Trump judges allow Border Patrol to detain U.S. citizens without cause and grant qualified immunity for medical negligence

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Unconstitutional detention

A Sixth Circuit Trump appointee reversed a lower court and ruled that U.S. citizens do not have the right to sue U.S. Customs and Border Protection (CPB) agents for violating their constitutional rights.

College student Anas Elhady was detained by CPB without explanation while returning to Michigan from Canada. He alleges that they took his jacket and shoes, leaving him in a cold cell for numerous hours.

According to Elhady, the cell “got colder and colder,” and he began shivering uncontrollably. He says he yelled to the officers that he was freezing and needed to go to the hospital, but they told him not to worry, “you’ll be out soon.” Elhady thought the officers were intentionally ignoring his requests.

He was never interrogated and no charges were brought against him. Elhady sued, arguing that the conditions of his detention “violated his Fifth Amendment due-process rights” and seeking damages under Bivens (which provides that a federal officer can be sued for violating constitutionally protected rights).

The District Court held that Officer Blake Bradley violated Elhady’s right to be “free from exposure to severe weather and temperatures.” Trump judge Amul Thapar joined with George W. Bush judge Richard Griffin to reverse that ruling, despite the defendant not asking the Sixth Circuit to rule on Elhady’s Bivens claim.

Senior Circuit Judge John Rogers dissented (pdf):

By choosing not to raise the issue on appeal, defendant Bradley, represented by the Department of Justice, forfeited his argument that Elhady does not have a cause of action under Bivens. As a general rule, we do not reach forfeited arguments. That rule should apply especially in cases such as this one, which involves a difficult question about the reach of Bivens that the Government repeatedly declined to ask us to address…

Although the Court has recently limited the reach of Bivens, it does not necessarily follow that U.S. citizens have no remedy if they are abused within the United States by their own border patrol officials. It is thus imprudent to reach the difficult Bivens question on this appeal when Government counsel for Bradley repeatedly indicated that he was not raising the issue.

Medical negligence

A Trump judge cast the deciding vote in dismissing a lawsuit against San Diego police officers for negligently causing the death of a woman in their custody.

Aleah Jenkins, a young Black woman, was arrested at a traffic stop in 2018 for an outstanding drug possession warrant. Before even being transported away from the scene, Jenkins began repeatedly vomiting (pdf and body cam).

At some point, Jenkins was placed in a patrol car where she began vomiting. One of the officers asked Jenkins if she was “withdrawing” and told her to stick her head out of the car window. In response, Jenkins told Durbin that she was sick and was pregnant. Durbin then told one of the other officers, “don’t worry about it.”

During the drive to police headquarters, Jenkins complained of feeling sick and asked Durbin for water several times. She repeatedly asked Durbin for help, and at one point screamed in distress and said, “Please, help me!” Durbin “ignored her repeated pleas for help and dismissed them.” He also asked Jenkins “What’s going on?” and “What are you doing?” At one point during the drive, Durbin got out of the car and reprimanded Jenkins, telling her “to knock it off” and telling her, “you’re fine.” During this stop, Durbin opened the door to the patrol car which cause Jenkins to partially fall out of the car. Durbin “pushed her body back into the back seat and slammed the vehicle door on her.”

The drive to police headquarters took over an hour. During the drive, Durbin did not “summon medical care, request assistance from other officers, inform dispatch that [Jenkins] may need medical attention, and/or take [Jenkins] to any number of hospitals on the route.” Upon arrival at police headquarters, when Durbin opened the back door to his patrol car, Jenkins began screaming for help, to which Durbin responded, “Stop hyperventilating. You’re doing that to yourself.” He also told her she was “faking it” and that it could lead to another charge if she continued to resist.”

Durbin then pulled Jenkins out of the patrol car and laid her on the ground. He took Jenkins fingerprints while she was on the ground and placed her back into the patrol car. Sometime later, Durbin returned to the patrol car to check on Jenkins. He then summoned medical attention, stating “I can’t tell if she is breathing or not.” Jenkins subsequently went into a coma and then died on December 6, 2018.

Jenkins’ family sued Durbin and others on behalf of her son for failing to summon medical care and causing Jenkins’ death. The District Court dismissed the complaint without allowing discovery, claiming the officers were entitled to qualified immunity. Ninth Circuit Trump judge Patrick Bumatay joined with George W. Bush appointee D. Michael Fisher in upholding the dismissal, finding that the complaint failed to adequately allege “objective unreasonableness” or “objective deliberate indifference.”

