US v. Mark Cowden (Keenan 2/16/2018): The Fourth Circuit held the element of “willful” conduct for deprivation of rights under color of law in violation of 18 U.S.C. § 242 is satisfied when a police officer repeatedly uses physical force against a person who is fully restrained in handcuffs in the presence of six other law enforcement officers and who is offering no resistance or otherwise acting in a threatening manner, where the officer engages in acts of gratuitous force while repeating that the sheriff’s office is “our house” and that the person has to play by their rules, and where several of the other officers present testify that the officer’s actions are neither justified nor reasonable. Thus, the Fourth Circuit affirmed officer Mark Cowden’s conviction. Full Opinion
Intl. Refugee Assistance v. Donald J. Trump (Gregory 2/15/2018): The Fourth Circuit upheld the preliminary injunction against Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” because Plaintiffs were likely to succeed on the merits of their Establishment Clause claim; enjoining the unlawful Proclamation was in the public interest; and the district court’s grant of a nationwide injunction against enforcement of § 2 of the Proclamation, excepting North Korea and Venezuela, was not an abuse of discretion. The court thus affirmed the preliminary injunction granted by the district court, but stayed its decision pending the Supreme Court’s decision. Full Opinion
US v. Antoine Smith (Wilkinson 2/15/2018): The Fourth Circuit held that the North Carolina crime of voluntary manslaughter is a violent felony under the force clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). The court thus affirmed the district court’s decision imposing an enhanced sentence upon Antoine Smith. Full Opinion
Reynaldo Salgado-Sosa v. Jefferson Sessions III (Harris 2/13/2018): The Fourth Circuit held that a foreign national seeking asylum, withholding of removal, and protection in the United States meets the requirement of a sufficient nexus between threatened harm and membership in a family under 8 U.S.C. § 1231(b)(3)(A) when the asylum-seeker fears persecution from a gang on account of his connection to his stepfather’s refusal to pay the gang and the gang’s revenge on his family for resisting extortion. Accordingly, the court vacated the denial of withholding of removal and remanded for further proceedings on that claim. The court also separately remanded for consideration of whether its recent decision in Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), affected Salgado-Sosa’s argument that a statutory “changed circumstances” exception allows consideration of his untimely application. Full Opinion
E.W. v. Rosemary Dolgos (Gregory 2/12/2018): The Fourth Circuit held that a school resource officer’s decision to handcuff a calm, compliant elementary school student for fighting with another student three days prior does not amount to a constitutional violation. The court held that such an officer was entitled to both federal qualified immunity and state statutory immunity under the Maryland Tort Claims Act because, although the officer acted unreasonably and violated a student’s Fourth Amendment rights, legal precedent did not put the officer on notice that her conduct was unlawful. Thus, the court affirmed the district court’s decision granting summary judgment to Rosemary Dolgos. Full Opinion
Intl. Refugee Assistance v. Donald J. Trump, No. 17-2231
Decided: February 15, 2018
The Fourth Circuit upheld the preliminary injunction against Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” because the Plaintiffs were likely to succeed on the merits of their Establishment Clause claim; enjoining the unlawful Proclamation was in the public interest; and the district court’s grant of a nationwide injunction against enforcement of § 2 of the Proclamation, excepting North Korea and Venezuela, was not an abuse of discretion. The court thus affirmed the preliminary injunction granted by the district court, but stayed its decision pending the Supreme Court’s decision.
On January 27, 2017, President Donald J. Trump signed Executive Order 13,769 “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“EO-1”), 82 Fed. Reg. 8977 (Jan. 27, 2017). Invoking authority under 8 U.S.C. § 1182(f), President Trump immediately suspended for ninety days the immigrant and nonimmigrant entry of foreign aliens from seven predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Several federal courts issued injunctions enjoining enforcement of EO-1. On March 6, 2017, President Trump issued Executive Order 13,780 (“EO-2”), which invoked both 8 U.S.C. § 1182(f) and 8 U.S.C. § 1185(a), re-imposing a 90-day ban on entry into the United States for nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, but removing Iraq from EO-1. EO-2 was similarly challenged in multiple courts and preliminarily enjoined. The Supreme Court granted a writ of certiorari in both cases and left the injunctions in place pending its review except as to foreign nationals who lacked a “credible claim of a bona fide relationship with a person or entity in the United States.”
