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Ninth Circuit Judge Sidney Thomas—Part 2



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Some more evidence (admittedly in somewhat scattershot fashion, as I’m still trying to work my way through the cases) that Ninth Circuit judge, and Supreme Court contender, Sidney Thomas occupies the exotic land of Reinhardt-istan:

1.  I’ve previously called attention to Judge Stephen Reinhardt’s majority opinion in Harper v. Poway Unified School District, 445 F.3d 1166 (2006), which would have permitted public schools to impose viewpoint-discriminatory restrictions on student speech.  The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event.  The school ordered Harper not to wear the T-shirt.  Reinhardt, in an opinion that Thomas joined, ruled that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.”  As Judge Alex Kozinski argued in dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.”  But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.  (The Supreme Court ultimately vacated Reinhardt’s ruling on mootness grounds.)

2.  In Norwood v. Vance, 591 F.3d 1063 (2010), Chief Judge Kozinski’s majority opinion ruled that prison officials could not be held personally liable—for compensatory damages, punitive damages, and attorney’s fees—for denying an inmate the opportunity to engage in outdoor exercise during four separate extended lockdowns over the course of two years.  In ruling that the prison officials were entitled to qualified immunity, Kozinski relied heavily on three factors.  First, the qualified-immunity inquiry is highly context-sensitive, and the context of the lockdowns was the “extraordinary violence gripping the prison [that] threatened staff and inmates alike.”  In particular, the prison officials “were attempting to restore order during a series of brutal attacks.”  Second, prison officials have a duty to keep inmates safe and to protect them from each other.  Third, prison officials are entitled to wide-ranging deference in reconciling their duty to ensure safety with inmates’ usual rights and privileges.

In dissent, Judge Thomas would have left in place the jury award against the prison officials.  In particular, he opined both that the deprivation of outdoor exercise was objectively serious for purposes of the Eighth Amendment and that the prison officials could not reasonably have believed their conduct to be lawful.  (See 591 F.3d at 1077-1080.)

3.  In Martinez-Madera v. Holder, 559 F.3d 937 (2009), the panel majority ruled that Martinez-Madera, an aggravated felon resisting deportation, had not become a U.S. citizen by virtue of his stepfather’s U.S. citizenship.  Martinez-Madera was born in Mexico in 1953.  His biological parents were both Mexican citizens and were never married.  When he was six months old, his mother began a relationship with Gonzales, a U.S. citizen, who treated Martinez-Madera as his son from that time on.  The majority ruled that Martinez-Madera did not satisfy any of the provisions for citizenship at birth.  It distinguished cases in which the person claiming citizenship was born into a marital relationship between a citizen and an alien.

In dissent, Judge Thomas rejected the conclusion that Martinez-Madera was born “out of wedlock” merely because his parents were not married at the time of his birth.  He instead claimed that Martinez-Madera had been legitimated under applicable state law by his stepfather’s treating him as his son.  But as the majority points out, the state law governing legitimation applies only to fathers legitimating their illegitimate biological children; it does not apply to stepfathers informally adopting stepchildren.  Thus, as the majority put it, Thomas’s “desired result—that a person born out of the country to two unwed noncitizen parents can derive citizenship ‘by birth’ from a subsequent U.S. citizen stepfather—is … an untenable and paradoxical reading of [the] requirement that one be born in wedlock to a U.S. citizen to derive citizenship from that parent.”


Tags: Whelan


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