A federal appeals court late Thursday night affirmed a lower court’s decision to block President Donald Trump’s executive order that banned travel from seven countries to the U.S. The ruling is a blow to Trump’s efforts to clamp down on refugees and immigrants from “terror prone” countries the White House says pose a threat to U.S. security. Trump said the ruling was a “political decision,” and pledged to bring the case to the Supreme Court.

For now, refugees and visa-holders–who have already been vetted and admitted to the U.S. by the Department of Homeland Security–from Syria, Yemen, Iran, Iraq, Sudan, Somalia, and Libya will be allowed to travel and settle in the U.S. Trump’s executive order, issued on January 27, barred refugees from entering the U.S. for at least 120 days, and visa-holders for at least 90 days. Syrians–refugees and travelers–would have been blocked indefinitely.

The U.S. Court of Appeals for the Ninth Circuit, in San Francisco, deliberated for two days before coming to a conclusion. The three-judge panel unanimously agreed that the executive order could violate the Fifth Amendment, which prohibits the government from denying “life, liberty, or property, without due process of law.”

The three judges, appointees of Presidents Barack Obama, Jimmy Carter, and George W. Bush, said: “we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” Trump tweeted his disapproval just moments after the court’s decision:

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

— Donald J. Trump (@realDonaldTrump) February 9, 2017

The road to the appeals court began last Friday, when a district court judge in Seattle granted a temporary restraining order on the travel ban. That judge, James Robart, sided with the states of Washington and Minnesota, the plaintiffs in the case, and said that because of the travel ban, the states “are likely to suffer irreparable harm in the absence of preliminary relief.” The White House immediately appealed to the court in San Francisco, and after a day of oral arguments and two days of deliberations, the appeals court affirmed Robart’s ruling.

The appeals court was unconvinced by the administration’s argument that the judiciary has no authority to question executive actions involving national security. “It is beyond question,” the decision said, “that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” The court did say the government should enjoy deference in matters of national security, but reiterated that those decisions are not “unreviewable.”

The Trump Administration will likely file an emergency appeal to the Supreme Court within the next few days. With the pending confirmation of Trump’s Supreme Court nominee Neil Gorsuch, the court has eight justices, which many consider ideologically split 4-4. If the case ends up in their docket, a 4-4 vote would keep the appeals court’s ruling in place. A Supreme Court hearing and decision could come as early as next week.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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A Title IX lawsuit against the University of Tennessee-Knoxville has been settled for $2.48 million with a group of eight women who accused the school of fostering a “hostile sexual environment,” listing incidents dating back to 1995, mostly involving allegations against male student athletes.

The announcement of the settlement comes just two days before the university has to formally respond to the case in the U.S. District Court. However, though UT is paying out nearly $2.5 million, it is not admitting guilt or negligence.

The lawsuit was first filed in February, when six women filed a civil suit claiming that athletes who were found guilty of assault went unpunished. They alleged that perpetrators and their teammates discouraged women from reporting rape charges, and that an athlete who tried to help a woman who had been assaulted was attacked by a fellow athlete. The women are dismissing the lawsuit against UT, according to David Randolph Smith, the Nashville attorney who represents the eight women.

“My clients and I are dismissing the lawsuit with prejudice and signed the settlement agreement,” Smith said in a statement. He added:

We are satisfied that, while universities everywhere struggle with these issues, the University of Tennessee has made significant progress in the way they educate and respond to sexual assault cases. My clients and I are also convinced that the University’s leadership is truly committed to continue its exemplary efforts to create a model as it relates to sexual misconduct.

The lawsuit claimed UT’s administrative hearing process was one-sided and denied victims the “rights to a hearing and to the same equal procedural, hearing, and process rights as given to perpetrators of rape and sexual assault.” It also accused the university of interfering with investigations and providing lawyers for students accused of misconduct. The $2.48 million payout from UT to the eight women will be split between UT’s athletic department and central administration. The money will not come from taxpayer dollars, student fees or donor funds, according to the school’s lawyers.

Joe DiPietro, UT System President, announced that in the next few weeks he will appoint an independent commission to review the current programs in place that combat sexual assault, and assess what areas need to be strengthened.

