Amy Coney Barrett

These 7th Circuit Decisions Suggest Amy Coney Barrett Takes a Constrained View of Qualified Immunity

In several cases, the Supreme Court nominee voted to allow civil rights lawsuits against officers accused of misconduct.

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During its last session, the Supreme Court passed up a bunch of opportunities to revisit qualified immunity, a doctrine that shields government officials from federal civil rights claims when their alleged misconduct did not violate "clearly established" law. But critics of that doctrine, which in many cases has protected police officers from liability for outrageous abuses, still hope the justices will take up the issue at some point. While it's not clear whether Supreme Court nominee Amy Coney Barrett is inclined to do that, her positions on qualified immunity as a judge on the U.S. Court of Appeals for the 7th Circuit suggest she takes a constrained view of the doctrine's scope.

I have previously noted Barrett's majority opinion in the 2019 case Rainsberger v. Benner, which demolished an Indianapolis detective's claim that he could not be sued for lying in a probable cause affidavit that was used to charge William Rainsberger with murdering his mother. "The unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer," she noted.

In the 2019 case Torry v. Chicago, by contrast, Barrett wrote an opinion that upheld qualified immunity for Chicago police officers who stopped "three black men in a grey sedan" while investigating a drive-by shooting half a mile from a high school in 2014. Those men—Marcus Torry, William Roberts, and Latrell Goss—had nothing to do with the shooting. They just happened to be in the neighborhood four hours later because Goss' car had broken down. The other two men picked him up and drove him to an auto parts store, passing the high school twice.

A weird wrinkle in this case is that the officers did not remember the stop. To justify it, they relied on reports about the shooting and a video of the encounter that Torry recorded with his cellphone. Witnesses to the shooting "had described three black men in a grey car," although "the descriptions of the car's model varied, and none was an exact match for the car that the plaintiffs were driving." The video "depicted Sergeant Robert King, the officer who initiated the stop, citing the plaintiffs' suspicious behavior in the area of the shooting as the reason that he had pulled them over."

The video shows that King explicitly described the incident as "a Terry stop," referring to the 1968 Supreme Court decision in Terry v. Ohio, which said the Fourth Amendment allows police to detain and question people based on "reasonable suspicion" of criminal activity. The Court also said police in those circumstances are allowed to pat people down for weapons, as the officers did in this case, if they reasonably suspect they are armed.

Barrett concluded that the officers were entitled to qualified immunity because it was not clearly established that their actions ran afoul of Terry. And although she did not officially address the question, she strongly suggested that the stop was justified by reasonable suspicion, because the plaintiffs and their car broadly resembled the witness descriptions and because the men were in the vicinity of the shooting several hours after it happened.

Barrett rejected the plaintiffs' argument that "the defendants' failure of memory is a concession of liability," saying reasonable suspicion can be established based on other evidence. But since the "suspicious behavior" that King observed consisted of driving by the high school twice, her conclusion suggests that police would have been justified—or at least could have reasonably thought they were justified—in stopping any three black men in a gray vehicle who happened to be in the neighborhood around the same time. Barrett noted that reasonable suspicion is "a lower standard than probable cause," which is itself a pretty low bar.

In two other 7th Circuit cases, Barrett voted to reject qualified immunity for correctional officers accused of constitutional violations.

Howard v. Koeller, decided in 2018, involved a Wisconsin correctional officer, Lynn Koeller, who was accused of falsely identifying a prisoner, Joshua Howard, as a snitch in retaliation for the assistance he had given fellow inmates who were pursuing legal claims of mistreatment. Barrett joined an opinion reversing a magistrate judge's ruling that Koeller was entitled to qualified immunity. The three-judge panel said "a reasonable jury could find" that Koeller's alleged actions amounted to unconstitutional retaliation for Howard's legal assistance, which was protected by the First Amendment.

Notably, the opinion joined by Barrett rejected Koeller's argument that "there are no analogous cases that would give [her] notice 'beyond debate' that the First Amendment prohibits [her] from reporting that an inmate provided the name of another inmate within a conduct report." That gloss, the court noted, "is not an accurate characterization of what Howard alleges." Rather, "Howard alleges that Koeller made deliberate misrepresentations in disciplinary reports with the intent to trigger a punitive response from other inmates." Since "Koeller does not argue that a reasonable prison official would be unaware that this deliberate misconduct violated Howard's constitutional rights," the panel said, "qualified immunity does not protect her."

