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Heller was decided in 2008. Two years later, McDonald incorporated the Second Amendment. In the past thirteen years, the Second Amendment has had barely any impact on federal law. Invariably, lower courts have upheld all manner of gun control regulations, and the Supreme Court has denied reviewed. Leading the charge has been the Ninth Circuit. The government is undefeated in Second Amendment cases, amassing a record of 50-0. And whenever a three-judge panel actually finds a gun law unconstitutional, without fail, the case is reversed en banc. These numbers come, of course, from Judge VanDyke’s dissent in Duncan v. Bonta. You see, Judge VanDyke and his colleagues on the Ninth Circuit are frustrated. In case, after case, after case, they are on the losing end of decisions. I imagine Judges Higginson and Costa from the Fifth Circuit can relate. They should start a support group–Dissenters Anonymous.

Now, VanDyke has tried something different. He actually managed to write a unanimous panel opinion declaring unconstitutional restrictions on firearms. Ventura County prohibited the sale of firearms for 48-days during the start of the pandemic, even as other commercial ventures remained open. This victory will be short-lived. We all know what is going to happen next. The Ninth Circuit, with a few more Biden nominees aboard, will en banc this case faster than you can say Reinhardt! Maybe in a year or so, when we are up to the Omega variant, the Ninth Circuit will drop a 200-page opinion that upholds the gun regulations under intermediate scrutiny. Then, one year later, the Supreme Court will deny certiorari over harsh dissents from the Court’s conservatives.

Frankly, this entire process is a waste of time. So, Judge VanDyke tried something new– write an “alternative” draft en banc opinion–or a fauxpinion, if you will–that reverses his panel opinion.

Since our court’s Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump-start on calling this case en banc. Sort of a win-win for everyone. 

But wait, there’s more. VanDyke adds an element of Mystery Science Theater 3000 to his concurrence.

To better explain the reasoning and assumptions behind this type of analysis, my “alternative” draft below will contain footnotes that offer further elaboration (think of them as “thought-bubbles”). The path is well-worn, and in a few easy steps any firearms regulation, no matter how draconic, can earn this circuit’s stamp of approval.

VanDyke’s fauxpinion is a masterpiece. If you just read above the line, it could have come from any of the Ninth Circuit’s luminaries. Truly, it is pitch perfect. If you read below the line, VanDyke points out how vapid the majority’s jurisprudence is. A few of my favorites:

FN2: We refer to strict scrutiny as a theoretical matter—a thought-experiment, really. Our court has never ultimately applied strict scrutiny to any real-life gun regulation.

FN4: And second, once we’ve concluded that a challenged regulation does not place a “substantial burden on Second Amendment rights,” it’s really game over. A regulation that we’ve already determined does not substantially burden the Second Amendment can be upheld easy-peasy under our watered-down intermediate scrutiny test.

FN8: Whew. Hard work done. It’s all downhill from here!

FN11: But trust us, this is heightened scrutiny. So very heightened.

FN12: Again, it doesn’t matter much what we say here. Once we’re allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it’s so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns.

What happens next? Well we will probably get an en banc call and reversal. Though, the court may decide this case is not worth fighting over, given how egregious Ventura County’s restrictions were. Hey, the Supreme Court may even summarily reverse this opinion under Tandon v. Newsom. There may be some value to at least let the Second Amendment win once, to prove that the deck is not stacked against the right to keep and bear arms. Also, the easiest way to shut up that guy in Reno is to deny en banc! Think about it!

Or, the Ninth Circuit can take a cue from the Supreme Court, and declare VanDyke’s majority opinion dicta, and find that the actual holding appears in VanDyke’s concurrence–minus the snarky footnotes.

VanDyke’s concurrence concludes, “You’re welcome.”

You’re welcome.

The post Will the En Banc 9th Circuit Extend the Second Amendment's Losing Streak to 51 Cases? appeared first on Reason.com.

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So holds today’s opinion by Judge William S. Stickman IV (W.D. Pa.) in Doe 1 v. Upper Saint Clair School Dist.:

Plaintiffs … allege that their children are “medically fragile disabled students” and that permitting families and students to choose whether to mask will subject them to increased risk of catching COVID-19 and increased risk of harm from the virus. They allege that, in light of their children’s medical conditions, the School Board’s decision to make masking optional violates both Title II of the Americans with Disabilities Act … and Section 504 of the Rehabilitation Act of 1973 ….

To be clear, Plaintiffs do not allege that the policy adopted by the School Board hinders their own child’s ability to wear a mask. Rather, they allege that, by permitting other students and families to choose whether to wear masks, the policy violates the cited statutes. Plaintiffs … [ask, in effect,] that, notwithstanding the vote of the School Board, universal masking would be ordered to remain in place for an indefinite period, provided that transmission of COVID-19 remains “substantial” or “high” in Allegheny County…. Their request for injunctive relief is premised on the position that universal masking is the only reasonable accommodation to which they are entitled under the ADA and the Rehabilitation Act….