On September 24, 2017, President Trump issued Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (the “Proclamation”), 82 Fed. Reg. 45,161 (Sept. 24, 2017). Invoking both 8 U.S.C. § 1182(f) and 8 U.S.C. § 1185(a), the Proclamation succeeded EO-2 and indefinitely suspended the entry of some or all immigrants and nonimmigrants from eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen (the “Designated Countries”). Six of those countries—Chad, Libya, Iran, Somalia, Syria, and Yemen—were predominantly Muslim and had a combined population of approximately 150 million people.
Three separate lawsuits were brought or amended in the U.S. District Court for the District of Maryland, which were consolidated for this appeal. Plaintiffs moved to preliminarily enjoin the Proclamation in its entirety before it took effect, claiming that it violated the Establishment Clause’s prohibition on disfavoring religion, exceeded the President’s authority under 8 U.S.C. § 1182(f) and 8 U.S.C. § 1185(a)(1), violated 8 U.S.C. § 1152(a)’s prohibition on nationality discrimination on the issuance of visas, and failed to comply with § 1182(f)’s procedural requirements. The district court granted the preliminary injunction, holding that Plaintiffs were likely to succeed on the merits of their § 1152(a) claim and their Establishment Clause claim but not on the merits of their § 1182(f) and § 1185(a)(1) claims. The U.S. District Court for the District of Hawaii also enjoined the Proclamation. On December 4, 2017, the Supreme Court granted the Government’s request for a complete stay pending appellate review of the two district courts’ preliminary injunctions.
The Fourth Circuit first held that Plaintiffs were likely to succeed on the merits of their Establishment Clause claim because the Proclamation, read in the context of President Trump’s official statements, failed to demonstrate on its face a primarily secular purpose. The court reasoned that to the objective observer, the Proclamation continued to exhibit a primarily anti-Muslim objective. Furthermore, Plaintiffs offered undisputed evidence that the President of the United States openly and often expressed his desire to ban Muslims from entering the United States. Thus, the court held the Proclamation was not only a likely Establishment Clause violation, but also struck at the basic notion that the government may not act based on religious animosity.
Next, the Fourth Circuit held that the likelihood of irreparable harm, the balance of equities, and the public interest all favored granting injunctive relief. First, Establishment Clause violations create the same type of immediate, irreparable injury as do other types of First Amendment violations. Because the Proclamation violated the Establishment Clause and was already in full effect, the court held that the injury was not only threatened and likely but already ongoing. Furthermore, the individual Plaintiffs whose family members were categorically rendered ineligible for visas demonstrated a likelihood of irreparable harm due to the anxiety and straining of relationships that accompanies prolonged and indefinite separation of parents, children, siblings, and partners. Second, the balance of equities weighed in favor of Plaintiffs, who were likely to continue suffering a violation of their Establishment Clause rights (the combination of religious marginalization with familial separation), rather than the Government, which was not likely to be harmed by an injunction against the enforcement of a likely unconstitutional Proclamation. The Government failed to show that national security could not be maintained without the unprecedented multi-national ban. Third, the court held that it could not be in the public interest for the President to violate the Establishment Clause. Furthermore, the unlawfully issued Proclamation would have a much broader deleterious effect on the public interest than the simple fact that certain foreign nationals would be excluded.
Finally, the court held that the district court did not abuse its discretion in granting a nationwide injunction against enforcement of § 2 of the Proclamation, excepting North Korea and Venezuela. The court reasoned that the balance of the equities favored the Government, the injunction should not extend to North Korea and Venezuela because there was no alleged Establishment Clause violation as to either, and the injunction did not apply to the President himself but instead to the agencies and agency heads charged with implementing the Proclamation. Furthermore, the “nationwide” aspect of the injunction was not an abuse of discretion because Plaintiffs were scattered throughout the country, Congress had instructed that the immigration laws of the U.S. should be enforced vigorously and uniformly, and enjoining the Proclamation only as to Plaintiffs would not cure its deficiencies because it was issued in violation of the Constitution.
Accordingly, the Fourth Circuit affirmed the preliminary injunction granted by the district court, but stayed the decision pending the Supreme Court’s decision.
Jennifer M. Greene