Roundups Law and Policy

Legal Wrap: How Many Legal Challenges to the Birth Control Benefit Will Conservatives File?

Jessica Mason Pieklo

The never-ending stream of legal challenges to the birth control benefit shows how focused the extreme right is on making safe, affordable health care an impossibility in this country.

Legal Wrap is a round-up of key legal and reproductive justice news.

The legal battles over the birth control benefit show no sign of slowing down. Last week another new non-profit organization challenged the benefit, bringing the total number of cases filed by non-profit organizations to 61. The School of the Ozarks, a high school in Point Lookout, Missouri, filed The School of the Ozarks v. RightChoice Managed Care Inc., suing both the government and the school’s insurance company, Anthem Blue Cross and Blue Shield. This is the second time the school has filed a challenge to the regulations (the first case was dismissed pursuant to the school’s request). The college opposes covering emergency contraception, which Anthem has covered as part of the school’s group health insurance plan since 2010.

In related contraception litigation news, the National Women’s Law Center filed an amicus brief with the Third Circuit in Conestoga Wood v. Sebelius, arguing that the benefit is constitutional and should be upheld.

It’s not just insurance coverage for contraception that has conservative lawmakers rushing the courthouse steps. Conservative members of Congress are requesting the Obama administration appeal a decision by a federal court to make emergency contraception available to people under age 17 without a prescription. The Obama administration has not given any indication that it is interested in appealing the ruling.

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Bridgette Dunlap has written a piece for Rewire that’s a great example of how dedicated the Catholic Bishops are to wasting public resources in the name of protecting their narrow, hate-filled agenda.

The Ninth Circuit Court of Appeals advanced the equality agenda last week, ruling that federal public defenders are entitled to same-sex spousal health benefits. In the order, Judge Harry Pregerson held that the Administrative Office of the United States Courts acted wrongly in denying federal health-care benefits to the same-sex spouse of an Oregon assistant federal public defender. According to the court, the rejection was wrong for a number of reasons. To begin with, it violated the health-care plan’s specific ban on discrimination on the basis of sexual orientation. Also, the court explained that Oregon’s constitutional ban on recognizing same-sex marriage and the federal Defense of Marriage Act (DOMA) are both unconstitutional as violations of equal protection and substantive due process rights. The decision is the latest to attack the constitutionality of DOMA. In late March, the Supreme Court heard arguments on the constitutionality of DOMA, and a decision is expected sometime in June.

Jury selection in the murder trial of Bei Bei Shuai, the Chinese immigrant charged with feticide after she attempted suicide while pregnant, is set to begin in late August. Prosecutors are moving forward with the case against Shuai even as evidence against her evaporates.

Finally, new sexual assault exam guidelines issued by the Department of Justice specify that rape victims are to be offered emergency contraception as part of routine rape examinations.

Defense attorneys defending Dr. Kermit Gosnell on murder charges convinced the judge handling the case to drop three charges against Gosnell on the grounds the prosecution had failed to supply sufficient, credible evidence babies were born alive and then killed by Gosnell. The case will conclude this week.

The American Civil Liberties Union announced it was challenging a Pennsylvania ordinance that allows landlords to evict tenants who are victims of domestic abuse after stories surfaced of women being threatened with eviction for calling the police to respond to domestic disturbances.

Lastly, there was some progress made on the backlog of judicial appointments with the confirmation of Judge Jane Kelly for the Eight Circuit Court of Appeals. By all accounts Kelly should make a fantastic judge. She’s a graduate of Harvard Law School, clerked in the federal appeals court, and worked as a public defender. But as Ian Millhiser at ThinkProgress explains, even a victory like Kelly’s confirmation should be a concern since it appears the only reason Republican’s didn’t filibuster Kelly’s appointment is because she’s got close ties to Sen. Charles Grassley (R-IA).

Analysis Human Rights

Activists Seek Justice as Verdict Looms for Officer Involved in Freddie Gray’s Death

Michelle D. Anderson

Freddie Gray, 25, died from spinal cord injuries in April 2015, a week after police arrested and took him into custody. Last year, Baltimore City State's Attorney Marilyn J. Mosby brought criminal charges against six of the officers involved with his arrest. Since then, three officers' trials have been completed without convictions.