There is no question that the School District has enacted a number of safety measures designed to curb the spread of COVID-19 [including physical distancing, cleaning and ventilation, contact tracing, diagnostic and screening testing, and efforts to provide vaccinations to school communities]…. Critically, the Plan also provides for the following “[a]ppropriate accommodations for students with disabilities with respect to health and safety policies”: “The School District will review additional mitigation options for staff members and students who are at higher risk for severe illness, including necessary accommodations under the ADA, Section 504, or the IDEA.” During argument, these provisions were referenced by counsel for Defendants, who explained that accommodations granted to students “who are at higher risk for severe illness” include a variety of measures, including distancing, special seating in classrooms and, if necessary, at-home instruction or virtual classes.

Despite those safety measures and possible accommodations, Plaintiffs take the position that the only reasonable accommodation appropriate in light of child Plaintiffs’ conditions is a requirement of universal masking in the School District … so long as transmission of COVID-19 in Allegheny County is at a “substantial” or “high” level.

Moreover, Plaintiffs’ request is without limitation on duration. While Plaintiffs’ counsel expressed hope that COVID-19 infection numbers fall beneath the “substantial” threshold this year, and suggested that the requested relief is limited to this year, there is no guarantee that will occur. Moreover, the specific relief requested by the TRO and proposed order would require masking indefinitely, so long as the number of cases is “substantial” or higher. (Tr. at 14-15) (“Since the science and the medicine tells us that a virus doesn’t go away by a deadline, we have to use a different metric. And the metric we’re doing is the one that medical professionals rely upon, and its that if the COVID transmission rate, per the CDC for Allegheny County only, is in the substantial or high basis, then masking should stay in place.”)….

With a population of 1.216 million, 607 cases per 7 days would be enough to bring Allegheny County into the “substantial” category. The CDC’s definitions were calibrated to the earlier Delta variant of COVID-19, rather than the significantly more transmissible Omicron variant, which currently accounts for nearly all new infections. With COVID-19 becoming endemic and with a much more transmissible variant, one wonders whether the numbers will ever be low enough to fall below the “substantial” category and/or whether each winter, as respiratory infections seasonally increase, the number will again increase to a level requiring masking under Plaintiffs’ position.

Plaintiffs seem to acknowledge that this could be an issue, and their counsel conceded that the CDC “may revise those guidelines. And if they revise them based upon the level of Omicron, they may up the number of transmissions so that the barometer they’re using makes it more flexible.”

While not alone dispositive, the unreasonableness of Plaintiffs’ position is highlighted by its unprecedented nature. Although immunocompromised children have always been present in our schools, and communicable diseases have always circulated, prior to COVID-19 there was never an argument for mandatory, indefinite, universal masking in schools-much less the argument that the failure of a school district to mandate universal masking constitutes a violation of federal law. Aside from cases addressing COVID-19, the Court was unable to locate a single case where a court held that a reasonable accommodation for an immunocompromised or otherwise vulnerable person was to require all other students and staff of a school, or constituents of an institution or community, to wear a mask or any other type of personal protective equipment.

The unreasonable nature of Plaintiffs’ position is further highlighted by the fact that, while it imposes an unprecedented requirement upon the School District—i.e., mandate universal masking of all students, faculty, and staff or violate the ADA and the Rehabilitation Act—it is not guaranteed to be effective. In other words, Plaintiffs may still become infected with COVID-19. It is common knowledge that wearing a mask is no guarantee against infection. Counsel for Defendants stated that, even with universal masking, the School District still had a number of cases since the onset of Omicron. Moreover, Plaintiffs’ request does not specify a particular type of mask—notwithstanding the fact that public health authorities have called into question the effectiveness of, for example, cloth masks against the Omicron variant.

 For these reasons, the Court holds that Plaintiffs’ request for the indefinite imposition of universal masking will not be found to be a reasonable accommodation when the claims are finally decided on the merits. {See, e.g., L.E. v. Ragsdale (N.D. Ga. Oct. 15, 2021) (“While Plaintiffs may prefer a mask mandate and other stricter policies, Defendants are not required to provide Plaintiffs with their preferred accommodation. So long as Plaintiffs are offered meaningful access to education—and the Court finds that they have been—Defendants have adequately accommodated Plaintiffs and their disabilities.”).} …

The Court [also] holds that granting this TRO would risk imposing substantial harm upon the School District and that doing so would run contrary to the public interest. Specifically, the Court believes that granting the relief sought would risk upsetting the system of popular governance of schools that is an important part of our system of layered and answerable government.

The sole accommodation demanded by Plaintiffs would supersede the democratic vote of the School Board on an issue that elicits strong feelings not only from Plaintiffs, but also from other members of the public. Further, the legal theory proffered by Plaintiffs unduly amplifies the authority of CDC recommendations while, at the same time, severely curtailing the practical authority of the people, through their elected school directors, to make decisions on matters of prudential judgment.

Plaintiffs’ position if accepted, would essentially graft the recommendations of the CDC into the ADA and the Rehabilitation Act. And as a practical matter, elevating CDC recommendations to the level of law would serve to take many decisions relating to health policy and directly impacting citizens out of the hands of their elected representatives and put them into the hands of unknown and unanswerable CDC decisionmakers and unelected and unanswerable federal judges.

