The Ninth Circuit, sitting en banc, issued two important opinions today.
In the first case, the Ninth Circuit strikes down Arizona’s Proposition 100, which forbids Arizona judges from granting bail to alleged felons who are undocumented immigrants, even if they aren’t flight risks or dangerous. The law violates substantive due process, the court concludes. There’s no showing that undocumented immigrants are more dangerous or prone to flight than other people accused of crime. Plus, Proposition 100 applies to people accused of a wide range of offenses—both dangerous and not-so-dangerous—and it denies bail without requiring the government to show that the accused presents an unmanageable flight risk. Judge Nguyen writes a concurrence to show that Proposition 100 was really motivated by a desire to punish people for being in the country illegally—and because you can’t punish the accused without trying them first, the law is unconstitutional. Judge Tallman dissents, arguing that the court should defer to the risk assessments of the people of Arizona. Judge O’Scannlain also dissents. He condemns the court for analyzing Proposition 100 under substantive due process rather than the Eight Amendment’s Excessive Bail Clause.
In the second case, a sixth grader with ADHD was handcuffed and taken away from school—by police officers, no less. What for? Bringing a handgun to school? Violence against other students? No: for sitting in the playground and refusing to go anywhere. (Using police as a disciplinary strategy, incidentally, has become more and more common, and has come under harsh criticism.) The majority, speaking through two different judges, holds that handcuffing the child violated the Fourth Amendment, but that taking him into custody wasn’t so clearly unconstitutional as to make the police liable in damages. So police will very likely continue to take children with disabilities into custody for being insufficiently cooperative. They will just do it without using handcuffs.
The child’s claims against the police officers were tried to a jury, and the district court gave the jurors supplemental instructions after they came back with an internally inconsistent verdict. Those instructions are challenged on appeal but not objected to below, so the Ninth Circuit also takes the opportunity to address plain-error review in civil cases.
UPDATE: Yesterday the Supreme Court denied cert. in Lopez-Valenzuela, the case about Arizona’s Proposition 100. Three Justices would have granted the petition. Justice Thomas filed a dissent, joined by Justice Scalia, in which he suggested, without much elaboration, that the Ninth Circuit engaged in “dubious constitutional analysis.”