The bench trial of Lt. Brian Rice, the highest-ranking Baltimore Police Department officer involved in the 2015 death of Freddie Gray, began on Thursday, July 7. Rice faces involuntary manslaughter, second-degree assault, and reckless endangerment; the state dropped a misconduct charge after acknowledging Rice was not directly involved in Gray’s arrest. The closing arguments in his trial are scheduled for this Thursday; the judge is expected to share his verdict Monday.

The Rice trial started just as the public began grappling with the deaths of Philando Castile and Alton Sterling—and the subsequent murder of five police officers at a Dallas protest.

Castile and Sterling, both Black men, died during encounters with police in Falcon Heights, Minnesota, and Baton Rouge, Louisiana, triggering nationwide protests against police brutality and implicit racial bias that have continued into this week.

And just like the days following Gray’s death, social media sites like Twitter and Facebook were flooded with images, videos, and hashtags demanding justice.

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Gray, 25, died from spinal cord injuries in April 2015, a week after police arrested and took him into custody. Activists and some Maryland legislators accused police of giving Gray an intentional “rough ride,” when inmates or persons in custody are transported in police vans without a seat belt and subjected to frantic driving, ultimately causing them injury. Last year, Baltimore City State’s Attorney Marilyn J. Mosby brought criminal charges against six of the officers involved with his arrest. Since then, three officers’ trials have been completed without convictions—and as activists on the ground in Baltimore wait for more verdicts, they are pushing for reforms and justice beyond the courtroom.

The first police trial, which involved charges against Officer William Porter of involuntary manslaughter, second-degree assault, reckless endangerment, and misconduct in office, ended in a mistrial in December 2015 after jurors failed to reach a verdict.

Baltimore City Circuit Court Judge Barry Glenn Williams acquitted Officer Edward M. Nero of all charges in May. Mosby had charged Nero with misconduct, second-degree assault, and reckless endangerment for putting Gray into the police van without a seat belt.

But many viewed the trial of Caesar R. Goodson Jr., who drove the van, as the most critical of the six. Last month, Judge Williams announced that Goodson, too, had been acquitted of all charges—including second-degree depraved-heart murder, the most serious of those brought against the officers.

Kwame Rose, a Baltimore activist, told Rewire he was not surprised.

“The judicial system of America shows that police are never held accountable when it comes to the death of Black people,” said Rose, who was arrested in September and December during peaceful protests related to Gray’s death.

During Goodson’s trial, Williams said there were several “equally plausible scenarios,” that could have transpired during Gray’s arrest. He also rejected the state’s argument that police intentionally gave Gray a “rough ride,”according to a New York Times account.

Ray Kelly, community relations director for the No Boundaries Coalition of West Baltimore grassroots group and a community interviewer for the West Baltimore Community Commission on Police Misconduct, said he was disappointed by the Goodson verdict. However, he noted that he was heartened by Mosby’s decision to bring criminal charges against the officers in the first place. “It’s a small change, but it is a change nonetheless,” Kelly said in a recent interview with Rewire.

In addition to the charges, Gray’s death eventually sparked a major “pattern or practice” investigation by the U.S. Department of Justice (DOJ). Local activists, including the No Boundaries Coalition, which issued in March a 32-page report that detailed police misconduct in Baltimore and helped to trigger the DOJ, expected the findings of the DOJ investigation in late June.

However, the document has yet to be released, said Kelly, who is a native of the same West Baltimore neighborhood where Gray was detained.

Kelly is expecting a consent decree—similar to the ones in Ferguson, Missouri, and Cleveland, Ohio—and a continued partnership with federal officials in the near future.

For Kelly, the trials—and the lack of convictions—have proved what leaders in groups like the No Boundaries Coalition have been saying in their advocacy. One of those messages, Kelly said, is that the community should continue to focus less on the judicial process for theoretically punishing officers who have committed wrongdoing and more on initiating policy changes that combat over-policing.

Baltimore Bloc, a grassroots group, seemed to echo Kelly’s sentiment in a statement last month. Two days after the Goodson verdict, Baltimore Bloc activists said it was a reminder that the judicial system was not broken and was simply doing exactly what it is designed to do.

