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A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun.

Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files.

Defense Distributed

The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export.

The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions.

Most specifically in this cert petition they have asked the Supreme Court to answer these questions:

1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits. 2. Whether it is always in the public interest to follow constitutional requirements. 3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech.

The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it.

It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources.

Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have:

simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without sayingand so it must now be saidthat federal courts cannot dismiss the Constitution's primacy in our legal system...

The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance.

Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes.

The petition also details the history of interpretation of ITAR over the past decades in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involves non-classified information.

The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so:

Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.

Gura finds that assertion unsatisfying, leaning on a Fifth Circuit dissent from the panel's majority opinion. Dissenter Judge Edith Jones:

noted that "[i]nterference with First Amendment rights for any period of time, even for short periods, constitutes irreparable injury,"...and that "Defense Distributed has been denied publication rights for over three years,"...She then found it "a mystery" why the majority was "unwilling to correct" the district court's "obvious error" in applying only intermediate scrutiny to the content-based prior restraint at issue...

[Judge Jones believes the State Department's censorship of Defense Distributed] "appears to violate the governing statute, represents an irrational interpretation of the regulations, and violates the First Amendment as a content-based regulation and a prior restraint."

Jones also pointed out how weirdly ineffectual is the government's desired power to violate the First Amendment. The government admits stating or publishing that same information at a conference in the U.S., or in a domestic publication or library, would be protected speech if they somehow could insure no foreigners accessed it. Foreigners could, of course, access such information on the Internet, an act considered a blow against national security so severe it trumps the First Amendment. That is, if "foreigners can't hear this speech" is to be held as true and important, the power to restrict speech applies far beyond the Internet.

The Fifth Circuit's decision to ignore the First Amendment is dangerous far beyond the simple question of publishing files for printing plastic armaments on the internet, Gura argues. That decision:

has unsettled the established norms for adjudicating preliminary injunction requests. Gone is this [Supreme] Court's careful balancing test, with its reliance on the merits. In its place, a wholly arbitrary system: The court will consider the merits, when it wishes to do so. Whether the merits might reveal a constitutional violation is less important, because the court will enforce the Constitution only when it seems to be a good idea.

What are courts, attorneys, and the public to make of this innovation?

Critics of this or that opinion often allege that a court has followed an extra-constitutional agenda. For a court to declare that it has done just thatin ignoring a content-based prior restraint no lessraises basic questions about the judiciary's function. The public is left with no way of knowing when a judge would declare some interest more important than the Constitution, or even bother hearing the merits of plainly significant pleas to enjoin unconstitutional conduct.

Absent a merits inquiry, a court balancing the unknown equities is reduced...to declaring whether an abstract interest in constitutional rights is more or less important than an equally abstract government interest. And if the court then decides, as did the majority below, that security > freedom, that ends the matter. The logic is inescapable; where applied, it bars any injunctive relief.

Expressed that way, the danger of letting the Fifth Circuit decision stand should be clear even to Americans who don't understand why anyone, domestic or foreign, needs a computer file that helps them print a plastic gun at home.

The Supreme Court should take up the case, and let lower courts know they can't, absent a fair consideration of the merits, blithely decide that security beats the First Amendment in court.

Reason TV interviewed Cody Wilson of Defense Distributed last year:

See the article here:
Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment? - Reason (blog)

Macomb County's clerk/register of deeds Karen Spranger has had a controversial start. Tanya Wildt/Detroit Free Press

Macomb County Clerk/Register of Deeds Karen Spranger in Macomb County Circuit Court on a motion in a lawsuit she filed against the county on Aug. 14, 2017.(Photo: Christina Hall, Detroit Free Press)Buy Photo

A Macomb County Circuit Court judge today recused herself from a civil lawsuit that the county clerk/register of deeds has filed against the county and its officials.

Judge Kathryn Viviano cited numerous reasons to recuse herself from Clerk/Register of Deeds Karen Spranger's lawsuit against the county, including avoiding any appearance of impropriety and that she personally has been involved in the court's e-filing project.

"In this county, there is a high level, which everyone knows,of dispute between the clerk and the county offices, including the court. There are substantial arguments and disputes going on and they have been escalating," Viviano said.