Federal courts often construe qualified immunity so broadly that it bars claims when plaintiffs cannot identify relevant precedents with nearly identical facts. But in this case, the 7th Circuit said the clearly established principle that forbids retaliation for activity protected by the First Amendment was enough to keep Howard's claim alive, even if there was no prior case in which that principle was violated in exactly the same way.

In the 2018 case Broadfield v. McGrath, a 7th Circuit panel upheld a judge's denial of qualified immunity to Illinois jail guards accused of using excessive force against a pretrial detainee, Brian Broadfield, who "flipped out" when he was reassigned to a different housing unit. The question, according to the opinion joined by Barrett, "is not whether the law forbids the use of excessive force, but whether the law clearly established as excessive force the pressing of a non‐resisting detainee's neck against the concrete in a manner that prevented him from breathing, carrying him hog‐tied to his cell, and severely twisting his wrist in the process." In resolving that question, the judges said, "we do not require a case be directly on point, but existing precedent must be sufficiently analogous to place the officers on notice that their conduct was unlawful."

By that standard, the 7th Circuit concluded, the facts alleged by Broadfield would be sufficient to establish that the force used against him was excessive. "The Supreme Court has held that a pretrial detainee can succeed on an excessive force claim by showing only that the force used against him was objectively unreasonable," the judges noted. "Our precedent makes clear that the actions of [the correctional officers] were objectively unreasonable if Broadfield was not resisting."

The conclusions that Barrett reached in these cases could be viewed as evidence that qualified immunity is working just fine, since it did not bar Rainsberger, Howard, or Broadfield from pursuing their claims. While Torry et al. did not fare as well, the result in that case hinged on exactly how weak a standard "reasonable suspicion" is.

Federal courts in other cases, however, have granted qualified immunity to police officers accused of shocking behavior, including grand theft, shooting children, tasing a driver who was stopped for failing to buckle his seat belt, suffocating a nonviolent man in the name of helping him, siccing a dog on a surrendering suspect, ordering a 17-year-old boy to disrobe and masturbate so his erect penis could be photographed, seriously injuring a woman who was not even a suspect because she disregarded a command to "get back here," and wrecking a woman's home with tear gas grenades after she gave cops permission to "get inside" so they could arrest her former boyfriend. Cases like these suggest that something has gone seriously wrong with a doctrine that was supposed to protect cops who could not have been reasonably expected to know they were doing anything unlawful.

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90 responses to “These 7th Circuit Decisions Suggest Amy Coney Barrett Takes a Constrained View of Qualified Immunity

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  2. It’s a done deal at this point.

    1. Fat lady hasn’t even shown up on stage yet, let alone sung.

      Here are the numbers as I see them.

      53 GOP, 47 Dem, but two of the GOP are either independents and/or from Maine and somewhere else and have said they will not vote to confirm because it’s too close to the election and not fair. I do not know if they stamped their feet while saying that, but it isn’t germane anyway.

      So that’s 51-47. But what if they meant “will vote against” instead of “will abstain”? That’s 51-49.

      If two GOP yeas are absent, that’s 49-49, with Pence breaking the tie. If three GOP yeas are absent, that’s 48-49.

      I personally think Trump hit a home run with ACB. Not only does she appear to be as good as Gorsuch, and better than Kavanaugh, she’s practically bullet-proof in these hearings, possibly so much that the two abstainers might be able to get away with breaking their promise and voting yea. But I don’t know if they are up for re-election this year, or how close their polls are. I’d bet yes, up for re-election, and yes, close, simply because their stand reeks of campaigning instead of principle.

      1. I have no idea what kind of people live in Maine and Alaska. I always pictured them to be hardy, self-reliant, intelligent people and not at all the types to be enticed by confabulated principles of decorum and election year chivalry to the point that they would be vexed by the appointment of an unquestionably qualified originalist to the Supreme Court.

        1. Can’t speak for Alaska, but in my experience Mainers fit your description…except the woke libs in and around Portland, which has been filling in with more of the same from places like Boston for quite a while. In a state that sparsely populated, it doesn’t take much for a small city like Portland to have a hugely overweighted affect on statewide races like US Senate seats.