“To understand our lack of faith in the justice system, you must first recognize certain truths: the justice system works for police who both live in and out of the city; it works against Black people who come from disinvested, redlined Black communities; and it systematically ruins the lives of people like Keith Davis Jr., Tyrone West and Freddie Gray,” Baltimore Bloc leadership said, referencing two other Baltimore residents shot by police.

The American Civil Liberties Union, citing the U.S. Supreme Court decision in Illinois v. Wardlow, said in a May blog post that police had legal case for stopping and arresting Gray, but also said the action constituted racially biased policing and diminished rights for Black and Latino citizens.

“The result is standards of police conduct that are different in some places than other places. It is a powerful example of institutionalized and structural racism in which ostensibly race-neutral policies and practices create different outcomes for different racial groups,” ACLU leaders said.

Right before issuing its statement in May, ACLU released a briefing paper that said at least 21 individuals had been killed in police encounters across Maryland in 2015. Of those fatal encounters, which included Gray, 81 percent were Black and about half were unarmed.

The ACLU said it was impossible for the agency to determine whether any officers were disciplined for misconduct in most cases because the police refused to release crucial information to the public.

The ACLU began compiling information about police custody deaths after learning that Maryland officials were not tracking those cases. In 2015, state politicians passed a law mandating law enforcement agencies to report such data. The first set of statistics on police custody deaths is expected in October, according to the ACLU. It is unclear whether those will include reports of officer discipline.

In line with those efforts, activists across Maryland are working to bring forth more systemic changes that will eliminate over-policing and the lack of accountability that exist among police agencies.

Elizabeth Alex, the regional director for CASA Baltimore, a grassroots group that advocates on behalf of local, low-income immigrant communities, told Rewire many activists are spending less energy on reforming the judicial process to achieve police accountability.

“I think people are looking at alternative ways to hold officers and others accountable other than the court system,” Alex said.

Like the No Boundaries Coalition, CASA Baltimore is part of the Campaign for Justice, Safety & Jobs (CJSJ), a collective of more than 30 local community, policy, labor, faith, and civil rights groups that convened after Gray’s death. CJSJ members include groups like the local ACLU affiliate, Baltimore United for Change, and Leaders of a Beautiful Struggle.

CJSJ leaders said the Goodson verdict underlined the critical need for “deep behavioral change” in the Baltimore Police Department’s culture. For the past year, the group has pushed heavily for citizen representation on police trial boards that review police brutality cases. Those boards make decisions about disciplining officers. For example, the city’s police commissioner might decide to discipline or fire an officer; that officer could go to the trial board to appeal the decision.

This spring, recent Baltimore City mayoral candidate and Maryland Sen. Catherine Pugh (D-Baltimore), helped pass an omnibus police accountability law, HB 1016. Part of that bill includes a change to Maryland’s Law Enforcement Officer’s Bill of Rights (LEOBR) giving local jurisdictions permission to allow voting citizens on police trial boards. Republican Gov. Larry Hogan signed the changes into law in May.

That change can only happen in Baltimore, however, if the Baltimore Fraternal Order of the Police union agrees to revise its contract with the city, according to WBAL TV. The agreement, which expired on June 30, currently does not allow citizen inclusion.

In light of the current stalled negotiations, Baltimore Bloc on July 5 demanded Baltimore City Council President Bernard C. “Jack” Young instead introduce an amendment to the city charter to allow civilian participation on trial boards. If Young introduced the amendment before an August deadline, the question would make it onto the November ballot.

Kelly, in an interview with Rewire, cited some CJSJ members’ recent meeting with Baltimore Police Commissioner Kevin Davis as a win for Baltimore citizens. During that meeting, held on June 29, Davis outlined some of his plans for implementing change on the police force and said he supported local citizens participating on police trial boards, Kelly said.

This year, the Baltimore Police Department has also implemented a new use-of-force policy. The policy emphasizes de-escalation and accountability and is the first rewrite of the policy since 2003, according to the Sun.

The ACLU has welcomed the policy as a step in the right direction, but said the new rules need significant improvements, according to the Sun.

For example, the policy requires reporting to the department when an officer flashes or points a weapon at a suspect without shooting; the data will be reviewed by the police commissioner and other city officials. However, it doesn’t require the same from officers who use deadly force.