There is no question that COVID-19 has challenged every American institution. This Country will continue to face challenges that have scientific or technical considerations which are informed by experts within or outside of government. Governments at all levels would do well to weigh and consider the advice offered by those experts. However, in a democratic republic, the ultimate answer to the question of “who decides” must be the people through their elected and answerable representatives.

In this case, the Court believes that the entry of a TRO would damage the independence and authority of the School Board—the directly elected body entrusted by State law with setting policy for the School District. It would lead, in practical effect, to the elevation of CDC recommendations beyond their appropriate level of authority and to the exclusion of local, democratic authority over matters of prudential judgment. The Court holds that these considerations weigh in favor of a finding that entry of a TRO would be contrary to the public interest….

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The professors who were blocked by the University of Florida from offering expert testimony in a voting rights lawsuit against the state have won a significant legal victory for their academic freedom claims. The university had claimed that such expert testimony was a violation of the university’s conflict of interest policy. That claim caused an outcry among academic freedom advocates, including the Academic Freedom Alliance. The university eventually revised its policy and allowed the professors to work with the parties in the voting rights litigation. Nonetheless, the professors sought an injunction from a federal judge preventing the university from returning to a similar policy in the future. The suit previously survived a motion to dismiss, and today the judge issued a sharply worded opinion granting the preliminary injunction.

It’s worth pausing to note just how shocking Defendants’ position is. Defendants all but recognize that Plaintiffs are speaking in their private capacity on matters of public concern. Yet Defendants claim the right to restrict that speech if they determine—in their unlimited discretion—that the viewpoint expressed in Plaintiffs’ speech would harm an ill-defined “interest” of the University. And what are UF’s interests? Why must Defendants regulate Plaintiffs’ speech? How does Plaintiffs’ speech prevent the efficient delivery of government services, impair discipline, workplace harmony, or employer confidence? Despite being given not one, not two, but four chances to articulate either in writing or at oral argument how Plaintiffs’ speech disrupts UF’s mission, Defendants cannot or will not say.

The full opinion can be found here.

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I quote the DoJ press release; you can also read the Indictment here (starting at p. 5); the last name Lnu, of course, is a old Slavic root, doubtless cognate with “лён,” meaning linen or flax.

Belarusian Government Officials Charged with Aircraft Piracy for Diverting Ryanair Flight 4978 to Arrest Dissident Journalist in May 2021

Senior Belarusian Officials Conspired to Use False Bomb Threat to Unlawfully Divert Passenger Flight Carrying American Citizens in Order to Arrest Belarusian Dissident

A federal grand jury in New York returned an indictment today charging four Belarusian state officials with conspiracy to commit aircraft piracy.

According to court documents, Leonid Mikalaevich Churo, Oleg Kazyuchits, Andrey Anatolievich Lnu and Fnu Lnu, all of Belarus, allegedly engineered the diversion of Ryanair Flight 4978 (the Flight) – which was carrying four U.S. nationals and more than 100 other passengers on board – while it was in flight on May 23, 2021, to arrest a dissident Belarusian journalist who was on board.

“Since the dawn of powered flight, countries around the world have cooperated to keep passenger airplanes safe,” said U.S. Attorney Damian Williams for the Southern District of New York. “The defendants shattered those standards by diverting an airplane to further the improper purpose of repressing dissent and free speech. Thanks to the extraordinary investigative work of a joint team of FBI counterterrorism and counterintelligence investigators, today’s indictment provides a prompt and public explanation of what actually happened to the Flight. We are committed to holding accountable these central participants in a shocking conspiracy to commit aircraft piracy that not only violated international norms and U.S. criminal law, but also potentially endangered the lives of four U.S. citizens and scores of other innocent passengers on board.”

“We allege the defendants carried out an elaborate scheme to fake a bomb scare which forced an airplane to make an emergency landing in their country so they could arrest a dissident journalist,” said Assistant Director Michael J. Driscoll of the FBI’s New York Field Office. “During the course of our investigation, the FBI identified a detailed operation that subjected passengers from many countries, including the U.S., to the realities of terroristic threats. Not only is what took place a reckless violation of U.S. law, it’s extremely dangerous to the safety of everyone who flies in an airplane. The next pilot who gets a distress call from a tower may doubt the authenticity of the emergency – which puts lives at risk. The FBI and our foreign partners will continue to hold perpetrators responsible for actions which directly threaten the lives of our US citizens and jeopardize the stability of our national security.”

Overview of the Plot

While on its regularly scheduled passenger route between Athens, Greece, and Vilnius, Lithuania, on May 23, 2021, the Flight was diverted to Minsk, Belarus, by air traffic control authorities in response to a purported threat of a bomb on board the aircraft. There was, in fact, no bomb on board the aircraft. Belarusian government authorities fabricated the threat as a means to exercise control over the Flight and force it to divert from its course toward the original destination of Vilnius, and instead land in Minsk.

The purpose of the Belarusian government’s plot diverting the Flight to Minsk was so that Belarusian security services could arrest a Belarusian journalist and political activist (Individual-1) – who was critical of the Belarusian government, living in exile in Lithuania, and wanted by the Belarusian government on allegations of fomenting “mass unrest” – as well as Individual-1’s girlfriend (Individual-2). The Belarusian government conspiracy to divert the Flight was executed by, among others, officers of the Belarusian state security services working in coordination with senior officials of the Belarusian state air navigation authority.