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    2. That’s exactly what my ex-wife said when we signed the marriage certificate.

      1. No self respecting libritarian would conciders a government issued certificate the marriage.

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    3. Lots of stump speaking all around, and the D’s will [just have to] pull as many procedural sleights of hand and delays as they can, but I agree; they couldn’t “get” her on anything but their own speculations, and the public likes her. She could be a model for how to get through this gauntlet and not loose your cool.

      I’m glad this has happened; may she serve long and well.

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  3. Well that just sucks. The true libertarians on this site have clearly shown that QI reform is not necessary.

    1. Ugh, QI needs to go. I would have figured libertarians were against QI. I’m learning new things about libertarians everyday, and frankly most of it is not very good.

      1. Fuck off Tulpa.

        1. Ahhh I get it, you’re just another Republican accusing me of being someone I’m not. Am I ‘Buttplug’ or am I ‘Tulpa’? Seems to be a theme on this website. Hopefully you can find some peace in your life you sad, little man.

      2. Wait, are there actually Libertarians for Qualified Immunity?

        1. No liberals are people too is a retarded slaver that thinks everyone needs to cater to his delicate sensitivities.

        2. Democrats have come around to the idea of QI reform, so in principle no Republican may consider it. Which is why 90% of the people who comment on this site shower contempt upon anyone who brings up the idea.

          1. Exactly.

          2. Did you want to apologize for what you said earlier? I genuinely enjoyed your comment and then you hurled invective at me.

            1. expects sincerity from someone called sarcasmic lol

            2. You’ll find sympathy in the dictionary between shit and syphilis.

              1. I’ll admit, that was very funny. I txt’d it to my husband and he txt’d back ‘LOL’ which he only txts when he literally is laughing out loud. So thank you for making 2 people laugh today.
                I’m sorry I figured that 2 people who share a similar point of view could be friendly together, but I now see that’s not possible. I forgive you, even if you don’t forgive yourself.

                1. “…he txt’d back ‘LOL’…”

                  In what state can you marry at 12?

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                  2. lol West Virginia?

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          3. Well, if there’s a libertarian case for qualified immunity, I’m all ears, someone who actually holds that position can enlighten me. Or maybe they did and I missed it.

            1. The case for QI is that the Democrats put QI reform on the table and in principle whatever they propose must be opposed. Thus QI must not be reformed.

              1. I mean someone who actually hold the pro-QI position. Or if they’ve articulated that position already, help me find it.

                1. I haven’t seen any arguments for QI other than Democrats want to reform it. Do conservatives need any other reason?

                  1. I’ve heard from non-libertarians the argument that QI protects cops from frivolous suits for just doing their jobs, though of course loser pays would be the reform they’re looking for here (and in other contexts I could add).

                    I haven’t heard anyone, with even an appearance of seriousness, say, “*as a libertarian* I think QI is a good idea because of reasons x and y.”

                    1. Neither has sarcasmic, but one of the symptoms of being broken is making up bullshit.

                    2. You need some new material. This “broken” thing is getting old.

                    3. Its cute when people think QI only involves cops. The case for it is when a government actor is acting by the given rules and direction of his superiors without any clear distinction of unconstitutional actions.

                      For example… before Obergfell an administrative clerk wouldn’t grant a marriage license to 2 people. Post obergfell could someone go and sue the person for denial prior to obergfell? Of you say no you agree to some QI protections.

                      But sarcasmic, and apparently yourself, are histrionic children who can’t understand complete removal of QI can also be deleterious to society.

                    4. “Post obergfell could someone go and sue the person for denial prior to obergfell? Of you say no you agree to some QI protections.”

                      No, I say Obergefell is wrong.

                      Maybe Qualified Immunity gives some protection in a judicial climate where the party line changes constantly, but that’s an argument to not have such an arbitrary climate.

                      Perhaps we can have QI to the extent that if the courts admit a prior decision was wrong, they can forgive those who relied on that specific decision in good faith.

                      But not to the broad extent of saying that you can’s sue the cops for stealing your money because there’s no precedent saying the cops can’t steal money.

                    5. I would say that public officials as well as Joe Six-Pack should be protected from suit if they actually have a precedent in favor of their actions (by a court with jurisdiction, with the decision not overruled).

