Roundups Law and Policy

Gavel Drop: The Leaf Behind Another Legal Challenge to Trump’s Immigration Policy

Brie Shea & Jessica Mason Pieklo

Possession of khat, a chewable plant stimulant that's popular in the Horn of Africa, may condemn a Somali immigrant in New Hampshire to indefinite detention. And in other news, hookworm is making a comeback—in Alabama and in court.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

The ACLU is filing a lawsuit against Immigration and Customs Enforcement (ICE), alleging unlawful detention of a Somali refugee in New Hampshire. Abdigani Faisal Hussein has spent the last six months in custody at a Strafford County jail due to a 16-year-old drug conviction for possession of khat, a mild stimulant that can be chewed, smoked, or brewed in tea; it’s commonly used in East Africa and the Middle East. Federal immigration law allows for the indefinite detention without a hearing—of individuals who have been taken into custody if they have past criminal records. The ACLU is arguing that the wording of the statute only applies when a person is taken “immediately” into custody following the sentence, rather than convictions from several years ago. Since the law only says that the arrest can occur “when” a person is released from custody, ICE agents have broadly interpreted the statute to mean they can target certain immigrants for years-old offenses. Hussein’s fate may depend on the outcome of a similar case being considered in the U.S. Supreme Court. Oral arguments were held last week in Nielsen v. Preap, where plaintiffs are arguing that if ICE wants to detain an immigrant without bail, they must do so at the moment of release, rather than for convictions handed out months or years ago.

The state of Alabama and the Lowndes County Health Department are facing a civil rights lawsuit over inadequate and failing sewage treatment systems, which have led to contamination and an outbreak of hookworm, a parasite long thought to have been eradicated in humans in the United States. The lawsuit, filed last month by the environmental group Earthjustice and the Alabama Center for Rural Enterprise, claims that the county and state discriminated against the predominately black community of Lowndes County by failing to provide access to modern sewage and plumbing systems. Due to soil issues in the area and state law, installing the necessary septic systems could cost residents up to $30,000. But that’s probably out of reach for many affected people; 37 percent of black Lowndes County residents live below the poverty line. Civil rights activism has a long history in the county, which was known as “Bloody Lowndes” for its history of racial violence; in the 1960s, the county was a key national battleground in the struggle for voting rights and home to a short-lived political party that provided an early foundation for the Black Panther Party.

Missouri is down to one abortion clinic after the only other clinic that provided those services failed to meet new state abortion restrictions. Missouri law requires abortion facilities to be classified as “ambulatory surgical centers” and have admitting privileges to a local hospital in case of complications. Attorneys for the Columbia Planned Parenthood earlier this month asked for a temporary exemption from the hospital privileges requirement, but no ruling has been issued yet. For now, pregnant people seeking an abortion in Missouri will either have to go to the Planned Parenthood in St. Louis or travel to another state.

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The state of Indiana is still trying to stop the Whole Woman’s Health Alliance from opening an abortion clinic in South Bend. The state health department had originally denied a license to the clinic, claiming the nonprofit failed to meet requirements of having “reputable and responsible character”—though this “failure” isn’t explained in the notification letter—and that it was missing information on its application. Whole Woman’s Health Alliance appealed the decision, and an administrative law judge recommended that the clinic be allowed to open. Earlier this month, the Indiana State Department of Health announced it would be appealing the recommendation. The matter will now be decided by a three-person panel appointed by the same health department that denied the license in the first place.

A federal court has ruled that a recently passed law in North Carolina cannot be interpreted to ban transgender people from using public restrooms that align with their gender identity. The law in question, HB 142, was passed last year in an effort to repeal HB 2, the state’s discriminatory law that had restricted transgender folks from using public accommodations in accordance with their gender identity. While the ruling is promising, HB 142 still contains a provision that prohibits local municipalities from passing their own nondiscrimination policies until 2020. In the same ruling issued earlier this month, plaintiffs were given the green light to proceed with their challenge to the nondiscrimination provision.

The Arkansas Supreme Court last week upheld a voter ID law that largely mimics a law the court struck down in 2014. In the 5-2 ruling, justices said that the law requiring voters show photo ID before casting a ballot is legal. The ruling reversed a lower court’s ruling blocking legislators from enacting the law, which had been approved last year. The revised law differs from the previous version by allowing voters without photo IDs to cast provisional ballots if they sign a sworn statement confirming their identities.

The Missouri Attorney General’s Office has filed an appeal challenging a federal judge’s ruling that blocked parts of Missouri’s voter photo ID law. Senior Cole County Judge Richard Callahan struck down a requirement that a voter lacking a valid photo ID sign a sworn statement in order to cast a ballot. After Attorney General Josh Hawley’s office filed the appeal, Missouri Secretary of State Jay Ashcroft released a statement claiming the ruling had injected mass confusion into the voting process just weeks away from the election.

Florida residents who missed the state’s voter registration deadline last Tuesday due to Hurricane Michael may have to sit the midterms out, thanks in part to a ruling by a federal judge. The Florida Democratic Party filed an emergency injunction to extend the deadline by a week to October 16, citing concerns that the weather may have prevented people from registering. U.S. District Judge Robert Hinkle denied the request. According to Florida Secretary of State Ken Detzner, any county election office that was closed last Tuesday will be required to accept paper registration applications the day their offices reopen.

Trump campaign lawyers are now claiming that the use of hacked emails is actually a form of free speech. A pair of donors and one former Democratic National Committee (DNC) employee filed a lawsuit over the summer against the Trump campaign and strategist Roger Stone for allegedly working with Russia and Wikileaks to publish hacked emails, thereby violating their privacy. Trump campaign lawyers responded last week by asking for the case to be thrown out because, according to them, the First Amendment protects the campaign’s “right to disclose information—even stolen information—so long as (1) the speaker did not participate in the theft and (2) the information deals with matters of public concern.”

Three New Yorkers are suing President Trump and the federal government to block the president from using the Federal Emergency Management Agency (FEMA) alert system to send messages to U.S. cellphone users. The suit claims the presidential alert violates the First and Fourth Amendments’ rights to freedom of speech and privacy since users are unable to opt out. The plaintiffs argue the messages would allow the government “to trespass into and hijack” cellular devices without explicit consent. They further allege that the alerts turn cellphones into “government loudspeakers” and could be used to subject users to government propaganda. The plaintiffs hope to halt the initial test of the presidential alert system. While a district court judge rejected the request, the lawsuit is still pending. So don’t throw away your phones just yet.

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