The Defendants

The defendants, all Belarusian government officials and critical participants in this conspiracy, are identified as: Leonid Mikalaevich Churo, Oleg Kazyuchits, Andrey Anatolievich Lnu and Fnu Lnu. At all times relevant to the indictment, Churo was the Director General of Belaeronavigatsia, the Belarusian state air navigation authority. As alleged, Churo personally communicated the false bomb threat to staff at the Minsk air traffic control center before the Flight even took off from Athens, and directed the control center to instruct the Flight divert to Minsk in response to the purported threat.

Kazyuchits was the Deputy Director General of Belaeronavigatsia, and his role in the conspiracy included directing Belarusian air traffic authorities to falsify incident reports regarding the diversion of the Flight in order to conceal the fabrication of the bomb threat and to omit the role of Belarusian security services in directing the diversion.

Andrey Anatolievich Lnu and Fnu Lnu were officers of the Belarusian state security services. Fnu Lnu participated with Churo in conveying the false bomb threat to the Minsk air traffic control tower, personally directed the specific radio communications from the Minsk tower to coerce the Flight to divert to Minsk, and relayed contemporaneous updates on the diversion of the Flight and the progress of the plot to Andrey Anatolievich Lnu, who was Fnu Lnu’s superior in the Belarusian state security services.

The Diversion of the Flight

On May 23, 2021, at approximately 6:45 UTC, Churo and Fnu Lnu arrived at the operations room of the Minsk area air traffic control center with responsibility for Belarusian airspace. Churo and Fnu Lnu conveyed the purported bomb threat to the controllers on duty, even though the Flight had not yet departed Athens. Churo and Fnu Lnu specifically crafted the threat to coerce the pilots of the Flight to avoid continuing to their final destination of Vilnius, by claiming that the purported bomb would explode if the Flight landed there.

In addition, Churo and Fnu Lnu took the telling steps of directing that the Flight be diverted specifically to Minsk, and even though the Flight was still in the adjacent airspace of Ukraine, prohibiting the Minsk air traffic control center from making any notification to Ukrainian authorities of the purported bomb threat. This helped to ensure that the Flight would enter Belarusian airspace, and the plot to obtain and exercise control over the Flight could be executed. Fnu Lnu remained in the operations room at the Minsk air traffic control center from the time that he and Churo conveyed the purported bomb threat and directed that the Flight divert to Minsk, until shortly before the Flight landed in Minsk after being diverted, in order to ensure that the diversion plot was successfully executed.

Once the Flight reached Belarusian airspace, Fnu Lnu instructed the senior air traffic controller who was responsible for communicating with the Flight to inform the pilots of the purported bomb threat, describe that the threat had been sent by email, and make specific statements to ensure the threat seemed credible and to coerce the Flight to divert to Minsk. For example, Fnu Lnu directed that the air traffic controller should falsely inform the pilots that the threat to the aircraft was a level “red” – the most specific and credible category of threat. Fnu Lnu provided updates on the execution of the plot in real time to his superior in the Belarusian security services, Andry Antolievich Lnu, at one point expressing concern that the pilots might be stalling for time and the Flight might soon leave Belarusian airspace, which would jeopardize the success of their diversion scheme. In response to the false information conveyed as part of the defendants’ plot, the pilots of the Flight ultimately declared an emergency and diverted to Minsk National Airport, in accordance with the directives from Churo and Fnu Lnu.

Once the Flight landed in Minsk, Fnu Lnu left the air traffic control operations room and went to the airport tarmac. The Flight was met by Belarusian security services personnel, including individuals dressed in camouflage military-style uniforms, some of whom were wearing ski masks and carrying visible firearms. Fnu Lnu remained on the tarmac supervising the security forces and monitoring the screening of the passengers as they disembarked. Belarusian security services personnel then instructed the passengers to board one of several airport passenger buses.

Belarusian authorities boarded one of the buses and asked Individual-1 to come forward and identify himself, demonstrating that Belarusian authorities were aware that Individual-1 was on board the Flight. Individual-1 was escorted off the bus, where uniformed Belarusian officers separately searched him again on the airport tarmac. Belarusian officers then escorted Individual-1 back onto the bus and traveled with Individual-1 and the rest of the passengers to the airport terminal. Once the bus arrived at the terminal, the Flight’s passengers were detained in an area of the terminal secured by Belarusian security services. Additional Belarusian security officers met Individual-1 and the officers accompanying him, escorted Individual-1 away from the remaining passengers and detained Individual-1. One group of passengers from the Flight, including multiple U.S. nationals and Individual-2, was detained in a narrow hallway for approximately three hours at the airport. During that time, Belarusian authorities also escorted Individual-2 away from the other passengers and detained Individual-2. The Flight was ultimately allowed to depart from Minsk and continue to its original destination of Vilnius later that evening. No bomb was ever on the Flight.