                      This would be one of the exceptions to the idea that ignorance of the law is no excuse. If you’re willing to give Joe Sixpack the benefit of a bad precedent, then and only then should Joe Public Official be protected.

          4. Democrats have come around to the idea of QI reform

            No they haven’t. A few noisy and dim-witted Democrats have made bluster about it during a contentious time where police brutality is front and center. Qualified immunity is an issue that is at the heart of the main Democratic support system: Public sector unions.

            I posted a link a month ago or so where someone for a dry, policy-based journal on education policy reached out to the main teacher’s unions and asked them about qualified immunity.

            The union reps either didn’t return the reporter’s call, or simply gave a canned response about being very concerned with police brutality, but made no specific points about the doctrine of QI, which is front and center in protecting their members from direct lawsuits from the public.

            I stand by my prediction that the Democrats will simply make some initial noise and bluster and then hope the whole QI discussion just goes away.

            I’ll say again, Democrats are critical of QI as it relates to police in a very narrow set of circumstances, Republicans are against removing QI from the police because they fear it will harm the police ability to effectively respond to criminal activity– but I’ll bet would be perfectly open to dumping QI for the Teacher’s Unions.

            1. Shorter:

              Qualified immunity is a bipartisan issue. It’s exactly the kind of reform bill that mysteriously “dies in committee”.

          5. Well thats a lie. Nobody is against reform. Some are against complete removal. But you pushing strawman arguments is kind of your lane.

        3. If you use the Reason commentariat as a barometer?

          Yup.

          1. Wrong. This comment section has been against the concept of qualified immunity for years before you got here. You weren’t even a glint in the milkman’s eye when QI was being roundly criticized.

            1. Oh sure, for years y’all roundly criticized it.

              Then y’all swapped in May. It was pretty weird.

              1. Please enlighten me on who has supported QI on this website?

                I have seen people state that it won’t fix all of the problems that some say it will, which is true, but who exactly supports QI?

                1. I support some QI. I want reform.

                  Not every case is clear cut intentional abuse, as per the obergfell example above. Any government employee acting according to regulations, training, and current law shouldn’t be at risk because a judge changes the definition of say sex.

                  Not everh QI case is bright and abusive.

              2. Hey more strawman arguments. Almost everyone is for reform. Where the kine differs is complete abandonment of it.

                Why do the leftitarians lie so much?

      3. The commenters in here are not representative of the make up of libertarians. Read anything by Friedman, Hayek, or Locke to understand actual, classical liberalism, aka libertarianism.

        The commenters here are mostly embarrassed republicans and wing nuts. They like to post the outrage porn they consume from facebook, breitbart, and various freedomeagleblog.net type sites. They are primarily interested in culture war trivialities than actual policy, economics, or law.

  4. She’s looking more and more like she might actually be a great nominee. I’m cautiously optimistic.

    1. She could do something about all those flyayways and split ends.

      1. Wouldn’t that make her more appealing to Democrats? I’m just trying to find common ground here.

  5. I love how (D) can’t stop it … even with Blumenthal’s crocodilian tears

  6. What hold does Murkowski have on Alaskans? She must be a really good politician because she won her seat as a write-in candidate. That is pretty impressive.

    1. She was appointed to the Senate by her father when he left the Senate to become Governor of Alaska. So her name has a long history in Alaska politics.

  7. Perhaps ACB takes a ‘constrained view’ of public sector unions in general which would be a breath of fresh air. Regardless, that ‘constrained view’ of Qualified Immunity will not sit well with Democrats or their Union paymasters.

    1. Democrats, at least the ones trying to play to the anti-cop part of their base, have proposed QI reform as an option to reign in police abuse. So it might sit better than you would think.

      1. See my comment above, I respectfully disagree.

        1. I don’t think retail workers (for instance) and cops unions vote or lobby in unison.

        2. My mistake, you specified public sector unions.

      2. Can you link to the passable QI bills democrats introduced?

  8. Cases like these suggest that something has gone seriously wrong with a doctrine that was supposed to protect cops who could not have been reasonably expected to know they were doing anything unlawful.

    I think SCOTUS precedent shows it’s “gone seriously wrong”.

    The core conceit of Qualified Immunity is that government actors are up-to-date on not only the law, but on precedent cases at all levels in their jurisdiction, at all times.

