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In June, in Davenport v. MacLaren, a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned Ervine Lee Davenport’s first-degree murder conviction because “he was visibly shackled at the waist, wrist, and ankles during trial.” Judge Stranch wrote for the court, joined by Chief Judge Cole. Judge Readler dissented.

Today, by a vote of 8-7, the full Sixth Circuit denied the state of Michigan’s petition for rehearing en banc, even though nine of the sixteen judges believe the original panel decision was wrong. Two of the judges on the court, Judges Sutton and Kethledge, concluded that the panel decision was wrong, but not en banc worthy (something these same judges have concluded before).

Judge Stranch wrote an opinion concurring in the denial of rehearing en banc, on the grounds that the panel decision was correct. Judge Stranch’s opinion was joined by Chief Judge Cole and Judges Moore, Clay, White, and Donald.

Judge Thapar dissented from the denial of rehearing en banc, joined by Judges Bush, Larsen, Nalbandian, Readler, and Murphy. Judge Thapar’s opinion begins:

Thirteen years ago, on a cold night in January, Earl Davenport killed Annette White. He closed his hand around her neck and held it there as she struggled against him. Minutes later, she was dead.

Despite the overwhelming evidence of Davenport’s guilt, a panel majority voted to vacate his conviction. It did so without even applying AEDPA deference to the state court’s harmless-error determination.

This tragic case thus presents a fundamental question of habeas jurisprudence: Must a state court’s harmless-error determination receive AEDPA deference under 28 U.S.C. § 2254(d)(1)? The plain text of the statute says that the answer is yes. But the panel majority held that the answer is no. According to the panel opinion, federal judges can simply ignore AEDPA’s guardrails whenever they find that a petitioner has suffered actual prejudice under Brecht v. Abrahamson, 507 U.S. 619 (1993). This holding casts aside AEDPA and misinterprets Supreme Court precedent. That matters because AEDPA’s procedural rules have bite that Brecht lacks. The holding also deepens an existing circuit split. And what’s more, the panel opinion defies Brecht itself, granting habeas relief based on mere speculation and a thin stack of academic articles, some of which postdate the state court’s decision.

Given these errors and their importance, this case merited the attention of the en banc court. I respectfully dissent.

Judge Sutton, joined by Judge Kethledge, agreed that the panel misapplied the law, but nonetheless concurred in the denial of the petition for rehearing en banc. From Judge Sutton’s opinion:

This en banc petition implicates a nagging tension between deciding cases correctly and delegating to panels of three the authority to decide cases on behalf of the full court. . . .

The[] problems with the panel’s decision and its debate over Chapman/Brecht seem to be recurring ones in our circuit and outside of it, suggesting that there is room for clarification by the Supreme Court when it comes to federal court review of state court harmless-error decisions under AEDPA—and the process obligations of lower courts in applying the statute. Just read the eighteen combined pages devoted to the standard of review by this one panel for evidence. It’s been five years since the Court’s most recent contribution to the area and of course many decades since Chapman and Brecht. I suspect every federal judge in the country would welcome guidance in the area. . . .

The problem at hand turns mainly on what to make of language in Supreme Court decisions, . . .  Countless inefficiencies arise when a full intermediate court debates the meaning of vexing language from the Supreme Court, the most obvious being this: Not only are we fallible, we are not final either.

Judge Griffin responded to Judge Sutton in a separate dissent from denial of rehearing en banc, emphasizing the standards for en banc review in the Federal Rules of Appellate Procedure. From his opinion:

By the vote of 8–7, our en banc court has denied respondent’s petition for rehearing en banc. This is most unfortunate for our circuit because the 2–1 panel opinion conflicts with a previous decision of our court and is clearly wrong on a habeas-corpus issue of exceptional importance. While some of my colleagues agree, they nevertheless have opposed the petition in the hope that the Supreme Court will reverse us yet again to clean up our intra-circuit mess. This denial of rehearing en banc is reminiscent of CNH Industrial N.V. v. Reese, 138 S. Ct. 761
(2018), wherein we were reversed unanimously by the Supreme Court in a per curiam opinion and admonished that “the en banc Sixth Circuit has been unwilling (or unable) to reconcile its precedents.” Id. at n.2.

The Federal Rules of Appellate Procedure provide an important and necessary remedy for courts of appeals to correct their conflicts and errors of exceptional importance. . . .

Because our litigants, attorneys, and judges need guidance from our en banc court on these issues of exceptional importance, I would grant respondent’s petition for rehearing en banc.