The Cover-Up

Soon after the diversion of the Flight, Belarusian government officials began to cover up what had happened. On or about May 24, 2021, the day after the Flight was diverted, Churo appeared at a press conference in Belarus with other Belarusian officials to address the Flight’s diversion. During the press conference, Churo stated falsely the Belarusian authorities had “done everything according to their technology and their job responsibilities” in handling the Flight. In reality, Churo knew that he and his co-conspirators had contrived the false bomb threat and had directed the Flight to divert to Minsk so that Belarusian security services could arrest Individual-1 and Individual-2. To further conceal the defendants’ plot, Kazyuchits directed Belarusian air traffic authorities to create false incident reports, including by doctoring the reports to misrepresent that the bomb threat was received at approximately the same time that the Flight entered Belarusian airspace and omit the fact that Fnu Lnu of the Belarusian security services was present in the operations room and directed activity during the Flight’s diversion.

Churo, Kazyuchits, Andrey Anatolievich Lnu and Fnu Lnu, all of Belarus, are charged with conspiring to commit aircraft piracy, which carries a minimum sentence of 20 years and maximum statutory penalty of life. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

The defendants remain at large. The United States looks forward to working with our foreign partners to bring them to justice.

This case was jointly investigated by the FBI’s New York Field Office, Counterintelligence Division Foreign Influence Task Force and the New York Joint Terrorism Task Force, which principally consists of special agents from the FBI and detectives from the NYPD; as well as the FBI Legal Attaché Offices in Riga, Latvia; Warsaw, Poland; Athens, Greece; Kiev, Ukraine; and London; the National Transportation Safety Board; the Justice Department’s National Security Division Counterterrorism Section and Criminal Division’s Human Rights and Special Prosecutions Section, and the Office of International Affairs. Poland’s Internal Security Agency and the Mazowieckie Regional Prosecutor’s Office; and Lithuanian authorities provided valuable assistance with this investigation.

Assistant U.S. Attorneys David W. Denton Jr. and Elinor L. Tarlow for the Southern District of New York are prosecuting the case, with assistance from Trial Attorneys Jennifer Burke of the National Security Division’s Counterterrorism Section, and Jamie Perry and Christian Levesque of the Criminal Division’s Human Rights and Special Prosecutions Section.

An indictment is merely an allegation, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

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Newly-minted Virginia Gov. Glenn Youngkin appears on track to become somewhat of a star in the Republican Party. He ran a successful campaign around the more lightning-rod issues of the moment: nixing critical race theory in public schools, lifting remaining restrictions around COVID-19, cutting taxes by a significant margin, and prohibiting the public from holding government actors accountable in civil court when they violate your constitutional rights.

For the limited government advocate, one of these is not like the others.

Qualified immunity allows state and local agents to infringe on your rights without fear of civil suits if the precise way in which they violate those rights has not been “clearly established” in a prior court ruling. Buried underneath that legalese are stories that would be comical if they didn’t involve real people who had no recourse after dealing with misbehaving civil servants.

It’s how two police officers in Fresno, California, were able to avoid a lawsuit after allegedly pocketing $225,000 from two suspects—who, it bears mentioning, were never charged with a crime—during the execution of a search warrant. It’s how a cop in Coffee County, Georgia, was able to skirt civil court after shooting a 10-year-old boy who was lying on the ground, leaving his family with the bill after he needed extensive care from an orthopedic surgeon. It’s how cops have been able to assault and file bogus charges against people, destroy their property, and violate their First Amendment rights while victims are left without the privilege of asking a jury for damages.

The legal doctrine became a bipartisan target for reform after the death of George Floyd in May 2020. Before that, discussions around qualified immunity were mostly conducted by think tanks and outlets like Reason. But despite a select few Republicans willing to come to the table, a faction of the back-the-blue right still offers a sort of reflexive defense of the doctrine. Like this:

Imagine looking at the unprecedented spike in violent crime and concluding, “you know what we need right now? Weaker protections for cops!” https://t.co/RHvPY8Sek8

— Nate Hochman (@njhochman) January 20, 2022

It’s a retort worth addressing in good faith when considering it likely undergirds a great deal of support for qualified immunity among conservatives like Youngkin, who in almost every other instance would claim that their ideology stands for keeping government honest and accountable to the people it serves.

Hochman, an Intercollegiate Studies Institute fellow at National Review, is correct that there’s been a spike in violent crime, something that many people interested in criminal justice reform would like to conveniently ignore. The problem: That metric has just about nothing to do with qualified immunity, and hinges on a fundamental misunderstanding of how the doctrine works.

Put more plainly, the response implies that because we’re experiencing an uptick in violent offenses, police officers need to be able to steal, shoot children, assault surrendered suspects, and destroy property. I prefer to believe that good cops—of which there are many—can do their jobs without relying on illegal tactics.

“Conservatives who embrace qualified immunity do law enforcement a tremendous disservice. I think there’s nothing more demoralizing to good police officers than being trapped in the profession with bad police officers,” says Clark Neily, senior vice president for legal studies at the Cato Institute. “If you’re going to be thoughtful about it, police do not have the ability to just unilaterally prevent or solve violent crime….As long as police officers are perceived as being institutionally unaccountable, [they] will not have the support of the community.” Confidence in police hovers just over 50 percent, according to a 2021 Gallup poll, up 3 points from a record low in 2020—the first time it ever fell below a majority.