    But as the SCOTUS declared in Heien v. North Carolina (2014), it’s unreasonable to expect cops to know the law.

    So to reiterate… a core conceit of Qualified Immunity is that government actors are expected to stay apprised of both the law and court cases that set precedent… an expectation that the SCOTUS itself has said is unreasonable.

    So yeah, it’s gone “seriously wrong”. Long ago. And in 2014, the SCOTUS itself kicked the stool out from under it. The only thing holding it up is that judges are very good as sophistry.

    1. The core conceit of Qualified Immunity is that the most powerful public sector unions in the country will never let it go.

      1. Nah.

        You’re mixing up “core conceit” with… well, I don’t think it has a catchy phrase, but “the underlying reason no action will actually occur”.

        Please note that, as always, the conceit of an idea doesn’t actually have to match the reason it matters.

    2. I think your post outlines the reason why qualified immunity is necessary, given that the Supreme Court is apt to invent all sorts of Constitutional “rights” found nowhere in the text of the Constitution.

      At the end of the day, the absence of qualified immunity would mean that an officer could be held liable for otherwise legal conduct that is found, by judicial whim, to be violative of a constitutional “right” that literally did not exist until a federal court determined existed throughout the course of the very case in which the officer is being sued.

      Imagine being sued for a violation of the law, or tried for a crime, and then being found liable or convicted based upon legal standards that came into existence during the pendency of your lawsuit or trial.

      Frankly, it is quite Kafkaesque.

      1. Nah.

        I don’t know the term for it, but as a rule changes in law/interpretations aren’t retroactive.

        So even if your state decriminalizes pot in November, you can’t sue a cop for arresting you for possession in October.

        Qualified Immunity doesn’t enter into that calculus at all.

        That said, I find it very weird how so many proponents of Qualified Immunity think it’s bigger then it actually is. It’s big enough as-is. You don’t need to assign more to it.

        1. Qi literally defenss the argument you are making, that the cop has to be aware of a change to interpretation to be liable. Yphre actually arguing for QI.

  9. The elephant in the living room is that eliminating Qualified Immunity would fall under a “nice to have” but is only one small arm of the tools we could use to reform both police activity, and the public school system.

    Qualified immunity has been repeatedly (and flippantly) described in the media as “shielding police officers from accountability”. That is flatly untrue. Perhaps Facebook could do a fact-check, but I’ll not hold my breath.

    It’s only one narrow set of circumstances where QI holds an officer accountable, and that is if the officer is directly sued in civil court. The institutions that keep the officer from receiving accountability much higher up the process chain is institutional intransigence, a phalanx of protections from their unions, prosecutorial deferment to law enforcement, and stubborn jurors who tend to side with police in most circumstances. Qualified immunity only became a major sticking point when we surrendered to all the other stuff I mentioned above, and agreed we couldn’t fix any of that, and in so doing have decided that our only avenue to hold an officer ‘accountable’ is to allow them to be directly sued in civil court.

    Even if you erased qualified immunity, it would be replaced with a public ‘malpractice’ insurance program that would be paid for by, you guessed it, the public doing the suing.

    1. The vagaries of qualified immunity stem largely from the fact that constitutional rights are not well-defined. I think there is something very perverse about suing a government official for violating constitutional “rights” that may, or may not, exist at the time the lawsuit is commenced.

      Inventing transgressions with which to find liability during the course of determining whether someone is liable is perverse.

      1. If you want to make it so every disgruntled parent can sue their kindergarten teacher, I say go for it.

        And I’m not trying to be flip about my secret support of the QI doctrine, I’m merely pointing out WHY it exists, not its merits. But by pointing out why it exists, it becomes instructive as to just how impossible it’s going to be to get rid of it, despite a couple of noisy democrats who haven’t yet been taken aside and dressed down for their public support of it.

        Anyone curious about the wider aspects of QI should just google “QUALIFIED IMMUNITY TEACHERS” and you’ll get hit with a whole litany of articles that essentially are saying, “Hang on a second…”

        1. It’s another case of equal rights, but some are more equal than others. Teaches and CPS agent want to keep qi for themselves because their the “good” ones in their own mind.

          1. If I wasn’t afraid of getting my house burned down, I’d love to put out a yard sign that read:

            End Qualified Immunity! Teachers and cops are NOT above the law!