“I continue to say that one incident of sexual misconduct is one too many,” DiPietro said. “But unfortunately, on a college campus, these incidents will happen. When they do, I want the confidence of knowing that we did everything within our power to appropriately deal with the situation, and we provided the necessary support for all involved. There are no excuses for anything less.”

UT Chancellor Jimmy Cheek is also spearheading his own initiatives—he will hire six more people for Title IX compliance positions.

Inez Nicholson

Inez is an editorial intern at Law Street from Raleigh, NC. She will be a junior at North Carolina State University and is studying political science and communication media. When she’s not in the newsroom, you can find her in the weight room. Contact Inez at INicholson@LawStreetMedia.com.

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A U.S. Appeals Court just issued a decision that threw out a preliminary injunction that would have prevented bulk data collection by the government. This decision is important, but also very confusing because the NSA program that it challenges was changed in June following the passage of the USA Freedom Act. There is a lot going on here so let’s break down the ruling and what it means for the case’s future.

Friday’s decision came from a panel of three DC Circuit Court judges who in a 2-1 ruling threw out an injunction from the district court ruling. In the initial ruling in December 2013, DC District Court Judge Richard J. Leon found that there are “significant privacy interests at stake and the unprecedented scope of the NSA’s collection and querying efforts, which likely violate the Fourth Amendment.” Judge Leon issued an injunction that would end the collection of bulk data under the NSA’s program and would require the agency to destroy previously collected records. However, given the national security interests at stake the judge stayed, or put on hold, his injunction pending an appeal decision from the circuit court. That ruling was issued on Friday and two of the three judges on the panel decided that there were not sufficient grounds for the injunction to be issued. But the judges’ decision to throw out the injunction does not mean that the case is over. In fact the judges did not really rule on the facts of the case, instead they remanded it back to the lower court.

First, it is important to understand why the case remains valid even after Congress passed the USA Freedom Act, which effectively ended the government’s bulk phone metadata collection. Parts of the USA PATRIOT ACT–which was what the government used to justify the NSA data collection program–expired on June 1 following a Rand Paul filibuster. The next day, Congress passed the USA Freedom Act that maintained the government’s ability to get phone call metadata information using court warrants, but moved the actual collection of data to individual wireless carriers (like AT&T and Verizon) rather than the NSA. This compromise settled a lot of the debate about the NSA’s program, but in order to allow for a transition the existing program was allowed to continue for 180 days after the law took effect on June 2. The judges in Friday’s ruling decided that the case was not moot because the previous form of collection continued during the 180 day period.

So what does the ruling mean? The DC Circuit Court’s ruling will not necessarily affect the outcome of the case as it focused on whether the present facts constitute sufficient ground for the injunction issued by Judge Leon. The issue at hand for the plaintiffs–Larry Klayman and Charles Strange–is providing sufficient evidence to show that the NSA’s bulk data collection affected them specifically. The judges ruled that while Klayman and Strange provided enough evidence to indicate that they had legal standing to challenge the program, they did not meet the higher threshold required for injunctive relief.

The lack of specific information about the program creates an issue for the plaintiffs because they are unable to provide direct proof that their data was collected. The crux of their claim focuses on the fact that the bulk data collection system exists and that the government has acknowledged that it collected data from Verizon Business customers. Both plaintiffs are Verizon Wireless customers, not Verizon Business customers, but they speculate that their data was most likely collected based on what we know about the program.

Per Circuit Court Judge Stephen F. Williams’ opinion:

Plaintiffs claim to suffer injury from government collection of records from their telecommunications provider relating to their calls. But plaintiffs are subscribers of Verizon Wireless, not of Verizon Business Network Services, Inc.—the sole provider that the government has acknowledged targeting for bulk collection… plaintiffs lack direct evidence that records involving their calls have actually been collected

Judge Janice Rogers Brown joined the court’s opinion and also wrote separately to reiterate:

While plaintiffs have demonstrated it is only possible—not substantially likely—that their own call records were collected as part of the bulk-telephony metadata program, plaintiffs have nonetheless met the bare requirements of standing.