For what it’s worth, I have lots of sympathy for Judge Sutton’s general point that not every wrong panel decision merits en banc review, and that some questions need to be resolved by the Supreme Court. That said, this case seems to satisfy the traditional requirements for en banc review, particularly given the need for clarity and consistency, and the apparent inconsistencies within the Sixth Circuit’s own caselaw.

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See the S.F. Chronicle (Tessa McLean) and the S.F. Office of the Mayor press release:

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The city of Louisville, Kentucky, has reached a $12 million settlement with the family of Breonna Taylor, a 26-year-old EMT who was killed during a dubious, reckless, and fruitless drug raid that has figured prominently in nationwide protests against police brutality. It is by the largest settlement in the city’s history based on allegations of police abuse. The family’s lawyer, Benjamin Crump, said it is also one of the largest payouts in U.S. history for a police killing of a black woman.

Taylor’s mother, Tamika Palmer, filed the lawsuit in Jefferson County Circuit Court last April, a month after plainclothes officers invaded Taylor’s apartment in the middle of the night. Taylor’s boyfriend, who called 911 to report a break-in, grabbed a gun and fired a single shot, which struck one of the officers in the leg. The cops responded with a barrage of more than 20 bullets, several of which struck Taylor, who was unarmed. Acting Police Chief Robert Schroeder later said Det. Brett Hankison “displayed an extreme indifference to the value of human life” when he “wantonly and blindly fired 10 rounds” into Taylor’s apartment.

The no-knock warrant for the raid was based entirely on guilt by association. Since Taylor was still in touch with a former boyfriend suspected of drug dealing, who sometimes received packages at her apartment, police alleged that she was involved in his criminal activity. But the packages reportedly contained shoes and clothing, and no evidence has emerged to implicate Taylor in drug dealing. Furthermore, although the warrant authorized police to enter without knocking and announcing themselves, the affidavit presented no evidence specific to Taylor that would have justified dispensing with the usual rule.

In addition to the $12 million payout, the settlement commits Louisville to several reforms, including high-level approval of search warrant applications and SWAT operational plans. The city had already responded to Taylor’s death by firing Hankison and banning no-knock warrants. A Jefferson County grand jury is soon expected to hear evidence that could lead to indictments of Hankison and other officers involved in the raid. The FBI is conducting its own investigation of the incident.

Another reform included in the agreement is a warning system that will look for “red flags” suggesting police misconduct. Hankison and at least four other officers who participated in the investigation that led to Taylor’s death were also involved in a 2018 SWAT raid that terrorized a family wrongly suspected of growing marijuana. In both cases, police broke into people’s homes based on dubious evidence, and the residents initially thought they were being robbed.

“Justice for Breonna means that we will continue to save lives in her honor,” Palmer said. “No amount of money accomplishes that, but the police reform measures that we were able to get passed as a part of this settlement mean so much more to my family, our community, and to Breonna’s legacy.”

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On Tuesday, The New York Times reported that the Justice Department has opened an investigation into former National Security Advisor John Bolton to determine whether his 2020 book, The Room Where It Happened, improperly disclosed classified government information.

Many people will rightly find Bolton to be an unsympathetic figure in this dispute: A tireless advocate for the U.S. to escalate and even start wars, Bolton never belonged anywhere near an administration that purports to be charting a less interventionist course on foreign policy matters. But President Trump selected Bolton for the job, and now he must face the consequences for that mistake, which include having to suffer Bolton’s tell-all about his time in the White House.

Citing national security concerns and breach of contract, the Trump administration fought like hell to prevent Simon & Schuster from publishing the book, but a judge ultimately ruled that it was too late to prevent the information from getting out. Now the Justice Department appears to be hunting for reasons to subject Bolton to criminal penalties. According to The New York Times:

Mr. Trump has made clear that he wants his former aide prosecuted. He said on Twitter that Mr. Bolton “broke the law” and “should be in jail, money seized, for disseminating, for profit, highly Classified information.” He has also called Mr. Bolton “a dope,” “incompetent” and the book “a compilation of lies and made up stories, all intended to make me look bad.”

Lawyers for the National Security Council and the Justice Department expressed reservations about opening a criminal case, in part because Mr. Trump’s public statements made it seem like an overtly political act, according to two officials briefed on the discussions. Others noted that a federal judge this summer said that Mr. Bolton may have broken the law, and that the case had merit.