Related:

Karen Spranger: Agent of change or simply unqualified to hold Macomb clerk's job?

Macomb Co. clerk Karen Spranger invokes 5th Amendment in perjury complaint

Viviano said she can be fair and that she struggled with the decision, adding "this is a close call."

The county has filed a motion to file a counter-complaint in Spranger's lawsuit, seeking to disqualify her from office over her not living at a house in Warren that she said was her residence on an affidavit to run for office. That motion was not heard today because Viviano recused herself.

Viviano said this is"significant leave that is being requested" of the court. She said thedecision to remove someone from office is important not only for the litigants, but also for public and she said the appearance of impropriety needs to be avoided in all cases.

"I believe the judge made a very good decision," Spranger said after the hearing.

County Corporation Counsel said the case now will go to the chief judge who has denied several of Spranger's recommended appointees to the vacant deputy clerk position for reassignment. He said that could take a few days or maybe a week to reassign.

"I think it was very cautious," Schapka said of Viviano's ruling, but added that "it's a Macomb County case. This is the proper venue for the case."

Spranger has been controversial since she came into office in January, including a backlog in e-filing and a rise inemployee grievances about a hostile work environment.Spranger was fined for a county ethics violation, firedtwo deputies who are now suing her in federal court and is under investigation for lying about her residency in Warren on her affidavit of identify to run for office last year.

She invoked the Fifth Amendment and is not interviewing with sheriff's authorities investigating perjury in the residency question.

Spranger's attorney, Frank Cusumano, who on Friday asked for a change of venue in Spranger's lawsuitand the disqualification of all of the Macomb circuit judges, also believes Viviano made the correct decision to recuse herself.

Macomb County Circuit Court Judge Kathryn Viviano talks with lawyers regarding the lawsuit that county Clerk/Register of Deeds Karen Spranger filed against the county during a hearing Aug. 14, 2017.(Photo: Christina Hall, Detroit Free Press)

Viviano said that she didn't see that she had any authority to recuse the entire bench of judges, adding "I have to deny that straight up."

When asked if Spranger was qualified for the job, Cusumano said: "The voters have decided she's qualified." Spranger declined comment when she was asked the same question.

Among his arguments, Cusumano said the court is seeking to take over several efiling positions of the clerk and has petitioned to county commissioners for a change in the budget.

County commissioners soon will receive the county's proposed 2018 budget. As of last week, Spranger had not submitted proposed budgets for her offices. She is to appear before commissioners to discuss her budget Aug. 28.

Contact Christina Hall: chall@freepress.com. Follow her on Twitter: @challreporter.

Macomb County Clerk/Register of Deeds Karen Spranger and her attorney, Frank Cusumano, address the media after a hearing Aug. 14, 2017 on a lawsuit she has filed against the county.(Photo: Christina Hall, Detroit Free Press)

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Judge recuses herself from Karen Spranger's lawsuit against Macomb County - Detroit Free Press

Challenging the Transgender Ban

The Trump administration's recent rollback of Obama-era sexual orientation and transgender policies has led to litigation claiming violations of due process and equal protection rights.

By Anjali Patel

Monday, August 14, 2017

Five transgender servicemembers recently filed suit following President Trump's July 26 tweets announcing that transgender individuals will not be allowed to openly serve in the Armed Forces. Jane Doe 1, et al, v. Trump, No. 1:17-cv-01597, complaint filed for declaratory and injunctive relief (D.D.C. 08/09/17).

This policy shift reverses existing guidelines that began allowing transgender individuals to serve openly in the military on June 30, 2016. The ban will impact at least three Department of Defense policy documents, along with any division-specific policies. DOD, Military Service of Transgender Service Members (June 2016); DOD, Transgender Service in the U.S. Military: An Implementation Handbook (September 2016); DOD, Transgender and Gender Transition Commanding Officer's Toolkit (November 2016).

The complaint alleges Trump failed to consult with the Joint Chiefs of Staff and the Department of Defense before "the White House [allowed] a plan to end the active service of transgender servicemembers to be transmitted to the Department of Defense for implementation."