Importantly, the response—that victims of police misconduct should have no recourse during times of higher crime rates—fails to account for how qualified immunity actually works in practice. For starters: More than 99 percent of judgments handed down against cops are paid out by taxpayers, according to a study conducted by Joanna Schwartz, a law professor at UCLA. That’s because municipalities indemnify their employees from having to pay full judgments—or from having to pay anything at all. About 0.02 percent of those damages came from the actual individual government actors. Their bad behavior did not bankrupt them.

But can’t victims just sue the city? They can try, but it’s likely they’ll be unsuccessful there as well. Municipalities are protected by the Monell doctrine, which shields cities from lawsuits unless they had a specific policy or rule on the books that enabled the misbehavior in question. In many ways, it’s an even more difficult standard to overcome than qualified immunity.

But what about the onslaught of frivolous suits that would come down against the police? That also misses the mark, particularly when considering that it is not possible to simply enter a federal courthouse and file a lawsuit because you’re mad at the cops. Before suing a government actor, a plaintiff must satisfy two conditions: that the public servant affirmatively violated someone’s constitutional rights, and that the violation of the rights is clearly established in prior case law. Without qualified immunity, a would-be litigant would still need to prove to a federal judge that his constitutional rights were infringed on. Qualified immunity is only the second part—the part that sends a victim searching for a perfect court precedent where another victim experienced a near-identical sort of misconduct.

It’s for that reason that the doctrine gives license to some disturbing behavior—the sort that should concern anyone who positions himself as a defender of responsible governance. An example: “The City Officers ought to have recognized that the alleged theft was morally wrong,” but the police “did not have clear notice that it violated the Fourth Amendment.” This is a real quote from a real decision from a real federal court—the U.S. Court of Appeals for the 9th Circuit—awarding qualified immunity to two government actors who we apparently cannot trust to know that stealing during a search warrant is unconstitutional unless there is some obscure court precedent saying so. I’d posit that most of the public has more faith in police to do their jobs with integrity. I certainly do.

Though qualified immunity reform appears to be in the legislative graveyard, the Supreme Court has been willing to comment more on the topic as of late. Its two most outspoken detractors are Associate Justice Sonia Sotomayor and Associate Justice Clarence Thomas, the former being one of the most liberal jurists while the latter is arguably the most conservative. “I have previously expressed my doubts about our qualified immunity jurisprudence,” wrote Thomas in a 2020 lone dissent after every other justice declined to hear a case pertaining to two officers who were given qualified immunity after allegedly releasing a police dog on a suspect who had already surrendered. The high court is a particularly suitable venue for that pushback: It legislated qualified immunity into existence a few decades ago in direct contention with current civil rights law. Opposition to that sort of judicial policy making is typically a hallmark of conservatism, although in this area it’s less politically expedient.

But perhaps most insidious in this case is the idea that principles around limited and accountable government should be subject to change based on the year—a strange argument for any conservative.

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For 48 days in the spring of 2020, Ventura County, California, effectively prohibited the purchase of firearms or ammunition. It also barred people who already owned firearms from visiting gun ranges to hone their skills and prevented them from taking the steps necessary to obtain carry permits, which are legally required in California to exercise the right to bear arms outside the home. The county did all of this in the name of controlling COVID-19, although it simultaneously allowed many other activities that posed similar or greater risks of virus transmission.

Yesterday a three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously ruled that Ventura County’s decision to ban a wide range of firearm-related activities for a month and a half violated the Second Amendment. Applying essentially the same analysis in another case decided yesterday, the same panel ruled that Los Angeles County likewise violated the Second Amendment when it shut down gun stores for 11 days early in the pandemic.

The right to keep and bear arms, Judge Lawrence VanDyke observes in McDougall v. County of Ventura, “means nothing if the government can prohibit all persons from acquiring any firearm or ammunition….These blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny.”

The 9th Circuit panel overruled U.S. District Judge Consuelo Marshall, who in 2020 dismissed the challenge to Ventura County’s anti-gun pandemic policy, rejecting the constitutional claims made by individual residents, retailers, ranges, and gun rights groups. Marshall deemed the county’s policy a valid exercise of public health powers that was perfectly consistent with the Second Amendment.

This case therefore illustrates not only the arbitrariness of COVID-19 lockdowns but also the willingness of some courts to accept public health as an excuse for violating clearly established constitutional rights. It also illustrates judicial resistance to treating the rights guaranteed by the Second Amendment with the same respect as other constitutional rights. VanDyke mocks both of those tendencies in a slyly satirical “alternative draft opinion” that he suggests his 9th Circuit colleagues can use when they overturn the panel’s decision, an outcome he views as inevitable.

Marshall’s decision relied heavily on Jacobson v. Massachusetts, a 1905 decision in which the Supreme Court upheld a local regulation, authorized by state law, that imposed a $5 fine on Cambridge residents who refused to be vaccinated against smallpox. “Under the Jacobson framework,” Marshall wrote, “judicial review of constitutional challenges to emergency measures taken by the state during a public health crisis is narrow.”

