Ninth Circuit Stays Injunction Against Cal. Guard Federalization

by · Jun 20, 2025 7:31 am

In previous posts, I discussed California Governor Gavin Newsom’s suit against President Trump’s federalization of the National Guard to deal with the Los Angeles riots, the district court’s temporary restraining order, and the court of appeals’s immediate short-term administrative stay.

Yesterday, despite being a federal holiday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit stayed the district court’s TRO for the duration of the appeal. In circumstances such as this, the stay pending appeal may be the whole ball game. If order is restored and the federalization rescinded before the actual decision of the appeal, the appeal may very well be dismissed as moot.

The panel was not too worried about the point that I considered the weakest element of the President’s case, the requirement of 10 U.S.C. § 12406 that the orders be issued through the state governor.

Continue reading . . .

Prison Litigation, Administrative Remedies, and Jury Trial

by · Jun 18, 2025 8:41 am

The U.S. Supreme Court handed down five opinions in civil cases this morning. One of them is a law-enforcement-related civil case, a category we keep tabs on at CJLF.

In 1995, Congress enacted the Prison Litigation Reform Act (PLRA) to cut down on the amount of federal court litigation involving prisoners. One requirement of the law, a common one in cases involving government agencies, is that a prisoner must first try any administrative remedies available in the prison system before turning to the courts. The Supreme Court has previously decided that a remedy is not “available” for this purpose if it is unavailable in practice, even if it exists on the books.

So, if a prison guard accused of misconduct blocks the prisoner from the grievance process by destroying his papers, the process would be unavailable, and the prisoner can proceed to federal court. But if that blocking is disputed, who decides if it really happened, the federal judge or a jury? That was the question in Perttu v. Richards, decided today. Continue reading . . .

Privacy for Donors

by · Jun 16, 2025 8:08 am

The U.S. Supreme Court took up two civil cases for full review today. One of them involves privacy for donors to nonprofit organizations. Back in 1958, the Supreme Court decided that protection of donor lists was part of the constitutional freedom of association in NAACP v. Alabama. The case taken up today, First Choice Women’s Resource Centers v. Platkin, AG of NJ, involves procedural issues rather than the scope of the protection.

Guard Federalization TRO Issued, Stayed

by · Jun 13, 2025 9:07 am

Following up on yesterday’s post, District Judge Charles Breyer granted California a temporary restraining order against the federalization of the National Guard. The federal government filed an emergency motion with the Ninth Circuit. That court stayed the TRO temporary and set briefing on a very fast track. The state’s opposition is due Sunday at 9:00 a.m., the fed’s reply is due Monday at the same time, and argument is Tuesday at noon. (All times PDT.) Continue reading . . .

Alabama Executes A Fifth Murderer With Nitrogen Gas

by · Jun 12, 2025 2:01 pm

An Alabama man was executed yesterday for the brutal 1988 sexual assault and murder of 32-year-old Karen Lane. Ivana Hrynkiw and Sevannah Tryens of the Alabama Media Group report that murderer Gregory Hunt showed no signs of life nine minutes after he began breathing nitrogen gas. It was the state’s fifth execution via nitrogen gas. Evidence presented at trial indicated that Hunt, who had briefly dated Lane, was seen entering her apartment on the night she was murdered. His fingerprints and semen were found on the victim’s body along with a broomstick covered with bodily fluids used to sexually assault her. Continue reading . . .

Federalizing the National Guard in California Over the Governor’s Objection

by · Jun 12, 2025 11:36 am

On June 9, California Governor Gavin Newsom sued President Trump over the President’s directive to federalize units of the California National Guard and deploy units of the Marine Corps to Los Angeles to protect immigration officers and facilities and enable them to enforce federal immigration law. The suit claims that these actions are not authorized by the federal statute cited for them and that they violate the post-Reconstruction Posse Comitatus Act.

On its face, the complaint does seem to have some merit under the statute cited in President Trump’s memorandum, but there are other statutes that he could have invoked that are not subject to the same objection. On consideration of those other statutes, this appears to be the kind of issue that calls for maximum deference to presidential authority. Continue reading . . .