The complaint argues that the ban on transgender servicemembers:

Violates the equal protection component of the Fifth Amendment's due process clause, "lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." Violates the Fifth Amendment's due process clause by taking "arbitrary and capricious" action to reverse the 2016 policy allowing transgender people to openly serve. The 2016 policy created a protected interest in being able to openly serve as transgender servicemembers, and the reversal of that policy deprived the plaintiffs of those interests without due process of law, and impermissibly burdened their fundamental rights to autonomy and privacy, the complaint said.

Rescinds the rights, benefits, and privileges promised to the plaintiffs who relied on the 2016 policy, notified their commanding officers that they were transgender, and received ongoing support for their continued service as openly transgender. However, now that they have already identified themselves as transgender, they no longer have "the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service." Since coming out, the plaintiffs have served "honorably and successfully" and their transgender status "has not had any detrimental effect on their ability to serve or fulfill their duties," the complaint states. Consequently, the U.S. government should be prevented from "rescinding the rights, benefits, and protections promised to Plaintiffs."

As relief for the ban, the plaintiffs said the court should find the president's directive unconstitutional and issue a preliminary injunction, along with a permanent injunction, prohibiting the categorical exclusion of transgender people from military service.

Sexual orientation

On the same day as the president's tweets -- July 26 -- the Department of Justice argued that Title VII does not cover sexual orientation discrimination, taking the opposite position of the Equal Employment Opportunity Commission in an amicus brief submitted to the 2d U.S. Circuit Court of Appeals. Zarda v. Altitude Express, Inc., 117 LRP 30114 , No. 15-3775 (2d Cir. 04/18/17); EEOC amicus curiae brief filed (2d Cir. 06/23/17); DOJ amicus curiae brief filed (2d Cir. 07/26/17).

Shannon Farmer, a partner at Ballard Spahr, told cyberFEDS that Zarda will have limited impact for federal employees, who can choose to pursue a sexual orientation claim through the administrative process, which follows the EEOC's holding that Title VII does encompass sexual orientation claims. Baldwin v. Department of Transportation, 115 LRP 31813 (EEOC OFO 2015).

Nonetheless, "it will be interesting to see what if anything the court will do with the DOJ and EEOC having split views because they don't have to address it all and could just leave that issue on the side."

Regardless of the 2d Circuit's ruling, ultimately this will be addressed either through legislation or the Supreme Court, she added.

Right now, the EEOC is aligned with the 7th Circuit, while the DOJ is aligned with the 11th Circuit.

"The EEOC is also going to trial as a plaintiff in a 3d Circuit sexual orientation case, which will bring another court into the issue," Farmer said.

During a Town Hall conversation at the 32nd Annual FDR Training, the EEOC's Robbie Dix, associate director of the Appellate Review Program, said the EEOC has been clear that Title VII prohibits agencies from discriminating against or harassing employees based on their sexual orientation and gender identity.

"Agencies should process these cases using 1614 procedures," Dix said. "If they decide to reject these cases relying on the DOJ stance, we will send them back to be processed in a New York second."

Farmer warned, however, that once Trump's nominees for the EEOC are confirmed, new leadership could take a different position than the current EEOC.

If the EEOC's position remains the same, the Supreme Court could be in the "rare -- although not unheard of -- position" of hearing agencies in the same administration arguing as amici for opposing parties, she noted.

However, "it's hard to imagine that the administration would not try to get the EEOC and DOJ aligned on this issue -- which involves the interpretation of a key federal statute -- before going to the Supreme Court," Farmer said.

Sex stereotyping

Agencies also should "keep in mind that there has been a line of cases, for both federal and nonfederal employees, finding that sex stereotyping is sex discrimination protected by Title VII" under the Supreme Court's decision in Price Waterhouse v. Hopkins, 89 FEOR 9001 (U.S. 1989), Farmer said.

If the facts allow, usually complainants allege sex stereotyping instead of sexual orientation discrimination, such as "because I am gay, I don't fit the masculine stereotypes, and therefore I was discriminated against under Title VII," she said.

However, these cases can get somewhat "messy" because courts must make highly subjective calls on whether the person was perceived as "effeminate enough or butch enough" to fall within sex stereotyping, she added.

