates to substantial risks of serious harm—from pain to disabling conditions to cirrhosis and to death. No one disputes that those risks increase the longer a person is infected. Yet instead of providing testing and treatment once an infection is detected—the standard of care universally advocated by medical and public health professionals—Defendants have implemented a care-rationing plan that withholds medical treatment until the damage caused by an inmate’s chronic Hepatitis C infection has progressed too far to be reversible.
Two DC Circuit Court judges invalidated an FDA regulation banning the use of electric shock devices to “treat” patients with severe mental disabilities. Trump appointee Greg Katsas and Reagan appointee David Sentelle found that “the FDA lacks the statutory authority to ban a medical device for a particular use.” Chief Judge Sri Srinivasan, an Obama appointee, dissented (PDF):
The FDA found that use of electrical stimulation devices to treat those behaviors poses a number of health and safety risks—from physical injuries such as severe pain, skin burns, and tissue damage, to psychological injuries such as panic, anxiety, and post-traumatic stress disorder…The agency further concluded that the devices are of dubious efficacy in treating self-injurious or aggressive behaviors, and that alternative treatments (not involving the infliction of pain) have proven more effective and less risky.
- “New York City’s plan to move 8,000 homeless people out of hotels and into barracks-style shelters was disrupted on Tuesday when a federal judge ruled that officials were not adequately considering the health of those being moved.” NYT
- “A Florida judge refuses a CDC request to keep its COVID-19 vaccine rules for cruise ships, and says his decision is about the ‘use and misuse of governmental power’,” Yahoo news
- Related: “Norwegian cruise company sues Florida over ban on Covid vaccine passports,” The Guardian.
- “A D.C. federal court on Monday dismissed antitrust suits by the Federal Trade Commission and state attorneys general seeking to break up Facebook’s social networking monopoly, dealing a massive blow to regulators’ attempt to rein in Silicon Valley’s giants.” Politico.
The company behind the Keystone XL pipeline is suing the U.S. federal government over the cancellation of the controversial project. Canadian TL Energy Corporation filed a notice of intent to file a suit with the State Department, claiming that Biden’s revocation of a required permit violated the government’s NAFTA obligations. TL Energy seeks more than $15 billion in damages, which would come from taxpayer’s pockets.
The Center for Reproductive Rights filed a lawsuit Tuesday challenging Texas’ 6-week abortion ban. The law is the first of its kind in the U.S., not only allowing private citizens to sue to enforce the ban, but also incentivizing them to sue by awarding them at least $10,000 if their court challenges succeed.
“If this oppressive law takes effect, it will decimate abortion access in Texas–and that’s exactly what it is designed to do,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “The state has put a bounty on the head of any person or entity who so much as gives a patient money for an abortion after six weeks of pregnancy, before most people know they are pregnant. Worse, it will intimidate loved ones from providing support for fear of being sued
The challenge (PDF) was assigned to Judge Robert Pittman (Obama appointee) of the District Court for the Western District of Texas.