Yet the Jacobson Court, while rejecting a 14th Amendment challenge to Cambridge’s vaccine mandate, acknowledged that judicial intervention could be appropriate when state or local governments exercise their public health powers in “an arbitrary, unreasonable manner” or in a way that goes “far beyond what was reasonably required for the safety of the public.” When “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” Justice John Marshall Harlan said in the majority opinion, “it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

Furthermore, the Court in Jacobson applied what amounted to a “rational basis” test, a highly deferential standard that the Court subsequently said is inappropriate in cases involving specifically enumerated constitutional rights. “In the intervening century since Jacobson, the Supreme Court has repeatedly determined that some level of heightened scrutiny applies when evaluating laws implicating specific, enumerated constitutional rights,” VanDyke notes. “Given that Jacobson does not concern a specific, constitutionally enumerated right and essentially applied rational basis review, Jacobson does not apply.”

In this case, VanDyke concludes, the appropriate standard is “strict scrutiny,” which requires that a law be “narrowly tailored” to further a “compelling government interest.” That standard applies, he says, because Ventura County’s regulations were so sweeping that they effectively made it impossible for people who did not already own guns to exercise their Second Amendment rights. They also prevented gun owners from visiting ranges or carrying firearms for self-defense if they did not already have carry permits.

Under California law, all firearm and ammunition sales have to be completed in person through a federally licensed dealer, either as the vendor or as the intermediary who conducts the state-required background check. So on March 20, 2020, when Ventura County decreed that all “nonessential” businesses, including gun stores, had to close, it was cutting off all legal access to firearms and ammunition. Because the lockdown covered gun ranges as well, it also meant that gun owners could not complete the training required for a carry permit, which includes “live-fire shooting exercises on a firing range.”

That situation continued until May 7, when the county allowed “nonessential” businesses to reopen under certain conditions. Since California requires people to wait 10 days before taking possession of newly purchased firearms, that 48-day ban on sales effectively forced would-be buyers to wait two months before they could obtain guns.

“The acute need for Second Amendment rights during temporary crises was well-understood by our Founders,” VanDyke writes. “Modern society agrees, as firearm and ammunition sales have soared during the recent pandemic. But if the government suspends these rights during times of crises, the Second Amendment itself becomes meaningless when it is needed most—especially to the victims of attacks.”

Were the county’s orders “narrowly tailored” to further the “compelling government interest” of reducing COVID-19 transmission? The county’s sole justification was that “social isolation is considered useful as a tool to control the spread of pandemic viral infections.” But that did not explain why gun stores had to close, even for sales by appointment or curbside service, while many other businesses were allowed to remain open.

“Appellees omit any evidence or argumentation suggesting that the closure of gun shops, ammunition shops, and firing ranges stems the spread of COVID any more than the closure of bike shops, hardware stores, and golfing ranges,” VanDyke writes. He notes that the county’s “carte-blanche rationale,” which “has nothing to do with the actual fundamental right at issue,” is “riddled with exemptions and inconsistencies.”

That regulatory scheme, VanDyke says, “ultimately boils down to the government’s designation of ‘essential’ and ‘non-essential’ businesses—but nowhere has the government here explained why gun stores, ammunition stores, and firing ranges are ‘non-essential’ businesses while bicycle shops, hardware stores, and golfing ranges are ‘essential.'” If the county were right that its distinctions are not subject to judicial review, he says, it “could order the closure of Mexican restaurants but make an exception for French restaurants, because the arbitrariness of that distinction would not matter any more than the distinction between bicycling and shooting at outdoor gun ranges.”

Ventura County’s ban on firearm sales continued even after the U.S. Department of Homeland Security deemed gun dealers and shooting ranges part of the nation’s “essential critical infrastructure” on March 29, 2020. California Gov. Gavin Newsom’s March 19 order imposing a statewide lockdown had specifically exempted “federal critical infrastructure sectors.”

In a concurring opinion, Judge Andrew Kleinfeld emphasizes that Ventura County failed to offer any public health justification for the distinctions it drew. “Generally in the Anglo-American tradition, everything is permitted except what is expressly prohibited,” he notes. “The Health Officer’s orders instead prohibited everything except what they expressly permitted. The scope of the exceptions is thus critical to the orders’ constitutionality.” Yet there was no apparent rhyme or reason to those exceptions:

The exceptions included leaving one’s residence for outdoor activities such as bicycling and later golfing, but not shooting at outdoor gun ranges. Delivery of any “household consumer products” was excepted, but not delivery, even at the door of a licensed dealer, of guns or ammunition. “Hardware stores” were excepted, but apparently not if the hardware consisted of firearms or ammunition. Subsequent emendations to the orders allowed people to shop in person for cars and bicycles, and to take possession of firearms previously purchased and paid for….There is no evidence whatsoever in the record to show why the particular inclusions and exceptions relating to firearms, ammunition, and shooting ranges reasonably fit the purpose of slowing the spread of the COVID-19 virus.

Given the blatant illogic of Ventura County’s orders, VanDyke says, they would not pass muster even under “intermediate scrutiny,” which requires a “reasonable fit” between a challenged law and an “important” or “substantial” government goal. Kleinfeld agrees, and he says that point is enough to settle the matter. “We need not reach the question whether strict scrutiny applies, so I would not,” he writes. “While strict scrutiny may be appropriate, as the majority concludes, nevertheless we should not make more law than is necessary to decide the case.”