Additionally, not every case will have facts fitting a sex stereotyping claim. And "from a judicial perspective, it's far cleaner to have a firm line than a rule that asks how much sex stereotyping do you need to have," Farmer explained.

That said, if the Supreme Court ultimately includes sexual orientation under Title VII, plaintiffs would not have to try fitting the facts into a sex stereotyping framework, she added.

Although many believe including sexual orientation under Title VII expands the statute, "as a practical matter, it is not that much of an expansion because litigants can plead enough facts to be recognized as a sex stereotyping case," she said. However, the standard of proof would change and require showing sexual orientation, rather than sex stereotyping, she added.

Anjali Patel is cyberFEDS Legal Editor Washington Bureau. Send questions or comments about this story to hreletters@lrp.com.

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Challenging the Transgender Ban - Human Resource Executive Online

Special Counsel Robert Mueller has opened a grand jury in Washington, D.C., for his investigation into Russian election meddling and possible coordination by Trump campaign associates, according to multiple news reports. We decided to review the significance of this move, so we asked legal experts for their views on several questions related to grand juries.

What is a grand jury and what is its job?

The grand jury traces its roots to the Fifth Amendment to the U.S. Constitution. That provision says that "(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."

When a court impanels a federal grand jury, jurors are tasked with figuring out whether enough evidence exists to formally accuse someone of a felony. Unlike a trial jury, a grand jury does not play a role in determining guilt or punishment. Rather, this panel of 16 to 23 citizens serves a gatekeeping function for issuing indictments.

In modern practice, the grand jury is a potent investigative tool for prosecutors, said Andrew D. Leipold, a law professor at the University of Illinois College of Law.

"People dont generally have a duty to cooperate with law enforcement," Leipold said. "So if the police or FBI questions someone, typically that person is not required to answer. And generally unless the police have a warrant, they cant make a person produce documents."

"But a grand jury can do that," he said.

In Muellers case, he could not conduct an effective investigation without a grand jury, said Ric Simmons, a law professor at Ohio State University.

"The prosecutor does not have subpoena power on his or her own," he said. "He or she needs the grand jury to issue subpoenas for documents and to compel testimony."

To issue an indictment, a grand jury needs to believe a federal crime was probably committed. This threshold, known as the "probable cause" standard, is a far easier hurdle to clear than the proof "beyond a reasonable doubt" needed to convict. Grand juries are also one-sided ordeals, where neither defendants nor their lawyers have the right to appear before jurors to refute incriminating evidence.

For these reasons, lawyers have a saying that any halfway decent prosecutor should be able to indict a ham sandwich. But its important to emphasize that someone who is indicted has not yet been found guilty, and may never be.

How has Special Counsel Robert Mueller used grand juries so far?

Muellers appointment in May as special counsel granted him fairly broad jurisdiction.

The Justice Department authorized him to lead an investigation into Russias interference in the 2016 election, as well as any links or coordination between the Russian government and Trump campaign associates, plus "any matters that arose or may arise directly from the investigation."

Grand juries are supposed to operate in secrecy, but because they issue subpoenas and compel testimony, their work sometimes becomes public. Our best understanding of how Mueller has used grand juries is based primarily on anonymously sourced news reports.

In June, Reuters reported that Mueller was taking over a grand jury investigation in Virginia that had been looking into former national security adviser Michael Flynn.

The investigation got fresh attention when the Wall Street Journal reported in August that a new grand jury had convened weeks earlier in Washington, D.C., to focus on his investigation.

That same day, Reuters reported the new grand jury had issued subpoenas related to a controversial June 2016 meeting at Trump Tower between Donald Trump Jr. and a Russian lawyer, and several others (CNN also reported on the subpoenas). The meeting was predicated on the promise that a "Russian government attorney" would deliver damaging information to Trump Jr. about his fathers Democratic opponent Hillary Clinton.

Why would Mueller open up a new grand jury?

While Muellers precise rationale for seeking more than one grand jury is not publicly known, legal experts told us its a fairly unsurprising move for a special prosecutor because it carries several advantages.

Grand juries typically divide their attention among multiple cases. So its possible Mueller believes he can operate more smoothly with a panel of jurors focused exclusively on whats potentially a large volume of information.