Notably, the policy requires officers to call a medic if a person in custody requests medical assistance or shows signs that they need professional help. Gray had requested a medic, but officers were skeptical and didn’t call for help until he became unresponsive, according to various news reports.

Rose, who recently received legal assistance from the ACLU to fight criminal charges related to his arrests last year, said citizens should continue to demand accountability and “true transparency” from law enforcement.

In the meantime, with four trials—including Rice’s case—remaining and no convictions, many are looking to see if Mosby will change her prosecution strategy in the upcoming weeks. Roya Hanna, a former Baltimore prosecutor, has suggested Mosby showed poor judgment for charging the six officers without “adequate evidence,” according to the Sun.

Meanwhile, Baltimore City’s police union has urged Mosby to drop the remaining charges against officers.

The trial of Officer Garrett E. Miller is slated to begin July 27; Officer William Porter, Sept. 6, and Sgt. Alicia D. White, Oct. 13. All officers charged pleaded not guilty.

Baltimore Bloc, citing its dissatisfaction with her performance thus far, demanded Mosby’s removal from office last month.

Kelly, who counts Baltimore Bloc among his allies, has a different outlook. Calling’s Mosby’s swift decision to charge the six officers last year  “groundbreaking,” the Baltimore activist said the ongoing police trials are justified and help give attention to police misconduct.

“She should follow through on the charges ….We need that exposure,” Kelly said. “It keeps the debate open and sparks the conversation.”


Federal Court Issues Preliminary Injunction Allowing Trans Student to Use Boys’ Bathroom

Imani Gandy

Gavin Grimm sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender” rather than their gender identity.

A federal district court in Virginia issued an injunction on Thursday in favor of transgender student Gavin Grimm, requiring that Gloucester County School Board permit him to use the boys’ restroom at his high school.

Grimm sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender” rather than their gender identity. The student’s attorneys argued that the policywhich essentially expels transgender students from communal restrooms and requires them to use “alternative” restroom facilitiesis unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

Grimm’s attorneys had asked the district court for an injunction blocking the policy. The court initially sided with the school board, ruling that its bathroom policy did not violate Title IX, and that the privacy interests of other students outweighed any potential harm to Grimm in using a different bathroom.

After Grimm appealed that ruling to the Fourth Circuit Court of Appeals, a three judge-panel reversed the district court’s dismissal of Grimm’s claim in late April, ruling that the district court had relied on the wrong standard in failing to issue the injunction. In backing Grimm, the court relied heavily on recent guidance issued by the U.S. Department of Education that denying transgender students access to the school bathrooms of their choice is a violation of Title IX, and remanded the case back to the lower court for a new hearing with instructions to include consideration of the Department of Education’s guidance. After entertaining a request by the school board that all 15 judges who sit in the Fourth Circuit rehear the case “en banc,” meaning before the full court, the Fourth Circuit announced that it would not review its prior ruling.

In Thursday’s order granting the injunction, the Virginia district court noted that “[i]t appears to the Court from the unrebutted declaration submitted by the parties that the plaintiff is entitled to use the boys’ restroom.”

“Therefore, for the reasons set forth in [Judge Davis’s] concurrence and based on the declarations submitted by the parties, the Court finds that the plaintiff is entitled to a preliminary injunction,” wrote District Court Judge Robert G. Doumar in the order.

Earlier this month, the school board requested that the U.S. Supreme Court review the case. The petition filed with the Court asks the justices to reexamine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent, a principle of judicial deference sometimes referred to as the Auer/Seminole Rock doctrine, grants federal agencies like the Department of Education substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX. But given the Court’s current calendar, the earliest it could hear the case, should it agree to take it, is next year.

In late May, the Supreme Court declined to to hear another case involving student loan financing that similarly sought to undermine the longstanding principle of judicial deference.

In an email to Rewire, Joshua Block, staff attorney for the American Civil Liberties Union, which represents Grimm in this lawsuit said, “This ruling will have the biggest impact for Gavin personally.”

“Under the Fourth Circuit’s decision, it was already clear that Gavin would ultimately prevail in court. This preliminary injunction makes sure that Gavin’s legal victory has a real impact on his life while he is still at school.”