            In my neighborhood, I could probably remove the ‘teachers’ part and not only be safe, but praised by my neighbors. But as stated above, my next door neighbor would probably have some choice words for me.

        2. Agreed on all fronts.

      2. think there is something very perverse about suing a government official for violating constitutional “rights” that may, or may not, exist at the time the lawsuit is commenced.

        That’s… not how lawsuits work.

        When you actually file the lawsuit, you have to say what it’s for. You can’t just say “trust me judge, I’ll fill in that bit later.”

        Do you have any real cases that you’re thinking of? The closest I can think of is Kim Davis, who (A) was denied qualified immunity, and (B) was sued for her actions after Obergefel v. Hodges was decided.

        1. Yes.

          “Plaintiff’s suit arises from Officer X’s violation of his constitutional rights under X Amendment. This case comes before the court pursuant to 42 U.S.C. 1983 …” followed by the facts of what happened. It does not take much more than that.

          I’ve done it many times and the complaints have rarely been longer than five pages, sometime even less. Pleading is easy and qualified immunity defense are almost never granted at the motion to dismiss stage.

          In practice, you can stretch out a 1983 lawsuit for years and browbeat a settlement in about 7 out of 10 cases.

          It is what it is.

          1. Yeah, I said “real cases”. That’s a hypothetical.

            1. Real cases are available of PACER.

              Feel free to do some research.

        2. Without getting too technical… qualified immunity has a ‘grain’ of reasonableness at its core. That specifically is, if you sue for a violation of your rights, but that right has not been clearly established, then you can’t sue.

          So if Karen sues her child’s kindergarten teacher for denying her child’s “right to candy at all hours of the school day”, then that suit will be dismissed because there’s no clearly established “right to candy at all hours of the school day”

          Where everyone agrees QI has gone off the rails- especially in regards to police, the bar for determining if there is an ‘established right’ seems to be unnervingly high- and fraught with catch-22s. No one else ever successfully sued for this, therefore you can’t sue for this!

          But from my non-lawyer understanding is, that the court can look at said reasons for your suit (right to candy at all hours of the school day), determine that there’s no established right to be violated and therefore dismiss the suit under ‘qualified immunity’.

          The understandably frustrating aspects of QI are when officer “beats the shit out of innocent man”, the courts frustratingly find that there’s no specific right to not have the “shit beaten out of innocent people” and therefore the suit was dismissed. Unfortunately, it’s all the stuff above it on the procedural chain that failed if we got to the place where everyone agrees that the victim was innocent, but we couldn’t seem to fire, sanction, or criminally prosecute the offending cop (or teacher).

          1. In my experience, there are a lot of 1983 cases whose allegations do not go much far beyond “the cops made my hand go number by tightening my handcuffs and then called me nigger.” I once sat in on as co-counsel on a deposition of such a case and it turned out that the black arrestee was called “my nigga” by the black cop that arrested him. So, that turned out to be quite a ridiculous example.

          2. Was this attached to the right post? Because I was responding to Geiger’s repeated obsession with being sued for actions prior to a legal change.

            I understand what Qualified Immunity is, what it was supposed to do, and what it actually does. The legitimate purpose of QI was satisfied before QI was a thing (remember, it’s a relatively modern invention in America), QI just made it easier, and enabled all the infamous abuses.

            1. It is not an “obsession.” People should not be sued for transgressions not recognized by the law at the time they are being sued. I think most people would agree.

  10. I think Judge Barrett was correct in all of the cases cited. The lone case wherein she found for immunity was Torry. But from the facts stated she was pretty clearly bound by Terry in my opinion. It’s up to SCOTUS to revisit it’s precedents. Not circuit court judges. Maybe she’ll get that chance in the near future.
    And, at the risk of belaboring the point, I have to ask libertarians in general and Reason writers like Jacob in particular, does anybody believe Gorsuch and Barrett would be anywhere near the supreme court if Hilary were president? How about with Biden or Harris in the oval office? There are likely to be more appointments in the next 4 years who would you prefer make those nominations? Hands down Trump as far as I can see.

    1. Her rulings all seemed sufficiently narrow to my layman’s eyes.

    2. The only material difference between Trump and Biden is 1) gun control and 2) SCOTUS nominees.

      Trump is far better on both.

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