Supreme Court Unanimously Rejects Evasion of Successive Habeas Petition Limit

by · Jun 12, 2025 7:36 am

In 1996, Congress cracked down hard on the then-routine practice of state prisoners filing one habeas corpus petition after another to attack the same criminal judgment. Relitigating the same claim is not allowed at all, and making new claims is severely restricted. Ever since, the defense bar has been trying to poke holes in this barrier, with varying degrees of success.

Today the Supreme Court slammed shut a loophole that had been created by one court of appeals but rejected by most of them. Convicted child abuser Danny Rivers claimed that he could request to amend his habeas corpus petition to add a new claim even after his initial petition had been denied by the district court and was pending on appeal. The unanimous opinion by Justice Jackson holds:

A second-in-time §2254 petition generally qualifies as a second or successive application, triggering the requirements of §2244(b), when an earlier filed petition has been decided on the merits and a judgment exists. Because the Fifth Circuit correctly applied this straightforward rule, we affirm.

Continue reading . . .

Pelosi Wrongly Calls Use of National Guard “Contra-Constitutional”

by · Jun 11, 2025 3:23 pm

Congresswoman and former Speaker Nancy Pelosi said recently that President Trump “in a contra-constitutional way … has sent the National Guard into California. Something is very wrong with this picture.” What is wrong is Ms. Pelosi’s understanding of the Constitution.

It is regrettably common for people to run around saying things are unconstitutional simply because they disagree with them strongly. The former Speaker should know better.

The National Guard is part of the militia, as that term is used in the Constitution. Article I, section 8, authorizes Congress to “to provide for calling forth the Militia to execute the Laws of the Union,” and Congress has done so in 10 U.S.C. §§ 252 and 253. The Constitution further provides, in Article II, section 2, that the “President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.” Use of the militia to enforce federal law goes back to President Washington. Presidents Eisenhower and Kennedy used the predecessors of the code sections cited above over the objections of state governors. I will have a long post on this soon.

Continue reading . . .

Intellectual Disability and the Death Penalty, Again

by · Jun 9, 2025 8:33 am

Should people with intellectual disability be exempt from capital punishment? If so, who decides where and how to draw the line? The U.S. Supreme Court opened a can of worms with its 2002 decision in Atkins v. Virginia that a categorical exemption is constitutionally required. Last Friday* the court decided to look into this can once again, taking up the case of Alabama murderer Joseph Smith. The case is Hamm v. Smith, No. 24-872.

When the Supreme Court announced its decision 23 years ago, it seemed to be constitutionalizing only the yes-or-no decision, leaving the line-drawing to the states. Even while making a dubious finding of consensus on the categorical exemption, the court acknowledged disagreement on how to draw the line. Quoting an earlier decision forbidding execution of insane persons, the opinion said, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”

This holding of Atkins was effectively overruled by later decisions. In the Smith case, the U.S. Court of Appeals for the Eleventh Circuit has told Alabama it is drawing the line wrong. There are two problems. First, how do you determine the possible range of someone’s “true IQ” when he has multiple test scores? Second, can we declare a person intellectually disabled even though the probability that his true IQ is below 70 is vanishingly small?

Looming over these two questions is a larger question. Do the questions above have right and wrong answers as a matter of federal constitutional law, or should the Supreme Court return to honoring its long-ago, much-violated promise in Atkins that the states would have leeway in these matters? Continue reading . . .

Amending the Complaint After Losing the Case

by · Jun 5, 2025 9:11 am

The U.S. Supreme Court has two cases on its docket this year addressing attempts to amend a complaint or petition after the case has already been decided in the trial court and gone to the court of appeals. BLOM Bank SAL v. Honickman, decided today, is a regular civil case.  Rivers v. Guerrero is a habeas corpus case, in which CJLF has filed an amicus brief.

Today’s decision in BLOM Bank looks very good for the prospect of success in Rivers. It is in line with the approach of our Rivers brief . Continue reading . . .