The attorneys’ concerns have obvious merit: It’s clear that Trump wants to punish Bolton for badmouthing him, and is looking for a pretext to do so. Any effort to sanction Bolton will come at the expense of a vital principle: the right of citizens to be informed about their governments’ misdeeds. As I wrote previously:

The administration should not be able to invoke the dreaded specter of “national security” every time someone is prepared to say something that might cause the government embarrassment. This is reminiscent of the efforts to stop whistleblower Edward Snowden from publishing his own book about the federal government’s vast ability to spy on U.S. citizens. Knowing that it was unlikely the very power apparatus his book was criticizing would give him a fair shake, Snowden opted not to submit his manuscript for government review, which led a court to rule that the authorities could seize the book’s profits.

That Bolton finds himself in a similar position to former National Security Agency (NSA) contractor Edward Snowden is, of course, deeply ironic, noted Reason‘s Scott Shackford, given that “Bolton accused Snowden of treason for revealing the government’s secret surveillance of American citizens and declared in 2013 that Snowden’s disclosures were a ‘grave threat to national security.'” But Bolton’s own penchant for branding whistleblowers as traitors does not mean that he should be denied fair treatment. Instead of pursuing a vindictive witch hunt against the former national security advisor, the Trump administration should discredit his ideas by showing that the U.S. is made safer and more secure by doing the opposite of what Bolton wanted.

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Several immigrant detainees and a former nurse at an Immigrations and Customs Enforcement (ICE) facility in Georgia say detainees there are subjected to medical neglect, filthy conditions, inadequate protections against COVID-19, and a disturbingly high rate of hysterectomies performed by a doctor the nurse called the “uterus collector.”

In complaint filed Monday to the Department of Homeland Security Inspector General on behalf of the detainees and the nurse, several social justice advocacy and whistleblower protection groups say interviews revealed “jarring medical neglect,” shredded and fabricated medical records, and “red flags regarding the rate at which hysterectomies are performed on immigrant women” at the Irwin County Detention Center in in Ocilla, Georgia. The claims in the complaint have not yet been substantiated.

The complaint was filed by the Government Accountability Project, which provides legal services to whistleblowers, as well as Project South, Georgia Detention Watch, Georgia Latino Alliance for Human Rights, and South Georgia Immigrant Support Network.

“When I met all these women who had had surgeries, I thought this was like an experimental concentration camp,” Dawn Wooten, a nurse at the Irwin County Detention Center until this July, says in the complaint. “It was like they’re experimenting with our bodies.”

Wooten said the suspicious hysterectomies, a surgical procedure to remove the uterus, were all linked to one doctor in particular.

“Everybody he sees has a hysterectomy—just about everybody. He’s even taken out the wrong ovary on a young lady,” Wooten said. “She was supposed to get her left ovary removed because it had a cyst on the left ovary; he took out the right one. She was upset. She had to go back to take out the left and she wound up with a total hysterectomy.”

Wooten and several detainees also told Project South that language barriers may have left women confused or misled about the procedures.

“These immigrant women, I don’t think they really, totally, all the way understand this is what’s going to happen depending on who explains it to them,” Wooten said.

The complaint also alleges that the facility did not give staff or detainees adequate protective equipment to prevent COVID-19 infections and that the facility refused to test detainees who exhibited symptoms of the virus, thus undercounting the number of positive cases. ICE reported 41 infections at the facility in August.

In response to the complaint, ICE said in a press statement that it “takes all allegations seriously and defers to the OIG regarding any potential investigation and/or results. That said, in general, anonymous, unproven allegations, made without any fact-checkable specifics, should be treated with the appropriate skepticism they deserve.”

If true, the allegations about the facility would not be without precedent.

Earlier this year, Reason reported on medical neglect at FCI Aliceville, a federal women’s prison in Alabama. One formerly incarcerated woman said officials and doctors tried to pressure her into having her one remaining ovary removed. After she refused, she said she was retaliated against by staff.

In Tennessee last year, three inmates won a civil rights lawsuit against a judge who offered defendants reduced sentences in exchange for getting vasectomies or birth control implants.

In 2013, the Center for Investigative Reporting revealed that doctors in California performed tubal ligations on nearly 150 female inmates without proper state authorization. Several former inmates said they were pressured to consent to the surgery, including while sedated and strapped to a surgical table.

The state paid doctors $150,000 for each surgery. “Over a 10-year period, that isn’t a huge amount of money,” one OB-GYN who performed the procedures told the news outlet, “compared to what you save in welfare paying for these unwanted children—as they procreated more.”

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