"In special investigations, rather than ordinary criminal cases, it is not uncommon to impanel a special grand jury," said Joshua Dressler, a law professor at Ohio State University. "This way, the jurors will become increasingly knowledgeable about the matters at issue, and they can focus on just one matter."

Theres a number of other theories for Muellers move.

Some believe his grand jury was meant to make it easier to broaden the scope of his investigation beyond Flynn.Others say a Washington-based jury would be more sympathetic. Still others say Mueller simply wanted a grand jury closer to his teams Washington office.

"Since the proceedings are secret, it is very hard to know which (if any) of these are correct," said Jed Shugerman, a professor at Fordham Law School.

Does the new grand jury mean an indictment is near?

Legal experts we spoke to fell into two camps on whether the existence of Muellers grand jury tells us anything about the likelihood of any future indictments.

Some experts think a grand jury by itself tells us nothing. Others said it increases the chances of indictments issuing at some future point, though none believed they were imminent.

Simmons said while a grand jury is a prerequisite for a future indictment, its also a required step in the early stages of an investigation.

"It simply means that Mueller did not believe the case was frivolous and decided a real investigation was appropriate," he said. "Thats something we all pretty much assumed already."

Leipold called the grand jurys impaneling "important but unremarkable" in the grand scheme of the investigation.

"I dont find any clues in its presence as to whether or not there will be an indictment or whether or not its imminent," he said. "I can imagine a world in which Mueller says, Im not inclined to seek an indictment, or, one in which he seeks lots of indictments."

Others viewed the new grand jury as a more meaningful development, but cautioned against jumping to any premature conclusions about its ultimate significance.

Jessica Levinson, a professor at Loyola Law School in Los Angeles, said that because of the relatively low probable cause standard -- recall the quip about indicting a ham sandwich -- she believes its more likely than not that at least one criminal indictment will issue.

"But none of this is a done deal," she added.

So what to make of the frenzied speculation in the Twitterverse about an indictment being issued any day now?

"I think people have overreacted to this news by thinking an indictment is imminent," Shugerman said.

Perhaps the only clue the grand jury gives as to Muellers timeline is that were in for a lengthy investigation, said Mark Godsey, a law professor at the University of Cincinnati and author of Blind Injustice, about the inner-workings of federal prosecutors' offices.

"I dont think it says much about timing, other than it suggests there is a lot of work to do, and that can impact how long the investigation lasts," he said.

Share the Facts

2017-08-10 15:47:15 UTC

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Correct about grand juries

"You cant read that (the impaneling of a grand jury necessarily) means that indictments are going to follow."

Adam Schiff

U.S. Rep, D-Calif.

CNN

Sunday, August 6, 2017

2017-08-06

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Does Mueller's grand jury mean an indictment is imminent? - PolitiFact

A group of City Council members wants to add some money for community service programs to Mayor Jean Stotherts proposed 2018 budget.

Theyve proposed four amendments to add money to such programs, plus a fifth amendment that would beef up the city clerks budget after the council approved some increases to the offices salary ranges.

The amendments would make less than $100,000 worth of changes to a $900 million city budget.

If the amendments are approved, the following programs budgets would increase:

The Metropolitan Area Planning Agency would receive an additional $10,000, for a total of $20,000.

MAPA executive director Greg Youell asked the council to increase its funding to $40,000.

Council President Ben Gray proposed the amendment.

The Police Athletics for Community Engagement would receive an additional $10,000, under an amendment proposed by Gray, Pete Festersen and Vinny Palermo.

Stothert had proposed funding of $25,000, up from $20,000 in 2017.

The ReConnect program, which provides job training and other services to young people transitioning from prison, would receive another $10,000 for a total of $55,000, under an amendment from Gray and Council Vice President Chris Jerram.

Gray and Jerram also want to add $20,000 for the Heartland Workforce Solutions job training program.

Council members had asked for about $1 million in funding; Stothert proposed $500,000, up from $440,000 in 2017.

All of the money would be moved from the mayors proposed allocation to citys reserve funds.

The council is scheduled to vote on the budget Aug. 22. Tuesday is the deadline for council members to submit amendments.

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Omaha City Council members look to boost funding for community service programs in Stothert's proposed budget - Omaha World-Herald