VanDyke also wrote an unusual concurring opinion in which he predicts that the 9th Circuit will agree to en banc review of the case and reverse the panel’s decision, because “this is always what happens when a three-judge panel upholds the Second Amendment in this circuit.” He complains that “our circuit can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review.”

Since “no firearm-related ban or regulation ever ultimately fails our circuit’s Second Amendment review” and “that review is effectively standardless and imposes no burden on the government,” VanDyke says, “it occurred to me that I might demonstrate the latter while assisting my hard-working colleagues with the former.” What follows is a 12-page satire of how the 9th Circuit tends to handle Second Amendment cases.

The appeals court notionally applies a “two-step framework” that gives the appearance of careful consideration but always reaches the same result. “At step one,” VanDyke notes, “our court looks to see if the challenged law burdens conduct protected by the Second Amendment by examining the ‘historical understanding of the scope of the right.'”

Unfortunately, VanDyke says, the historical record is not very illuminating. “The parties did not brief the historical contours of regulations like these, and for good reason,”  he writes in his mock opinion. “The complexity and novelty of the challenges raised by COVID-19 are not easily mapped onto 18th or 19th century practices and understandings. Therefore, we elect to follow the ‘well trodden and “judicious course”‘ of assuming, rather than deciding, that the regulation at hand burdens conduct protected by the Second Amendment.”

The next step is deciding what level of scrutiny to apply based on that assumption. “We can’t say the Orders imposed a severe burden on anyone’s ability to exercise their Second Amendment rights,” VanDyke says in his satire. “The Orders only temporarily delayed the sale of firearms and use of firearms at firing ranges, which is a far cry from the complete and permanent ban of handguns as invalidated in [District of Columbia v. Heller]. Moreover, we have already upheld government regulations that result in the temporary delay of an individual’s ability to take possession of firearms under intermediate scrutiny.”

VanDyke is referring to the 9th Circuit’s 2016 decision in Silvester v. Harris, which upheld California’s 10-day waiting period for gun buyers. In the majority opinion, he argues that Ventura County’s 48-day ban imposed a much more substantial burden than the 10-day delay upheld in Silvester. But here he is suggesting that most of his 9th Circuit colleagues will dismiss that distinction as unimportant.

Since Ventura County’s orders “do not severely burden any Second Amendment right implicating the core of the Second Amendment,” VanDyke says, doing his best impression of his colleagues, “intermediate scrutiny is appropriate.” That means “the State is required to show only that the regulation ‘promotes a substantial government interest that would be achieved less effectively absent the regulation.'”

Can the county’s regulations meet that test? VanDyke has already said they can’t, but he offers some model language that would enable the 9th Circuit to disagree after granting en banc review:

The Orders, in preventing employees and customers from interacting indoors during the COVID-19 pandemic, clearly promote the county’s interest in slowing the spread of COVID-19 more than if no such Orders were issued. Plaintiffs argue that Ventura County failed to meet this standard because it did not offer any evidence connecting the spread of COVID-19 to firearm retailers or firing ranges. But this…places too great a burden on the county. Localities “must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems”…and this is even more true when faced with a global pandemic. Especially in the beginning days of the COVID-19 pandemic, the type of hard evidence Plaintiffs demand was simply not available, or at a minimum, rapidly evolving….

There is a clear and straightforward logic underlying the Orders: limit to the extent possible any interactions that could facilitate the spread of COVID-19. These Orders reflected the then-current scientific understanding of COVID-19, as reflected in the social distancing requirements and the closing of nonessential businesses. And this court has repeatedly allowed common sense to undergird a government’s evidence when justifying a regulation in the Second Amendment context….

Like every locality in the United States, Ventura County was forced to rapidly respond to an unprecedented pandemic. As the death toll for its citizens continued to rise, the county temporarily closed firearm stores and firing ranges, but lessened, and then eventually withdrew, those restrictions when the pandemic allowed. Plaintiffs may disagree with Ventura County’s decisions, but it is not our job—now with the benefit of hindsight—to dictate what Orders we would have found best. Local officials “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

VanDyke takes additional swipes at his colleagues in the footnotes. “We refer to strict scrutiny as a theoretical matter—a thought experiment, really,” says one. “Our court has never ultimately applied strict scrutiny to any real-life gun regulation.” Another footnote suggests that the 9th Circuit relies on historical evidence only when it is helpful in upholding a gun regulation.

VanDyke, in short, predicts that his colleagues will reach a foreordained conclusion that fits their policy preferences by combining excessive deference to the government’s public health judgments with a blithe disregard for Second Amendment rights—tendencies the 9th Circuit has displayed repeatedly in cases involving both COVID-19 restrictions and gun control. And since VanDyke already has done the work necessary to achieve that result, the appeals court will not have to put much effort into it.

By writing “an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court,” VanDyke says, “I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case en banc. Sort of a win-win for
everyone.” He concludes his concurring opinion with two words: “You’re welcome.”

The post 9th Circuit Panel Says Pandemic-Inspired Shutdowns of Gun Stores Were Unconstitutional appeared first on Reason.com.

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