Judge Paul Watford, an Obama appointee, dissented (pdf):

The majority opinion offers a truncated and highly sanitized account of the events giving rise to this lawsuit, at least as alleged by the plaintiff. Although at this stage of the case we are required to accept the plaintiff’s factual allegations as true, the majority opinion ignores most of the facts alleged in the complaint. The complaint also expressly incorporates by reference the contents of a publicly available body camera video that captures many of the relevant events, yet the majority opinion turns a blind eye to most of what that video depicts as well…

The majority opinion’s characterization of this case as one concerning a mistake of law—in which Officer Durbin “mistook the legal constraints on summoning medical care when an arrestee is experiencing a non-obvious medical emergency”—cannot be squared with the record. Officer Durbin did not, as the majority opinion suggests, make a mistake as to whether the law required him to summon medical care because the signs of medical distress Ms. Jenkins exhibited were “nonobvious.” As the video confirms, those signs were as obvious as could be; Officer Durbin decided to ignore them because he thought (incorrectly) that she was “faking” her condition.

Compassionate release

A Trump judge cast the deciding vote in revoking a district court’s compassionate release order of a Black man who has already served 22 years in prison.

John Bass was convicted of murder in relation to drug trafficking in 2003 at 34 years old and sentenced to life in prison without the possibility of release. Now 51 years old, Bass requested compassionate release due to the spread of Covid-19 at the prison and his multiple pre-existing conditions that place him at increased risk of severe illness from the coronavirus.

Judge Arthur Tarnow, a Bill Clinton appointee who presided over Bass’ trial and sentencing, granted his request for compassionate release (pdf).

The gravity of releasing a defendant serving a life sentence is not lost on this Court. Such a decision must be approached with extraordinary care and only be granted in cases of transformational redemption. This is such a case. Bass is, quite simply, a BOP success case. An exemplary inmate and man who has turned the pain and darkness of his former life on the streets into a light for those still lost in its grips. At the time of his sentencing, Bass was thirty-four years old, had an eighth-grade education, and six children he was leaving behind. Now, Bass is fifty-one years old, has a GED, is a certified life coach, and a true father and guide to his fellow prisoners and family alike. He has proven that he has more than enough self-motivation to continue his rehabilitation journey outside of the confines of prison

Sixth Circuit Trump appointee Eric Murphy joined with Judge John Rogers (George W. Bush appointee) to reverse Tarnow’s ruling, saying the district court “abused its discretion” in considering rehabilitation “as an ‘extraordinary or compelling’ reason warranting release.”

Judge Helene White, a George W. Bush appointee, dissented (pdf). She wrote that while she personally would not have granted Bass’ motion for compassionate release, it was not within the appellate court’s rights to question the district court’s reasoning:

I would not have granted Bass’s motion for compassionate release, but under the compassionate-release jurisprudence this court has developed over the past year and a half or so, our disagreement with a district court’s exercise of its discretion is expressly excluded as a ground for reversal. We require district courts to provide only the most minimal explanation, and we must defer to their judgment in weighing the § 3553(a) factors and not substitute our own…

…the district court adequately explained its decision and did not abuse its discretion in concluding otherwise. We must apply the same rules on review without regard to whether the government or the inmate is aggrieved by the district court’s decision. “Our trust in the discretion of the district court must be consistent regardless of whether the district court grants or denies a [compassionate-release motion].”

Clean air

Two Trump judges struck down important provisions adopted by the National Highway Traffic Safety Administration (NHTSA) and the Environmental Protection Agency (EPA) to establish fuel economy standards and pollution limits for trailers pulled by tractors, aka semitrucks.

The NHTSA and EPA rule in question, created in 2016, requires trailer manufacturers to adopt some combination of fuel-saving technologies, such as side skirts and automatic tire pressure systems. The Truck Trailer Manufacturers Association sued to get the rule thrown out.

Trump DC Circuit judges Justin Walker and Greg Katsas vacated both agency’s fuel efficiency standards in a 20-page opinion that largely focuses on the definition of “motor vehicles” and whether it applies to trailers pulled by tractors (pdf).

The objects of the EPA’s § 202 Clean Air Act regulations must be self-propelled. Trailers are not self-propelled. Therefore, the EPA cannot use § 202(a)(1) to set emissions standards for trailers and require trailer manufacturers to comply with them…

Because a trailer uses no fuel, it doesn’t have fuel economy. And in the statutory context of § 32902, nothing is a vehicle unless it has fuel economy — a measure of miles traveled per gallon of fuel used. NHTSA therefore lacked the authority to regulate trailers.

Judge Patricia Millet, an Obama appointee, agreed with the majority’s decision to throw out the EPA portion of the fuel efficiency rule. Millet dissented regarding the NHTSA portion, explaining that commercial trailers are rightfully considered “vehicles”:

In short, the Energy Independence Act does not textually constrain the meaning of vehicle in a way that excludes commercial trailers operated on a highway as tractor-trailers. Quite the opposite: Ample preexisting and contemporary statutory provisions, regulations, dictionaries, and common understanding firmly embrace trailers in their on-highway role within the meaning of “vehicle.”

…tractor-trailers consume substantially more fuel than the tractor alone. So the “average number of miles traveled by” a tractor-trailer “for each gallon of gasoline[,]” as well as the additional amount of fuel per mile caused by the trailer portion itself, present distinct fuel-economy questions that are readily measurable and just as readily regulable under the statutory definition of “fuel economy[.]”