The case will now go back down to the district court to see if further discovery between the plaintiffs and the government is appropriate. While the judges did not stop the case outright, they do note that it will likely be difficult for Klayman and Strange to get sufficient evidence indicating that their data was collected. Doing so will depend on the government’s willingness to release information about a program that it desperately wants to keep secret. So far, the only court to rule on the facts of the bulk data collection program, the Second Circuit Court in New York, ruled against the NSA–and if this case gets that far it will likely follow suit. According to the initial ruling from Judge Leon, the case will likely show that the program was a violation of the Fourth Amendment, but that will only happen if they are able to get sufficient information from the government. We will have to keep watching this case to see whether the plaintiffs have a reasonable chance.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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The nation’s capital is not having a good summer.

Just weeks after Congress tried to overturn a few of D.C.’s laws, a U.S. District Court judge has ruled that the city’s ban on carrying handguns in public is unconstitutional.

If that sounds familiar, it’s because this is the second time that a court has overturned a D.C. gun law in the past six years. The Supreme Court ruled in 2008 that the district’s 32-year-old ban on private handgun ownership was unconstitutional in the landmark case District of Columbia v. Heller. This was the first time that the Supreme Court had ever stated that the Second Amendment guaranteed gun ownership for every American. For D.C., it meant the city had to rewrite their gun laws.

These new laws allowed residents to keep registered handguns in their home and required gun owners to obtain a permit before carrying in public. However, the city had a policy of refusing to issue any of these permits. This amounted to a de facto ban on handguns in public. Authors of the law argued that D.C.’s status as the nation’s capital gave it reason enough to ban handguns, since they would put the many federal buildings, government officials, and memorials at risk. Police Chief Cathy L. Lanier put it this way at a hearing in January:

The District of Columbia, as the seat of the Federal government, with its multitude of critical official and symbolic buildings, monuments, and events, and high-profile public officials traversing the streets every day, is a city filled with ‘sensitive’ places. Our laws should reflect that reality.

This reasoning did not fly with Senior District Court Judge Frederick J. Scullin Jr. Heller and a similar ruling in Chicago gave Scullin enough precedent to strike down the ban. Chicago attempted to ban the sale of firearms within city limits. U.S. District Judge Edmond Chang found this law to be unconstitutional. Chang was not convinced that banning the sale of firearms would reduce gun violence.

What’s next?

D.C. will appeal this ruling, and they have reason to be confident. In 2012, a U.S. District Court struck down a Maryland law which only issued carry permits to individuals who could provide a “good and substantial reason” for carrying a firearm outside of the home. The Fourth U.S. Circuit Court of Appeals overturned this ruling one year later. This provides an important precedent for proponents of the D.C. ban. There are reasonable restrictions that can be placed on an American’s right to carry a firearm in public. Even Supreme Court Justice Antonin Scalia said as much in his majority opinion in Heller:

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

While the court ruled in 2008 that citizens are allowed to own firearms, it added that restrictions on such ownership were not unconstitutional. Specifically, Scalia’s majority opinion argued that “the carrying of firearms in sensitive places” can be forbidden. It might be a stretch to claim that the entire District of Columbia is a “sensitive place,” but at least D.C. has a leg to stand on.

In the meantime, how will this ruling impact D.C. residents?

The D.C. Attorney General has requested a stay, but one has not yet been granted. This means that, for now, it is legal to carry a handgun in the nation’s capital. Police Chief Cathy L. Lanier has instructed officers to not arrest anyone holding a registered handgun. Those visiting D.C. who have a carry permit from another state will also be allowed to carry their handgun.

As frustrating and frightening as it is to see a judge allow any Joe Schmo to carry a gun in a city that is home to so many important people and high-profile targets, the city should have seen this coming, especially in the wake of Heller. To respond to a court’s rejection of your strict gun ban with another strict gun ban is foolish, and claiming that an entire city is a “sensitive place” is laughable. Yes, many parts of D.C. are home to federal buildings, but there are large areas of D.C. that look like any other city. There are shopping centers, grocery stores, apartment complexes, and everything else that makes a city a city. There are also threats to the safety of the average citizen, and D.C. residents have the constitutional right to defend themselves from those threats with a gun.

For the safety of D.C. residents, Mayor Vincent Gray and the city council need to approve new and sensible gun laws that balance the need to protect our government officials with the right of all D.C. residents to defend themselves. Banning or allowing guns everywhere in the city are not viable options.

—

Eric Essagof (@ericmessagof) is a student at The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

Featured image courtesy of [Robert Nelson via Flickr]

Eric Essagof

Eric Essagof attended The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

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